IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
July 22, 2008
No. 07-30716 Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
v.
JOHN DARREN SALTZMAN,
Defendant-Appellee,
Appeal from the United States District Court
for the Eastern District of Louisiana
Before SMITH, DeMOSS, and STEWART, Circuit Judges.
CARL E. STEWART, Circuit Judge:
The Government appeals the district court’s dismissal of three counts of
the superseding indictment in this case. The Government contends that the
district court erred in concluding that the facts of this case warrant a
presumption of prosecutorial vindictiveness. We hold that application of the
presumption was improper, and therefore we REVERSE and REMAND.
I.
Saltzman was previously employed as a part-time Jefferson Parish
Sheriff’s Deputy; at that time, he acquired a .357 service revolver specially fitted
with a custom barrel. On November 15, 2000, Saltzman was convicted in the
Eastern District of New York of the felony of illegal transportation of an alien
No. 07-30716
and was sentenced to 15 months imprisonment. Because of the felony
conviction, Saltzman was required to forfeit the .357 service revolver, however,
at that time no program existed for the retrieval of weapons owned by felons.
The following events, which occurred over 5 years later, led to Saltzman
being charged with the criminal counts before us today. According to the
criminal complaint and factual basis, on February 27, 2006, Customs and Border
Protection Officer William Brumley boarded the M/V Nurten Ana, a foreign
vessel moored at the Port of New Orleans, for a security inspection. During the
inspection, Brumley entered a cabin assigned to Nationwide Security
(“Nationwide”)1 and observed an unsecured, loaded .357 revolver in plain view.
Brumley spoke with the supervisor of Nationwide, whom said that he did not
know who the weapon belonged to. Brumley then spoke with Saltzman, who
identified himself as “Arthur Milonas,” the general manager of Global Maritime
Security,2 a security subcontractor. Brumley asked “Milonas” for identification
and asked him whether he knew the owner of the .357 revolver. According to the
criminal complaint, “Milonas” responded that the weapon was his. “Milonas”
was attired in black tactical gear with a police logo on his back and was carrying
a 9mm handgun in a tactical thigh holster. “Milonas” then provided Brumley
with a Louisiana security identification card and a Global identification card,
both in the name “Arthur Milonas.” At this point, Brumley recognized Saltzman
from a previous encounter, and requested “Milonas” place his hands on the wall
so Brumley could secure the 9mm firearm. Saltzman then grabbed the
“Milonas” identification card from Brumley, left the vessel, and drove away
before Brumley could secure the weapon in the thigh holster.
1
Nationwide is a private security company that was responsible for the safety and
security of the ship’s crew and loading dock area while the ship was moored in New Orleans.
Nationwide’s cabin was used to secure items and as a resting area for the guards.
2
Global Maritime Security is also referred to in the record as Global Security. For
consistency, we will use “Global” or “Global Maritime Security” to refer to the company.
2
No. 07-30716
Subsequently, Immigration and Customs Enforcement Special Agent Ryan
Maher learned that a person named “Arthur Milonas” was actually employed by
Global. Maher interviewed Milonas, who said that his manager was someone
known as “John Chisholm,” but identified Saltzman as his supervisor from a
photo array. Maher then met with Brumley, who identified Saltzman as the
individual who claimed ownership of the .357 revolver. Maher also obtained a
trace report from the Bureau of Alcohol, Tobacco, Firearms and Explosives
National Tracing Center, which indicated that the weapon seized on February
27, 2006, was owned by Saltzman at that time.
On April 6, 2006, the Government filed a federal criminal complaint
charging Saltzman with possession of two firearms, a Smith & Wesson .357
revolver and a 9mm Beretta handgun, after a felony conviction for illegal
transportation of an alien, in violation of 18 U.S.C. § 922(g)(1). Saltzman made
his initial appearance on April 17, 2006, represented by Stephen London, his
counsel of choice. Because of ongoing plea negotiations, the parties jointly
agreed to continue the preliminary hearing four times. On August 24, 2006, the
Government filed a single count bill of information charging Saltzman with
felon-in-possession of the .357 revolver in violation of 18 U.S.C. §§ 922(g)(1) and
924(a)(2).
On October 26, 2006, Saltzman appeared before the district court for
rearraignment and pled guilty to the one-count bill. During the plea colloquy,
Saltzman agreed to the accuracy of the factual basis supporting the bill; denied
he had been induced to plead guilty by threats or coercion; agreed he had
sufficient time to investigate the case and discuss defenses with counsel;
expressed satisfaction with counsel; and stated he was acting of his own free
will. Sentencing was set for February 15, 2007.
Three days before sentencing, on February 12, 2007, Saltzman moved to
substitute attorneys, replacing London with Michael S. Fawer; to withdraw his
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No. 07-30716
guilty plea; and to continue sentencing. In his motion to withdraw his guilty
plea, Saltzman averred that he had “improvidently entered a guilty plea based
on an inaccurate ‘Factual Basis’ and a false belief that a guilty plea and general
plea for leniency constituted his sole means of proceeding with these charges.”
In support of his motion, Saltzman set forth the following facts, which he
argued demonstrated his “legal innocence.” Saltzman indicated that after his
2000 felony conviction, on November 14, 2000, he sold his .357 revolver to his
close friend Kevin Turner, the owner of Global. During the 2006 Mardi Gras
season, Turner lacked enough armed guards to secure the Nurten Ana, so Turner
contacted Saltzman and asked Saltzman to supervise the Global guards
watching the Nurten Ana. Saltzman donned generic tactical apparel so that he
would appear to have a position of security, placed a toy training pistol in his
thigh holster, and went to the port. Saltzman contended that he did not take
any firearm aboard the ship, nor did he provide anyone else on board with a
firearm; rather, Turner, the legal owner of the .357 revolver, had brought the
firearm to the wharf earlier that day and gave it to an employee of the security
subcontractor, who probably then stored it in the common room. Saltzman
contended he had never been in the common room of the Nurten Ana. With
respect to his interactions with Brumley, Saltzman indicated that he had
recognized Brumley as one of the officers who had arrested him in 2000, so he
gave an incorrect name and identification to Brumley. Saltzman said he never
claimed that he was the current owner of the .357 revolver and that he had only
identified the .357 revolver as the service weapon he had previously owned.
Saltzman then retrieved his identification and left the scene. Saltzman argued
that he had told London, his previous counsel, that he disagreed with the factual
basis and did not want to plead guilty, but that London induced him to lie under
oath and plead guilty. In support of his motion, Saltzman tendered the affidavit
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No. 07-30716
of Kevin Turner, a bill of sale for the .357 dated November 14, 2000, and his own
affidavit.3
The Government opposed Saltzman’s motion to withdraw his guilty plea,
and on February 28, 2007, the district court held a hearing on the pending
motions. The court granted the motion to withdraw the guilty plea, finding that
although the factual basis may have supported a finding that Saltzman owned
the .357 revolver, it was insufficient to support a finding that he possessed the
revolver, as required under 18 U.S.C. § 922(g). Further, the court found that
Saltzman “probably” lied in agreeing to the factual basis, and that the lying may
have been prompted by his attorney. Thus, the court allowed Saltzman to
withdraw his guilty plea and set the case for trial on April 2, 2007.
Subsequently, the Government filed an unopposed motion to continue the
trial because the negotiated plea had been set aside, and the Government
planned to present an indictment with additional violations to the federal grand
jury. The district court granted this motion.
On March 22, 2007, the grand jury returned a five-count superseding
indictment against Saltzman. Count one charged Saltzman with felon-in-
possession of the .357 revolver on February 27, 2006, in violation of 18 U.S.C. §§
922(g)(1) and 924(a)(2) – the same charge contained in the original bill of
information and indictment. Count two charged Saltzman with felon-in-
possession of a 9mm handgun on February 27, 2006, in violation of 18 U.S.C. §§
922(g)(1) and 924(a)(2). Count three charged Saltzman with felon-in-possession
of a .40 caliber Beretta handgun on December 20, 2003, in violation of 18 U.S.C.
3
Saltzman’s affidavit, however, only attests to the truth of Turner’s affidavit. Saltzman
did not submit an affidavit attesting to his version of the events, such as his contentions that
the 9mm weapon was a toy, that he had never been in the common room, that he didn’t claim
ownership of the weapon, and that London had induced him to lie.
5
No. 07-30716
§§ 922(g)(1) and 924(a)(2).4 Count four charged that Saltzman falsely
represented to Brumley that he was Arthur Milonas on February 27, 2006, in
violation of 18 U.S.C. § 1001(a)(2). Finally, count five charged that Saltzman
used a false document when he provided Brumley with two false identifications
as “Milonas,” in violation of 18 U.S.C. § 1001(a)(3).
Saltzman moved to dismiss counts two through five on May 11, 2007,
claiming that the Government sought the superseding indictment “as a
vindictive attempt to punish him for exercising his rights to plead not guilty and
demand a jury trial.” Saltzman argued that the Government knew all of the
facts underlying the superseding indictment at the time it made the original
charging decision; that the Government resurrected unrelated charges only after
Saltzman successfully moved to withdraw its guilty plea; and that such
circumstances indicated vindictiveness on the part of the Government. In
response, the Government contended that the one count indictment was filed as
part of the negotiated plea and that the Government was permitted to file
additional charges after the bargained-for result – the guilty plea – was not
obtained. The Government did however indicate that it did not plan on
presenting evidence on count three because, post-indictment, it had discovered
contradictory evidence which did not support the charge.5 The Government did
not include any affidavits or other evidence with its opposition.
On June 6, 2007, the district court issued a written ruling granting in part
and denying in part Saltzman’s motion to dismiss the superseding indictment.
4
The Government states that this charge arose from a review of Maher’s interview with
the real Arthur Milonas, who had told Maher that Saltzman had lent him a third handgun,
a .40 caliber Beretta, to attend firearms training that occurred on December 20, 2003.
5
After filing the superseding indictment, Maher reinterviewed Milonas, who stated for
the first time that he did not obtain the Beretta directly from Saltzman, but from another
individual who told Milonas it was from Saltzman. That individual was also interviewed, but
was unable to state positively that he obtained the Beretta from Saltzman. On this basis, the
Government concluded that the evidence would not support count three.
6
No. 07-30716
The district court made no finding of actual vindictiveness, but determined there
should be a presumption of vindictiveness for the following reasons. First,
Saltzman had exercised his legal right to withdraw his guilty plea, which the
court permitted “because the Government’s Bill of Information was egregiously
defective.” Second, at the time of the original indictment, the Government had
completed its investigation and had full knowledge of the few facts in the case.
Third, the Government’s willingness to dismiss count three of the indictment, a
charge unrelated to any of the conduct initially discussed in the criminal
complaint, was “of concern.” Fourth, the Government’s decision to charge
Saltzman with the misrepresentation counts, counts four and five, came directly
after Saltzman’s counsel conceded, in open court, that Saltzman misrepresented
himself to Brumley. Fifth, none of the additional charges had been included in
the original criminal complaint or indictment. Based on these factors, the court
concluded that although the Government could “arguably” justify the addition
of count two, the actions of the Government in charging counts three through
five demonstrated a reasonable likelihood of vindictiveness. The court thus
applied the presumption of vindictiveness and, concluding that the Government
had failed to rebut this presumption, dismissed counts three through five.
The Government filed a motion for reconsideration, supported by a more
detailed memorandum of law and documentary evidence, including a timeline
of events that occurred on February 27, 2006, and investigation reports. The
Government also included affidavits from Jeffrey Brown and Abram McGull, the
Assistant United States Attorneys assigned to the case; Agent Maher; and
Stephen London, Saltzman’s former attorney. The district court denied the
motion for reconsideration. The Government filed a timely appeal of the partial
grant of Saltzman’s motion and the denial of its motion for reconsideration.
II.
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No. 07-30716
On appeal, the Government argues that the district court erred in applying
the presumption of vindictiveness in the present case. We review a district
court’s factual findings concerning prosecutorial vindictiveness for clear error
and its legal determinations de novo. See United States v. Johnson, 91 F.3d 695,
698 (5th Cir. 1996).
“To punish a person because he has done what the law plainly allows him
to do is a due process violation ‘of the most basic sort.’” United States v.
Goodwin, 457 U.S. 368, 372 (1982) (citing Bordenkircher v. Hayes, 434 U.S. 357,
363 (1978)). Thus, a prosecutor may not increase the charge against a defendant
solely as a penalty for invoking a right, such as pursuing an appeal. See, e.g.,
United States v. Krezdorn, 718 F.2d 1360, 1362-65 (5th Cir. 1983) (en banc). The
defendant has the burden of proving, by a preponderance of the evidence,
prosecutorial vindictiveness. Id. at 1365. In general, there are two ways in
which a defendant can prove a claim of vindictiveness. First, a defendant may
prove actual vindictiveness by presenting objective evidence that the
prosecutor’s actions were designed to punish a defendant for asserting his legal
rights. See Goodwin, 457 U.S. at 384 & n.19; Johnson, 91 F.3d at 698. Second,
in certain circumstances, a defendant may show sufficient facts to give rise to a
presumption of vindictiveness. Goodwin, 457 U.S. at 374; Krezdorn, 718 F.2d at
1365.
Here, the district court determined that it was appropriate to apply the
presumption of vindictiveness. The presumption of vindictiveness is a
prophylactic rule designed to protect a defendant’s due process rights where a
danger exists that the government might retaliate against him for exercising a
legal right. See Bordenkircher, 434 U.S. at 363. The Court first applied this
presumption in North Carolina v. Pearce, 395 U.S. 711,725 (1969). In that case
the Court held that the Due Process Clause of the Fourteenth Amendment
“requires that vindictiveness against a defendant for having successfully
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No. 07-30716
attacked his first conviction must play no part in the sentence he receives after
a new trial.” Id. To ensure the absence of such a motivation, the Court applied
a presumption of vindictiveness, which may only be overcome by objective
evidence in the record justifying the increased sentence. Id. at 726.
Subsequently, in Blackledge v. Perry, 417 U.S. 21, 22-23, 28-29 (1974), the Court
applied the presumption of vindictiveness where the prosecutor filed additional
charges after the defendant exercised his right to a de novo trial for his
misdemeanor conviction. The Court held that the opportunities for
vindictiveness in the situation before it were such “as to impel the conclusion
that due process of law requires a rule analogous to that of the Pearce case.” Id.
at 27.
However, because such a presumption “may operate in the absence of any
proof of an improper motive,” Goodwin, 457 U.S. at 373, courts will apply it only
where there exists a “realistic likelihood of ‘vindictiveness.’” Blackledge, 417 U.S.
at 27. To determine whether the presumption of vindictiveness applies, “the
court must examine the prosecutor’s actions in the context of the entire
proceedings.” Krezdorn, 718 F.2d at 1365. There is no presumption of
vindictiveness if in the context of the entire proceedings “any objective event or
combination of events in those proceedings should indicate to a reasonable
minded defendant that the prosecutor’s decision . . . was motivated by some
purpose other than a vindictive desire to deter or punish appeals.” United States
v. Wells, 262 F.3d 455, 466-67 (5th Cir. 2001) (quoting Krezdorn, 718 F.2d at
1365). Even if a defendant establishes a realistic likelihood of vindictiveness,
however, the government still has an opportunity to proffer legitimate, objective
reasons for its conduct. See Goodwin, 457 U.S. at 374; Krezdorn, 718 F.2d at
1365.
Further, the inquiry into prosecutorial conduct in a pretrial context may
be distinguished from conduct occurring thereafter.
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No. 07-30716
For example, in Bordenkircher, 434 U.S. at 358, the Court for the first time
considered an allegation of vindictiveness arising in a pretrial setting. In that
case, the Court held that the Due Process Clause of the Fourteenth Amendment
did not prohibit a prosecutor from carrying out a threat, made during plea
negotiations, to bring additional charges against an accused who refused to
plead guilty to the offense with which he was originally charged. Id. at 365. It
was not disputed that the additional charge was justified by the evidence, that
the prosecutor was in possession of this evidence at the time the original
indictment was obtained, and that the prosecutor sought the additional charge
because of the accused’s refusal to plead guilty to the original charge. Id. at 359.
In finding no due process violation, the Court in Bordenkircher distinguished the
decisions in Pearce and Blackledge, stating:
In those cases the Court was dealing with the State’s
unilateral imposition of a penalty upon a defendant who
had chosen to exercise a legal right to attack his
original conviction – a situation “very different from the
give-and-take negotiation common in plea bargaining
between the prosecution and defense, which arguably
possess relatively equal bargaining power.”
434 U.S. at 362 (quoting Parker v. North Carolina, 397 U.S. 790, 809 (1970)).
Because the prosecution has a constitutionally legitimate interest in persuading
the defendant not to exercise his right to plead not guilty, the presumption of
vindictiveness was not warranted where the prosecution had done no more than
“openly present[] the defendant with the unpleasant alternatives of forgoing trial
or facing charges on which he was plainly subject to prosecution.” Id. at 365.
Subsequently, in Goodwin, the Court considered whether to apply a
presumption of vindictiveness when the prosecutor indicted the defendant on a
felony charge after the defendant declined to plead guilty and requested a jury
trial on a misdemeanor charge. 457 U.S. at 370. In that case, the Court noted
that “there is good reason to be cautious before adopting an inflexible
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No. 07-30716
presumption of prosecutorial vindictiveness in a pretrial setting.” Id. at 381.
First, although a prosecutor’s assessment of the evidence may be in flux prior to
trial, once a trial begins “it is much more likely that the State has discovered
and assessed all the information against an accused and has made a
determination, on the basis of that information, of the extent to which he should
be prosecuted.” Id. “Thus, a change in the charging decision made after an
initial trial is completed is much more likely to be improperly motivated than is
a pretrial decision.” Id. Second, prior to trial, a defendant is expected to invoke
procedural rights that inevitably impose some “burden” on the prosecutor; “[i]t
is unrealistic to assume that a prosecutor’s probable response to such motions
is to seek to penalize and to deter.” Id. Finally, the timing of a prosecutor’s
action is relevant and “[a] prosecutor should remain free before trial to exercise
the broad discretion entrusted to him to determine the extent of the societal
interest in prosecution. An initial decision should not freeze future conduct.” Id.
at 381-82. Therefore, the Court concluded that “[t]he possibility that a
prosecutor would respond to a defendant’s pretrial demand for a jury trial by
bringing charges not in the public interest that could be explained only as a
penalty imposed on the defendant is so unlikely that a presumption of
vindictiveness certainly is not warranted.” Id. at 384.
The only feature distinguishing this case from Bordenkircher and Goodwin
is that rather than refusing to plead guilty, Saltzman did plead, but then
succeeded in withdrawing his plea before the superseding indictment was filed.
Thus, it is allegedly the withdrawal of the plea, not the refusal to enter a plea
that prompted the additional charges. We see no distinction between a
defendant’s refusal to plead guilty and a defendant’s successful withdrawal of a
guilty plea sufficient to warrant the imposition of a presumption of
vindictiveness in the latter case. In both circumstances the defendant has, in
essence, refused the Government’s offer of a plea and exercised his right to force
11
No. 07-30716
the Government to prove its case. Goodwin clearly held that such a
circumstance is “insufficient to warrant a presumption that subsequent changes
in the charging decision are unjustified.” Id. at 382-83. Here, an objective event
– Saltzman’s successful withdrawal of his guilty plea – “should indicate to a
reasonable minded defendant that the prosecutor’s decision to increase the
severity of charges was motivated by some purpose other than a vindictive desire
to deter or punish.” Krezdorn, 718 F.2d at 1365; Goodwin, 457 U.S. at 382-83
(“[T]he mere fact that a defendant refuses to plead guilty and forces the
government to prove its case is insufficient to warrant a presumption that
subsequent changes in the charging decision are unjustified.”); cf. Wells, 262 at
467 (holding that vacatur of plea agreement is an “objective event” that should
have indicated that the government’s decision to increase the charges was
motivated by some purpose other than a vindictive desire to punish him for
exercising his right to trial).
In reaching its conclusion that the presumption should apply, the district
court relied heavily on the fact that at the time of the original indictment, the
Government had full knowledge of the facts in the case, but did not include any
of the additional charges in the original criminal complaint or indictment.
However, both Bordenkircher and Goodwin rejected this factor as relevant
because “the initial charges filed by a prosecutor may not reflect the extent to
which an individual is legitimately subject to prosecution.” Goodwin, 457 U.S.
at 382. The Court explained:
Since charges brought in an original indictment may be
abandoned by the prosecutor in the course of plea
negotiation – in often what is clearly a “benefit” to the
defendant – changes in the charging decision that occur
in the context of plea negotiation are an inaccurate
measure of improper prosecutorial “vindictiveness.”
An initial indictment – from which the prosecutor
embarks on a course of plea negotiation – does not
necessarily define the extent of the legitimate interest
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No. 07-30716
in prosecution. For just as a prosecutor may forgo
legitimate charges already brought in an effort to save
the time and expense of trial, a prosecutor may file
additional charges if an initial expectation that a
defendant would plead guilty to lesser charges proves
unfounded.
Goodwin, 457 U.S. at 379-80; see also Bordenkircher, 434 U.S. at 364-65 (“To
hold that the prosecutor’s desire to induce a guilty plea . . . may play no part in
his charging decision, would contradict the very premises that underlie the
concept of plea bargaining itself.”); United States v. Molina-Iguado, 894 F.2d
1452, 1455 (5th Cir. 1990).
The district court also found significant the Government’s decision to
charge Saltzman with the misrepresentation counts directly after Saltzman’s
counsel conceded, in open court, that Saltzman misrepresented himself to
Brumley. However, as the Goodwin Court indicated: “In the course of preparing
a case for trial, the prosecutor may uncover additional information that suggests
a basis for further prosecution or he simply may come to realize that information
possessed by the State has a broader significance.” 457 U.S. at 381. Thus, while
it is possible that counsel’s concessions influenced the prosecutor’s charging
decision on the misrepresentation counts, “[a] prosecutor should remain free
before trial to exercise the broad discretion entrusted to him to determine the
extent of the societal interest in prosecution.” Id. at 382.
The district court and Saltzman rely on United States v. Meyer, 810 F.2d
1242 (D.C. Cir. 1987). In that case, two hundred political demonstrators were
arrested outside of the White House. Although many demonstrators elected to
plead guilty and pay a $50 fine, some elected to proceed to trial. Id. at 1244.
The Government then filed an additional count of obstructing the sidewalks
against every defendant who elected to proceed to trial. Id. Counsel for
defendants moved to dismiss the superseding indictment on the ground of
vindictive prosecution. Id. Although the Government moved to dismiss the
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No. 07-30716
additional count at the vindictiveness hearing, the trial court dismissed the
entire indictment on the ground of vindictive prosecution. Id. The D.C. Circuit
concluded that the defendants presented evidence allowing the imposition of the
presumption of vindictiveness. Id. at 1246. The court concluded that defendants
showed that all of the circumstances, presented together, supported a realistic
likelihood of vindictiveness. Id. Primarily, the court relied on the Government’s
disparate treatment of every defendant who elected to proceed to trial,
explaining that “[t]his disparate treatment must give rise to a suspicion that the
government discriminated among the defendants on the basis of their divergent
decisions whether to exercise their right to trial.” Id. The court also noted the
“simplicity and clarity of both the facts and law underlying these prosecutions”
and found suspicious the Government’s willingness to drop the additional charge
at the hearing. Id. at 1246-47. Finally, the court considered the government’s
motive to act vindictively. Id. at 1247. Unlike a routine individual prosecution,
“[t]he government had a strong incentive to try to keep clear of this courtroom
morass: it wished to avoid the annoyance and expense of prosecuting these
minor cases at a potentially drawn-out trial.” Id.
Saltzman argues that his case is factually indistinguishable from Meyer.
We disagree. It is clear that the Meyer court’s application of the presumption of
vindictiveness was based, in large part, on the fact that the government decided
to bring the additional charge against every member of a group of defendants
that chose to proceed to trial. This disparate treatment rendered inapplicable
much of the Goodwin court’s discussion regarding an individual prosecutor’s
exercise of discretion. Further, the large number of defendants threatening to
go to trial on petty offenses created a strong incentive for the prosecutor to
discourage the assertion of legal rights. Neither of these two factors is present
here. Saltzman argues that, like the prosecutor in Meyer, the prosecutor here
has offered to drop one of the charges in the superseding indictment. However,
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No. 07-30716
in Meyer, the prosecution’s willingness to drop the charge was relevant because
the trial court had granted the defendants a jury trial on the basis of the
enhanced charges. Thus, it appeared that the prosecution wished to drop the
charges only to prevent defendants from invoking their right to a jury trial, not
for any legitimate reason, such as a lack of evidence to support the charge. Here,
in contrast, there would be no such benefit to the prosecution for dropping the
third charge and nothing to indicate that the prosecutor was not acting in good
faith in refusing to pursue the third charge.
We acknowledge that the district court’s task in this case was made
significantly more difficult by the Government’s failure to provide any evidence
whatsoever with its opposition to Saltzman’s motion. As the district court
properly recognized, it was required to “examine the prosecutor’s actions in the
context of the entire proceedings” to determine whether the defendant
demonstrated a realistic likelihood of vindictiveness. In its motion for
reconsideration, the Government attached affidavits from the prosecutors,
investigatory reports, and timelines, all of which would have been eminently
useful to the district court in making its initial assessment of Saltzman’s motion.
Nonetheless, even considering only the facts before the district court at the
time of Saltzman’s motion, we must conclude that Saltzman failed to
demonstrate a reasonable likelihood of vindictiveness. Saltzman showed that
the prosecutor increased the charges against him after he asserted his right to
withdraw his guilty plea and proceed to trial. Goodwin, however, makes clear
that such facts, standing alone, are insufficient to justify the application of the
presumption of vindictiveness. Further, Saltzman has not presented any
additional facts sufficient to show a realistic likelihood of vindictiveness, nor has
he demonstrated that there was anything sufficiently unusual in the history of
this particular case to distinguish it from Goodwin. We conclude that the
instant case fits within the parameters of Bordenkircher and Goodwin.
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No. 07-30716
Therefore, the district court erred in applying the presumption of vindictiveness
in the present case. See United States v. Barner, 441 F.3d 1310, 1319 (11th Cir.
Ga. 2006) (refusing to apply presumption where prosecution obtained
superseding indictment containing additional counts after defendant withdrew
his guilty plea); United States v. Yarbough, 55 F.3d 280, 283 (7th Cir. 1995) (no
presumption of vindictiveness where prosecutor filed six additional counts after
defendant withdrew his guilty plea); United States v. Cooks, 52 F.3d 101, 105-06
(5th Cir. 1995) (presumption does not apply where government sought career
offender sentencing enhancement after withdrawal of guilty plea).
Because the presumption of vindictiveness therefore does not apply to
charges three, four, and five of the superseding indictment, Saltzman was
required to show that the Government’s charging decision was motivated by
actual vindictiveness. See Wasman v. United States, 468 U.S. 559, 569 (1984).
To prove actual vindictiveness, Saltzman must present objective evidence that
the government acted solely to punish him for exercising his legal rights, and
that the reasons proffered by the government are pretextual. United States v.
Dorsey, 512 F.3d 1321, 1325-26 (11th Cir. Fla. 2008); see also United States v.
Johnson, 221 F.3d 83, 94 (2nd Cir. 2000) (A finding of “actual vindictiveness
requires ‘direct’ evidence, such as evidence of a statement by the prosecutor . .
. .”). Although Saltzman appears to claim that evidence of actual vindictiveness
exists in the record, Saltzman has failed to present any such evidence.
Therefore, Saltzman’s vindictive prosecution claim must fail.
III.
In conclusion, we find that the district court erred in applying the
presumption of vindictiveness. Therefore, we REVERSE and REMAND.
16