United States v. Javado Barner

[ PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED
_________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
MARCH 10, 2006
No. 04-13384
THOMAS K. KAHN
_________________________
CLERK

D.C. Docket No. 02-00018-CR-4-1

UNITED STATES OF AMERICA,

Plaintiff-Appellant,
versus

JAVADO BARNER,

Defendant-Appellee.

_________________________

Appeal from the United States District Court
for the Northern District of Georgia
_________________________

(March 10, 2006)

Before ANDERSON, HULL and GIBSON*, Circuit Judges.

GIBSON, Circuit Judge:

*Honorable John R. Gibson, United States Circuit Judge for the Eighth Circuit, sitting by
designation.
 The United States appeals from the district court’s dismissal of the Fifth

Superseding Indictment in this case. The government contends that the district

court erred in concluding that the facts of this case warranted a presumption that

the Fifth Superseding Indictment resulted from prosecutorial vindictiveness. We

hold that no such presumption of vindictiveness was proper, but we remand for the

district court to make findings as to whether the Fifth Superseding Indictment was

the result of actual vindictiveness.

Javado Barner was first indicted in this case on February 12, 2002. On May

13, 2002, Barner filed a motion to dismiss or redact the indictment. On May 16,

2002, Barner’s trial counsel moved to withdraw from representing Barner. On

May 31, 2002, the magistrate judge granted trial counsel’s motion to withdraw.

On that same day, substitute counsel was appointed.

A Fourth Superseding Indictment was returned against Barner on June 12,

2002. Count 1 of that indictment charged Barner and others with a conspiracy to

possess cocaine, marijuana, and ecstasy with intent to distribute them and alleged

that the defendants had obtained the narcotics by robbing people they thought

were drug dealers. Barner was also charged with conspiracy to possess firearms in

furtherance of a drug trafficking offense (Count 2); possession of 500 grams or

more of cocaine with intent to distribute it (Count 3); possession of firearms in

furtherance of the drug trafficking crimes alleged in Count 3 (Count 4); four

2
counts of using and carrying firearms in furtherance of the particular drug

trafficking conspiracy charged in Count 1 (Counts 5-8); and possession of 30,000

pills of ecstasy with intent to distribute them (Count 9).

On July 12, 2002, Barner pleaded guilty to Counts 1 and 6, in return for

which the government agreed to seek dismissal of the remaining counts and to

recommend a sentence of 144 months’ imprisonment. All the other co-defendants

also pleaded guilty and received sentences ranging from 57 months to 18 years,

according to their respective culpability and cooperation, as assessed by the

prosecutors.

However, rather than proceeding to sentencing under the plea agreement,

Barner moved to withdraw his plea agreement on December 4, 2002, on the

ground that he had received ineffective assistance of counsel,1 and the court

granted his motion on February 18, 2003.

On February 21, 2003, Barner’s new counsel filed a motion for leave to file

additional pre-trial motions. On March 5, 2003, the district court gave Barner’s

trial counsel ten days to file additional pre-trial motions.

1
Also on December 4, 2002, Barner’s second trial counsel moved to withdraw. The
district court granted the motion on December 9, 2002, and remanded the case to the magistrate
judge for appointment of new counsel. On December 10, 2002, the magistrate judge appointed
new counsel, Barner’s third counsel.

3
 On March 4, 2003, Barner’s counsel filed several motions, including a

motion to dismiss counts and to redact the indictment, a motion to suppress certain

statements, and a motion to dismiss three of the four remaining gun counts

(Counts 5-8) because they all related to the single conspiracy charged in Count 1

and were therefore multiplicitous.

On July 18, 2003, Barner’s counsel filed a motion to dismiss the indictment

based upon prosecutorial misconduct.2 Barner alleged that the government had

used perjured testimony before the grand jury. He requested a copy of the grand

jury transcripts. In reply, the government emphasized that at the earlier

suppression hearing, the government witness had admitted that he mistakenly

testified before the grand jury about Barner’s involvement in one of the counts.

On September 26, 2003, the government moved to dismiss Counts 3 and 4

because it became clear that Barner was not present during the crimes alleged.

The district court granted the government’s motion on the same day.

On October 17, 2003, the magistrate judge recommended granting Barner's

motion to dismiss three of the four gun counts for multiplicity; the government did

not object to the recommendation, and the district court adopted it and dismissed

the counts.

2
Barner signed the motion as the “Defendant, pro se.” Barner’s counsel signed the
motion as “standby counsel.”

4
 On February 4, 2004, the district court denied Barner’s motions to suppress

and to dismiss the indictment based upon prosecutorial misconduct. As to the

misconduct motion, the district court adopted the magistrate judge’s report and

recommendation, finding that: (1) while the witness had made a mistake in his

grand jury testimony, there was no evidence the witness knowingly provided false

testimony; (2) there was no evidence that the prosecutor knew the witness had

made a misstatement before the grand jury; and (3) once the government

discovered the mistake, it moved to dismiss Counts 3 and 4 of the indictment (as

well as overt act six of Count 1).

At about this same time, the district court set the case for trial on March 8,

2004. On February 9, 2004, the government sought a two-week continuance until

March 22, 2004, stating that it needed the time to secure the presence of out-of-

state witnesses. The district court continued the trial to March 29, 2004, but stated

that it would not entertain any further continuance motions.

On March 17, 2004, the government obtained a Fifth Superseding

Indictment against Barner, the only remaining defendant. In addition to the old

drug trafficking conspiracy and ecstasy counts (now Counts 1 and 10), the new

indictment added four Hobbs Act robbery counts based on the same robberies

alleged in the old conspiracy count (now Counts 2, 4, 6 and 8), and four counts of

using firearms in connection with a crime of violence (now Counts 3, 5, 7, and 9).

5
Each of the firearms counts was alleged in connection with one of the Hobbs Act

counts.

Barner moved to dismiss the Fifth Superseding Indictment on the ground

that it was the result of prosecutorial vindictiveness. On May 19, 2004, the

magistrate judge recommended that Barner’s motion be denied. The magistrate

judge found there was no evidence of actual vindictiveness. The magistrate judge

also concluded that the facts did not trigger a presumption of vindictiveness and

that, even if the presumption applied, the government rebutted it by showing that

the Fifth Superseding Indictment reflected a decision to correct a mistake in the

preceding indictment.

After conducting a hearing, the district court made no finding of actual

vindictiveness, but determined that there should be a presumption of

vindictiveness for the following reasons. First, the threshold conditions for such a

presumption existed: Barner had exercised legal rights to withdraw his guilty plea

and to challenge several counts of the indictment for multiplicity, and the

prosecutor had subsequently increased the charges and the punishment for which

Barner stood in jeopardy. Second, after obtaining a continuance for the avowed

purpose of securing witnesses for trial, the government in fact used the additional

time to obtain the new indictment. Third, the increased charges were not made in

the context of plea bargaining, since the government made no plea offer to Barner

6
between the time the charges in the Fourth Indictment were dismissed and the

return of the Fifth Superseding Indictment and did not inform Barner that he

would be reindicted. Fourth, Barner’s co-defendants, who pleaded guilty, received

far lower sentences than the sentence Barner would receive were he convicted on

all the charges of the Fifth Superseding Indictment. In particular, the district court

remarked that the ringleader and most culpable defendant, Johnathan Dale, had

pleaded guilty to various charges of the Fourth Superseding Indictment and had

been sentenced to 18 years' imprisonment. In contrast, the court calculated

Barner’s potential sentence under the Fifth Superseding Indictment at 103 years.

Fifth, the district court compared Barner’s potential sentence under the new

indictment to his potential sentence under the old indictment after the

multiplicitous counts had been dismissed, which it calculated at 12 years, rather

than comparing all the prison time that the Fourth Superseding Indictment had

originally charged,3 which the parties stated at the hearing would have been either

something in excess of 107 years (according to the prosecutor) or 87 years

(according to Barner). Sixth, the court compared the potential sentence under the

new indictment to what Barner would have received under the plea bargain he

3
Minus the counts the government dismissed voluntarily.

7
rejected, which was 12 years. Based on these factors, the court concluded that

there was a realistic likelihood of vindictiveness in the case.4

The district court dismissed the Fifth Superseding Indictment and ordered

that Barner stand trial on the Fourth Superseding Indictment, minus the

multiplicitous counts.

The government appeals the dismissal of the Fifth Superseding Indictment,

arguing that the law does not permit a presumption of vindictiveness in the

circumstances of this case and that there was no evidence of actual vindictiveness.

I.

Although this Court has not explicitly determined the standard of review in

prosecutorial vindictiveness cases, "[t]he dismissal of an indictment on the ground

of prosecutorial misconduct is a discretionary call; we therefore review the court’s

action for an abuse of discretion." United States v. Jordan, 316 F.3d 1215, 1248-

49 (11th Cir. 2003) (internal footnote omitted); accord United States v. Clay, 376

F.3d 1296, 1300 (11th Cir. 2004), cert. denied, 543 U.S. 1192 (2005). "A district

court abuses its discretion if, in making the decision at issue, it applies the

4
In a footnote, the district court remarked on the “contentious history” between the
government and Barner, especially the fact that Barner had filed numerous motions challenging
the charges against him, including a motion alleging prosecutorial misconduct in failing to
disclose perjury by a witness, of which Barner alleged the government was aware. However, the
court did not say what weight, if any, it gave to this contentious history in deciding the
presumption of vindictiveness would apply.

8
incorrect legal standard or makes findings of fact that are clearly erroneous."

Jordan, 316 F.3d at 1249; see Maddox v. Elzie, 238 F.3d 437, 446 (D.C. Cir.

2001) (factual finding of actual vindictiveness reviewed for clear error, but legal

question of whether prosecutorial vindictiveness doctrine applies reviewed de

novo). Because this case presents the legal question of whether, on undisputed

facts, a presumption of vindictiveness arises under the Supreme Court's case law,

we must review the question presented de novo. 5

II.

"A prosecutor may seek a superseding indictment at any time prior to a trial

on the merits," United States v. Cole, 755 F.2d 748, 757 (11th Cir. 1985); United

States v. Del Vecchio, 707 F.2d 1214, 1216 (11th Cir. 1983), so long as the

5
There is some confusion among and within the other circuits regarding the proper
standard of review for the ultimate question of whether to apply the presumption of
vindictiveness. Compare United States v. Wilson, 262 F.3d 305, 316 (4th Cir. 2001) ("We
review the district court's order[] . . . establishing a presumption of vindictive prosecution de
novo because we are determining the legal adequacy of the evidence to support such orders.")
with United States v. Perry, 335 F.3d 316, 320 (4th Cir. 2003) (abuse of discretion standard) with
United States v. Frega, 179 F.3d 793, 801 (9th Cir. 1999) (Ninth Circuit standard unsettled) and
United States v. Campbell, 410 F.3d 456, 461 n.2 (8th Cir.) (collecting Eighth Circuit cases
applying inconsistent standards of review: abuse of discretion, de novo, and clear error), cert.
denied, 126 S. Ct. 492 and 126 S. Ct. 768 (2005).
The disagreement is perhaps more apparent than real, for even under an abuse of
discretion standard, errors of law receive no deference.

Little turns, however, on whether we label review of this particular question abuse
of discretion or de novo, for an abuse-of-discretion standard does not mean a
mistake of law is beyond appellate correction. A district court by definition
abuses its discretion when it makes an error of law.

Koon v. United States, 518 U.S. 81, 100 (1996) (citation omitted).

9
purpose is not to harass the defendant, United States v. Edwards, 777 F.2d 644,

649 (11th Cir. 1985). As a general rule, as long as the prosecutor has probable

cause to believe the accused has committed a crime, the courts have no authority

to interfere with a prosecutor's decision to prosecute. Cole, 755 F.2d at 758;

United States v. Spence, 719 F.2d 358, 361 (11th Cir. 1983). However, a

superseding indictment adding new charges that increase the potential penalty

would violate due process if the prosecutor obtained the new charges out of

vindictiveness. Spence, 719 F.2d at 361. Vindictiveness in this context means the

desire to punish a person for exercising his rights. United States v. Goodwin, 457

U.S. 368, 372 (1982).

A prosecutor's decision to seek heightened charges after a defendant

successfully appeals his conviction for the same conduct is presumed to be

vindictive. In Blackledge v. Perry, 417 U.S. 21 (1974), a convicted defendant had

appealed and obtained a new trial; on retrial the prosecutor had increased the

charge from misdemeanor to a felony. On habeas review, the Supreme Court held

that when a prosecutor obtains heightened charges after a defendant successfully

appeals his conviction, there is a "realistic likelihood of 'vindictiveness.'" Id. at 27.

Due process requires that "such a potential for vindictiveness," id. at 28, should

play no role in the appellate process. Consequently, the Supreme Court applied a

10
presumption of vindictiveness and held that the conviction on the felony charge

violated due process. Id. at 27-29.

While a prosecutor's decision to seek heightened charges after a successful

post-trial appeal is enough to invoke a presumption of vindictiveness, "proof of a

prosecutorial decision to increase charges after a defendant has exercised a legal

right does not alone give rise to a presumption in the pretrial context." United

States v. Miller, 948 F.2d 631, 633 (10th Cir. 1991) (emphasis added); accord

United States v. Gamez-Orduno, 235 F.3d 453, 462 (9th Cir. 2000) ("[I]n the

context of pretrial plea negotiations vindictiveness will not be presumed simply

from the fact that a more severe charge followed on, or even resulted from the

defendant's exercise of a right."). The difference in the applicability of the

presumption is due to several cogent differences between post-trial and pre-trial

situations.

First, before trial the defendant may not have actually exercised a protected

right. In Bordenkircher v. Hayes, 434 U.S. 357 (1978), a prosecutor threatened to

bring an additional charge if the defendant did not plead guilty to the existing

charge; the defendant did not so plead, and the prosecutor obtained a superseding

indictment with the new charge. Even though the prosecutor added the charge in

an attempt to persuade the defendant not to exercise his right to stand trial, the

Supreme Court held there was no "punishment or retaliation" and hence no

11
vindictiveness or due process violation in plea bargaining "so long as the accused

[was] free to accept or reject the prosecution's offer." Id. at 363. Thus, the Court

distinguished between the impermissible attempt to punish an already-

accomplished exercise of appeal rights in Blackledge and the permissible attempt

to persuade the defendant not to exercise his trial right in the future in

Bordenkircher. See also United States v. Mays, 738 F.2d 1188, 1190 (11th Cir.

1984) (stating that applicability of presumption of vindictiveness depends on

whether or not defendant has exercised a protected right).

But in United States v. Goodwin, 457 U.S. 368 (1982), the distinction

between punishment and persuasion did not explain the lack of a presumption.

There, the defendant had already exercised his rights to decline to plead guilty to

the misdemeanor charge against him and to request a jury trial when the

prosecutor had him indicted on a felony charge, for which he was ultimately

convicted. Id. at 370-71. Even though the defendant contended he was being

punished for exercising his right to a jury trial–it being too late for persuasion,

since he had already made the request–the Court held still other aspects of the pre-

trial situation made it inappropriate to apply a Blackledge-type presumption of

vindictiveness. The Court distinguished between Blackledge, which involved a

prosecutor's action after a conviction had been obtained and vacated, and

Bordenkircher and Goodwin, which involved prosecutors' decisions to augment

12
the charges against the defendants before trial. Id. at 376-81. The Court said that

the prosecutor who adds charges after a conviction has been obtained and vacated

is likely to have had a personal stake in the first trial and to be tempted to engage

in self-vindication. Id. at 383. Additionally, the Court held that there was an

"institutional bias" against retrial of a "decided question." Id. In contrast, there is

no such bias against according the defendant his right to trial by jury, and

everyone expects a defendant to invoke numerous procedural rights before trial.

Id. at 381-383. Moreover, changes in charging decisions are quite usual early in

the proceedings when the prosecutor's view of the case may not have

"crystallized," but are unusual and more surprising once the trial has begun. Id. at

381. In light of these differences between the post-trial situation in Blackledge

and the pre-trial situation in Goodwin, the Court held there was not a "realistic

likelihood of 'vindictiveness'" in Goodwin that would justify a presumption of

vindictiveness. Id. at 383-84.6

Even though no presumption of vindictiveness applied in Goodwin, the

Court explicitly left open the possibility that the defendant could prove actual

vindictiveness in a pre-trial situation, without the help of a presumption, and that

6
Goodwin also stated that even when the presumption applies, it may be rebutted by
objective evidence justifying the prosecutor's action. 457 U.S. at 376 n. 8. Accord United States
v. Taylor, 749 F.2d 1511, 1513 (11th Cir. 1985) (per curiam) ("The government may rebut this
presumption of vindictiveness by offering 'objective proof which explains or justifies the
prosecutor's decision.'") (quoting United States v. Spence, 719 F.2d 358, 362 (11th Cir. 1983)).

13
this would establish a due process violation. Id. at 384. Accord United States v.

Wilson, 262 F.3d 305, 314 (4th Cir. 2001).

A.

The government contends that Goodwin set forth a categorical rule that the

presumption of vindictiveness does not apply to a prosecutor's decision to add

charges based on the defendant's pre-trial exercise of rights. Goodwin does indeed

distinguish between pre- and post-trial exercise of rights, reasoning that aspects of

the pre-trial situation make vindictiveness less likely and therefore militate against

use of a presumption of vindictiveness. Although those same factors will be

present in other pre-trial cases, nothing in the language or rationale of Goodwin

rules out the possibility that a case could present additional factors that would

make it appropriate to use the presumption in a pre-trial setting. Most courts have

not read Goodwin as propounding a categorical rule against a presumption of

prosecutorial vindictiveness in the pre-trial setting; instead, they have interpreted

it as simply directing the courts to evaluate the "realistic likelihood of

vindictiveness" in a particular factual situation, including a pre-trial situation, and

to determine whether any facts make a presumption of vindictiveness proper. E.g.,

Wilson, 262 F.3d at 317-20; United States v. Gallegos-Curiel, 681 F.2d 1164,

1167-69 (9th Cir. 1982) (Kennedy, J.); United States v. Wall, 37 F.3d 1443, 1448

(10th Cir. 1994); United States v. Krezdorn, 718 F.2d 1360, 1364-65 (5th Cir.

14
1983) (en banc). But see United States v. Bullis, 77 F.3d 1553, 1559 (7th Cir.

1996) (in pre-trial situation, presumption of vindictiveness not applicable and

defendant must come forward with objective evidence of actual vindictiveness); 4

Wayne LaFave, Jerold Israel, Nancy King, Criminal Procedure § 13.7(c) ("It thus

appears unlikely that the Blackledge prophylactic rule has any application

whatsoever in a pretrial setting, though at least one court has concluded otherwise.

. . .").

This court has neither adopted nor rejected a per se rule that the

presumption of vindictiveness cannot apply in a pre-trial setting. In Mays we

discussed Goodwin's analysis of the reasons against applying the presumption in

pre-trial settings:

The Goodwin court was reluctant to invoke a presumption of
vindictiveness in the pre-trial context, inasmuch as it might inflexibly
fetter the prosecutor's discretion. The Court recognized that
acquisition of additional information or an increased appreciation of
the facts previously available to the state might be an inducement to
enhance the charges. 457 U.S. at 381, 102 S. Ct. at 2493, 73 L. Ed.
2d at 85 (1982). The Goodwin decision reaffirmed the prosecutorial
discretion recognized in Bordenkircher, supra, and functioned to
remove the affirmative defense of vindictive prosecution in "pre-trial
skirmishes between defense counsel and prosecution." United States
v. Mauricio, 685 F.2d 143, 147 (5th Cir.), cert. denied, 459 U.S.
1074, 103 S. Ct. 498, 74 L. Ed. 2d 638 (1982).

738 F.2d at 1190. Although this language suggests that the presumption should

not apply in a pre-trial setting, it is dictum, not holding, for two reasons. First, as

15
we stated, "The case here does not fit neatly into either the post-conviction or pre-

trial categories because the alleged intimidation occurred after a mistrial." Id.

Therefore, we had no reason to adopt a pre-trial/ post-trial rule. Second, since the

mistrial in Mays resulted from the jury's inability to reach a verdict, we concluded

that there was no exercise of a protected right, and hence, no occasion for

vindictiveness. The basic predicates for the presumption were missing, so we had

no reason to decide the more refined question of whether those predicates would

or would not support the presumption in the pre-trial setting. Moreover, the

language in Mays most suggestive of a rule was a quotation from the Fifth Circuit

case of United States v. Mauricio, 685 F.2d 143, 147 (5th Cir. 1982), but by the

time Mays was decided, the Fifth Circuit had already rejected the idea of a per se

rule based on the pre-trial/post-trial distinction. See United States v. Krezdorn,

718 F.2d 1360, 1364 (5th Cir. 1983) (en banc) ("The proper solution is not to be

found by classifying prosecutorial decisions as changing or adding charges, as

amending decisions already made, as covering the same basic conduct or spree of

activity, or as being made pre- or post-trial."). Instead, the Fifth Circuit adopted a

"totality of circumstances approach," in which it looks at all the facts of the case,

rather than focusing on categorical distinctions such as pre-trial setting versus

post-trial setting. Id. at 1364-65. This court has reserved judgment on whether to

16
adopt the "totality of circumstances" approach. United States v. Taylor, 749 F.2d

1511, 1513 n. * (11th Cir. 1985) (per curiam).

It is not necessary for us to decide today whether the presumption can ever

arise in a pre-trial setting, because even assuming compelling facts could justify a

presumption in a pre-trial setting, such facts would have to form a realistic

likelihood of vindictiveness, Goodwin, 457 U.S. at 383-84. The factors cited by

the district court and relied on by Barner do not present that likelihood.

B.

We must first determine whether Barner's exercise of pre-trial rights was

followed by charges of increased severity. Barner exercised protected rights when

he successfully challenged the multiplicitous counts, and shortly after the

dismissal the government obtained new charges. The government does not dispute

that there was a causal connection between the dismissal and the new indictment.

However, the government contends that it had a legitimate interest in seeking to

recharge the conduct that formed the basis of the dismissed counts. The

prosecutor said at the hearing before the district court, "What the government has

done that's different is [the magistrate judge] said the gun counts can't refer back

to conspiracy. It's got to be linked to a crime of violence. So I addressed that by

putting in the crimes of violence." The government's attempt to obtain a new

indictment that would charge the conduct correctly is analogous to conduct we

17
held permissible in United States v. Taylor, 749 F.2d 1511, 1514 (11th Cir. 1985).

There, a defendant was convicted of possession of cocaine with intent to

distribute, but on appeal the charge was reduced to simple possession. The

prosecutor then charged the defendant with possessing hashish, which was seized

at the same time as the cocaine. The defendant argued that the new indictment

was an attempt to punish him for winning the appeal of the first conviction, but

this Circuit held:

[T]he district court correctly concluded that the prosecutor's
motivation for indicting Taylor on additional charges was to secure a
conviction and sentence commensurate with his assessment of
Taylor's criminal conduct and not to penalize him for taking an
appeal.

Id. at 1514. Accord Krezdorn, 718 F.2d at 1362, 1365 (reversing district court's

dismissal for vindictiveness; prosecutor entitled to add charge to address legal

objection to conviction that was reversed); Paradise v. CCI Warden, 136 F.3d 331,

336 (2d Cir. 1998) ("A state's punitive motivation does not represent a

constitutional violation, where as here, the state sought to punish not for the right

exercised, but for the crime committed."). Likewise, in this case, the government's

attempt to correct its earlier mistake and charge the conduct in a way that could

18
support a conviction does not show a desire to punish Barner for exercising his

rights, but rather to punish him for the alleged felonious conduct.7

Barner also mentions the withdrawal of his guilty plea as an exercise of

rights that preceded the new charges. However, this change of plea occurred

more than a year before the government obtained the Fifth Superseding Indictment

and nothing indicates that there was any causal relationship between the

withdrawal of guilty plea and the new indictment. Even if there were such a

relationship, in Bordenkircher, the prosecutor explicitly obtained a new indictment

because the defendant refused to plead guilty, and the Supreme Court held that

this did not violate due process. 434 U.S. at 365.

Barner's brief also makes passing references to the "contentious history of

this case," Barner brief at p. 25, and lists his various pre-trial motions, including

his motion to dismiss based upon prosecutorial misconduct for using perjured

testimony before the grand jury, id. at 21-22. The mere fact that a defendant has

made pre-trial motions is not sufficient to raise a presumption of prosecutorial

vindictiveness, as Goodwin explained:

[A] defendant before trial is expected to invoke procedural
rights that inevitably impose some "burden" on the prosecutor.
Defense counsel routinely file pretrial motions to suppress evidence;

7
We of course express no view as to whether Barner's conduct was properly charged
under the Hobbs Act, since the question was never raised; Barner does not contend that he was
charged without probable cause.

19
 to challenge the sufficiency and form of an indictment; to plead an
affirmative defense; to request psychiatric services; to obtain access
to government files; to be tried by jury. It is unrealistic to assume that
a prosecutor's probable response to such motions is to seek to
penalize and to deter. The invocation of procedural rights is an
integral part of the adversary process in which our criminal justice
system operates.

457 U.S. at 381. Even a pre-trial motion based on prosecutorial misconduct is not

so unusual that it should engender a presumption, "applicable in all cases,"

Goodwin, 457 U.S. at 381, in which a defendant files such a motion.

Barner has adduced no special facts that would show that the pre-trial

history of this case was so caustic that it could be expected to cause the prosecutor

to behave improperly. In ruling on the prosecutorial misconduct motion, the

district court adopted the magistrate judge's finding that Barner had not shown

either that the grand jury testimony was perjured rather than mistaken or that the

prosecutor had known of the mistake at the time of the testimony. Since Barner

did not prevail on this motion, the government had no obvious reason for

vindictive retribution.

Barner has not demonstrated that there was anything sufficiently unusual

in the pretrial motions history of this case to distinguish it from Goodwin. Thus,

assuming a presumption could arise in the pre-trial context, in addition to the

threshold showing of exercise of rights followed by augmentation of charges,

20
Barner would have to identify other factors that would raise a realistic likelihood

of vindictiveness.

C.

The factors on which the district court relied were not legally cognizable

evidence of vindictiveness. First, the district court in this case relied on

comparisons between the punishment Barner faced in the Fifth Superseding

Indictment and punishments offered and imposed pursuant to plea bargains,

whereas Bordenkircher and Goodwin recognize such disparities as inherent in the

plea-bargaining system. Reliance on this factor is therefore legal error.

The district court compared Barner's sentence under the initial guilty plea to

the much greater possible sentence were he to be convicted on all counts of the

Fifth Superseding Indictment. This comparison cannot support the presumption,

for it is commonplace that a defendant can expect to get a more favorable sentence

from a plea bargain than from proceeding to trial and losing; were it otherwise,

few defendants would forego their right to a trial. Bordenkircher expressly

approved of the process of plea bargaining, with the prosecutor entitled to offer a

shorter sentence in return for a plea or to threaten a longer sentence if the

defendant goes to trial. 434 U.S. at 363. We cannot hold that "one who declines

to plead guilty with a recommended sentence acceptable to the Court should

nevertheless be given the benefits of a bargain available to, but rejected by, him."

21
Miller v. Dugger, 858 F.2d 1536, 1538 (11th Cir. 1988) (internal quotation marks

omitted).

Similarly, the district court compared the sentences of Barner's co-

defendants who plea-bargained as against Barner's possible sentence if he lost at

trial. Again, the co-defendants who pleaded could expect to get favorable

treatment from pleading, and this does not support a presumption of prosecutorial

vindictiveness. The prosecutor stated at the hearing before the district court that

the plea agreement which Barner entered and then rejected was comparable to the

pleas offered the co-defendants who in fact pleaded and were sentenced in

accordance with those agreements. Barner rejected the plea agreement because he

wanted to go to trial, and his attorney was not authorized to enter another plea

agreement. He is not now entitled to go to trial with some sort of assurance that if

he loses he will not receive a longer sentence than those of his co-defendants who

pleaded. The prosecutor stated at the district court hearing that if co-defendant

Dale had gone to trial instead of pleading, he would have faced a sentence of 182

years.

The district court also erred in comparing Barner's possible sentence under

the Fifth Superseding Indictment to the sentence he could have received under the

Fourth Indictment after the multiplicitous gun charges had been dismissed. This

assumes the government had no right to recharge the conduct in a way that would

22
survive a motion to dismiss; as we discussed at pages 17-18, supra, it was not

improper for the government to try to correct its earlier error.

Another legal error resulted from the district court's reliance on

prosecutorial conduct which may in fact have been punishable for other reasons,

but which does not support a presumption of vindictive motivation without some

further evidence of causation. The district court relied on the fact that the

government reindicted Barner during the time obtained by a continuance granted

in order to secure its witnesses. Although the rule is that the government may seek

a superseding indictment at any time before trial, Cole, 755 F.2d at 757, the

government is not entitled to mislead the court about the reasons for a requested

continuance. Here, the district court stopped short of finding that the government

had obtained the continuance by misrepresentation or half-truth. Nevertheless,

even if the government had misled the court to obtain a continuance, that fact,

without more, would not support a presumption that the government was

motivated by vindictiveness in obtaining either the continuance or the superseding

indictment. Though such misconduct would certainly be the basis for other

remedial measures by the district court, it would not create a "reasonable

likelihood of vindictiveness," Goodwin, 457 U.S. at 373, unless other facts linked

the misconduct to a desire to punish the defendant for exercising his rights.

23
 The final legal error was the district court's reliance on the fact that the

government and Barner were not involved in plea negotiations. This factor

cannot be the basis for a presumption of vindictiveness because the new charge in

Goodwin also occurred "outside the context of plea negotiation," but this fact did

not convince the Supreme Court that a presumption of vindictiveness was

appropriate there. 457 U.S. at 382 n.15.

Since Barner has shown nothing more than his assertion of rights through

pre-trial motions, followed by augmentation of the charges against him, there are

no compelling factors which would justify invoking the presumption of

prosecutorial vindictiveness. The district court erred in applying that presumption

in this case.

III.

Goodwin left open the possibility that a defendant not entitled to such a

presumption might nevertheless be able to make a showing of actual

vindictiveness. Id. at 384. The district court in this case did not make findings of

fact as to whether the prosecutors were actually motivated by the desire to punish

Barner for the exercise of his rights and whether the Fifth Superseding Indictment

was the result of such animus. See Wilson, 262 F.3d at 314 (elements of

prosecutorial vindictiveness are animus plus causation). While the district court

expressed some dubiousness concerning the prosecutors' claim that they only

24
discovered shortly before trial that they could solve the multiplicity problem by

bringing Hobbs Act charges, it did not positively reject this claim. Barner is

entitled to a decision on the issue of actual vindictiveness and so we remand for

findings of fact.

The district court's dismissal of the Fifth Superseding Indictment is

REVERSED and the case is REMANDED for further proceedings consistent

with this opinion.

25