The opinion of the court was delivered by: JED RAKOFF, District Judge
Defendant moves to dismiss the superseding indictment on the ground
of prosecutorial vindictiveness.*fn1 The motion is primarily premised on
the following circumstances. Shortly before the defendant's trial last
December on a single, narrow, and low-level narcotics charge, the Court,
over the Government's vigorous objections, ruled inadmissible four
"similar acts" involving four prior narcotics deals. The jury then
"hung," and the Court promptly scheduled a re-trial. Thereupon, the
Government obtained a superseding indictment that added a broad
conspiracy count embracing all four of the previously excluded acts. The
new count also very greatly increased the possible punishment if
defendant were convicted.
Prosecutorial vindictiveness can be established either by proof of
"actual vindictiveness" i.e., direct evidence that the
prosecutor's charging decision is an unjustifiable penalty resulting
solely from the defendant's exercise of a protected legal right,
see United States v. Goodwin, 457 U.S. 368, 380-81
(1982); United States v. Sanders, 211 F.3d 711, 716-717(2d Cir.
2000); United States v. Johnson, 171 F.3d 139, 140-141 (2d Cir.
1999) or by proof of circumstances that pose a "realistic
likelihood" of such misconduct sufficient to raise a "presumption of
prosecutorial vindictiveness," which the Government must then rebut or
face dismissal. Johnson at 141; United States v.
King, 126 F.3d 394, 397 (2d Cir. 1997). While the mere addition of a
further charge following a hung jury is an insufficient circumstance to
make such a showing, the Court concludes that the full set of
circumstances briefly summarized above, if taken most favorably to the
movant, is sufficient (though barely) to raise a rebuttable presumption
of vindictiveness sufficient to require the Government to respond with
evidence of lack of animus.
Such a response may normally be made, at least in the first instance,
through affidavits from the relevant prosecutors, after which the burden
shifts back to the defense to establish that the proffered response is
pretextual or otherwise inadequate, or that there is a basis for limited
discovery, or the like. Here, however, all the Government has so
far offered in response is unsworn argument that the belated bringing of
the broader charge was the innocent result of the inadvertent failure of
the prosecution to adequately debrief certain cooperating co-conspirators
until after the first trial. While if true, this would be a total
refutation of the defendant's allegation of vindictiveness, the limited
time remaining before the firmly scheduled re-trial date of April 12,
2004 convinces the Court that the best way to proceed is simply to hold a
brief evidentiary hearing on this issue.
Accordingly, the Court will conduct an evidentiary hearing on this
motion, not to exceed one hour, on April 9, 2004 at 11 a.m., at which the
Government may call whatever witness or witnesses it believes are
necessary to meet its burden of rebutting the aforementioned
presumption,*fn2 the defendant may cross-examine within the limits
imposed by the work product and Government-investigation privileges, and
the Court will then promptly rule on the motion from the bench (as well
as on the Government's pending motion in limine).