Appeal by the government pursuant to 18 U.S.C. § 3731 from an order of the District of Vermont entered by Chief Judge James S. Holden dismissing an indictment charging federal firearms violations, 18 U.S.C. §§ 922(a) (3), (6), on the ground that the reinstitution of a federal prosecution after defendants had pleaded guilty under a plea bargain to state charges based on the same conduct created an appearance of vindictiveness amounting to a denial of due process.
Feinberg, Chief Judge, Mansfield and Kearse, Circuit Judges.
MANSFIELD, Circuit Judge:
The government appeals pursuant to 18 U.S.C. § 3731 from an order of the District of Vermont, entered on May 19, 1982 by Chief Judge James S. Holden after an evidentiary hearing, dismissing an indictment charging the three defendants-appellees in seven counts with violations of provisions of the Gun Control Act of 1968, 18 U.S.C. § 922(a) (6), and with conspiracy to violate 18 U.S.C. §§ 922(a) (3) and (6).*fn1 The district court, relying principally on Blackledge v. Perry, 417 U.S. 21, 40 L. Ed. 2d 628, 94 S. Ct. 2098 (1974), dismissed the charges on the ground that an appearance of vindictiveness was created when a United States Attorney brought charges against the defendants after they had, pursuant to a plea bargain with a state prosecutor, pleaded guilty to similar state charges arising out of the same facts. We reverse on the grounds that the circumstances do not present a substantial risk of vindictiveness and that the federal prosecution is by a different sovereign and therefore may proceed notwithstanding the earlier state prosecution. United States v. Wheeler, 435 U.S. 313, 55 L. Ed. 2d 303, 98 S. Ct. 1079 (1978).
On January 7, 1980 the three defendants drove in a rented Pontiac from New York City to Vermont where one of them, Billy Ng, 18 years of age, obtained a temporary Vermont driver's license by giving a false name, Vermont address and birthdate, which he then used to purchase guns for $944 in cash. The defendants then started driving with the guns back to New York City by way of Massachusetts where they were stopped by Massachusetts state police acting on the basis of information furnished by the Bureau of Alcohol, Tobacco and Firearms (ATF) with respect to the purchase of the guns. Ng, after receiving Miranda warnings, admitted that he had purchased firearms. All three defendants stated that they did not have firearms identification cards. They were then held in the police barracks at Northampton, Massachusetts, where each defendant admitted to a federal ATF agent that he had traveled to Vermont to buy firearms and had bought two guns there. Pursuant to a federal search warrant obtained from the federal court, an ATF agent seized six handguns found in the Pontiac, several books about handguns, and other items.
On the next day, January 8, 1980, the three defendants appeared before a Massachusetts state judge who fixed bail at $15,000 each. In the meantime Assistant U.S. Attorney Kelly of the District of Massachusetts caused federal complaints to be filed against the defendants charging them with interstate transportation of illegally acquired firearms in violation of 18 U.S.C. § 922(a) (3). An Assistant U.S. Attorney for Vermont, Peter Hall, upon learning that the defendants would be prosecuted in Massachusetts by state or federal authorities or both, declined to file charges against the defendants in the District of Vermont. Kelly, after being assured by the Massachusetts local prosecutor, District Attorney Simons, that the defendants would be prosecuted by that state on firearms charges under Mass. Gen. Laws Ann. Ch. 269, § 10(a), which upon conviction mandated the imposition of a one-year jail term, advised the parties that he would defer to the state prosecution.*fn2 Kelly was of the view that if the defendants were convicted, which seemed likely, the federal government's interest would be adequately protected by the one-year mandatory prison term. Accordingly, the federal complaint was dismissed on February 13, 1980 with the approval of the U.S. Magistrate. The written dismissal, copies of which according to Kelly were normally mailed to attorneys for defendants, expressly stated that it was "without prejudice to the rights of the United States to reinstitute proceedings against one or all of the defendants named in the Complaint."
One year later, in February 1981, another Massachusetts state prosecutor, William St. James, instead of continuing the prosecution under Mass. Gen. Laws Ann. Ch. 269, § 10(a) begun by his predecessor Mr. Simons, reached a plea agreement with the defendants under which they would plead guilty to lesser charges not carrying a one-year minimum sentence. Upon being informed of this proposed disposition Assistant U.S. Attorney Kelly advised the state prosecutor that the arrangement would not satisfy the federal government's interest and that he would probably recommend reinstitution of federal charges. He requested the state prosecutor to so notify the defendants.
On February 9, 1981, each of the defendants pleaded guilty to the reduced state charges and was sentenced to imprisonment for one year, all but 60 days of which was suspended, and to a fine of $500. Kelly thereupon referred the matter to Assistant U.S. Attorney Peter Hall in Vermont, who received authorization from the United States Attorney General's office pursuant to its " Petite policy"*fn3 to prosecute the defendants on federal charges based on the same conduct that gave rise to the state prosecution. On January 14, 1982, after evidence had been presented to a federal grand jury in Vermont, the present federal indictment was returned.
The defendants filed motions seeking to suppress their statements obtained and evidence seized at the time of arrest. They also moved to dismiss the indictment on several grounds, including alleged violations of the Speedy Trial Act, 18 U.S.C. §§ 3161, et seq., and denial of due process. The latter claim was based on the defendants' assertion that the government's decision to reinstitute federal charges against them after they had pleaded guilty to reduced state charges arising out of the same conduct was in retaliation for their successful state plea negotiations. Judge Holden denied suppression and found the sanctions provisions of the Speedy Trial Act to be inapplicable. However, in a reasoned opinion he also found that, although "there is no evidence that the federal prosecution was motivated by malice or bad faith," reinstitution of the federal prosecution after disposition of the state case by pleas of guilty to reduced charges created an "appearance of vindictive retaliation" since the government was dissatisfied with the state plea bargain and had sought to interdict it by advising the defendants through the state district attorney that if it should be consummated they would face reinstituted federal charges. Judge Holden therefore dismissed the indictment on due process grounds.
Judge Holden concluded that the present case was governed by Blackledge v. Perry, 417 U.S. 21, 40 L. Ed. 2d 628, 94 S. Ct. 2098 (1974), which held that when a defendant exercises his statutory right, after being convicted of a misdemeanor in a lower state court, to obtain a trial de novo in that state's superior court, it is a denial of due process for the state prosecutor to respond by obtaining an indictment charging him with a felony based on the same conduct. The Supreme Court reasoned that, even though the prosecutor may not have acted in bad faith, such conduct was not constitutionally permissible because it would, by exposing defendant to more serious charges, inhibit him from exercise of his right to appeal or collaterally attack his misdemeanor conviction. Blackledge represented an application to the executive branch of the principle voiced earlier by the Supreme Court in North Carolina v. Pearce, 395 U.S. 711, 23 L. Ed. 2d 656, 89 S. Ct. 2072 (1969), that a trial judge may not, after a defendant successfully appeals his conviction, impose a more severe sentence upon the defendant following a new trial unless intervening objective information justifies such an increase; otherwise the defendant would be deterred by fear of retaliation on the judge's part from exercising his right to appeal or to attack his first conviction collaterally. The Court therefore held that a presumption of vindictiveness attached to the imposition of a more severe sentence after a successful appeal, which could be overcome only by adducing objective information justifying the increased sentence. See Pearce, supra, 395 U.S. at 726.
Judge Holden drew a parallel between Blackledge and the present case, concluding, even though two different sovereigns were involved, that the reinstituted federal prosecution denied the defendants due process because it created an appearance that the federal prosecutor was retaliating against the defendants for exercising their right to consummate a state plea bargain. Judge Holden found that the government's proof failed to dispel this appearance of vindictiveness.
As the Supreme Court recently noted in United States v. Goodwin, 457 U.S. 368, 102 S. Ct. 2485, 2488, 73 L. Ed. 2d 74 (1982), the punishment of an individual for exercise of a constitutional or statutory right amounts to a denial of due process. "For while an individual certainly may be penalized for violating the law, he just as certainly may not be punished for exercising a protected statutory or constitutional right." Id. at 2488 (footnote omitted).
In order to avoid requiring a court to go through the difficult process of attempting to ascertain the actual motive of the judge or prosecutor claimed to have acted vindictively, the Court presumed that certain conduct must be viewed as vindictive unless the presumption is rebutted, e.g., conduct such as a judge's imposition of an increased sentence upon retrial after a successful appeal, North Carolina v. Pearce, supra, or a prosecutor's obtaining of a felony indictment against a defendant who exercised his statutory right to obtain a trial de novo of a misdemeanor charge based on the same conduct, Blackledge v. Perry, supra. Based on common experience, these circumstances were deemed to pose a realistic likelihood of vindictiveness amounting to a denial of due process. On the other hand, due process being a flexible concept, Morrissey v. Brewer, 408 U.S. 471, 481, 33 L. Ed. 2d 484, 92 S. Ct. 2593 (1972); Cafeteria Workers v. McElroy, 367 U.S. 886, 895, 6 L. Ed. 2d 1230, 81 S. Ct. 1743 (1961), the prospect of vindictiveness was found to be too unlikely under other circumstances to violate a defendant's constitutional rights. See, e.g., Colten v. Kentucky, 407 U.S. 104, 32 L. Ed. 2d 584, 92 S. Ct. 1953 (1972) (different court may impose increased sentence under state's two-tiered system for adjudication of misdemeanor charges); Chaffin v. Stynchcombe, ...