In the
United States Court of Appeals
For the Seventh Circuit
No. 10-2132
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
G ERALD P ITTMAN,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 08 CR 741—Charles P. Kocoras, Judge.
A RGUED JANUARY 11, 2011—D ECIDED JUNE 15, 2011
Before E ASTERBROOK, Chief Judge, and C UDAHY and
P OSNER, Circuit Judges.
C UDAHY, Circuit Judge. Gerald Pittman was arrested
and indicted on numerous charges of distributing crack
cocaine and one charge of unlawful possession of a fire-
arm by a felon. After Pittman pleaded guilty to one of
the drug charges and received a sentence that was sig-
nificantly below that recommended by the Sentencing
Guidelines, the government decided to prosecute Pitt-
man on the remaining charges of the indictment. Pittman
2 No. 10-2132
ended up pleading guilty to these charges as well, but
argued that it would be inappropriate for the district
court to increase his sentence because the government’s
decision to seek conviction on the remaining counts
constituted vindictive prosecution. The district court
rejected his argument and sentenced him to a signif-
icantly longer term of imprisonment. We affirm.
I. Background
From May to August of 2008, Gerald Pittman partici-
pated in several controlled crack cocaine purchases and
one controlled gun purchase with an individual who
was working undercover with the police. On Septem-
ber 17, 2008, the police arrested Pittman. Shortly after
being placed under arrest, Pittman admitted that he
had been selling small amounts of crack on a daily basis
for several years. He agreed to cooperate with the
police and participate in a crack-related sting operation
that the police were planning. On September 19, 2008,
Pittman broke his deal with the police and ran from
the scene of the sting operation with the $2,000 in buy
money the government had provided him. The police
eventually tracked Pittman down and arrested him. After
being arrested, he admitted to fleeing the controlled
purchase, spending the buy money and intentionally
evading the police.
On February 10, 2009, a federal grand jury returned an
indictment charging Pittman with six counts of distribu-
tion of crack cocaine in violation of 21 U.S.C. § 841(a)(1)
and one count of unlawful possession of a firearm by a
No. 10-2132 3
felon in violation of 18 U.S.C. § 922(g)(1). On February 17,
2009, Pittman was arraigned. He pleaded not guilty to
all of the counts in the indictment.
On August 4, 2009, Pittman entered a guilty plea for
one of the crack distribution counts pursuant to a
written plea declaration. At the beginning of the plea
colloquy, the district court sought confirmation that
Pittman’s plea was not entered pursuant to a plea agree-
ment and that Pittman understood that the United
States could still choose to prosecute him for the other
six charges of the indictment. Pittman stated that he
understood that he did not have a plea agreement
with the government and that he could be tried on the
remaining counts, but that he still wished to plead
guilty. When pleading guilty, Pittman admitted not only
to the facts underlying one of the distribution counts,
but also to the facts underlying all of the other crack
distribution counts. He did not admit to the facts under-
lying the firearm possession count.
On February 23, 2010, the district court held a sen-
tencing hearing regarding the single charge to which
Pittman had pleaded guilty. After hearing from both
parties, the court sentenced Pittman to ninety-six months
of imprisonment, to be followed by six years of super-
vised release. This sentence constituted a significant
downward departure from the term of imprisonment
recommended by the Sentencing Guidelines. At the
close of the hearing, the government requested a status
hearing concerning the remaining six counts of the in-
dictment. The court granted the government’s request
4 No. 10-2132
and scheduled a meeting for March 3, 2010. At this
status hearing, the government notified the defendant
and the court that it intended to prosecute Pittman on
the six outstanding counts.
On March 29, 2010, Pittman pleaded guilty to all six
of the outstanding counts without a written plea agree-
ment. On April 27, 2010, the district court held a sen-
tencing hearing for these counts. At this hearing, Pittman
argued that the government’s decision to prosecute him
on the charges that remained after his initial guilty
plea constituted prosecutorial vindictiveness. The court
rejected Pittman’s argument, finding that he had been
warned about what could occur prior to entering his
first plea and that it was not illegal for the government
to decide to proceed with prosecuting him after the
first sentencing hearing. The district court sentenced
Pittman to 120 months of imprisonment—the statutory
minimum for the most serious charge—on all seven
counts of the indictment, with all of the terms to run
concurrently. Pittman seeks review of the district court’s
sentence in accordance with 18 U.S.C. § 3742(a), asking
us to find that the government’s decision to prosecute
him after his initial sentencing constituted vindictive
prosecution and to set aside the sentence entered by
the district court at the second sentencing hearing.
II. Discussion
Pittman’s sole argument on appeal asserts that the
district court committed a reversible error when it
rejected his vindictive prosecution claim. When consid-
No. 10-2132 5
ering whether a district court erred in this regard, we
review the district court’s factual findings for clear
error and its legal conclusions de novo. United States
v. Jarrett, 447 F.3d 520, 524 (7th Cir. 2006). We have juris-
diction over Pittman’s appeal under 28 U.S.C. § 1291.
In general, this court has considered a defendant’s
prosecution to be vindictive only if the defendant can
show that the prosecution was pursued in retaliation
for the defendant’s exercise of a legal right. United States
v. Cooper, 461 F.3d 850, 856 (7th Cir. 2006). A prosecution
is vindictive, for example, when a defendant faces en-
hanced charges on retrial and the prosecutor’s decision
to enhance the charges is based on the prosecutor’s re-
sentment that the defendant successfully appealed his
or her original conviction. United States v. Segal, 495 F.3d
826, 832-33 (7th Cir. 2007). Vindictive prosecution may
also exist when it can be shown that the govern-
ment’s actions were motivated by the prosecutor’s “per-
sonal stake in the outcome of a case” or his desire to
“seek self-vindication” for prior errors that he may have
committed in a case. Jarrett, 447 F.3d at 525.
We have previously noted that a “pretrial claim of
vindictive prosecution is extraordinarily difficult to
prove,” Segal, 495 F.3d at 833, since it requires a defen-
dant to “affirmatively show through objective evidence
that the prosecutorial conduct at issue was motivated
by some form of prosecutorial animus,” United States v.
Falcon, 347 F.3d 1000, 1004 (7th Cir. 2003). A defendant
asserting a claim like Pittman’s must convince the
court that he would not have been prosecuted but-for
6 No. 10-2132
the government’s animus. Jarrett, 447 F.3d at 525. If a
defendant is able to make this evidentiary showing, then
the burden shifts to the government, which must prove
that the motivation behind the prosecutorial decision
was proper. United States v. Bullis, 77 F.3d 1553, 1559
(7th Cir. 1996).
Pittman argues that the district court’s dismissal of
his vindictive prosecution claim was improper, asserting
that the timing of the government’s decision to prose-
cute him on the additional counts and the government’s
statements before the district court constituted suf-
ficient proof of animus. Pittman believes that this
evidence established that the government decided to
prosecute him on the remaining claims only because
the district court entered a below-Guidelines sentence
at the initial sentencing hearing. Pittman contends
that, because the government’s primary motivation in
prosecuting him after his initial plea was its desire to
see him receive a more severe punishment, the govern-
ment’s actions were motivated by animus for him and
his second sentence should be set aside.
Because Pittman’s argument strongly resembles one
that this court considered in United States v. Cooper, 461
F.3d 850 (7th Cir. 2006), our holding in that case informs
our resolution of the current appeal. Like Pittman, Cortez
Cooper was arrested by the police for committing
a number of crimes in the course of dealing drugs. Id. at
852-53. Cooper pleaded guilty, without the benefit of a
plea agreement, to a subset of the counts set forth in his
indictment. Id. The district court sentenced him to ten
No. 10-2132 7
years of imprisonment in relation to these counts and
scheduled a jury trial on the indictment’s remaining
counts. Id. Prior to the start of this trial, the government
filed a superseding indictment against Cooper that
added a gun possession charge to the previously ex-
isting drug possession and conspiracy counts. Id. The
jury found him guilty on all counts and the district court
sentenced him to twenty years of imprisonment, to be
served concurrently with the first sentence that the
court imposed. Id. On appeal, Cooper argued that his
conviction was the result of vindictive prosecution and
that the timing of the prosecutor’s actions proved that
the government’s actions were motivated by its animus
for him. Id.
We rejected Cooper’s argument, concluding that he
had failed to submit evidence sufficient to support his
claim. Id. at 856. Not only did we find that there was
nothing particularly suspicious about the timing of the
government’s prosecutorial actions, but we held that
“even if there were . . . evidence of suspicious timing
alone does not indicate prosecutorial animus.” Id. (citing
Falcon, 347 F.3d at 1007). Further, we found that the pros-
ecutor’s decision to file a superseding indictment con-
taining new charges after Cooper’s first sentencing
hearing was “well within the range of appropriate, pre-
trial, prosecutorial discretion,” and, absent evidence
suggesting an improper motive, such decisions do not
provide a basis for a vindictive prosecution claim. Id.
Given our ruling in Cooper, the district court did not
err in rejecting Pittman’s vindictive prosecution claim,
8 No. 10-2132
since Pittman failed to present the court with objective
evidence indicating that prosecutorial animus motivated
the government’s decision to continue prosecuting
him. While Pittman argues that he did, in fact, prove
animus, none of the evidence that he points to provides
sufficient support for his claim. First, Pittman cannot
meet his evidentiary burden by merely relying on the
timing of the government’s decision to prosecute him
on all of the indictment’s pending charges, since our
precedents clearly state that evidence of timing is insuf-
ficient to prove prosecutorial animus. Id. at 856; Falcon,
347 F.3d at 1007.
Second, the mere fact that the government decided to
go forward with prosecuting Pittman does not, in and of
itself, indicate that the government’s actions were moti-
vated by animus. While it is possible that the govern-
ment’s decision to prosecute was based on some illicit
motive, it is also possible that the decision was based
merely on a desire to further the legitimate societal
interest in imposing an adequate punishment for the
crimes involved. The law in this circuit clearly estab-
lishes that, absent evidence establishing malfeasance,
we are to accord the government’s pretrial decisions a
presumption of propriety.1 Jarrett, 447 F.3d at 525 (stating
1
We reject Pittman’s contention that the government’s deci-
sion to prosecute him on the remaining counts of the indict-
ment should be entitled to the presumption of vindictiveness
that we have accorded defendants who face more serious
charges after successfully appealing their original conviction.
(continued...)
No. 10-2132 9
that the “courts must begin from a presumption that the
government has properly exercised its constitutional
responsibilities to enforce the nation’s laws”); see also Banks
v. Dretke, 540 U.S. 668, 696 (2004) (stating that courts are
ordinarily to “presume that public officials have properly
discharged their official duties”).
Finally, the only other pieces of evidence that Pittman
discusses in his brief—the transcripts of the district
court’s status and sentencing hearings—provide no
support for his claim of vindictive persecution. Having
reviewed these materials ourselves, we cannot find any
indication that the decision to continue the prosecu-
tion resulted from any of the motivations that we
1
(...continued)
See, e.g., United States v. Cooper, 461 F.3d 850, 856 (7th Cir. 2006)
(citing United States v. Goodwin, 457 U.S. 368, 376 (1982)). First,
given that Pittman did not successfully appeal his conviction,
it is clear that his claim does not fall within the scope of this
exception to the standard burden of proof for vindictive
prosecution claims. Second, while the government made its
decision to continue prosecuting Pittman after the first sen-
tencing hearing, the remaining counts were still pending at
this time and the district court had not yet entered a final
judgment on the sentence as to the first count. Hence, the
decision whether to prosecute Pittman on the remaining
claim may be considered a pretrial decision. See Cooper, 461
F.3d at 856 (analyzing a vindictive prosecution claim con-
cerning the government’s decision to file a superseding in-
dictment after an initial sentencing hearing under the rubric
of pretrial decisions).
10 No. 10-2132
have previously identified as improper. There are no
indications in the transcripts that the government
harbored unjustifiably negative feelings for Pittman or,
more importantly, that any such feelings motivated it to
prosecute Pittman on all of the charges set forth in the
indictment. Nor are there signs that the prosecutor pos-
sessed a personal interest in the outcome of this case or
sought to rehabilitate her earlier performance.
Perhaps in recognition of the fact that his claim does
not fit within our vindictive prosecution jurisprudence,
Pittman argues that we should expand our conception
of prosecutorial animus to include situations where
prosecutorial decisions are motivated by a desire to see
defendants sentenced to significant terms of im-
prisonment.2 We cannot accept Pittman’s invitation.
Absent evidence to the contrary, we assume that the
government’s motivation for punishing criminals is
grounded in its pursuit of a number of legitimate state
interests: the interest in protecting society from known
law-breakers, the interest in deterring other individuals
from committing similar crimes, the interest in ex-
pressing societal condemnation for those who violate
the law, etc. Because of the impersonal nature of these
considerations, prosecutorial decisions that are based on
them are too principled to be vindictive.
2
The trial transcripts make it clear that the government’s
goal in continuing to prosecute Pittman was to see him
receive a prison sentence greater than the ninety-six month
term that the court sentenced him to initially.
No. 10-2132 11
While criminal defendants would undoubtedly prefer
that we find that the mere potential for prosecutorial
discontent is sufficient to undermine the presumptive
legitimacy of a prosecutor’s decisions, doing so would
fundamentally change the burden of proof we have
imposed for malicious prosecution claims. Defendants
must present evidence establishing that a pretrial pros-
ecutorial decision was based on animus. Where, as
here, they fail to meet this burden, it is proper for
district courts to dismiss their vindictive prosecution
claims.
III. Conclusion
For these reasons, the sentence imposed by the district
court is
A FFIRMED
6-15-11