Washington v. United States

KERN, Associate Judge:

In October 1976, appellant followed a fellow passenger, after they had both alighted from a bus, and stabbed him with a knife. Appellant was arrested a few days later and released to a third party on personal recognizance. Subsequently, he failed to appear in the trial court either for his preliminary hearing or for arraignment. In December 1976, the grand jury indicted appellant for assault with a dangerous weapon (ADW), D. C. Code 1973, § 22-502, and violation of the District of Columbia bail laws, D. C. Code 1973, § 23-1327(a). He was arrested in New York about one year later on an outstanding warrant and was returned for further proceedings.

In November 1977, appellant’s motion to sever these two charges was heard and denied by the trial court and his trial was set for January 11, 1978. At this hearing, the court inquired about “any possibility of disposition.” The prosecutor responded that he “would be happy to negotiate a disposition,” that he was “certainly willing to consider a plea offer,” and that the defense attorney’s “offer this morning was to plead to the bail charge in return for dropping the ADW count. My problem with that is that the complaining witness was in critical condition in the hospital and ran up $2,200.00 worth of medical bills, and I can’t see dropping a charge like that.” (Supp. Record at 6-7.)

On the day of trial, the prosecutor requested a continuance in order that a new indictment might be returned. This indictment charged appellant not only with the assault and bail-jumping counts contained in the 1976 indictment but also with two new counts: assault with intent to kill (AWIK), D. C. Code 1973, § 22-501, and assault with intent to kill while armed (AWIKWA), D. C. Code 1973, §§ 22-501, 22-3202. In February 1978, at his trial, the government dismissed the ADW count. The jury convicted appellant of the bail charge and AWIKWA, after the court had instructed them that they could convict appellant of AWIK, a lesser-included offense of AWIKWA.

Appellant challenges his conviction on two grounds: (1) that the court erred in failing to sever the bail charge from the remaining charges and the joinder of these two offenses at trial prejudiced him; and (2) that his reindictment in January 1978 with the addition of two counts to the two counts contained in his original indictment was the result of prosecutorial vindictiveness which the Supreme Court has deemed violative of due process. Blackledge v. Perry, 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974). A division of this court rejected appellant’s “severance” argument but agreed with his “vindictive prosecutor” contention and remanded the case for the purpose of permitting the government to show on the record its reason for reindicting appellant.

The court sitting en banc rejects appellant’s contention that the joinder of the bail charge with the other charges arising out of his stabbing the complainant constituted prejudicial error, and approves the reasoning on this point contained in the opinion of the division, now vacated. The division pointed out that a showing by appellant of real and demonstrative prejudice is necessary to warrant reversal for failure to sever the assault charges from the bail charge. In this case, the knowledge of the bail charge would not be withheld from the jury even in a separate trial of these offenses. Grant v. United States, D.C.App., 402 A.2d 405 (1979). Therefore, as the division concluded, appellant failed to show clear prejudice resulting from the joinder and the trial court’s refusal to sever was not error.

We also reject appellant’s contention that the reindictment, under the circumstances, constituted a realistic likelihood of prosecutorial vindictiveness so as to require a remand for a satisfactory explanation by the government. Appellant argues that his case falls within the ambit of Blackledge, supra, because of two occurrences prior to his trial: (1) the prosecutor’s statement at the pretrial hearing in November 1977 that he could not accept defense counsel’s offer to a plea to the bail count *396and drop the ADW charge; and (2) the prosecutor’s “last minute” request in January 1978 for postponement of the trial to obtain a reindictment, with the addition of the more serious charges of AWIK and AWIKWA to the original ADW and bail charges. In appellant’s view, these events demonstrated that “the prosecutor decided that since he had not obtained a plea to the charge he would return to the grand jury and obtain a more severe charge. The rein-dictment at literally the last minute before trial imparts the appearance of vindictiveness.” (Reply Brief at 9.)

The Supreme Court cases dealing with vindictive prosecution have recognized two distinct situations in which the appearance of vindictiveness may require an inquiry and judicial intervention. The first is where the prosecutive decision is based on discriminatory grounds of race, religion, national origin, or other impermissible classification. See Bordenkircher v. Hayes, 434 U.S. 357, 364-65, 98 S.Ct. 663, 668-69, 54 L.Ed.2d 604 (1978). The other situation is where the accused is treated more harshly on retrial because he has exercised a conferred right to that new trial as in Blackledge v. Perry, supra, or North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). See Bordenkircher v. Hayes, supra, 434 U.S. at 362-63, 98 S.Ct. at 667.*

This case does not fall within either category. First, there is no assertion that the reindictment was sought because of any improper consideration such as appellant’s race or religion. Second, the record contains nothing to indicate that the prosecutor was in any way treating appellant more harshly for the assertion of a right recognized in Blackledge and Pearce. Rather, the prosecutor, upon evaluating the case after an indictment had been returned and appellant’s fugitivity had ended but before the trial commenced, realized that it involved a far more severe offense than was reflected in the original indictment. Such a reevaluation of the severity of the offense (and the original indictment) cannot rise to the level of vindictive prosecution so as to violate due process. The fact that, coincidentally with the prosecutor’s process of reevaluation of the case, appellant in the instant case had offered to plead to the bail-jumping charge in exchange for the prosecutor dropping the assault charge and the prosecutor’s rejection of the offer is, on this record, insufficient to invoke the doctrine of vindictive prosecution.

In addition, we do not read the holding in Bordenkircher as requiring that a prosecutor must always present to the defendant, on the record, the alternative of either entering an acceptable guilty plea or facing the consequences of enhanced charges. While that occurred in Borden-kircher, the Court did not require that such plea bargaining procedures must be spread on the record so that the prosecution disclose its price, if any, for the defendant’s refusal to enter an acceptable guilty plea.

Thus, we conclude that none of the Supreme Court cases dealing with vindictive prosecution requires reversal or remand here. Nor are we persuaded to create a third category of cases requiring such action on these facts.

Affirmed.

In Wynn v. United States, D.C.App., 386 A.2d 695, 698 (1978), this court found on the record “a manifestation of vindictiveness” requiring vacation of a part of the judgment of conviction where the prosecution, prior to trial, added additional charges after such a series of delays as to have provoked the trial court into dismissing (without prejudice) for want of prosecution the original information.