In U.S. v. Barner, No. 04-13384 (March 10, 2006), the Court, on a government appeal, held that the district court erred in concluding that the facts warranted a presumption that the Fifth Superseding Indictment resulted from prosecutorial vindictiveness, but remanded the case for a case-specific determination whether, in fact, prosecutorial vindictiveness occurred.
The Court noted that, while a prosecutor’s decision to seek heightened charges after a successful post-trial appeal is enogh 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.
Without reaching the question whether vindictiveness could ever be presumed in a pretrial context, the Court found that the facts of Barner’s case did not support such a presumption.
The Court noted that in Barner’s case, additional counts were added to a superseding indictment, after, as a result of a mistake by the government, counts of the preceding indictment had been dismissed. The Court noted that Barner’s change of plea, from guilty to not guilty, occurred more than year before the indictment was superseded, which did not give rise to a inference of vindictiveness – even assuming a mere change of plea could not be the basis for superseding an indictment. See Bordenkircher v. Hayes. Garner claimed that the indictment was superseded in response to his numerous pre-trial motions, but the Court found insufficient record evidence to support a presumption of vindictiveness.
The district court presumed vindictiveness based on the much greater potential punishment Garner faced under the new charges added in the superseding indictment. The Court pointed out that the punishment faced by a defendant who goes to trial is often greater than when he pleads guilty. This difference alone does not support a claim of vindictiveness. The district court also relied on the fact that the government used extra time granted as a result of a motion for a continuance to supersede the indictment. But the Court found no basis for presuming vindictiveness from this (though it could be the basis for other "remedial measures").
The Court, however, noted that on remand the district could make findings of fact regarding actual vindictiveness, that is, to show that the superseding indictment was meant to punish Barner for the exercise of his rights to challenge the indictment.
