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United States v. Herbert Louis Miller, 948 F.2d 631, 10th Cir. (1991)
United States v. Herbert Louis Miller, 948 F.2d 631, 10th Cir. (1991)
2d 631
FACTS
1
The facts of this case are essentially undisputed. Appellant was employed by
the Internal Revenue Service until his employment was terminated in 1987. In
1988 and 1989 appellant filed civil lawsuits in federal district court in the
Northern District of Oklahoma. In the lawsuits, which were eventually
consolidated, appellant alleged various forms of discrimination by the Treasury
Department stemming from his termination of employment in 1987. In 1989,
while the consolidated civil lawsuit was still pending, criminal charges were
filed by the United States against appellant in the Northern District of
Oklahoma. The indictment alleged that appellant submitted false federal
income tax refund claims for the years 1984, 1985, 1986, and 1987, in violation
of 18 U.S.C. 287. On venue grounds, the indictment was dismissed and then
refiled in the Western District of Texas. Eventually, the criminal case was
transferred to the Eastern District of Oklahoma to accommodate appellant.
Thereafter, appellant moved to have the indictment dismissed on the ground of
ANALYSIS
3
In this court, appellant "maintains the criminal indictment against him was
brought solely in response to his civil lawsuits; that is, that the criminal
indictment was vindictive in origin." Appellant's Br. at 8. Appellant claims that
the district court's denial of his motion to dismiss the indictment constitutes
reversible error. We disagree and affirm the judgment of the lower court.
also Bordenkircher v. Hayes, 434 U.S. 357, 365, 98 S.Ct. 663, 669, 54 L.Ed.2d
604 (1978) (prosecutor can follow through on threat to charge greater
applicable offense where defendant declines to plead guilty to lesser offense).
Similarly, our court has declined to utilize a presumption of vindictiveness
when a harsher charge is brought after the first trial ended in a mistrial. There,
this court relied upon the District of Columbia Circuit's interpretation of
Goodwin as
6
declin[ing]
to adopt a per se rule applicable in the pretrial context that a presumption
will lie whenever the prosecutor 'ups the ante' following a defendant's exercise of a
legal right.... But the Court also declined to adopt a per se rule that in the pretrial
context no presumption of vindictiveness will ever lie. The lesson of Goodwin is
that 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.
7
United States v. Doran, 882 F.2d 1511, 1521 (10th Cir.1989) (quoting United
States v. Meyer, 810 F.2d 1242, 1245-46 (D.C.Cir.), vacated, 816 F.2d 695
(D.C.Cir.) (en banc), reinstated sub nom. Bartlett ex rel. Neuman v. Bowen, 824
F.2d 1240 (D.C.Cir.1987) (en banc), cert. denied, 485 U.S. 940, 108 S.Ct.
1121, 99 L.Ed.2d 281 (1988)). Thus, cases involving pretrial or post-mistrial
prosecutorial decisions have been analyzed by examining the particular
circumstances in deciding whether a presumption of vindictiveness is
appropriate. See Goodwin, 457 U.S. at 384, 102 S.Ct. at 2494; United States v.
Raymer, 941 F.2d 1031, 1040 (10th Cir.1991); Doran, 882 F.2d at 1521;
Meyer, 810 F.2d at 1246.
"realistic likelihood," Blackledge, 417 U.S. at 27, 94 S.Ct. at 2102, that the
charges were brought in retaliation for appellant's civil action.
9
10
Second, we fail to see any real opportunity in this case for such an action on the
part of an individual prosecutor. Both sides agree that after the original
indictment was dismissed from the Northern District of Oklahoma, an identical
indictment was filed in the Western District of Texas, and then transferred--at
the request of the appellant--to the Eastern District of Oklahoma. Thus, while it
is uncontroverted that "prosecutors in three districts were involved at some
stage in the proceedings of this case," Appellee's Br. at 4, appellant has been
unable to produce direct evidence of any individual prosecutorial
vindictiveness, nor any evidence of what must have been--on appellant's theory-a multi-district conspiracy against him.
11
Third, this court has, in the past, focused on the question of whether a
defendant's successful invocation of a right "threaten[ed] the prosecution with
the duplicative effort of a new trial." Doran, 882 F.2d at 1521. There is no such
threat here as the trial below was the only criminal trial brought against this
defendant.
12
conclusion that due process of law requires [such] a rule...." Blackledge, 417
U.S. at 27, 94 S.Ct. at 2102 (emphasis added).
13
14
Honorable John L. Kane, Jr., Senior United States District Judge for the
District of Colorado, sitting by designation