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April 15, 1977

Benjamin RODRIGUEZ, Defendant

Lasker, District Judge.

The opinion of the court was delivered by: LASKER

LASKER, District Judge.

On April 16, 1974 indictment 74 Cr. 421 was filed charging Benjamin Rodriguez with attempted income tax evasion and filing a materially false income tax return for the year 1967. After a trial on this indictment before Judge Carter, on March 2, 1976, Rodriguez was found guilty on both counts; on April 6, 1976, he received a two year sentence of imprisonment. On November 30, 1976 his conviction was affirmed by the Second Circuit.

 On September 15, 1976 (while the above appeal was pending) the instant indictment, 76 Cr. 890, was filed charging one count of evading taxes in the year 1969 and a second count of evading taxes in the year 1970. Rodriguez moves to dismiss this indictment on the following bases: (1) under Blackledge v. Perry, 417 U.S. 21, 94 S. Ct. 2098, 40 L. Ed. 2d 628 (1974) because its filing was retaliatory (or could be so viewed) for the defendant's refusal to plead guilty to the 1974 indictment charging violations of the 1967 tax year; (2) under Blackledge v. Perry, supra, because its filing was retaliatory (or could be so viewed) for the defendant's having filed a notice of appeal; (3) because it is conceded by the government that one factor motivating its final decision to seek indictment was its view that the two year sentence previously imposed was too lenient; and (4) in the exercise of its supervisory powers the court should dismiss the indictment because all facts on which it is based were known to the government long before trial of the 1974 indictment and failure to try the two indictments together was prejudicial to the defendant whose defense to both indictments is based on identical factual contentions presented through identical witnesses.

 Although the defendant urged that a full evidentiary hearing was required to decide these matters, the government opposed the application. On a consideration of the affidavits submitted by both sides and the undisputed facts developed at oral argument on the motion held April 5, 1977, it is concluded that no evidentiary hearing is required, *fn1" and that the defendant's motion to dismiss must be denied.


 In Blackledge v. Perry, supra, 417 U.S. 21, 94 S. Ct. 2098, the Supreme Court held that where a prosecutor chose originally to charge a defendant with the misdemeanor of assault with a deadly weapon, it was not "constitutionally permissible" for the prosecutor to file a subsequent indictment charging a felony of assault based on the same underlying conduct where the defendant, after being convicted in state district court, filed a notice of appeal which under state law entitled him to trial de novo in the state superior court. The potential for vindictiveness in response to the defendant's exercise of his rights, and the mere appearance of vindictiveness which in itself might "chill" the exercise of those rights, "simply precluded" the state from subjecting the defendant to the new accusation. The Court added:

"There is, of course, no evidence that the prosecutor in this case acted in bad faith or maliciously in seeking a felony indictment against Perry. The rationale of our judgment in [ North Carolina v. Pearce, 395 U.S. 711, 89 S. Ct. 2072, 23 L. Ed. 2d 656 (1969)] however, was not grounded upon the proposition that actual retaliatory motivation must invariably exist. Rather, we emphasized that 'since the fear of such vindictiveness may unconstitutionally deter a defendant's exercise of the right to appeal or collaterally attack his first conviction, due process also requires that a defendant be freed of apprehension of such a retaliatory motivation on the part of the sentencing judge.' 395 U.S. at 725 [89 S.Ct 2072 at 2080.] We think it clear that the same considerations apply here. A person convicted of an offense is entitled to pursue his statutory right to a trial de novo, without apprehension that the State will retaliate by substituting a more serious charge for the original one, thus subjecting him to a significantly increased potential period of incarceration." 417 U.S. at 28, 94 S. Ct. at 2102.

 The Blackledge rationale has been extended to preclude prosecutors from adding counts to an indictment following a defendant's successful attack on a previously entered plea of guilty, United States v. Johnson, 537 F.2d 1170 (4th Cir. 1976); or from charging a defendant with first degree murder after a trial on second degree murder (for the same underlying act) ended in a mistrial granted on defendant's motion, United States v. Jamison, 164 U.S.App.D.C. 300, 505 F.2d 407 (1974); from adding a count based on the habitual offender statute when the defendant refused to plead guilty, Hayes v. Cowan, 547 F.2d 42 (6th Cir. 1976); from indicting a defendant initially charged with a misdemeanor for a felony after the defendant refused to waive his right to be tried by a district judge rather than a United States Magistrate on the misdemeanor charge, United States v. Ruesga-Martinez, 534 F.2d 1367 (9th Cir. 1976); or indicting a defendant on additional charges in response to his decision to seek a change of venue to which he was entitled, United States v. DeMarco, 401 F. Supp. 505 (C.D.Cal.1975). As is apparent, Blackledge and its progeny have for the most part involved situations in which following a defendant's successful exercise of a constitutional or statutory right, the prosecutor increased the grade of the offense initially charged for the same underlying conduct. See, e.g., Blackledge v. Perry, supra; Hayes v. Cowan, supra ; *fn2" United States v. Ruesga-Martinez, supra; United States v. Jamison, supra.

 Here the prosecutorial conduct complained of is the bringing of a second indictment charging criminal acts separate and distinct from those charged in the first indictment in such a way similarly as to create the appearance or potential for vindictiveness. Although two courts have held that charging additional criminal acts following a defendant's exercise of his rights is prohibited where the government knew of the factual basis for the charges at the time of the initial charging decision, United States v. Johnson, 537 F.2d 1170 (4th Cir. 1976); United States v. DeMarco, 401 F. Supp. 505 (C.D.Cal.1975), this circuit appears to have adopted a contrary rule. In United States v. Mallah, 503 F.2d 971 (2d Cir. 1974) cert. denied, 420 U.S. 995, 95 S. Ct. 1425, 43 L. Ed. 2d 671 (1975), one of the defendants claimed that whereas in his first trial he had been charged with two counts of distributing cocaine, in violation of 21 U.S.C. § 841, following his successful appeal, the government charged him with two counts of distributing heroin in violation of the same statute. Defendant contended

"that this substitution of heroin charges for cocaine charges was extremely prejudicial and that it was a vindictive reaction to appellant's embarrassing disclosure that the U.S. Attorney's Office had promised Lipsky [a witness] immunity while purporting not to have done so." 503 F.2d at 988.

 The Court of Appeals ruled that:

"This theory might have some force had the government, for example, added to a previous charge of distributing narcotics in violation of 21 U.S.C. § 841 a charge of distributing the same narcotics to a minor in violation of 21 U.S.C. § 845. That is not the case here. It is one thing to increase a charge from manslaughter to murder, and quite another to charge a defendant, subsequent to a successful appeal, with a second murder. '[ North Carolina v. Pearce ] would have . . . application, if a prosecutor . . . charged a defendant whose first conviction had been set aside with a more serious offense based upon the same conduct.' [ United States ex rel. Williams v. McMann, 436 F.2d 103 at 105 (2d Cir. 1970), cert. denied, 402 U.S. 914, 91 S. Ct. 1396, 28 L. Ed. 2d 656 (1971)] [emphasis added by Mallah court]. Here, the heroin charges are based upon acts which are distinct from the charges previously brought against the appellant. The government's decision to prosecute appellant for counts two and six is well within the traditionally broad ambit of prosecutorial discretion." 503 F.2d at 988.

 Thus, it appears to be the rule in this circuit that the government is free to charge additional or different counts following a successful appeal (or presumably, other exercise of the defendant's rights) so long as the new counts charge acts which are different and distinct from those initially charged. *fn3" While this is not necessarily the result we would reach were the question open, it is the law of the circuit and must be applied. On this basis alone the claims relating to the filing of the second indictment in retaliation for the defendant's refusal to plead guilty, or filing a notice of appeal, must be rejected.

 If Mallah had been decided differently, or if the reading given it above is too expansive, we would face more difficult issues which would nonetheless be decided adversely to the defendant. Although we find no merit to the claim that the second indictment was filed in response to the defendant's filing a notice of appeal, *fn4" it is a most troublesome proposition that the government is free to charge a defendant with a limited indictment for purposes of plea bargaining and then add new charges, known to it at the time of the initial indictment, when the defendant refuses to plead guilty. *fn5" It is uncontested that the Internal Revenue Service investigation of Rodriguez, which bridged all years here in question, concluded in 1974 and that its files had been turned over to the United States Attorney's office at least by August, 1974. *fn6" It is also agreed that in August, 1974 plea negotiations were had between an Assistant United States Attorney and defense counsel which included an offer to accept a plea to violations in any single tax year (e.g. to the then existing indictment for tax ...

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