United States v. Tallice Andrews and Thurston Brooks

MERRITT, Circuit Judge,

concurring.

I concur in the result and much of the reasoning of Judge Green’s opinion for the Court. Judge Green’s opinion attempts to find reasonable limits for the concept of the “apprehension of prosecutorial vindictiveness,” a broad concept whose reach is theoretically endless. My own view is that the concept must be limited even further. It should be limited to post-trial prosecutorial conduct which undermines double jeopardy values.

I.

I do not believe that very much of the elusive concept of “vindictiveness” described in the majority opinions in the Pearce and Perry cases is still alive after the Bor-denkircher case. If that broad concept is still alive, then Judge Keith is right that the concept requires a balancing process, although I would disagree with the way he holds his thumb on the scales while he weighs the factors. But balancing is unnecessary, in my judgment, because the Supreme Court indicated in Bordenkircher that the concept of “vindictiveness” ..announced in Pearce and Perry is narrow.

In Pearce, the Supreme Court held under the due process clause that a state trial judge may not double the punishment imposed at the first trial when the defendant is reconvicted of the same offense after a successful appeal and new trial. In Perry, the Court held that after a defendant is tried for a misdemeanor and appeals his conviction, the prosecutor violates due process at the new trial when he seeks to rein-dict and try the defendant for a felony for the same criminal event. In both cases, the problem arose because a majority of the Court, in a long line of cases, has historically read the protections of the double jeopardy clause narrowly to allow the state to “up-the-ante” on a criminal defendant at a new trial following an appeal. In Pearce and Perry, a majority of the Court was unwilling to retreat from its prior double jeopardy rulings or to reinterpret the double jeopardy clause along the broader lines suggested in the concurring opinions of Justices Douglas and Harlan in Pearce, 395 U.S. 711, 726, 744 , 89 S.Ct. 2072 , 23 L.Ed.2d 656 (1969). So in order to remedy the wrong, the Court was forced to conceptual *246 ize the problem more broadly under the due process clause. It found that “vindictiveness” by the state, or the apprehension of retaliation, is the key principle and declined to base its holding on a double jeopardy analysis. But the cases retain their double jeopardy flavor.

Bordenkircher, it seems to me, suggests that Pearce and Perry are limited to the double jeopardy-type situation. It is difficult to find a clearer case of “vindictiveness” than Bordenkircher. There the Court was faced not simply with the appearance of prosecutorial vindictiveness but with the reality. The prosecutor told the defendant that unless he pled guilty to fraud, he would be reindicted as an habitual criminal, an offense carrying life imprisonment. When the defendant refused to enter such a plea, the prosecutor made good his threat, and the Supreme Court upheld the habitual criminal conviction. It is hard to argue against Justice Blackmun’s observation in dissent in Bordenkircher that the Court “is departing from, or at least restricting, the principles established” in Pearce and Perry. 434 U.S. at 365.

It is difficult to reconcile Pearce and Perry with Bordenkircher if we take an expansive view of the concept of “vindictiveness” and the “appearance of vindictiveness” announced in the first two cases. But the cases become more understandable and consistent if we put aside the concept of general prosecutorial vindictiveness under the due process elause and look at Pearce and Perry as due process cases designed to protect double jeopardy values involving post conviction “vindictiveness.”

In both cases, the state tried to “up-the-ante” by imposing a harsher penalty on retrial after the appeal. They are both cases of successive prosecutions for the same criminal event. Except for the very broad due process “vindictiveness” language used by the Court, the two cases fit much better the double jeopardy mold, for, after all, the double jeopardy clause was designed in part to restrain a certain species of prosecutorial vindictiveness, the kind that leads a dissatisfied prosecutor to want to get the defendant again, or put him away longer, after the first trial is over. In the competitive, adversary environment of the criminal trial, it is not unnatural for a dissatisfied prosecutor to want to try the defendant again, but that is the precise species of vindictiveness the double jeopardy clause is designed to prevent. That is what happened in Pearce and Perry and that, it seems to me, is the only species of vindictiveness which the Supreme Court struck down in those cases.

In Bordenkircher, on the other hand, like the instant case, there was no threat of a second trial, nor any threat of greater punishment upon reconviction, and double jeopardy-type, post-trial vindictiveness did not come into play. In Bordenkircher, the Court found that regular prosecutorial “hard nosedness” is acceptable during the preliminary and trial stages of the criminal process before double jeopardy values come into play at the end. It is not, as Judge Keith suggests in dissent, the plea bargaining context of Bordenkircher that distinguishes it from other “vindictiveness” claims. It is the double jeopardy context of Pearce and Perry that limit and control the vindictiveness principles announced in those two cases.

II.

The concept of prosecutorial “vindictiveness” and the “appearance of vindictiveness” is theoretically endless and unmanageable unless limited to the post-conviction, double jeopardy context. Otherwise, the concept is so elusive that nobody— judge, prosecutor or defendant — can determine where it starts or stops. The concept also appears inconsistent with the competitive, adversary nature of the pre-trial and trial process.

By necessity the public prosecutor must take hard positions contrary to the liberty interests of the accused. Our society and our jurisprudence have never reached agreement on whether the purpose of the penal system is to deter, to treat or to avenge. Whether he is motivated by deterrence or vengeance or some more complicat *247 ed but less explicable state of mind, the prosecutor’s attitude toward the defendant in a hard-fought criminal case is seldom benign or neutral.

During the pre-trial and trial process, the prosecutor must decide what position to take on an endless variety of procedural, evidentiary, substantive and tactical questions. He may refuse to agree to discovery, severance, bail, plea bargaining, the exclusion of witnesses from the courtroom; he may try to get into evidence prior criminal conduct or various co-conspirator and other, kinds of hearsay; he may be harsh in his characterization of the defendant’s conduct to the jury; he may recommend probation or refuse to prosecute altogether; or he may make a deal with a co-defendant in exchange for incriminating testimony and on and on.

The following questions demonstrate, in my mind, the unmanageability of the vindictiveness concept in the trial context: Once a defendant has successfully asserted a particular legal right in the course of the criminal process, is a prosecutor guilty of unconstitutional vindictive conduct, which “chills” the exercise of the legal right asserted, each time the prosecutor thereafter takes a position contrary to the interests of the defendant? If not, why not, and what is the standard of measurement? What difference does it make that the prosecutor’s conduct took place after rather than before the defendant asserted the right? The “exercise” of a legal right can be more effectively “chilled” before it is asserted than after. What difference should it make that the defendant was unsuccessful rather than successful in asserting the legal right? On the facts of this case, would it make any difference that the defendant lost his motion for bail rather than won it? If we are talking about the “exercise” of a legal right, it should not make any difference that its exercise happened to be unsuccessful in the particular case.

Many constitutional, common law and ev-identiary principles protect the accused and should be given an expansive meaning. But to require, as a general principle, the general absence of the “appearance of pros-ecutorial vindictiveness” in the heat of battle is an unworkable goal in our adversary system.

HI.

For these reasons, I would hold that the kind of vindictive behavior proscribed by the due process clause relates to double jeopardy values and that the concept is limited to prosecutorial vindictiveness after the first trial is over. That means that in the instant case there was no unconstitutional prosecutorial behavior.