United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 6, 2000 Decided January 12, 2001
No. 00-3018
Edward Maddox,
Appellee
v.
Michelle Elzie, et al.,
Appellants
Appeal from the United States District Court
for the District of Columbia
(No. 96cr00151-01)
Mary L. Wilson, Assistant Corporation Counsel, argued
the cause for appellant. With her on the briefs were Robert
Rigsby, Corporation Counsel, and Charles L. Reischel, Depu-
ty Corporation Counsel.
Valinda Jones, Assistant U.S. Attorney, argued the cause
for amicus curiae The United States of America. With her
on the brief were Wilma A. Lewis, U.S. Attorney, John R.
Fisher, Thomas J. Tourish, Jr. and Ronald Dixon, Assistant
U.S. Attorneys.
Mary Manning Petras, appointed by the court, argued the
cause and filed the brief for appellee.
Before: Rogers and Garland, Circuit Judges and
Silberman, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge Rogers.
Rogers, Circuit Judge: Michelle Elzie1 and the District of
Columbia Board of Parole (collectively "the Board") appeal
the order granting, in part, Edward Maddox's petition for a
writ of habeas corpus. The Board contends as a threshold
matter that the district court erred in not requiring Maddox
to exhaust his habeas corpus remedies in the District of
Columbia courts before allowing him to challenge, under 28
U.S.C. s 2241 (1994), his service of a sentence imposed by the
Superior Court of the District of Columbia. On the merits,
the Board contends that the district court erred in partially
granting the writ because Maddox failed to show that the
manner in which the Board conducted his parole revocation
hearing resulted in any prejudicial violation of his due process
rights. We reverse the district court's order on the merits
without deciding the exhaustion issue.
I.
The United States Attorney prosecuted Maddox three
times in the United States district court in connection with
his April 9, 1996, arrest. The first trial resulted in a mistrial;
Maddox was convicted at the second trial, but his conviction
was reversed because of prosecutorial misconduct during
closing argument, see United States v. Maddox, 156 F.3d
1280 (D.C. Cir. 1998) ("Maddox I"); the jury found him not
guilty at the third trial.2 After the reversal of Maddox's
__________
1 Appellant Michelle Elzie is the warden of the District of
Columbia's Central Detention Facility.
2 The charges stemmed from Maddox's arrest on April 9, 1996,
when a police officer, after retrieving a rental car key that Maddox
second conviction, the Board lodged a parole violation war-
rant for Maddox's prior D.C. Superior Court sentence; Mad-
dox therefore remained in custody following his acquittal.3
The Board thereafter revoked his parole, and Maddox filed a
petition for a writ of habeas corpus under 28 U.S.C. s 2241
(1994).4 In seeking reinstatement of his parole, Maddox
argued that the trial prosecutor's appearance at the revoca-
tion hearing was in retaliation for Maddox's exercise of his
statutory right to appeal and his constitutional right to a jury
trial, and thus violated his right to due process. Under the
circumstances, he argued that the court must presume vindic-
tiveness, and alternatively, that there was actual vindictive-
ness. See Maddox v. Elzie, 83 F. Supp. 2d 113, 120 (D.D.C.
1999) ("Maddox II"). In addition, he argued that the trial
__________
had dropped upon seeing the police approach him, found a handgun
and PCP under the driver's seat of the rental car. See Maddox v.
Elzie, 83 F. Supp. 2d 113, 115 (D.D.C. 1999) ("Maddox II"). The
grand jury returned a four-count indictment; one count was dis-
missed. At his first trial, Maddox was tried for one count of
possession of PCP with intent to distribute, see 21 U.S.C.
ss 841(a)(1) (1994), 841(b)(1)(D) (Supp. IV 1998), and one count of
carrying and using a firearm during a drug trafficking offense. See
18 U.S.C. s 924(c)(1) (Supp. IV 1998). At his second trial, Maddox
was tried for one count of possession of a firearm by a convicted
felon, see id. s 922(g)(1). This count had been severed from the
other counts against Maddox prior to his first trial. At his third
trial, Maddox was retried on the single count of possession of a
firearm by a convicted felon.
3 In 1981, Maddox was sentenced to 26 years imprisonment by
the D.C. Superior Court for armed robbery, assault with intent to
commit robbery while armed, and carrying a dangerous weapon.
He was paroled in November 1991 and released on January 27,
1992.
4 Section 2241 provides, in relevant part:
The writ of habeas corpus shall not extend to a prisoner unless
... [h]e is in custody in violation of the Constitution or laws or
treaties of the United States ...
28 U.S.C. s 2241(c)(3) (1994).
prosecutor's ex parte meeting with the Board violated his due
process rights to confront and to cross-examine witnesses.
Following a hearing, the district court granted the writ in
part. The district court found that Maddox had been denied
his constitutional rights to due process, specifically his right
to confront adverse witnesses and his right to be present at
every stage of the revocation proceeding. See id. at 121. In
addition, because the trial prosecutor appeared not only as a
witness, but presented evidence and argument and cross-
examined witnesses, the district court ruled that inasmuch as
the trial prosecutor had no legal right to participate in the
revocation hearing, his "excessive" conduct constituted actual
prosecutorial vindictiveness. Id. at 121-23. The district
court ordered that a new revocation hearing be held in
accordance with certain conditions, and continued Maddox's
detention while retaining jurisdiction of the case.5 Id. at 124-
25. The Board's motion to alter or amend the judgment
under Fed. R. Civ. P. 59(e) was denied.6
II.
As a threshold matter, the Board contends that the district
court should have required Maddox to exhaust his habeas
__________
5 The district court ordered (1) that the record of the first
hearing be expunged; (2) that the new hearing be recorded, take
place before a new Board, and involve no ex parte contacts; and (3)
that Maddox be given credit against his D.C. sentence for the time
he was incarcerated on the federal charges. See Maddox II, 83
F. Supp. 2d at 122-24. Prior to oral argument of this appeal, the
District of Columbia Department of Corrections credited Maddox
with time he was incarcerated prior to trial on the federal charges.
See October 3, 2000 Letter to Mark J. Langer, Clerk of the Court,
provided pursuant to Fed. R. App. P. 28(j).
6 A successor district court assigned to handle the case upon
the retirement of the habeas judge denied the motion on the ground
that it was "an invitation for one district judge to hear an appeal
from another." In view of our disposition, we do not reach the
Board's contention that, under Langevine v. District of Columbia,
106 F.3d 1018 (D.C. Cir. 1997), the denial was an abuse of discre-
tion.
corpus remedies in the District of Columbia courts because he
was challenging his reincarceration on a sentence imposed by
the D.C. Superior Court. Although the Board acknowledged
that under Blair-Bey v. Quick, 151 F.3d 1036 (D.C. Cir. 1998),
a D.C. prisoner may challenge his parole revocation in federal
court by means of a habeas petition under 28 U.S.C. s 2241
(1994), the Board maintains that a D.C. prisoner, "like any
other state prisoner," must first exhaust his local habeas
corpus remedies in the District of Columbia courts. See, e.g.,
Coleman v. Thompson, 501 U.S. 722, 731 (1991) (and cases
cited). The Board relies for its exhaustion argument on the
long-established principle that federal courts should not inter-
fere with a State conviction or with the service of a State
sentence until the State courts address any errors.
We are not unsympathetic to the Board's view that requir-
ing a D.C. prisoner to exhaust his habeas remedies under
District of Columbia law before filing a petition under 28
U.S.C. s 2241 follows logically from the establishment of a
State-type court system for the District of Columbia. See
District of Columbia Court Reform and Criminal Procedure
Act of 1970, Pub. L. No. 91-358, 84 Stat. 473 (1970) ("Court
Reform Act"). After the expansion of the federal courts'
habeas corpus jurisdiction to include cases in which State
prisoners are held in violation of the United States Constitu-
tion, the Supreme Court recognized that federal courts had
the power to grant relief to State prisoners and that, as a
consequence, there was a potential for conflict between feder-
al and State courts. See Irvin v. Dowd, 359 U.S. 394, 404-05
(1959). The potential for such conflict necessitated, in the
Court's view, exhaustion of State remedies before the federal
courts intervened. The Court explained:
[t]he principles are now reasonably clear. Ordinarily an
application for habeas corpus by one detained under a
state court judgment of conviction for crime will be
entertained by a federal court only after all state reme-
dies available, including all appellate remedies in the
state court and in [the Supreme] Court by appeal or writ
of certiorari have been exhausted.
Id. at 405 (quoting Ex parte Hawk, 321 U.S. 114, 116-17
(1944)).7 Congress codified the exhaustion doctrine in 28
U.S.C. s 2254 (1994 & Supp. IV 1998).8 See Irvin, 359 U.S.
at 405.
The Board contends that for the reasons noted in Irvin v.
Dowd the exhaustion doctrine embodied in s 2254 should
apply to D.C. prisoners. To overcome the fact that the
District of Columbia is not a State, the Board points out that
s 2254 was enacted before the District of Columbia had an
independent court system equivalent to a State system and at
a time when most criminal prosecutions for violation of Dis-
trict of Columbia law had to be filed in the federal courts.
See Palmore v. United States, 411 U.S. 389, 392 n.2, 408-09
(1973); Thompson v. United States, 548 F.2d 1031, 1033-34
(D.C. Cir. 1976). Once Congress established a separate
State-type court system for the District of Columbia with its
own habeas corpus remedies, see D.C. Code ss 16-1901,
__________
7 The Supreme Court allowed an exception "in cases of peculiar
urgency," Tinsley v. Anderson, 171 U.S. 101, 105 (1898), such as
when the petitioner is needed to testify in federal court; or is in
State custody for an act done or omitted pursuant to federal law; or
is a foreign national in State custody for an act done or omitted
pursuant to the authority of the foreign state and, therefore,
international law and the federal government's unique interest in
foreign relations are implicated. See Ex parte Royall, 117 U.S. 241,
251-52 (1886).
8 Section 2254 provides, in relevant part:
An application for a writ of habeas corpus on behalf of a person
in custody pursuant to the judgment of a State court shall not
be granted unless it appears that the applicant has exhausted
the remedies available in the courts of the State; or there is an
absence of available corrective process; or circumstances exist
that render such process ineffective to protect the rights of the
applicant.... An applicant shall not be deemed to have
exhausted the remedies available in the courts of the State,
within the meaning of this section, if he has the right under the
law of the State to raise, by any available procedure, the
question presented.
28 U.S.C. s 2254(b)(1), (c) (Supp. IV 1998).
23-110 (1981),9 the Board maintains there is no reason not to
treat D.C. prisoners like State prisoners and require D.C.
prisoners to exhaust their District of Columbia law remedies.
Maddox responds that, in view of the statement by the court
in Blair-Bey, 151 F.3d at 1044, that District of Columbia and
federal remedies are equally available to D.C. prisoners, he
was not required to exhaust his remedies under District of
Columbia law before filing a petition under s 2241.
The court was not confronted in Blair-Bey with an exhaus-
tion issue because the defendant in that case had, in fact,
exhausted his remedies under District of Columbia law. See
id. at 1038. Consequently, the court had no occasion to
address the exhaustion contention that the Board now pres-
__________
9 Section 16-1901(a) provides, in relevant part:
A person committed, detained, confined, or restrained from his
lawful liberty within the District [of Columbia] ... may apply
by petition to the appropriate court, or a judge thereof, for a
writ of habeas corpus, to the end that the cause of the
commitment, detainer, confinement, or restraint may be in-
quired into.
D.C. Code s 16-1901(a) (1981).
Section 23-110 provides, in relevant part:
A prisoner in custody under sentence of the Superior Court [of
the District of Columbia] claiming the right to be released upon
the ground that (1) the sentence was imposed in violation of the
Constitution of the United States or the laws of the District of
Columbia, (2) the court was without jurisdiction to impose the
sentence, (3) the sentence was in excess of the maximum
authorized by law, (4) the sentence is otherwise subject to
collateral attack, may move the court to vacate, set aside, or
correct the sentence.... An application for a writ of habeas
corpus in behalf of a prisoner who is authorized to apply for
relief by motion pursuant to this section shall not be enter-
tained by the Superior Court or by any Federal or State court
if it appears that the applicant has failed to make a motion for
relief under this section or that the Superior Court has denied
him relief, unless it also appears that the remedy by motion is
inadequate or ineffective to test the legality of his detention.
D.C. Code s 23-110(a), (g) (1981).
ents. Congress did not specifically address the question in
the Court Reform Act, and the question whether a D.C.
prisoner should be treated as a State prisoner for purposes of
s 2254 is an open question in this circuit. The court has
addressed the question of whether the District of Columbia is
to be treated as a State in connection with a s 2241 habeas
petition attacking a D.C. conviction and sentence. In Garris
v. Lindsay, 794 F.2d 722 (D.C. Cir. 1986), the court applied
the appeal requirements of 28 U.S.C. s 2253(c)(1) (Supp. IV
1998)10 by treating a D.C. Superior Court conviction and
sentence as "detention ... aris[ing] out of process issued by a
State court."11 Id. at 724 (interpreting an earlier version of
28 U.S.C. s 2253). Whatever the logical import of Garris
may be for purposes of the Board's exhaustion contention, the
court need not resolve this question today because the district
court erred in ruling that Maddox was denied due process at
his parole revocation hearing. Cf. Montez v. McKinna, 208
F.3d 862, 866 (10th Cir. 2000); see also 28 U.S.C.
s 2254(b)(2)(Supp. IV 1998).12
__________
10 Section 2253(c)(1) provides:
Unless a circuit justice or judge issues a certificate of appeala-
bility, an appeal may not be taken to the court of appeals from
the final order in a habeas corpus proceeding in which the
detention complained of arises out of process issued by a State
court or the final order in a proceeding under [28 U.S.C.
s] 2255.
28 U.S.C. s 2253(c)(1) (Supp. IV 1998); see also Fed. R. App. P.
22(b).
11 In Garris, the court concluded that the petitioner was not
entitled to a certificate of appealability under s 2253 because he
had not met the requirements of D.C. Code s 23-110(g) (1981), see
supra n.9, and, therefore, the federal courts lacked jurisdiction over
his petition. See Garris, 794 F.2d at 727. See also Swain v.
Pressley, 430 U.S. 372 (1977).
12 Section 2254(b)(2) provides:
An application for a writ of habeas corpus may be denied on
the merits, notwithstanding the failure of the applicant to
exhaust the remedies available in the courts of the State.
III.
The Board contends that the district court erred in grant-
ing Maddox partial habeas corpus relief on the ground that he
was denied due process at his parole revocation hearing.
Essentially, the Board maintains that Maddox failed to show
any prejudicial constitutional error because his acquittal after
trial did not preclude the Board from revoking parole, if
appropriate, following a hearing. Joined by the United
States as amicus curiae, the Board maintains that a review of
the revocation hearing, including the trial prosecutor's con-
duct, demonstrates that Maddox had a full and fair hearing
under Morrissey v. Brewer, 408 U.S. 471 (1972), that the trial
prosecutor's participation did not amount to actual vindictive-
ness in violation of Maddox's constitutional rights, and that a
presumption of vindictiveness is unwarranted. We first ad-
dress the trial prosecutor's ex parte meeting with the Board
and then turn to the trial prosecutor's conduct during the
revocation hearing.
A.
In Morrissey v. Brewer, 408 U.S. 471 (1972), the Supreme
Court set forth the oft-repeated minimal due process require-
ments to which a parolee is entitled when a state attempts to
revoke parole.13 The Court cautioned in Morrissey, however,
__________
28 U.S.C. s 2254(b)(2)(Supp. IV 1998).
13 In Morrissey, the Court stated:
There must also be an opportunity for a hearing, if it is desired
by the parolee, prior to the final decision on revocation by the
parole authority. This hearing must be the basis for more than
determining probable cause; it must lead to a final evaluation
of any contested relevant facts and consideration of whether
the facts as determined warrant revocation. The parolee must
have an opportunity to be heard and to show, if he can, that he
did not violate the conditions [of parole], or, if he did, that
circumstances in mitigation suggest that the violation does not
warrant revocation.... [T]he minimum requirements of due
process [include] (a) written notice of the claimed violations of
parole; (b) disclosure to the parolee of evidence against him;
that "there is no thought to equate this second stage of parole
revocation to a criminal prosecution in any sense. It is a
narrow inquiry; the process should be flexible enough to
consider evidence including letters, affidavits, and other mate-
rial that would not be admissible in an adversary criminal
trial." Id. at 489. Similarly, in Gagnon v. Scarpelli, 411 U.S.
778, 789 (1973), the Supreme Court explained that "[i]n a
revocation hearing ... formal procedures and rules of evi-
dence are not employed." The same due process standards
apply to D.C. prisoners subject to parole revocation by the
Board. See Ellis v. District of Columbia, 84 F.3d 1413 (D.C.
Cir. 1996); Teachey v. Carver, 736 A.2d 998, 1006 n.9 (D.C.
1999).
Prior to the parole revocation hearing, the Board held an
off-the-record meeting with the trial prosecutor, for approxi-
mately five to twelve minutes. The Board also held a similar
meeting with Maddox's counsel for approximately five min-
utes. According to Maddox's counsel, who testified during
the habeas proceeding, the Board described its procedures
and inquired about counsel's theory of the case, which counsel
outlined. See Maddox II, 83 F. Supp. 2d at 119. Counsel
assumed that the same thing occurred during the trial prose-
cutor's ex parte meeting with the Board. See id. The trial
prosecutor testified that he did not recall the substance of the
ex parte meeting, but he also did not deny the possibility that
he reviewed the merits of the federal case against Maddox.
See id. Based on the prosecutor's ex parte meeting with the
Board prior to the hearing, the district court ruled that
__________
(c) opportunity to be heard in person and to present witnesses
and documentary evidence; (d) the right to confront and cross-
examine witnesses (unless the hearing officer specifically finds
good cause for not allowing confrontation); (e) a neutral and
detached hearing body such as a traditional parole board,
members of which need not be judicial officers or lawyers; and
(f) a written statement by the factfinders as to the evidence
relied on and reasons for revoking parole.
408 U.S. at 487-89 (quotations omitted).
Maddox's right to confront witnesses and his right to be
present had been violated. See id. at 121.
The United States concedes that ex parte contacts create
the appearance of impropriety and that such contacts should
be avoided. See Amicus Brief at 28 n.17. The Board, in
apparent agreement, does not challenge the district court's
conclusion that the ex parte meeting with the trial prosecutor
was inappropriate. We agree with these views, for ex parte
meetings can create problems that exceed their value. The
Supreme Court has observed that an ex parte meeting be-
tween a trial judge and a juror creates a situation "pregnant
with possibilities for error." United States v. United States
Gypsum Co., 438 U.S. 422, 460 (1978). The same might be
said of the Board's meeting with the trial prosecutor.
Nevertheless, the fact that an ex parte meeting occurs does
not necessarily entitle a defendant to relief. See Rushen v.
Spain, 464 U.S. 114, 117-19 (1983). For example, in United
States v. Green, 544 F.2d 138, 146 (3rd Cir. 1976), the Third
Circuit held that a judge's ex parte contacts with a court-
appointed expert did not violate a criminal defendant's due
process rights because the ex parte contacts were not "clan-
destine" and defense counsel was afforded an opportunity to
present countervailing evidence and to cross-examine the
expert regarding the ex parte contacts. Id. Likewise, in
United States v. McDonald, 933 F.2d 1519 (10th Cir. 1991),
the Tenth Circuit found no plain error where an ex parte
communication occurred between a trial judge and a juror,
because defense counsel was made aware of the ex parte
communication, yet declined either to pursue the matter or to
object to the communication, thus indicating that "counsel felt
no prejudice existed at the time." Id. at 1525. So too here.
Maddox fails to show that he was prejudiced in the exercise
of his rights to confront witnesses and to be present as a
result of the Board's ex parte meeting with the trial prosecu-
tor prior to commencement of the revocation hearing. See
Sutherland v. McCall, 709 F.2d 730, 732-33 (D.C. Cir. 1983);
Standlee v. Rhay, 557 F.2d 1303, 1307-08 (9th Cir. 1977); cf.
Harris v. Day, 649 F.2d 755, 761-62 (10th Cir. 1981).
First, the record belies any contention that Maddox did not
have an opportunity to present his full case to the Board in
support of his claim of innocence. The Board heard testimo-
ny from Maddox's wife that on April 9, 1996, she had loaned
the rental car to her nephew (since deceased), who was
involved with drugs and guns. Her sister corroborated some
of this testimony. A friend of Maddox's testified that he had
given Maddox a ride to the street where he was subsequently
stopped and arrested by the police. Maddox also proffered
the trial testimony of two other defense witnesses. Finally,
Maddox, who had not testified at his trials, testified that on
April 9th, 1996, he never touched the rental car after his wife
returned it to him. While acknowledging that he had rented
a number of cars over several months, for about $4000,
Maddox claimed that he had several jobs and had been
working for over two years at Super Fresh.
The Board found that Maddox had violated his parole in
four of the six alleged violations, including PCP and gun
possession. In so doing, the Board had reasonable grounds
to reject Maddox's defense. His parole officer testified that
from 1992 to 1996, Maddox had worked for only three weeks.
Maddox then appeared to acknowledge that he had not
worked at Super Fresh for two years, but for only a week
between trials. Maddox claimed that his wife, who had a
government GS-5 job, and his brother, who owned his own
business, helped him out financially. While Maddox's counsel
urged the Board not to revoke his parole in view of the
weaknesses in the government's evidence regarding the
events of April 9, 1996, unlike the juries in his federal trials,
the Board could consider Maddox's credibility for itself.
Maddox can hardly deny that the Board had sufficient
evidence to justify revocation of his parole. District of Co-
lumbia regulations do not limit the information that the Board
may consider in determining whether to revoke parole. See
D.C. Mun. Reg. tit. 28 ss 219.1-219.12 (1987). In addition to
hearing from the trial prosecutor and one of the police
officers who had been involved in Maddox's arrest on April 9,
1996, the Board had other information about Maddox, includ-
ing evidence of his five arrests after he was paroled. Nota-
bly, the Board had already given him a second chance by
allowing him to remain on parole after arrests in 1992 and
1993.
Second, Maddox was represented by a Federal Public
Defender at the revocation hearing. His counsel was aware
of the Board's ex parte meeting with the trial prosecutor, yet
counsel neither objected to it nor otherwise indicated to the
Board that the revocation hearing was tainted. To the
contrary, counsel told the Board that he thought the Board
would be fair in determining Maddox's fate. Counsel also did
not seek to have the trial prosecutor, or the Board, place on
the record what had occurred during the ex parte meeting.
Nor did counsel seek, during the habeas proceeding, discov-
ery regarding the ex parte meeting.14 On appeal, counsel has
pointed to nothing that would indicate that the trial prosecu-
tor's ex parte meeting interfered with Maddox's ability to
present evidence and to cross-examine witnesses or to be
aware of the evidence on which the Board relied in revoking
his parole.
To the extent that the district court relied on Faretta v.
California, 422 U.S. 806 (1975), which involved a criminal
defendant's Sixth Amendment rights during trial, in ruling
that Maddox's due process rights were violated, that reliance
was misplaced. See Maddox II, 83 F. Supp. 2d at 121.
Morrissey makes clear that parole revocation is not the
continuation of a criminal trial but a separate administrative
proceeding at which the parolee does not possess the same
rights as a criminal defendant at trial. See Morrissey, 408
U.S. at 480. Conflating the distinct constitutional rights
__________
14 In its Response to the Petition for a Writ of Habeas Corpus,
the Board took issue with Maddox's characterization of its "alleged
closed door hearing for 30 to 45 minutes" with the trial prosecutor,
stating that at each ex parte meeting,
each side was asked to discuss whether certain facts could be
stipulated in order to shorten the hearing, which was expected
to be lengthy. The only reason the door was closed was
because of disruption from the well-know[n] din of the jail
inmates just outside the door.
Counsel did not seek to depose the Board members.
associated with the different proceedings confuses the analy-
sis of Maddox's ex parte contention. Unless the parolee
requests a hearing, District of Columbia regulations provide
that the Board may make its revocation determination with-
out a hearing. See D.C. Mun. Reg. Tit. 28 s 219.2 (1987).
The Board's ex parte meeting with the trial prosecutor before
the Board commenced the hearing was not secret. Cf.
WKAT, Inc. v. FCC, 296 F.2d 375, 383 (D.C. Cir. 1961).
Maddox's counsel had an opportunity to explore the nature of
the meeting at the revocation hearing. The fact that Mad-
dox, who was represented by counsel, did not take advantage
of his opportunity to question the trial prosecutor about his ex
parte meeting with the Board is not a basis for finding a
denial of due process.
B.
The district court found clear evidence of prosecutorial
vindictiveness. Specifically, the district court found that the
trial prosecutor "was upset about losing his case, which he
blame[d] on defense counsel's successful impeachment of gov-
ernment witnesses, and putting on a defense case," and that
the trial prosecutor "took over the Parole Board's function
and prosecuted Maddox a second time," obtaining "the 'con-
viction' and sentence he was denied at trial" under a lowered
standard of proof and relaxed evidentiary standards. Mad-
dox II, 83 F. Supp. 2d at 121. Viewing the trial prosecutor's
conduct to have been "excessive," id. at 123, the district court
noted that the trial prosecutor was not invited by the Board
to appear as a witness. See id. at 121. Instead he "insinu-
ate[d] himself into the proceeding to see that Maddox would
not be freed after his acquittal" and then "took over." Id.
In the district court's view, "[o]nce [the United States] takes
on the role of prosecuting parole violation cases after a jury
has acquitted the defendant, it opens itself up to the charge of
vindictiveness." Id. at 122. The district court stated that
although it had no intent to intrude on the manner in which
the Board conducts its hearings, the court was concerned that
"the [United States] cannot use the forum of a parole revoca-
tion hearing to retry a defendant as part of a vindictive action
to jail someone the government believes to be a bad person
particularly because that person has exercised his right to a
jury trial." Id. Our review of the district court's factual
finding of actual vindictiveness is for clear error, see United
States v. Meyer, 810 F.2d 1242, 1244 (D.C. Cir. 1987), al-
though the threshold question of whether the doctrine applies
in the parole revocation context is a question of law that we
review de novo. See United States v. Johnson, 91 F.3d 695,
698 (5th Cir. 1996) (and cases cited).
The doctrine of prosecutorial vindictiveness developed as a
corollary to the vindictiveness doctrine that precludes, as a
matter of due process, imposition by a judge of a more severe
sentence upon retrial after a defendant has successfully exer-
cised a constitutional right or pursued a statutory right of
appeal or collateral attack. See North Carolina v. Pearce,
395 U.S. 711, 723-26 (1969). In the prosecutorial context, the
doctrine precludes action by a prosecutor that is designed to
penalize a defendant for invoking any legally protected right
available to a defendant during a criminal prosecution. See
Blackledge v. Perry, 417 U.S. 21, 27-29 (1974); United States
v. Meyer, 810 F.2d 1242 (D.C. Cir. 1987); United States v.
Jamison, 505 F.2d 407 (D.C. Cir. 1974). To prove actual
vindictiveness requires "objective evidence" that the prosecu-
tor's actions were designed to punish a defendant for assert-
ing his legal rights. See Meyer, 810 F.2d at 1245 (citing
United States v. Goodwin, 457 U.S. 368, 380-81, 384 & n.19
(1982)). Such a showing is normally "exceedingly difficult to
make." Id. Because the underlying concern is not whether a
prosecutor has acted maliciously or in bad faith, see Black-
ledge, 417 U.S. at 28, but whether "the fear of [prosecutorial]
vindictiveness may unconstitutionally deter a defendant's ex-
ercise of [a constitutional or statutory right]," id. (quotation
omitted), a presumption of vindictiveness may be warranted
"in cases in which a reasonable likelihood of vindictiveness
exists," Goodwin, 457 U.S. at 373; see also Alabama v.
Smith, 490 U.S. 794, 799-800 (1989). The government may
overcome the presumption with "objective information in the
record justifying the increased sentence [or charges]." Good-
win, 457 U.S. at 374. "If the government produces such
evidence, the [criminal] defendant's only hope is to prove that
the justification is pretextual and that actual vindictiveness
has occurred." Meyer, 810 F.2d at 1245.
Amicus the United States contends that the district court
had no basis for finding actual vindictiveness. First, a trial
prosecutor does not wield unilateral power over the decision
to be made by an independent adjudicative body. The Board,
not the United States, is responsible for the revocation deci-
sion, and Maddox has never contended that the Board was
simply the trial prosecutor's tool. Cf. United States v. Liddy,
542 F.2d 76, 79 (D.C. Cir. 1976). Second, a parole board is
not being asked at a revocation hearing " 'to do over what it
thought it had already done correctly,' " Goodwin, 457 U.S. at
383 (quoting Colten v. Commonwealth of Kentucky, 407 U.S.
104, 117 (1972)), but rather to make an entirely new decision
based on an altered factual record. There is nothing in the
record indicating that the Board had a " 'personal stake' " in
Maddox's earlier trials such that it might engage in " 'self-
vindication' " by revoking his parole. Goodwin, 457 U.S. at
383 (quoting Chaffin v. Stynchcombe, 412 U.S. 17, 27 (1973)).
Nor is there evidence of an institutional bias that would
prompt the Board to treat a parolee who has been acquitted
more severely than a parolee who has not been acquitted.
Unlike a trial judge or prosecutor, the Board is not con-
strained by doctrines such as stare decisis, res judicata, the
law of the case, or the prohibition on double jeopardy. See
Goodwin, 457 U.S. at 376-77. Third, a parolee can never be
made worse off by exercising a protected right because if the
parolee is acquitted, the acquittal weighs in favor of the
parolee during the revocation proceedings. Finally, the Unit-
ed States asserts, the government may relitigate acquitted
conduct in a later proceeding, even to the extent of instituting
new charges for the same conduct, without giving rise to a
presumption of vindictiveness.
We agree with the United States that the district court
extended the doctrine of prosecutorial vindictiveness beyond
its moorings. The trial prosecutor did not initiate the revoca-
tion hearing; rather, the Board filed a parole violator warrant
after the court reversed Maddox's conviction at his second
trial. The Board is an independent decision maker. See D.C.
Code s 24-201.2(a)(4) (1981); Barnes v. District of Columbia
Board of Parole, 759 A.2d 1073, 1075-76 (D.C. 2000) (and
cases cited); cf. United States v. Watts, 519 U.S. 148, 155-57
(1997). It is unrestrained by doctrines that bind courts and
prosecutors, and its reputation for effectively carrying out its
responsibilities hardly turns on whether a parolee exercises
his right to go to trial. The Board, not the trial prosecutor,
made the decision to revoke Maddox's parole, and that deci-
sion is distinct from the concern about "upping the ante" that
underlies the prosecutorial vindictiveness doctrine. Cf. Mey-
er, 810 F.2d at 1246 (citing Goodwin, 457 U.S. at 381). In
addition, an acquittal would appear only to help, not harm, a
defendant in urging the Board that his parole should not be
revoked. Moreover, any personal pique of the trial prosecu-
tor about losing his case at trial or a prosecutor's "testy"
attitude at trial are irrelevant to the existence of prosecutori-
al vindictiveness. Cf. United States v. Esposito, 968 F.2d 300,
305 (3rd Cir. 1992).15 Although the district court was troubled
by what it concluded was the government's "lack of a basic
sense of decency and fairness," Maddox II, 83 F. Supp. 2d at
122, in proceeding against Maddox in a different forum upon
losing its case after putting Maddox on trial three times,
resulting in his incarceration for over three years for a crime
of which a jury acquitted him, see id., such deficiencies are
relevant to judgment but do not necessarily demonstrate
vindictiveness.
Even were we to assume that something akin to prosecuto-
rial vindictiveness applies in the parole revocation context,
and also to assume that the trial prosecutor's actions are
troubling to the extent that he was more than a witness, cf.
Gagnon, 411 U.S. at 789, the record does not support a
finding that the trial prosecutor's conduct violated Maddox's
due process rights. As the district court observed, a trial
__________
15 Esposito, 968 F.2d at 305, involved a presumption of vindic-
tiveness. Maddox suggests no basis for concluding that its reason-
ing for declining to apply the presumption where a prosecutor acts
for legitimate reasons is inapplicable to a finding of actual vindic-
tiveness.
prosecutor with "intimate knowledge of the evidence" could,
as a witness, provide helpful assistance to the Board. Mad-
dox II, 83 F. Supp.2d at 122. In that sense, there is no legal
bar to the trial prosecutor's involvement in parole revocation
hearings.16 Nor do we read 28 U.S.C. s 547 (1994) to be a
bar.17 See generally Gagnon, 411 U.S. at 787. Albeit in a
different context, the court has acknowledged that the United
States Attorney "is vested with broad discretion to protect
the public from crime, such discretion being derived both
from statutory grant and the authority of the Attorney Gen-
eral at common law." Fay v. Miller, 183 F.2d 986, 988 (D.C.
Cir. 1950) (interpreting the predecessor to 28 U.S.C. s 547);
cf. Johnson v. Kegans, 870 F.2d 992, 997-98 (5th Cir. 1989).
The appearance of the trial prosecutor to assist the Board is
consistent with this obligation.
Further, the record does not support the district court's
finding that the trial prosecutor took over the revocation
proceeding. See Maddox II, 83 F. Supp. 2d at 119-21.
While the trial prosecutor's involvement in the revocation
proceedings exceeded that of a witness, the record shows that
the Board remained in control. Board members questioned
the witnesses and attorneys, recalled witnesses, determined
whether or how witnesses would be cross-examined, asserted
exclusive authority over relevance and credibility determina-
tions, and controlled the length of arguments. Maddox does
__________
16 The United States acknowledged during the habeas proceed-
ing that the trial prosecutor appeared at the revocation hearing in
his official capacity as a representative of the United States. See
Maddox II, 83 F. Supp. 2d at 119. It also did not challenge the
district court's assumption that the trial prosecutor "did not act
alone ... [inasmuch as] his actions were approved by three superi-
ors in the United States Attorney's office." Id. at 122 & n.9.
17 Section 547(1) provides, that "[e]xcept as otherwise provided
by law, each United States attorney ... shall prosecute for all
offenses against the United States." 28 U.S.C. s 547(1) (1994).
Section 547(2) provides "[e]xcept as otherwise provided by law, each
United States attorney ... shall prosecute or defend, for the
Government, all civil actions, suits or proceedings in which the
United States is concerned." Id. s 547(2).
not allege, nor do we find evidence, that the trial prosecutor's
involvement in the revocation proceedings impaired the abili-
ty of the Board to make an independent revocation decision.
Whether the Board wished to have the trial prosecutor's
assistance was a matter within the Board's discretion, and
provision of that assistance does not show actual vindictive-
ness.
Because no "reasonable likelihood of vindictiveness exists"
Goodwin, 457 U.S. at 373, there is no basis for a presumption
of vindictiveness. Maddox's criminal prosecution had ended
before the allegedly vindictive actions took place. As the
Third Circuit explained in United States v. Esposito, 968 F.2d
300 (3rd Cir. 1992), no presumption of prosecutorial vindictive-
ness exists when, after being acquitted of charges under the
Racketeer Influenced and Corrupt Organizations Act, 18
U.S.C. s 1961 et seq. (1994 & Supp. IV 1998), where certain
drug offenses were the predicate acts, the defendant was
subsequently charged with the same drug offenses in a
second indictment, for:
[t]he evil that a presumption of vindictiveness seeks to
eradicate is the threat of retaliation when an accused
exercises a right in the course of the prosecution.
Where, however, the prosecutor has done nothing to
deter the exercise of one's right during the case or
proceeding, and the prosecution has come to a natural
end, no presumption of vindictiveness applies.
968 F.2d at 303-04. This reasoning applies with equal force
to Maddox's situation: he exercised his rights to appeal and
to a jury trial and his criminal prosecution ended in acquittal
before the trial prosecutor appeared at his parole revocation
hearing. Cf. United States v. Johnson, 171 F.3d 139 (2nd Cir.
1999); United States v. Rodgers, 18 F.3d 1425, 1429-31 (8th
Cir. 1994); United States v. Wall, 37 F.3d 1443, 1447-50 (10th
Cir. 1994).
Even assuming, as Maddox alleges, that the trial prosecu-
tor acted in retaliation for Maddox's exercise of his rights to
appeal and to a jury trial, and that a presumption of vindic-
tiveness would be appropriate, the prosecutor's stated pur-
pose for participating in the revocation hearing rebuts the
presumption. At the habeas proceeding, the trial prosecutor
explained that he went to the revocation hearing because he
wanted to be sure that the Board had a balanced view of the
charges against Maddox, and because he considered Maddox
to be a danger to the community, describing his role as
assisting the Board.18 See Maddox II, 83 F. Supp. 2d at 119.
While the district court disagreed with the trial prosecutor's
assessment of the strength of the government's evidence
against Maddox, concluding that the evidence was solely
circumstantial and lacked credibility in view of the misstate-
ments by the police officers at trial, see id. at 120-21, the trial
prosecutor's evaluation of the evidence is distinct from a
vindictive motive. Contrary to the district court's finding
that "[i]f Maddox were a danger to society, then the Parole
Board should have taken action during the five months subse-
quent to Maddox's release after his first trial," id. at 121,
there is no evidence that the Board was aware of Maddox's
release on bond after the first trial. Consequently, the
Board's failure to issue a parole violator warrant at that time
does not undermine the trial prosecutor's view that Maddox
was a danger to the community. The fact that the trial
prosecutor defined "assistance" more broadly than the dis-
trict court is not dispositive because the Board did not
relinquish its authority over the proceedings. For these
reasons, Maddox fails to show that the trial prosecutor's
stated reasons for attending the revocation hearing were
pretextual.
Accordingly, because the district court erred in ruling that
the Board's ex parte meeting with the trial prosecutor infring-
ed Maddox's due process rights, and in finding that the trial
prosecutor's conduct at the revocation hearing constituted
actual vindictiveness, and because there is no basis for a
__________
18 The trial prosecutor acknowledged that he had never previ-
ously appeared at a parole revocation hearing even though he had
been a prosecutor for nearly twenty-two years. See Maddox II, 83
F. Supp. 2d at 119. He advised the Board that he " 'was a parole
officer at one point.' " Id. at 117.
presumption of vindictiveness, we reverse the order partially
granting Maddox's habeas corpus petition.