United States v. Maddox

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 6, 2000 Decided January 12, 2001

No. 00-3018

Edward Maddox,

Appellee

v.

Michelle Elzie, et al.,

Appellants

Appeal from the United States District Court

for the District of Columbia

(No. 96cr00151-01)

Mary L. Wilson, Assistant Corporation Counsel, argued

the cause for appellant. With her on the briefs were Robert

Rigsby, Corporation Counsel, and Charles L. Reischel, Depu-

ty Corporation Counsel.

Valinda Jones, Assistant U.S. Attorney, argued the cause

for amicus curiae The United States of America. With her

on the brief were Wilma A. Lewis, U.S. Attorney, John R.

Fisher, Thomas J. Tourish, Jr. and Ronald Dixon, Assistant

U.S. Attorneys.

Mary Manning Petras, appointed by the court, argued the

cause and filed the brief for appellee.

Before: Rogers and Garland, Circuit Judges and

Silberman, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge Rogers.

Rogers, Circuit Judge: Michelle Elzie1 and the District of

Columbia Board of Parole (collectively "the Board") appeal

the order granting, in part, Edward Maddox's petition for a

writ of habeas corpus. The Board contends as a threshold

matter that the district court erred in not requiring Maddox

to exhaust his habeas corpus remedies in the District of

Columbia courts before allowing him to challenge, under 28

U.S.C. s 2241 (1994), his service of a sentence imposed by the

Superior Court of the District of Columbia. On the merits,

the Board contends that the district court erred in partially

granting the writ because Maddox failed to show that the

manner in which the Board conducted his parole revocation

hearing resulted in any prejudicial violation of his due process

rights. We reverse the district court's order on the merits

without deciding the exhaustion issue.

I.

The United States Attorney prosecuted Maddox three

times in the United States district court in connection with

his April 9, 1996, arrest. The first trial resulted in a mistrial;

Maddox was convicted at the second trial, but his conviction

was reversed because of prosecutorial misconduct during

closing argument, see United States v. Maddox, 156 F.3d

1280 (D.C. Cir. 1998) ("Maddox I"); the jury found him not

guilty at the third trial.2 After the reversal of Maddox's

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1 Appellant Michelle Elzie is the warden of the District of

Columbia's Central Detention Facility.

2 The charges stemmed from Maddox's arrest on April 9, 1996,

when a police officer, after retrieving a rental car key that Maddox

second conviction, the Board lodged a parole violation war-

rant for Maddox's prior D.C. Superior Court sentence; Mad-

dox therefore remained in custody following his acquittal.3

The Board thereafter revoked his parole, and Maddox filed a

petition for a writ of habeas corpus under 28 U.S.C. s 2241

(1994).4 In seeking reinstatement of his parole, Maddox

argued that the trial prosecutor's appearance at the revoca-

tion hearing was in retaliation for Maddox's exercise of his

statutory right to appeal and his constitutional right to a jury

trial, and thus violated his right to due process. Under the

circumstances, he argued that the court must presume vindic-

tiveness, and alternatively, that there was actual vindictive-

ness. See Maddox v. Elzie, 83 F. Supp. 2d 113, 120 (D.D.C.

1999) ("Maddox II"). In addition, he argued that the trial

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had dropped upon seeing the police approach him, found a handgun

and PCP under the driver's seat of the rental car. See Maddox v.

Elzie, 83 F. Supp. 2d 113, 115 (D.D.C. 1999) ("Maddox II"). The

grand jury returned a four-count indictment; one count was dis-

missed. At his first trial, Maddox was tried for one count of

possession of PCP with intent to distribute, see 21 U.S.C.

ss 841(a)(1) (1994), 841(b)(1)(D) (Supp. IV 1998), and one count of

carrying and using a firearm during a drug trafficking offense. See

18 U.S.C. s 924(c)(1) (Supp. IV 1998). At his second trial, Maddox

was tried for one count of possession of a firearm by a convicted

felon, see id. s 922(g)(1). This count had been severed from the

other counts against Maddox prior to his first trial. At his third

trial, Maddox was retried on the single count of possession of a

firearm by a convicted felon.

3 In 1981, Maddox was sentenced to 26 years imprisonment by

the D.C. Superior Court for armed robbery, assault with intent to

commit robbery while armed, and carrying a dangerous weapon.

He was paroled in November 1991 and released on January 27,

1992.

4 Section 2241 provides, in relevant part:

The writ of habeas corpus shall not extend to a prisoner unless

... [h]e is in custody in violation of the Constitution or laws or

treaties of the United States ...

28 U.S.C. s 2241(c)(3) (1994).

prosecutor's ex parte meeting with the Board violated his due

process rights to confront and to cross-examine witnesses.

Following a hearing, the district court granted the writ in

part. The district court found that Maddox had been denied

his constitutional rights to due process, specifically his right

to confront adverse witnesses and his right to be present at

every stage of the revocation proceeding. See id. at 121. In

addition, because the trial prosecutor appeared not only as a

witness, but presented evidence and argument and cross-

examined witnesses, the district court ruled that inasmuch as

the trial prosecutor had no legal right to participate in the

revocation hearing, his "excessive" conduct constituted actual

prosecutorial vindictiveness. Id. at 121-23. The district

court ordered that a new revocation hearing be held in

accordance with certain conditions, and continued Maddox's

detention while retaining jurisdiction of the case.5 Id. at 124-

25. The Board's motion to alter or amend the judgment

under Fed. R. Civ. P. 59(e) was denied.6

II.

As a threshold matter, the Board contends that the district

court should have required Maddox to exhaust his habeas

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5 The district court ordered (1) that the record of the first

hearing be expunged; (2) that the new hearing be recorded, take

place before a new Board, and involve no ex parte contacts; and (3)

that Maddox be given credit against his D.C. sentence for the time

he was incarcerated on the federal charges. See Maddox II, 83

F. Supp. 2d at 122-24. Prior to oral argument of this appeal, the

District of Columbia Department of Corrections credited Maddox

with time he was incarcerated prior to trial on the federal charges.

See October 3, 2000 Letter to Mark J. Langer, Clerk of the Court,

provided pursuant to Fed. R. App. P. 28(j).

6 A successor district court assigned to handle the case upon

the retirement of the habeas judge denied the motion on the ground

that it was "an invitation for one district judge to hear an appeal

from another." In view of our disposition, we do not reach the

Board's contention that, under Langevine v. District of Columbia,

106 F.3d 1018 (D.C. Cir. 1997), the denial was an abuse of discre-

tion.

corpus remedies in the District of Columbia courts because he

was challenging his reincarceration on a sentence imposed by

the D.C. Superior Court. Although the Board acknowledged

that under Blair-Bey v. Quick, 151 F.3d 1036 (D.C. Cir. 1998),

a D.C. prisoner may challenge his parole revocation in federal

court by means of a habeas petition under 28 U.S.C. s 2241

(1994), the Board maintains that a D.C. prisoner, "like any

other state prisoner," must first exhaust his local habeas

corpus remedies in the District of Columbia courts. See, e.g.,

Coleman v. Thompson, 501 U.S. 722, 731 (1991) (and cases

cited). The Board relies for its exhaustion argument on the

long-established principle that federal courts should not inter-

fere with a State conviction or with the service of a State

sentence until the State courts address any errors.

We are not unsympathetic to the Board's view that requir-

ing a D.C. prisoner to exhaust his habeas remedies under

District of Columbia law before filing a petition under 28

U.S.C. s 2241 follows logically from the establishment of a

State-type court system for the District of Columbia. See

District of Columbia Court Reform and Criminal Procedure

Act of 1970, Pub. L. No. 91-358, 84 Stat. 473 (1970) ("Court

Reform Act"). After the expansion of the federal courts'

habeas corpus jurisdiction to include cases in which State

prisoners are held in violation of the United States Constitu-

tion, the Supreme Court recognized that federal courts had

the power to grant relief to State prisoners and that, as a

consequence, there was a potential for conflict between feder-

al and State courts. See Irvin v. Dowd, 359 U.S. 394, 404-05

(1959). The potential for such conflict necessitated, in the

Court's view, exhaustion of State remedies before the federal

courts intervened. The Court explained:

[t]he principles are now reasonably clear. Ordinarily an

application for habeas corpus by one detained under a

state court judgment of conviction for crime will be

entertained by a federal court only after all state reme-

dies available, including all appellate remedies in the

state court and in [the Supreme] Court by appeal or writ

of certiorari have been exhausted.

Id. at 405 (quoting Ex parte Hawk, 321 U.S. 114, 116-17

(1944)).7 Congress codified the exhaustion doctrine in 28

U.S.C. s 2254 (1994 & Supp. IV 1998).8 See Irvin, 359 U.S.

at 405.

The Board contends that for the reasons noted in Irvin v.

Dowd the exhaustion doctrine embodied in s 2254 should

apply to D.C. prisoners. To overcome the fact that the

District of Columbia is not a State, the Board points out that

s 2254 was enacted before the District of Columbia had an

independent court system equivalent to a State system and at

a time when most criminal prosecutions for violation of Dis-

trict of Columbia law had to be filed in the federal courts.

See Palmore v. United States, 411 U.S. 389, 392 n.2, 408-09

(1973); Thompson v. United States, 548 F.2d 1031, 1033-34

(D.C. Cir. 1976). Once Congress established a separate

State-type court system for the District of Columbia with its

own habeas corpus remedies, see D.C. Code ss 16-1901,

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7 The Supreme Court allowed an exception "in cases of peculiar

urgency," Tinsley v. Anderson, 171 U.S. 101, 105 (1898), such as

when the petitioner is needed to testify in federal court; or is in

State custody for an act done or omitted pursuant to federal law; or

is a foreign national in State custody for an act done or omitted

pursuant to the authority of the foreign state and, therefore,

international law and the federal government's unique interest in

foreign relations are implicated. See Ex parte Royall, 117 U.S. 241,

251-52 (1886).

8 Section 2254 provides, in relevant part:

An application for a writ of habeas corpus on behalf of a person

in custody pursuant to the judgment of a State court shall not

be granted unless it appears that the applicant has exhausted

the remedies available in the courts of the State; or there is an

absence of available corrective process; or circumstances exist

that render such process ineffective to protect the rights of the

applicant.... An applicant shall not be deemed to have

exhausted the remedies available in the courts of the State,

within the meaning of this section, if he has the right under the

law of the State to raise, by any available procedure, the

question presented.

28 U.S.C. s 2254(b)(1), (c) (Supp. IV 1998).

23-110 (1981),9 the Board maintains there is no reason not to

treat D.C. prisoners like State prisoners and require D.C.

prisoners to exhaust their District of Columbia law remedies.

Maddox responds that, in view of the statement by the court

in Blair-Bey, 151 F.3d at 1044, that District of Columbia and

federal remedies are equally available to D.C. prisoners, he

was not required to exhaust his remedies under District of

Columbia law before filing a petition under s 2241.

The court was not confronted in Blair-Bey with an exhaus-

tion issue because the defendant in that case had, in fact,

exhausted his remedies under District of Columbia law. See

id. at 1038. Consequently, the court had no occasion to

address the exhaustion contention that the Board now pres-

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9 Section 16-1901(a) provides, in relevant part:

A person committed, detained, confined, or restrained from his

lawful liberty within the District [of Columbia] ... may apply

by petition to the appropriate court, or a judge thereof, for a

writ of habeas corpus, to the end that the cause of the

commitment, detainer, confinement, or restraint may be in-

quired into.

D.C. Code s 16-1901(a) (1981).

Section 23-110 provides, in relevant part:

A prisoner in custody under sentence of the Superior Court [of

the District of Columbia] claiming the right to be released upon

the ground that (1) the sentence was imposed in violation of the

Constitution of the United States or the laws of the District of

Columbia, (2) the court was without jurisdiction to impose the

sentence, (3) the sentence was in excess of the maximum

authorized by law, (4) the sentence is otherwise subject to

collateral attack, may move the court to vacate, set aside, or

correct the sentence.... An application for a writ of habeas

corpus in behalf of a prisoner who is authorized to apply for

relief by motion pursuant to this section shall not be enter-

tained by the Superior Court or by any Federal or State court

if it appears that the applicant has failed to make a motion for

relief under this section or that the Superior Court has denied

him relief, unless it also appears that the remedy by motion is

inadequate or ineffective to test the legality of his detention.

D.C. Code s 23-110(a), (g) (1981).

ents. Congress did not specifically address the question in

the Court Reform Act, and the question whether a D.C.

prisoner should be treated as a State prisoner for purposes of

s 2254 is an open question in this circuit. The court has

addressed the question of whether the District of Columbia is

to be treated as a State in connection with a s 2241 habeas

petition attacking a D.C. conviction and sentence. In Garris

v. Lindsay, 794 F.2d 722 (D.C. Cir. 1986), the court applied

the appeal requirements of 28 U.S.C. s 2253(c)(1) (Supp. IV

1998)10 by treating a D.C. Superior Court conviction and

sentence as "detention ... aris[ing] out of process issued by a

State court."11 Id. at 724 (interpreting an earlier version of

28 U.S.C. s 2253). Whatever the logical import of Garris

may be for purposes of the Board's exhaustion contention, the

court need not resolve this question today because the district

court erred in ruling that Maddox was denied due process at

his parole revocation hearing. Cf. Montez v. McKinna, 208

F.3d 862, 866 (10th Cir. 2000); see also 28 U.S.C.

s 2254(b)(2)(Supp. IV 1998).12

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10 Section 2253(c)(1) provides:

Unless a circuit justice or judge issues a certificate of appeala-

bility, an appeal may not be taken to the court of appeals from

the final order in a habeas corpus proceeding in which the

detention complained of arises out of process issued by a State

court or the final order in a proceeding under [28 U.S.C.

s] 2255.

28 U.S.C. s 2253(c)(1) (Supp. IV 1998); see also Fed. R. App. P.

22(b).

11 In Garris, the court concluded that the petitioner was not

entitled to a certificate of appealability under s 2253 because he

had not met the requirements of D.C. Code s 23-110(g) (1981), see

supra n.9, and, therefore, the federal courts lacked jurisdiction over

his petition. See Garris, 794 F.2d at 727. See also Swain v.

Pressley, 430 U.S. 372 (1977).

12 Section 2254(b)(2) provides:

An application for a writ of habeas corpus may be denied on

the merits, notwithstanding the failure of the applicant to

exhaust the remedies available in the courts of the State.

III.

The Board contends that the district court erred in grant-

ing Maddox partial habeas corpus relief on the ground that he

was denied due process at his parole revocation hearing.

Essentially, the Board maintains that Maddox failed to show

any prejudicial constitutional error because his acquittal after

trial did not preclude the Board from revoking parole, if

appropriate, following a hearing. Joined by the United

States as amicus curiae, the Board maintains that a review of

the revocation hearing, including the trial prosecutor's con-

duct, demonstrates that Maddox had a full and fair hearing

under Morrissey v. Brewer, 408 U.S. 471 (1972), that the trial

prosecutor's participation did not amount to actual vindictive-

ness in violation of Maddox's constitutional rights, and that a

presumption of vindictiveness is unwarranted. We first ad-

dress the trial prosecutor's ex parte meeting with the Board

and then turn to the trial prosecutor's conduct during the

revocation hearing.

A.

In Morrissey v. Brewer, 408 U.S. 471 (1972), the Supreme

Court set forth the oft-repeated minimal due process require-

ments to which a parolee is entitled when a state attempts to

revoke parole.13 The Court cautioned in Morrissey, however,

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28 U.S.C. s 2254(b)(2)(Supp. IV 1998).

13 In Morrissey, the Court stated:

There must also be an opportunity for a hearing, if it is desired

by the parolee, prior to the final decision on revocation by the

parole authority. This hearing must be the basis for more than

determining probable cause; it must lead to a final evaluation

of any contested relevant facts and consideration of whether

the facts as determined warrant revocation. The parolee must

have an opportunity to be heard and to show, if he can, that he

did not violate the conditions [of parole], or, if he did, that

circumstances in mitigation suggest that the violation does not

warrant revocation.... [T]he minimum requirements of due

process [include] (a) written notice of the claimed violations of

parole; (b) disclosure to the parolee of evidence against him;

that "there is no thought to equate this second stage of parole

revocation to a criminal prosecution in any sense. It is a

narrow inquiry; the process should be flexible enough to

consider evidence including letters, affidavits, and other mate-

rial that would not be admissible in an adversary criminal

trial." Id. at 489. Similarly, in Gagnon v. Scarpelli, 411 U.S.

778, 789 (1973), the Supreme Court explained that "[i]n a

revocation hearing ... formal procedures and rules of evi-

dence are not employed." The same due process standards

apply to D.C. prisoners subject to parole revocation by the

Board. See Ellis v. District of Columbia, 84 F.3d 1413 (D.C.

Cir. 1996); Teachey v. Carver, 736 A.2d 998, 1006 n.9 (D.C.

1999).

Prior to the parole revocation hearing, the Board held an

off-the-record meeting with the trial prosecutor, for approxi-

mately five to twelve minutes. The Board also held a similar

meeting with Maddox's counsel for approximately five min-

utes. According to Maddox's counsel, who testified during

the habeas proceeding, the Board described its procedures

and inquired about counsel's theory of the case, which counsel

outlined. See Maddox II, 83 F. Supp. 2d at 119. Counsel

assumed that the same thing occurred during the trial prose-

cutor's ex parte meeting with the Board. See id. The trial

prosecutor testified that he did not recall the substance of the

ex parte meeting, but he also did not deny the possibility that

he reviewed the merits of the federal case against Maddox.

See id. Based on the prosecutor's ex parte meeting with the

Board prior to the hearing, the district court ruled that

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(c) opportunity to be heard in person and to present witnesses

and documentary evidence; (d) the right to confront and cross-

examine witnesses (unless the hearing officer specifically finds

good cause for not allowing confrontation); (e) a neutral and

detached hearing body such as a traditional parole board,

members of which need not be judicial officers or lawyers; and

(f) a written statement by the factfinders as to the evidence

relied on and reasons for revoking parole.

408 U.S. at 487-89 (quotations omitted).

Maddox's right to confront witnesses and his right to be

present had been violated. See id. at 121.

The United States concedes that ex parte contacts create

the appearance of impropriety and that such contacts should

be avoided. See Amicus Brief at 28 n.17. The Board, in

apparent agreement, does not challenge the district court's

conclusion that the ex parte meeting with the trial prosecutor

was inappropriate. We agree with these views, for ex parte

meetings can create problems that exceed their value. The

Supreme Court has observed that an ex parte meeting be-

tween a trial judge and a juror creates a situation "pregnant

with possibilities for error." United States v. United States

Gypsum Co., 438 U.S. 422, 460 (1978). The same might be

said of the Board's meeting with the trial prosecutor.

Nevertheless, the fact that an ex parte meeting occurs does

not necessarily entitle a defendant to relief. See Rushen v.

Spain, 464 U.S. 114, 117-19 (1983). For example, in United

States v. Green, 544 F.2d 138, 146 (3rd Cir. 1976), the Third

Circuit held that a judge's ex parte contacts with a court-

appointed expert did not violate a criminal defendant's due

process rights because the ex parte contacts were not "clan-

destine" and defense counsel was afforded an opportunity to

present countervailing evidence and to cross-examine the

expert regarding the ex parte contacts. Id. Likewise, in

United States v. McDonald, 933 F.2d 1519 (10th Cir. 1991),

the Tenth Circuit found no plain error where an ex parte

communication occurred between a trial judge and a juror,

because defense counsel was made aware of the ex parte

communication, yet declined either to pursue the matter or to

object to the communication, thus indicating that "counsel felt

no prejudice existed at the time." Id. at 1525. So too here.

Maddox fails to show that he was prejudiced in the exercise

of his rights to confront witnesses and to be present as a

result of the Board's ex parte meeting with the trial prosecu-

tor prior to commencement of the revocation hearing. See

Sutherland v. McCall, 709 F.2d 730, 732-33 (D.C. Cir. 1983);

Standlee v. Rhay, 557 F.2d 1303, 1307-08 (9th Cir. 1977); cf.

Harris v. Day, 649 F.2d 755, 761-62 (10th Cir. 1981).

First, the record belies any contention that Maddox did not

have an opportunity to present his full case to the Board in

support of his claim of innocence. The Board heard testimo-

ny from Maddox's wife that on April 9, 1996, she had loaned

the rental car to her nephew (since deceased), who was

involved with drugs and guns. Her sister corroborated some

of this testimony. A friend of Maddox's testified that he had

given Maddox a ride to the street where he was subsequently

stopped and arrested by the police. Maddox also proffered

the trial testimony of two other defense witnesses. Finally,

Maddox, who had not testified at his trials, testified that on

April 9th, 1996, he never touched the rental car after his wife

returned it to him. While acknowledging that he had rented

a number of cars over several months, for about $4000,

Maddox claimed that he had several jobs and had been

working for over two years at Super Fresh.

The Board found that Maddox had violated his parole in

four of the six alleged violations, including PCP and gun

possession. In so doing, the Board had reasonable grounds

to reject Maddox's defense. His parole officer testified that

from 1992 to 1996, Maddox had worked for only three weeks.

Maddox then appeared to acknowledge that he had not

worked at Super Fresh for two years, but for only a week

between trials. Maddox claimed that his wife, who had a

government GS-5 job, and his brother, who owned his own

business, helped him out financially. While Maddox's counsel

urged the Board not to revoke his parole in view of the

weaknesses in the government's evidence regarding the

events of April 9, 1996, unlike the juries in his federal trials,

the Board could consider Maddox's credibility for itself.

Maddox can hardly deny that the Board had sufficient

evidence to justify revocation of his parole. District of Co-

lumbia regulations do not limit the information that the Board

may consider in determining whether to revoke parole. See

D.C. Mun. Reg. tit. 28 ss 219.1-219.12 (1987). In addition to

hearing from the trial prosecutor and one of the police

officers who had been involved in Maddox's arrest on April 9,

1996, the Board had other information about Maddox, includ-

ing evidence of his five arrests after he was paroled. Nota-

bly, the Board had already given him a second chance by

allowing him to remain on parole after arrests in 1992 and

1993.

Second, Maddox was represented by a Federal Public

Defender at the revocation hearing. His counsel was aware

of the Board's ex parte meeting with the trial prosecutor, yet

counsel neither objected to it nor otherwise indicated to the

Board that the revocation hearing was tainted. To the

contrary, counsel told the Board that he thought the Board

would be fair in determining Maddox's fate. Counsel also did

not seek to have the trial prosecutor, or the Board, place on

the record what had occurred during the ex parte meeting.

Nor did counsel seek, during the habeas proceeding, discov-

ery regarding the ex parte meeting.14 On appeal, counsel has

pointed to nothing that would indicate that the trial prosecu-

tor's ex parte meeting interfered with Maddox's ability to

present evidence and to cross-examine witnesses or to be

aware of the evidence on which the Board relied in revoking

his parole.

To the extent that the district court relied on Faretta v.

California, 422 U.S. 806 (1975), which involved a criminal

defendant's Sixth Amendment rights during trial, in ruling

that Maddox's due process rights were violated, that reliance

was misplaced. See Maddox II, 83 F. Supp. 2d at 121.

Morrissey makes clear that parole revocation is not the

continuation of a criminal trial but a separate administrative

proceeding at which the parolee does not possess the same

rights as a criminal defendant at trial. See Morrissey, 408

U.S. at 480. Conflating the distinct constitutional rights

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14 In its Response to the Petition for a Writ of Habeas Corpus,

the Board took issue with Maddox's characterization of its "alleged

closed door hearing for 30 to 45 minutes" with the trial prosecutor,

stating that at each ex parte meeting,

each side was asked to discuss whether certain facts could be

stipulated in order to shorten the hearing, which was expected

to be lengthy. The only reason the door was closed was

because of disruption from the well-know[n] din of the jail

inmates just outside the door.

Counsel did not seek to depose the Board members.

associated with the different proceedings confuses the analy-

sis of Maddox's ex parte contention. Unless the parolee

requests a hearing, District of Columbia regulations provide

that the Board may make its revocation determination with-

out a hearing. See D.C. Mun. Reg. Tit. 28 s 219.2 (1987).

The Board's ex parte meeting with the trial prosecutor before

the Board commenced the hearing was not secret. Cf.

WKAT, Inc. v. FCC, 296 F.2d 375, 383 (D.C. Cir. 1961).

Maddox's counsel had an opportunity to explore the nature of

the meeting at the revocation hearing. The fact that Mad-

dox, who was represented by counsel, did not take advantage

of his opportunity to question the trial prosecutor about his ex

parte meeting with the Board is not a basis for finding a

denial of due process.

B.

The district court found clear evidence of prosecutorial

vindictiveness. Specifically, the district court found that the

trial prosecutor "was upset about losing his case, which he

blame[d] on defense counsel's successful impeachment of gov-

ernment witnesses, and putting on a defense case," and that

the trial prosecutor "took over the Parole Board's function

and prosecuted Maddox a second time," obtaining "the 'con-

viction' and sentence he was denied at trial" under a lowered

standard of proof and relaxed evidentiary standards. Mad-

dox II, 83 F. Supp. 2d at 121. Viewing the trial prosecutor's

conduct to have been "excessive," id. at 123, the district court

noted that the trial prosecutor was not invited by the Board

to appear as a witness. See id. at 121. Instead he "insinu-

ate[d] himself into the proceeding to see that Maddox would

not be freed after his acquittal" and then "took over." Id.

In the district court's view, "[o]nce [the United States] takes

on the role of prosecuting parole violation cases after a jury

has acquitted the defendant, it opens itself up to the charge of

vindictiveness." Id. at 122. The district court stated that

although it had no intent to intrude on the manner in which

the Board conducts its hearings, the court was concerned that

"the [United States] cannot use the forum of a parole revoca-

tion hearing to retry a defendant as part of a vindictive action

to jail someone the government believes to be a bad person

particularly because that person has exercised his right to a

jury trial." Id. Our review of the district court's factual

finding of actual vindictiveness is for clear error, see United

States v. Meyer, 810 F.2d 1242, 1244 (D.C. Cir. 1987), al-

though the threshold question of whether the doctrine applies

in the parole revocation context is a question of law that we

review de novo. See United States v. Johnson, 91 F.3d 695,

698 (5th Cir. 1996) (and cases cited).

The doctrine of prosecutorial vindictiveness developed as a

corollary to the vindictiveness doctrine that precludes, as a

matter of due process, imposition by a judge of a more severe

sentence upon retrial after a defendant has successfully exer-

cised a constitutional right or pursued a statutory right of

appeal or collateral attack. See North Carolina v. Pearce,

395 U.S. 711, 723-26 (1969). In the prosecutorial context, the

doctrine precludes action by a prosecutor that is designed to

penalize a defendant for invoking any legally protected right

available to a defendant during a criminal prosecution. See

Blackledge v. Perry, 417 U.S. 21, 27-29 (1974); United States

v. Meyer, 810 F.2d 1242 (D.C. Cir. 1987); United States v.

Jamison, 505 F.2d 407 (D.C. Cir. 1974). To prove actual

vindictiveness requires "objective evidence" that the prosecu-

tor's actions were designed to punish a defendant for assert-

ing his legal rights. See Meyer, 810 F.2d at 1245 (citing

United States v. Goodwin, 457 U.S. 368, 380-81, 384 & n.19

(1982)). Such a showing is normally "exceedingly difficult to

make." Id. Because the underlying concern is not whether a

prosecutor has acted maliciously or in bad faith, see Black-

ledge, 417 U.S. at 28, but whether "the fear of [prosecutorial]

vindictiveness may unconstitutionally deter a defendant's ex-

ercise of [a constitutional or statutory right]," id. (quotation

omitted), a presumption of vindictiveness may be warranted

"in cases in which a reasonable likelihood of vindictiveness

exists," Goodwin, 457 U.S. at 373; see also Alabama v.

Smith, 490 U.S. 794, 799-800 (1989). The government may

overcome the presumption with "objective information in the

record justifying the increased sentence [or charges]." Good-

win, 457 U.S. at 374. "If the government produces such

evidence, the [criminal] defendant's only hope is to prove that

the justification is pretextual and that actual vindictiveness

has occurred." Meyer, 810 F.2d at 1245.

Amicus the United States contends that the district court

had no basis for finding actual vindictiveness. First, a trial

prosecutor does not wield unilateral power over the decision

to be made by an independent adjudicative body. The Board,

not the United States, is responsible for the revocation deci-

sion, and Maddox has never contended that the Board was

simply the trial prosecutor's tool. Cf. United States v. Liddy,

542 F.2d 76, 79 (D.C. Cir. 1976). Second, a parole board is

not being asked at a revocation hearing " 'to do over what it

thought it had already done correctly,' " Goodwin, 457 U.S. at

383 (quoting Colten v. Commonwealth of Kentucky, 407 U.S.

104, 117 (1972)), but rather to make an entirely new decision

based on an altered factual record. There is nothing in the

record indicating that the Board had a " 'personal stake' " in

Maddox's earlier trials such that it might engage in " 'self-

vindication' " by revoking his parole. Goodwin, 457 U.S. at

383 (quoting Chaffin v. Stynchcombe, 412 U.S. 17, 27 (1973)).

Nor is there evidence of an institutional bias that would

prompt the Board to treat a parolee who has been acquitted

more severely than a parolee who has not been acquitted.

Unlike a trial judge or prosecutor, the Board is not con-

strained by doctrines such as stare decisis, res judicata, the

law of the case, or the prohibition on double jeopardy. See

Goodwin, 457 U.S. at 376-77. Third, a parolee can never be

made worse off by exercising a protected right because if the

parolee is acquitted, the acquittal weighs in favor of the

parolee during the revocation proceedings. Finally, the Unit-

ed States asserts, the government may relitigate acquitted

conduct in a later proceeding, even to the extent of instituting

new charges for the same conduct, without giving rise to a

presumption of vindictiveness.

We agree with the United States that the district court

extended the doctrine of prosecutorial vindictiveness beyond

its moorings. The trial prosecutor did not initiate the revoca-

tion hearing; rather, the Board filed a parole violator warrant

after the court reversed Maddox's conviction at his second

trial. The Board is an independent decision maker. See D.C.

Code s 24-201.2(a)(4) (1981); Barnes v. District of Columbia

Board of Parole, 759 A.2d 1073, 1075-76 (D.C. 2000) (and

cases cited); cf. United States v. Watts, 519 U.S. 148, 155-57

(1997). It is unrestrained by doctrines that bind courts and

prosecutors, and its reputation for effectively carrying out its

responsibilities hardly turns on whether a parolee exercises

his right to go to trial. The Board, not the trial prosecutor,

made the decision to revoke Maddox's parole, and that deci-

sion is distinct from the concern about "upping the ante" that

underlies the prosecutorial vindictiveness doctrine. Cf. Mey-

er, 810 F.2d at 1246 (citing Goodwin, 457 U.S. at 381). In

addition, an acquittal would appear only to help, not harm, a

defendant in urging the Board that his parole should not be

revoked. Moreover, any personal pique of the trial prosecu-

tor about losing his case at trial or a prosecutor's "testy"

attitude at trial are irrelevant to the existence of prosecutori-

al vindictiveness. Cf. United States v. Esposito, 968 F.2d 300,

305 (3rd Cir. 1992).15 Although the district court was troubled

by what it concluded was the government's "lack of a basic

sense of decency and fairness," Maddox II, 83 F. Supp. 2d at

122, in proceeding against Maddox in a different forum upon

losing its case after putting Maddox on trial three times,

resulting in his incarceration for over three years for a crime

of which a jury acquitted him, see id., such deficiencies are

relevant to judgment but do not necessarily demonstrate

vindictiveness.

Even were we to assume that something akin to prosecuto-

rial vindictiveness applies in the parole revocation context,

and also to assume that the trial prosecutor's actions are

troubling to the extent that he was more than a witness, cf.

Gagnon, 411 U.S. at 789, the record does not support a

finding that the trial prosecutor's conduct violated Maddox's

due process rights. As the district court observed, a trial

__________

15 Esposito, 968 F.2d at 305, involved a presumption of vindic-

tiveness. Maddox suggests no basis for concluding that its reason-

ing for declining to apply the presumption where a prosecutor acts

for legitimate reasons is inapplicable to a finding of actual vindic-

tiveness.

prosecutor with "intimate knowledge of the evidence" could,

as a witness, provide helpful assistance to the Board. Mad-

dox II, 83 F. Supp.2d at 122. In that sense, there is no legal

bar to the trial prosecutor's involvement in parole revocation

hearings.16 Nor do we read 28 U.S.C. s 547 (1994) to be a

bar.17 See generally Gagnon, 411 U.S. at 787. Albeit in a

different context, the court has acknowledged that the United

States Attorney "is vested with broad discretion to protect

the public from crime, such discretion being derived both

from statutory grant and the authority of the Attorney Gen-

eral at common law." Fay v. Miller, 183 F.2d 986, 988 (D.C.

Cir. 1950) (interpreting the predecessor to 28 U.S.C. s 547);

cf. Johnson v. Kegans, 870 F.2d 992, 997-98 (5th Cir. 1989).

The appearance of the trial prosecutor to assist the Board is

consistent with this obligation.

Further, the record does not support the district court's

finding that the trial prosecutor took over the revocation

proceeding. See Maddox II, 83 F. Supp. 2d at 119-21.

While the trial prosecutor's involvement in the revocation

proceedings exceeded that of a witness, the record shows that

the Board remained in control. Board members questioned

the witnesses and attorneys, recalled witnesses, determined

whether or how witnesses would be cross-examined, asserted

exclusive authority over relevance and credibility determina-

tions, and controlled the length of arguments. Maddox does

__________

16 The United States acknowledged during the habeas proceed-

ing that the trial prosecutor appeared at the revocation hearing in

his official capacity as a representative of the United States. See

Maddox II, 83 F. Supp. 2d at 119. It also did not challenge the

district court's assumption that the trial prosecutor "did not act

alone ... [inasmuch as] his actions were approved by three superi-

ors in the United States Attorney's office." Id. at 122 & n.9.

17 Section 547(1) provides, that "[e]xcept as otherwise provided

by law, each United States attorney ... shall prosecute for all

offenses against the United States." 28 U.S.C. s 547(1) (1994).

Section 547(2) provides "[e]xcept as otherwise provided by law, each

United States attorney ... shall prosecute or defend, for the

Government, all civil actions, suits or proceedings in which the

United States is concerned." Id. s 547(2).

not allege, nor do we find evidence, that the trial prosecutor's

involvement in the revocation proceedings impaired the abili-

ty of the Board to make an independent revocation decision.

Whether the Board wished to have the trial prosecutor's

assistance was a matter within the Board's discretion, and

provision of that assistance does not show actual vindictive-

ness.

Because no "reasonable likelihood of vindictiveness exists"

Goodwin, 457 U.S. at 373, there is no basis for a presumption

of vindictiveness. Maddox's criminal prosecution had ended

before the allegedly vindictive actions took place. As the

Third Circuit explained in United States v. Esposito, 968 F.2d

300 (3rd Cir. 1992), no presumption of prosecutorial vindictive-

ness exists when, after being acquitted of charges under the

Racketeer Influenced and Corrupt Organizations Act, 18

U.S.C. s 1961 et seq. (1994 & Supp. IV 1998), where certain

drug offenses were the predicate acts, the defendant was

subsequently charged with the same drug offenses in a

second indictment, for:

[t]he evil that a presumption of vindictiveness seeks to

eradicate is the threat of retaliation when an accused

exercises a right in the course of the prosecution.

Where, however, the prosecutor has done nothing to

deter the exercise of one's right during the case or

proceeding, and the prosecution has come to a natural

end, no presumption of vindictiveness applies.

968 F.2d at 303-04. This reasoning applies with equal force

to Maddox's situation: he exercised his rights to appeal and

to a jury trial and his criminal prosecution ended in acquittal

before the trial prosecutor appeared at his parole revocation

hearing. Cf. United States v. Johnson, 171 F.3d 139 (2nd Cir.

1999); United States v. Rodgers, 18 F.3d 1425, 1429-31 (8th

Cir. 1994); United States v. Wall, 37 F.3d 1443, 1447-50 (10th

Cir. 1994).

Even assuming, as Maddox alleges, that the trial prosecu-

tor acted in retaliation for Maddox's exercise of his rights to

appeal and to a jury trial, and that a presumption of vindic-

tiveness would be appropriate, the prosecutor's stated pur-

pose for participating in the revocation hearing rebuts the

presumption. At the habeas proceeding, the trial prosecutor

explained that he went to the revocation hearing because he

wanted to be sure that the Board had a balanced view of the

charges against Maddox, and because he considered Maddox

to be a danger to the community, describing his role as

assisting the Board.18 See Maddox II, 83 F. Supp. 2d at 119.

While the district court disagreed with the trial prosecutor's

assessment of the strength of the government's evidence

against Maddox, concluding that the evidence was solely

circumstantial and lacked credibility in view of the misstate-

ments by the police officers at trial, see id. at 120-21, the trial

prosecutor's evaluation of the evidence is distinct from a

vindictive motive. Contrary to the district court's finding

that "[i]f Maddox were a danger to society, then the Parole

Board should have taken action during the five months subse-

quent to Maddox's release after his first trial," id. at 121,

there is no evidence that the Board was aware of Maddox's

release on bond after the first trial. Consequently, the

Board's failure to issue a parole violator warrant at that time

does not undermine the trial prosecutor's view that Maddox

was a danger to the community. The fact that the trial

prosecutor defined "assistance" more broadly than the dis-

trict court is not dispositive because the Board did not

relinquish its authority over the proceedings. For these

reasons, Maddox fails to show that the trial prosecutor's

stated reasons for attending the revocation hearing were

pretextual.

Accordingly, because the district court erred in ruling that

the Board's ex parte meeting with the trial prosecutor infring-

ed Maddox's due process rights, and in finding that the trial

prosecutor's conduct at the revocation hearing constituted

actual vindictiveness, and because there is no basis for a

__________

18 The trial prosecutor acknowledged that he had never previ-

ously appeared at a parole revocation hearing even though he had

been a prosecutor for nearly twenty-two years. See Maddox II, 83

F. Supp. 2d at 119. He advised the Board that he " 'was a parole

officer at one point.' " Id. at 117.

presumption of vindictiveness, we reverse the order partially

granting Maddox's habeas corpus petition.