RUTH MOLINA-IGUADO, PETITIONER V. UNITED STATES OF AMERICA No. 89-7576 In The Supreme Court Of The United States October Term, 1990 On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Fifth Circuit Brief For The United States In Opposition OPINION BELOW The opinion of the court of appeals (Pet. App. 1-6) is reported at 894 F.2d 1452. JURISDICTION The judgment of the court of appeals was entered on February 15, 1990. The petition for a writ of certiorari was filed on May 16, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Whether due process was violated when the prosecutor obtained a felony indictment following the issuance of a felony complaint and following petitioner's refusal to plead guilty to a misdemeanor charge before a magistrate and her insistence on proceeding before and being sentenced by the district court. STATEMENT 1. On the afternoon of October 23, 1988, petitioner's car was stopped for a routine Customs inspection as it entered the United States from Mexico. /1/ An ensuing search of the car revealed approximately 20 pounds of marijuana concealed inside a spare tire and a small amount of marijuana concealed inside a totebag containing petitioner's clothing. Following petitioner's arrest, a felony complaint was filed against her. 1 R. 57. /2/ 2. Petitioner and the government engaged in plea negotiations, during which petitioner agreed to plead guilty to a misdemeanor information charging her with possessing marijuana. Pursuant to that agreement, on November 30, 1988, the government filed a one-count misdemeanor information against petitioner charging her with simple possession of marijuana. That day, petitioner and the government entered into a written plea agreement under which petitioner "agree(d) to plead guilty to (the) one-count misdemeanor information," and the government "agree(d) to move for dismissal of the felony (c)omplaint" then pending against petitioner. Petitioner thereafter filed an "Assertion of Right to Proceed before United States District Judge in a Misdemeanor Case." In it, petitioner stated that she had been informed by the magistrate "of (her) right to trial, judgment, and sentencing before a United States District Judge" and of her right to trial by jury before either a judge or a magistrate. Although she waived her right to a jury trial, petitioner declared that she "(w)ant(ed) to proceed before a United States District Judge." /3/ The government then obtained a felony indictment charging petitioner with importation of marijuana, in violation of 21 U.S.C. 952(a) and 960(a)(1) (Count I), and possession of marijuana with the intent to distribute, in violation of 21 U.S.C. 841(a)(1) (Count II). The government also moved to withdraw from the misdemeanor plea agreement. Petitioner then moved to have the indictment dismissed and to compel specific performance of the plea agreement. The district court allowed the government to withdraw from the plea agreement. Noting that it had "the final say" whether to accept or reject a plea agreement, the district court ruled, 2 R. 2-3: The reason I'm granting (the government's) motion to withdraw the plea agreement is (that) I reject the plea agreement. I see what's going on here. * * * I reject the plea agreement. You're not going to play this game. You can pass that on to all of your colleagues. If (the government) make(s) a deal with you, letting you plead guilty to a misdemeanor instead of indicting you for a felony or making you go to trial on a felony, then you're going to do it in Magistrate's Court. I don't even have time for all the felony cases, much less (for) misdemeanors. I'm not going to handle them. The court also denied petitioner's motions to dismiss the indictment and for specific performance of the plea agreement. As the court stated, the misdemeanor information was filed only after petitioner agreed to plead guilty to a misdemeanor charge. But when petitioner appeared in magistrate's court to enter her plea, "she not only refused to plead guilty, she refused to even consent to the jurisdiction of the Magistrate." 1 R. 20. "In so doing," the court found, petitioner "abrogated the plea agreement." Ibid. Under such circumstances, the court held that the government was "fully justified" in obtaining an indictment alleging additional and more serious charges. 1 R. 20-21. Following a jury trial, petitioner was found guilty of both importing marijuana and possessing marijuana with the intent to distribute it. Petitioner was sentenced to concurrent terms of ten months' imprisonment, to be followed by concurrent two-year terms of supervised release. 1 R. 2-5; 4 R. 182. 3. The court of appeals affirmed. Pet. App. 1-6. It recognized that, under the rationale of United States v. Goodwin, 457 U.S. 368 (1982), a presumption of prosecutorial vindictiveness is inappropriate when, in a pretrial setting, the government files additional or more serious charges in response to a defendant's exercise of routine procedural rights that inevitably burden the prosecution to some extent. Pet. App. 3. Because petitioner's "invocation of her section 3401(b) rights (fell) within the category of procedural rights that a defendant might be expected to invoke before trial and that inevitably impose some 'burden' on the prosecutor," the court of appeals found that a presumption of vindictiveness should not apply to the prosecutor's decision to seek the felony indictment. Pet. App. 4. As the court explained, "(i)f the prosecutor believed that (petitioner) still intended to plead guilty to the misdemeanor, the prosecutorial resources implicated by (petitioner's) decision were minimal" and, hence, unlikely to trigger a vindictive response. Ibid. Nor would a presumption of vindictiveness be warranted, the court explained, "(i)f, as is more likely, the prosecutor believed that (petitioner) no longer intended to plead guilty." Ibid. In the absence of such an adverse presumption, the court found no due process violation since petitioner "offered no evidence" of actual vindictiveness. Ibid. The court similarly found no judicial vindictiveness on the part of the district judge in refusing to enforce the misdemeanor plea agreement. The court thus stated that the government's action in "bringing a felony indictment, in direct contradiction to the terms of the plea agreement, was sufficient to constitute withdrawal from the plea agreement and to put (petitioner) on notice of that withdrawal." Pet. App. 5. Because the plea agreement was neither executed nor detrimentally relied upon by petitioner at the time of the government's withdrawal, the court held that the district judge "was without authority to enforce the plea bargain against the will of the government." Ibid. The court of appeals thus concluded that the district judge's remarks that it was refusing to enforce the plea agreement because petitioner asserted her rights under Section 3401(b) were "irrelevant and of no detriment to (petitioner)" and, hence, could not have implicated her due process rights. Pet. App. 4-5. ARGUMENT Petitioner contends that she was denied due process when the prosecutor obtained the felony indictment after she asserted her right to proceed in district court on the charge contained in the misdemeanor information. That claim does not warrant review by this Court. 1. This Court's decisions make clear that a defendant can raise the contention that he has been the victim of a vindictive charging decision by a prosecutor in either of two ways. First, the defendant may always prove that he was the victim of actual vindictiveness by the prosecutor. Second, in some cases he may rely on a presumption that he was just such a victim. See Goodwin, 457 U.S. at 380-381 (explaining the difference). Cf. Alabama v. Smith, 109 S. Ct. 2207, 2204-2207 (same for judicial vindictiveness). Petitioner's claim arises in the pretrial context, and Goodwin and Bordenkircher v. Hayes, 434 U.S. 357 (1978), make clear that no presumption of vindictiveness is warranted in that setting, even if a prosecutor files additional or more serious charges in response to a pretrial action by the defendant. /4/ Moreover, petitioner does not claim that a presumption of vindictiveness is warranted in this context. Thus, petitioner's claim must stand or fall on the facts of this case, and she is entitled to relief only if she can show that the prosecutor's decision to seek a felony indictment was attributable to nothing more than the intent to punish petitioner for exercising her right to proceed before the district court. That fact-bound claim does not warrant review by this Court. In any event, petitioner has not proven that there was actual vindictiveness here. Petitioner does not point to any direct evidence that the prosecutor acted improperly. Instead, petitioner relies on circumstantial evidence, i.e., the sequence of events surrounding her decisions to plead guilty, and her later demand to enter her plea before a magistrate. But Bordenkircher held that it is constitutionally permissible for the prosecutor to threaten the defendant with increased charges if he does not plead guilty and to follow up on that threat if the accused insists on his right to stand trial. Such conduct, the Court explained, is an acceptable part of the (itself legitimate) plea bargaining process, and does no more than "present() the defendant with the unpleasant alternatives of forgoing trial or facing charges on which he was plainly subject to prosecution." 434 U.S. at 362, 364-365. Thus, it is settled law that a prosecutor may properly respond with additional or more serious charges due to dissatisfaction with the posture taken by defendants during the pretrial plea bargaining process. For instance, in United States v. Mauricio, 685 F.2d 143 (5th Cir.), cert. denied, 459 U.S. 1074 (1982), the defendant refused to consummate a tentative plea agreement to misdemeanor charges that had been routinely filed in an alien smuggling case, and the prosecutor responded with a felony indictment. Noting that the defense of vindictive prosecution was "largely remove(d) * * * in pre-trial skirmishes between defense counsel and (the) prosecution," 685 F.2d at 147, the court found that the return of the felony indictment was "pragmatically justified by the state's interest in efficient administration (of justice), nonwithstanding the burden placed on the exercise of the * * * right to trial by jury." Ibid. (quoting Vorenberg, Decent Restraint of Prosecutorial Power, 94 Harv. L. Rev. 1521, 1541-1542 (1981)). Similarly, in United States v. Gallegos-Curiel, 681 F.2d 1164, 1171 (9th Cir. 1982) (Kennedy, J.), the accused was initially charged with a misdemeanor under a "long-standing" government policy designed to dispose of the "heavy volume of illegal entry (immigration) cases"; however, a felony indictment was obtained when the accused pleaded not guilty at his initial appearance. The court of appeals had no difficulty concluding that the filing of the enhanced charge was "legitimate" once the prosecutor's "initial expectation that (the defendant) would plead guilty to the misdemeanor proved unfounded." 681 F.2d at 1170. See also People of the Territory of Guam v. Fegurur, 800 F.2d 1470, 1472-1473 (9th Cir. 1986), cert. denied, 480 U.S. 923 (1987); Luna v. Black, 772 F.2d 448, 449-450 (8th Cir. 1985); United States v. Cole, 755 F.2d 748, 757-758 (11th Cir. 1985). In this case, a felony complaint was lodged soon after petitioner's arrest, and the misdemeanor information was later filed only after petitioner indicated her willingness to plead to a non-felony charge. Thereafter, as the district court stated, "the case was scheduled for a guilty plea before the United States Magistrate," but "(w)hen (petitioner) appeared before the Magistrate * * * she * * * refused to plead guilty." 1 R. 20. She instead invoked her right to "proceed" before the district court, waiving only her right to a jury trial. 1 R. 49; Supp. R. 2. From this sequence of events, as the court of appeals noted, the prosecutor probably believed that petitioner no longer intended to plead guilty. Pet. App. 4. Bordenkircher, Mauricio, and Gallegos-Curiel support the prosecutor's actions based on such a belief. Much like the situations in the latter two cases, allowing defendants to plead guilty to misdemeanor charges before a magistrate represents an efficient and expeditious way to deal with the heavy volume of narcotics cases arising along the border. When petitioner insisted on her right to proceed before a district judge, the prosecutor was entitled to file the charges that would have been brought initially but for petitioner's unfulfilled promise to plead guilty to a misdemeanor charge. See United States v. Herrera, 640 F.2d 958, 961-962 (9th Cir. 1981). Cf. Alabama v. Smith, 109 S. Ct. at 2204-2207. In sum, the felony charges were fully justified, vindicated important societal interests, and were brought at a time when "the prosecutor's assessment of the proper extent of prosecution" had not yet "crystallized." Goodwin, 457 U.S. at 381. There is no cause in this setting to presume vindictiveness, and, as the court of appeals specifically found, Pet. App. 4, petitioner wholly failed to show actual vindictiveness on the part of the prosecutor. The decision below does not conflict with United States v. Meyer, 810 F.2d 1242 (D.C. Cir. 1987), vacated, 816 F.2d 695, decision reinstated and reh'g en banc dismissed, 824 F.2d 1240, cert. denied, 485 U.S. 940 (1988). In Meyer, a large number of persons were arrested and charged with the misdemeanor of demonstrating on national park grounds without a permit. Demonstrators wishing to post and forfeit $50 collateral in satisfaction of the charges were allowed to do so; demonstrators electing to stand trial were charged with an additional misdemeanor. As the Meyer court recognized, no presumption of vindictiveness arises when, as in Goodwin, charges are enhanced without warning at the pretrial stage after an assertion of a procedural right by the accused. 810 F.2d at 1246. But the court in Meyer found that the existence of four additional factors, not present in Goodwin, warranted a presumption of vindictiveness. Id. at 1246-1247. /5/ None of those factors is present here. Most importantly, petitioner was charged with a felony at the outset; it was only after petitioner indicated a willingness to plead to a lesser charge that the misdemeanor information was filed. Page 2, supra. Petitioner was not therefore treated differently from similarly situated defendants as in Meyer. Thus, in the absence of unusual circumstances replicating those in Meyer, Goodwin -- and not Meyer -- is the dispositive case. See United States v. Doran, 882 F.2d 1511, 1521-1522 & n.4 (10th Cir. 1989). /6/ 2. Petitioner also contends (Pet. 19-23) that her due process rights were violated by vindictiveness on the part of the trial court when the court refused to enforce the unexecuted misdemeanor plea agreement. That claim fails for two reasons. First, as the court of appeals correctly held, Pet. App. 4-5, there was no enforceable plea agreement that the district court could order the government to fulfill. "A plea bargain standing alone is without constitutional significance; in itself it is a mere executory agreement which, until embodied in the judgment of a court, does not deprive an accused of liberty or any other constitutionally protected interest." Mabry v. Johnson, 467 U.S. 504, 507 (1984). Thus, until an accused actually pleads guilty, a prosecutor may "mak(e) and then withdraw()" from a proposed plea agreement without implicating due process principles. 467 U.S. at 511. See also United States v. Papaleo, 853 F.2d 16 (1st Cir. 1988); Stokes v. Armontrout, 851 F.2d 1085, 1088-1091 (8th Cir. 1988), cert. denied, 109 S. Ct. 823 (1989); McKenzie v. Risley, 842 F.2d 1525, 1536 (9th Cir.) (en banc), cert. denied, 109 S. Ct. 250 (1988); United States v. McGovern, 822 F.2d 739, 743-745 (8th Cir.), cert. denied, 108 S. Ct. 352 (1987); United States v. Alvarado-Arriola, 742 F.2d 1143, 1144-1145 (9th Cir. 1984); United States v. Ocanas, 628 F.2d 353, 358 (5th Cir. 1980), cert. denied, 451 U.S. 984 (1981) ("we think that either party should be entitled to modify its position and even withdraw its consent to the bargain until the plea is tendered and the bargain as it exists is accepted by the court"). /7/ Petitioner to the contrary (Pet. 19 & n.32), the prosecutor had unambiguously signaled his intention to withdraw from the plea agreement: the prosecutor brought felony charges that were wholly inconsistent with the continued existence of the agreement and thereafter expressly moved to withdraw from that agreement before petitioner had entered a misdemeanor plea under the terms of the agreement. Moreover, as the court below properly found, Pet. App. 5, the prosecutor's withdrawal from the unexecuted plea agreement did not prejudice petitioner, since she had not detrimentally relied on the agreement in any way. Under these circumstances, consistent with the holding in Mabry v. Johnson, the unexecuted misdemeanor plea agreement did not prevent the prosecutor from changing his mind about that agreement and proceeding with a felony prosecution when appellant did not enter a misdemeanor plea before the magistrate. Thus, quite apart from the issue whether the district court behaved vindictively in refusing to enforce the plea agreement, petitioner's due process rights were not implicated. Cf. United States v. Whitley, 759 F.2d 327, 332 (4th Cir.) (en banc), cert. denied, 474 U.S. 873 (1985) (despite prosecutor's intemperate remarks, no vindictiveness where remarks could not have led to a due process violation under the circumstances of the case). Simply put, the remarks of the district court that petitioner cites as evidence of vindictiveness "were irrelevant and of no detriment to (petitioner), as the court had no authority to grant her motion, since there was no plea agreement which it could enforce." Pet. App. 4. Second, a district court has discretion to reject a plea agreement. See Santobello v. New York, 404 U.S. 257, 262 (1972). Although petitioner elected to "proceed" in the district court, the record reflects that petitioner did nothing to enter a plea to the misdemeanor charge in the district court until February 3, 1989 -- only three days prior to the scheduled start of her trial. Since the district court treated the case as if it were going to trial, the court can hardly be faulted for rejecting the agreement at that late date as an instance of "game" playing that was designed to waste the court's valuable time. 2 R. 2-3. This is especially true since the court was well aware that a felony indictment had been returned and that the prosecutor had disavowed the proposed plea agreement regarding the misdemeanor charge. Given the fact that petitioner waited more than one month after entering a not-guilty plea to the felony charges before raising her vindictiveness contention, and the fact that petitioner waited until after the date set by the district court for entering a guilty plea before seeking to enforce the original plea agreement, the district court acted within its discretion in refusing to allow petitioner to plead guilty. /8/ Under these circumstances, and irrespective of whether the district court might properly reject plea agreements in all future cases in which defendants charged with misdemeanors elect to plead guilty before a judge instead of a magistrate, the district court did not abuse its discretion given the particular facts of this case. /9/ CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General EDWARD S.G. DENNIS, JR. Assistant Attorney General ROBERT J. ERICKSON Attorney JULY 1990 /1/ The facts are taken from the government's brief in the court of appeals. Gov't C.A. Br. 3-8. /2/ "R." refers to the record on appeal. /3/ In so doing, petitioner asserted the right contained in 18 U.S.C. 3401(b) to proceed in district court. /4/ See also Thigpen v. Roberts, 468 U.S. 27, 30 n.4 (1984). Cf. Corbitt v. New Jersey, 439 U.S. 212, 218-224 (1978) (because government had a "legitimate interest" in encouraging guilty pleas, statutory scheme that authorized more lenient sentences for defendants who pleaded guilty was not a "needless or arbitrary burden on the (exercise of) constitutional rights"). The courts of appeals have similarly recognized that "there is a 'pretrial/post-conviction dichotomy,' so that the presumption of vindictiveness only applies when a prosecutor lodges additional charges after trial." United States v. Rooney, 866 F.2d 28, 32 (2d Cir. 1989). /5/ First, the court found that "the most important" factor justifying a presumption of vindictiveness was that the government treated differently those demonstrators who chose to forfeit collateral and those who chose to stand trial, since only persons in the latter group were charged with two misdemeanors. Ibid. Second, the court stated that the simplicity of the facts underlying the charges and the complexity of the legal arguments that the defendants could assert in their defense justified a presumption that the prosecutor had increased the charges solely because the defendants elected to stand trial. Id. at 1246-1247. Third, the prosecutor's decision first to add and then later to drop the second charge against the defendants once they chose to stand trial manifested, in the court of appeals' view, "a disturbing willingness to toy with the defendants." Id. at 1247. Finally, the court concluded that the prosecutor had a motive for acting vindictively. Since many of the demonstrators had expressed an intention to contest the charges on First Amendment grounds, the court stated, "(t)he government had a strong incentive to try to keep clear of this courtroom morass" and "to avoid the annoyance and expense of prosecuting these minor cases at a potentially drawn-out trial." Ibid. /6/ Petitioner claims that the decision below conflicts with United States v. Ruesga-Martinez, 534 F.2d 1367 (9th Cir. 1976), but that claim is in error. The court there held that an appearance of vindictiveness arose when a prosecutor brought felony charges after a defendant refused to waive trial before a judge and jury with respect to an initial misdemeanor charge. 534 F.2d at 1369. In this case, however, petitioner knew at the outset that she could be charged with a felony, because a felony complaint was filed against her. Page 3, supra. Ruesga-Martinez is therefore inapposite. In any event, the Ninth Circuit decided Ruesga-Martinez before this Court decided Bordenkircher and Goodwin, and since Bordenkircher and Goodwin the Ninth Circuit has recognized that there is no presumption of vindictiveness in the pretrial context. Gallegos-Curiel, 681 F.2d at 1169-1171. Accordingly, Ruesga-Martinez lacks any continuing validity. /7/ The decision in United States v. Papaleo, supra, is illustrative. There, the government entered into a proposed plea agreement in which it agreed to dismiss two counts of an indictment in the event that the defendant pleaded guilty to the remaining count, but withdrew its agreement when the scheduled plea hearing was unexpectedly cancelled. The court of appeals held that the government "committed neither a constitutional nor a contractual violation" when it "withdrew a plea agreement * * * (that) ha(d) not been approved by the court nor relied upon by the defendant." 853 F.2d at 18. As the court stated, id. at 19-20: (N)owhere in the plea agreement is there an explicit promise by (the defendant) to do anything. This is understandable in light of the fact that a court cannot force a defendant to plead guilty because of a promise in a plea agreement. * * * Unless and until a court accepts a guilty plea, a defendant is free to renege on a promise to so plead. * * * Absent more explicit promissory language, we will not read the ambiguous language of the "agreement" as containing bilateral promises such as to bind the government to a contract unenforceable against the other party. Thus, pursuant to general contract principles, * * * we hold that a plea agreement of this type is no more than an offer by the government: if the defendant pleads guilty and if that plea is accepted by the court, then the government will perform as stipulated in the plea agreement. Until performance took place by (the defendant), the government was free to withdraw its offer. /8/ As the record shows, the district court treated the case as if it were to be tried once petitioner asserted her right to proceed in the district court and the prosecutor filed the felony indictment. Thus, the court set a cut-off date for plea agreements of January 31, 1989, see 1 R. 46, and issued a standing discovery order "to * * * bring about full readiness for trial." 1 R. 42. Moreover, petitioner entered a plea of not guilty to the felony charges on December 30, 1988. 1 R. 44. Petitioner did nothing in order to enter a guilty plea before the district court until February 3, 1989 -- three days after the court's announced cut-off date for consideration of plea agreements, 1 R. 46 -- when petitioner filed her motion to compel performance of the misdemeanor plea agreement, 1 R. 40-41. /9/ United States v. Miller, 722 F.2d 562, 565 (9th Cir. 1983), is not to the contrary. There, the district judge was found to have abused his discretion because he rejected a plea agreement pursuant to a fixed policy of rejecting all pleas to single counts of multi-count indictments. Miller noted that such an approach amounted to an abdication of duty to consider each plea agreement on an individual basis. 722 F.2d at 563. Here, it is not clear that the court's remarks from the bench should be taken as an indication that the court intended to follow a fixed rule in all cases. At most, the court stated an intention to follow such a rule in future cases, but acted in this case on the basis of what it saw as "gamesmanship" by the defense. Evidence of that can be seen in the fact that, as petitioner notes, the court -- on the same day it acted here -- accepted a misdemeanor plea in a case in which the accused had asserted a right to proceed in district court. 3 R. 3-5. As the court noted, that case presented "a different situation" from petitioner's case because the prosecution in that case had not, as here, either disavowed the proposed plea agreement in good time or obtained a felony indictment. Accordingly, it is clear that the district court rejected petitioner's plea agreement after giving it individualized consideration. That is all Miller requires.