concurring and dissenting:
I agree that the district court did not err when it replaced one juror with an alternate. However, I do not agree that the government was vindictive and that the district court might well have departed if the government had made a motion to depart.
While it can be argued that the government walked close to the line, I cannot agree that its failure to make a departure motion vindictively penalized Mr. Khoury for exercising his trial rights. It seems obvious to me that every plea bargaining suggestion asks the defendant to give up his trial rights in exchange for something else. Mr. Khoury now argues that the something else cannot be a refusal to make a downward departure motion. Perhaps in some circumstances that would be true. However, as the government has pointed out, Mr. Khoury’s activities— such as intimidating witnesses — made his cooperation rather useless. It is particularly noteworthy that even when it was bound by the plea agreement and made a departure motion the government argued for a 17-year sentence. Even now, Mr. Khoury’s sentence is less than 17 years. I would reject Mr. Khoury’s suggestion that he should get the benefit of his plea bargain.
More to the point, it appears to me that there certainly can be no viable claim of vindictiveness made against the district court. Vindictiveness cannot be presumed, and here the district court quite clearly pointed out that it had “learned a lot more about Mr. Khoury through the course of the trial than [it] knew when [it] sentenced him to 144 months.... ” See Alabama v. Smith, 490 U.S. 794, 801-02, 109 S.Ct. 2201, 2205-06, 104 L.Ed.2d 865 (1989); Taylor v. Kincheloe, 920 F.2d 599, 607 (9th Cir.1990). Mr. Khoury says that the court could not know more, but it is obvious that listening to a trial is an enriching experience which almost inevitably gives the court a more accurate feeling for the defendant and his crimes.
Moreover, the district court made it very clear that it was well satisfied with the sentence it imposed upon Mr. Khoury. It did not, as courts sometimes do, lament its inability to reduce the sentence below the Guideline range. It recognized that whether a § 5K1.1 motion was made or not, it had discretion to refuse to depart, stated it was not required to give Mr. Khoury the lower sentence he received the first time, and pronounced itself satisfied that “[u]nder the facts of this case ... that’s a fair sentence.” Cf. United States v. Reyes-Alvarado, 963 F.2d 1184, 1189-90 (9th Cir.), cert. denied, — U.S. -, 113 S.Ct. 258, 121 L.Ed.2d 189 (1992); United States v. Koenig, 952 F.2d 267, 274 (9th Cir.1991).
The Guidelines sometimes seem like the Hydra, but we need not make them even more frightening by wielding our swords in a way that forces a district court to face two heads where only one confronted it before. Each time we require district courts to place more of their thinking on the record (or suffer reversal) we multiply their problems. Sometimes we must; this time we needn’t.
Therefore, I respectfully dissent from the determination to reverse Mr. Khoury’s sentence.