UNITED STATES of America, Plaintiff-Appellant, v. Sharon Ann JENKINS, Defendant-Appellee, 504 F.3d 694

Opinion by Judge CANBY: Partial Dissent by Judge CONLON. ORDER AMENDING OPINION AND AMENDED OPINION ORDER The majority opinion filed by this court on July 17, 2007, slip op. at 8677, is amended as follows: At slip op. p. 8687, delete the second and third sentences on the page and the included citations and parentheticals (thus deleting the material beginning “The fact that separate charges ...” and ending “... from associated individuals.”), and insert the following passage in place of the deleted passage: The government relies on United States v. Martinez, 785 F.2d 663 (9th Cir.1986).

Martinez cited United States v. Robison, 644 F.2d 1270, 1272 (9th Cir.1981), for the proposition that, if a second charge is unrelated to the first, a presumption of vindictiveness does not arise. Martinez, 785 F.2d at 669. Robison, however, made clear that relatedness of the charges “is neither dispositive nor essential to prove vindictiveness.” Robison, 644 F.2d at 1272 (citations omitted); accord Groves, 571 F.2d at 454 (stating that the fact that a second charge is unrelated is not “controlling in any case” or “dispositive on the question of vindictiveness”).

Although Martinez certainly supports the proposition that the mere filing of a second, unrelated charge after a first charge does not give rise to a presumption of vindictiveness, we do not read Martinez as holding that a presumption of vindictiveness can never arise when the second charge is unrelated to the first.

And Martinez depended in large part on the fact that “Martinez could have exercised no right in the [first] Colorado trial that would have affected the [subsequent] Arizona indictment.” Martinez, 785 F.2d at 670; see also Robison, 644 F.2d at 1272 (finding that “Robison has failed to demonstrate any connection between the exercise of procedural rights in prior prosecutions and the federal prosecution challenged here.”). Here, in contrast, Jenkins’ exercise of her right to testify that she thought she was once again smuggling aliens can easily be viewed as triggering the filing of the alien smuggling charges.

The petition of the United States for rehearing en banc is pending and has not been ruled on. No additional petitions for rehearing may be filed because of this amendment. OPINION CANBY, Circuit Judge: The United States appeals the district court’s dismissal of an indictment of Sharon Ann Jenkins for alien smuggling. The ground of dismissal was the appearance of vindictive prosecution. Jenkins was apprehended twice for attempting to cross the U.S.-Mexico border while driving a vehicle containing undocumented aliens. Both times, Jenkins stated that she had been paid to drive the car across the border.

She was not charged with any crime. Almost three months later, Jenkins was apprehended while attempting to cross the border as a passenger in a vehicle containing marijuana. She stated that she had been paid to drive the car, which she believed contained illegal aliens, across the border. Jenkins was charged with importation of marijuana. At trial, she testified in her own defense and maintained that she believed the vehicle in which she had been a passenger contained illegal aliens because she had been paid on two previous occasions to smuggle aliens.

While the jury was deliberating, the government filed alien smuggling charges against Jenkins in connection with her first two border apprehensions. The district court found that the prosecutor’s conduct created the appearance of vindictive prosecution because the alien smuggling charges were brought only after Jenkins exercised her right to testify in her own defense at her separate marijuana smuggling trial. We affirm.

We conclude that, because the government could have prosecuted Jenkins for alien smuggling well before she presented her theory of defense at the marijuana smuggling trial, the timing of the charges created the appearance of vindictiveness. The government’s assertion that its case against Jenkins was much stronger after her in-court admission does not suffice to dispel the appearance of vindictiveness. We therefore conclude that the indictment should be dismissed. I.

Factual and Procedural Background On October 19, 2004, Sharon Ann Jenkins, a United States citizen, attempted to enter the United States at the San Ysidro port of entry, driving a white Mazda. The officer inspecting her vehicle discovered two non-citizens concealed in the trunk. When questioned, Jenkins stated that she had been offered $400 by a man named Pablo in exchange for bringing the undocumented individuals into the country. The next day, Jenkins attempted to enter the United States driving a Dodge Caravan. The inspecting officer discovered two non-citizens concealed in the back of the vehicle.

Jenkins was issued Miranda warnings, waived her rights, and stated that she was driving the vehicle across the border in exchange for $100 from a man named Pablo. Jenkins said that she did not know that the car contained illegal aliens, but that she was aware that it is illegal to transport undocumented individuals into the United States. The government did not press charges at that time against Jenkins for the October 19 and October 20 incidents. On January 9, 2005, Jenkins attempted to enter the United States as a passenger in a 1989 Dodge Ram van driven by her husband.

A search of the van uncovered marijuana concealed in the interior panels, speaker compartment, and radio compartment of the van. Jenkins was given Miranda warnings and waived her rights. She stated that she had been paid $500 by a woman named Maria to bring an undocumented alien across the border, and that she believed the vehicle contained an undocumented alien. Jenkins also said that she had been paid by a man named Pablo to smuggle aliens on two previous occasions, and that she had been apprehended. The agent interviewing Jenkins on January 9 possessed records detailing her previous alien smuggling arrests.

Jenkins was charged with importing marijuana in violation of 21 U.S.C. §§ 952, 960. At trial on April 6, 2005, Jenkins testified that she did not know that the van contained marijuana because she believed she was smuggling undocumented aliens. She stated that she had met Maria, the woman who paid her to drive across the border on January 9, through Pablo, the man who previously had hired her to smuggle aliens. Special Agent Chase testified that when he questioned Jenkins on January 9, she told him that she had attempted unsuccessfully to smuggle aliens on two previous occasions.

The jury began deliberation on April 6 but did not reach a verdict by the end of the day. At 4:46 p.m., the government filed a complaint charging Jenkins with smuggling one of the undocumented aliens involved in the October 20, 2004, incident. Jenkins subsequently was indicted for smuggling all four of the individuals involved in the October 19 and 20 incidents. She pled not guilty to the alien smuggling charges.

Jenkins moved to dismiss the alien smuggling indictment on the ground of vindictive prosecution, arguing that the charges were brought only after she elected to testify in her defense at the marijuana importation trial. The Assistant United States Attorney who filed the alien smuggling charges against Jenkins testified at the motion hearing.

He conceded that the United States could have charged Jenkins with alien smuggling both at the time of her October apprehensions and at the time that the marijuana charges were filed, but he asserted that Jenkins’s in-court testimony greatly strengthened the government’s case. The district court granted Jenkins’s motion to dismiss the indictment. The court noted that the government had been aware of Jenkins’s alien smuggling activities well before it decided to file charges, and that Jenkins’s in-court testimony was not vital to the government’s case.

The court explained that its ruling was a “prophylactic” measure intended to prevent the chilling of a defendant’s ability to take the witness stand. The government filed an unsuccessful motion for reconsideration of the district court’s decision. This appeal followed. II. Jurisdiction and Standard of Review We have jurisdiction under 28 U.S.C. § 1291. The standard of review of a district court’s decision whether to dismiss an indictment for vindictive prosecution is unsettled in this circuit. United States v. Hernandez-Herrera, 273 F.3d 1213, 1217 (9th Cir.2001).

We have reviewed vindictive prosecution cases de novo, for abuse of discretion, and for clear error. Id. We conclude that the district court’s decision should be reviewed de novo because the issue presents a mixed question of law and fact. The trial court first determines whether the prosecutor’s course of conduct appears motivated by a desire to punish the defendant for exercising a legal right. The court then decides whether the prosecutor has come forth with sufficient evidence to dispel any appearance of vindictiveness.

Because our review of these determinations “requires us to consider legal concepts in the mix of fact and law,” de novo review is appropriate. United States v. Martinez, 785 F.2d 663, 666 (9th Cir.1986) (reviewing vindictive prosecution claim de novo) (quotations and citation omitted); see also United States v. Bridges, 344 F.3d 1010, 1014 (9th Cir.2003) (motion to dismiss an indictment for improper or outrageous government conduct is reviewed de novo); United States v. Fuchs, 218 F.3d 957, 964 (9th Cir.2000) (decision whether to dismiss an indictment for prosecutorial misconduct is reviewed de novo). III.

Discussion The government violated Jenkins’s right to due process of law if it filed the alien smuggling charges to penalize her for exercising a protected statutory or constitutional right. See United States v. Goodwin, 457 U.S. 368, 372, 102 S.Ct. 2485, 73 L.Ed.2d 74 (1982). Jenkins may establish prosecutorial vindictiveness by produc ing direct evidence of the prosecutor’s punitive motivation towards her. See United States v. Gallegos-Curiel, 681 F.2d 1164, 1168 (9th Cir.1982).

Alternatively, she is entitled to a presumption of vindictiveness if she can show that the alien smuggling charges “were filed because [she] exercised a statutory, procedural, or constitutional right in circumstances that give rise to an appearance of vindictiveness.” Id. This case involves the latter situation, as the record contains no direct evidence of the government’s improper motivation. Cf. United States v.

Hollywood Motor Car Co., Inc., 646 F.2d 384, 388 (9th Cir.1981) (finding actual vindictiveness when government threatened to bring additional charges against defendants if they exercised their right to request change of venue), rev’d on other grounds, 458 U.S. 263, 102 S.Ct. 3081, 73 L.Ed.2d 754 (1982) (per curiam). A. Whether the filing of alien smuggling charges created the appearance of vindictiveness To establish a presumption of vindictiveness, Jenkins need not show “that the prosecutor acted in bad faith” or that he “maliciously sought” the alien smuggling indictment. United States v.

Groves, 571 F.2d 450, 453 (9th Cir.1978); see also United States v. Ruesga-Martinez, 534 F.2d 1367, 1369 (9th Cir.1976) (“We do not intend ... to impugn the actual motives of the United States Attorney’s office in any way.”). Rather, she must demonstrate a reasonable likelihood that the government would not have brought the alien smuggling charges had she not elected to testify at her marijuana smuggling trial and present her theory of the case.

Gallegos-Curiel, 681 F.2d at 1169 (“[T]he appearance of vindictiveness results only where, as a practical matter, there is a realistic or reasonable likelihood of prosecutorial conduct that would not have occurred but for hostility or a punitive animus towards the defendant because he has exercised his specific legal rights.”) (citing Goodwin, 457 U.S. at 373, 384, 102 S.Ct. 2485).

The mere appearance of prosecutorial vindictiveness suffices to place the burden on the government because the doctrine of vindictive prosecution “seeks[s] to reduce or eliminate apprehension on the part of an accused” that she may be punished for exercising her rights. Ruesga-Martinez, 534 F.2d at 1369. As the district court noted, the “prophylactic” doctrine is designed, in part, “to prevent chilling the exercise of [legal] rights by other defendants who must make their choices under similar circumstances in the future.” United States v. DeMarco, 550 F.2d 1224, 1227 (9th Cir.1977).

The case before us presents an unusual situation because the government’s alien smuggling case essentially was open and shut even before Jenkins testified in court. The government’s evidence prior to Jenkins’s in-court confession included: (1) her October 19 admission that she had been paid by a man named Pablo to smuggle aliens, (2) her October 20 admission that Pablo had paid her $100 to drive a car across the border and that she was aware of the illegality of alien smuggling, and (3) her January 9 admission that she had smuggled aliens on October 19 and 20 and had been apprehended.

Indeed, the government admitted that prior to Jenkins’s testimony it “had enough to go forward, unquestionably,” and that it “could have brought charges earlier on.” In these circumstances, the government’s decision to press charges only after Jenkins asserted a reasonably credible defense to the marijuana importation charges raises, at the very least, a “reasonable or realistic likelihood” that the government’s decision was motivated by a retaliatory purpose. We therefore conclude that the government’s conduct created the appearance of vindictiveness.

We are sensitive to the government’s concern that the dismissal of charges resulting from a defendant’s in-court admission may hamstring prosecutorial efforts. This might be a different case if the government had not been equipped with Jenkins’s previous admissions at the time of her in-court testimony. But the government had more than enough evidence to proceed with the alien smuggling charges prior to Jenkins’s decision to testify.

See Groves, 571 F.2d at 453-54 (finding appearance of vindictiveness when government knew all of the facts relating to the second charge against the defendant at the time the first charge was brought, but only brought the second charge once the defendant moved to dismiss the first charge under the Speedy Trial Act). We therefore find it appropriate to place the burden on the government to justify its course of conduct.

Finally, we reject the government’s argument that, because the alien smuggling and marijuana importation charges do not arise out of the same nucleus of operative fact, the doctrine of vindictive prosecution is inapplicable. The government relies on United States v. Martinez, 785 F.2d 663 (9th Cir.1986). Martinez cited United States v. Robison, 644 F.2d 1270, 1272 (9th Cir.1981), for the proposition that, if a second charge is unrelated to the first, a presumption of vindictiveness does not arise. Martinez, 785 F.2d at 669.

Robison, however, made clear that relatedness of the charges “is neither dispositive nor essential to prove vindictiveness.” Robison, 644 F.2d at 1272 (citations omitted); accord Groves, 571 F.2d at 454 (stating that the fact that a second charge is unrelated is not “controlling in any case” or “dispositive on the question of vindictiveness”).

Although Martinez certainly supports the proposition that the mere filing of a second, unrelated charge after a first charge does not give rise to a presumption of vindictiveness, we do not read Martinez as holding that a presumption of vindictiveness can never arise when the second charge is unrelated to the first.

And Martinez depended in large part on the fact that “Martinez could have exercised no right in the [first] Colorado trial that would have affected the [subsequent] Arizona indictment.” Martinez, 785 F.2d at 670; see also Robison, 644 F.2d at 1272 (finding that “Robison has failed to demonstrate any connection between the exercise of procedural rights in prior prosecutions and the federal prosecution challenged here.”). Here, in contrast, Jenkins’ exercise of her right to testify that she thought she was once again smuggling aliens can easily be viewed as triggering the filing of the alien smuggling charges.

The government itself recognizes that it brought the alien smuggling charges only because Jenkins admitted to them during the marijuana importation trial. Therefore, to the extent that we consider the relatedness of charges important to our analysis, this factor does not foreclose application of the doctrine of vindictive prosecution. B.

Whether the government rebutted the presumption of vindictiveness The presumption of vindictiveness raised by the prosecutor’s decision to file alien smuggling charges against Jenkins must be overcome by “objective evidence justifying the prosecutor’s action.” Goodwin, 457 U.S. at 376 n. 8, 102 S.Ct. 2485. The prosecution must show that the additional charges “did not stem from a vindictive motive, or [were] justified by indepen dent reasons or intervening circumstances that dispel the appearance of vindictiveness.” Gallegos-Curiel, 681 F.2d at 1168.

The government argues that, even if the content of the evidence against Jenkins was available all along, the evidence was stronger once Jenkins testified in court. The Assistant United States Attorney stated that Jenkins gave the government “no choice but to bring charges” and that “to walk away from [the opportunity] would be inexcusable.” Although a confession in open court certainly added to the repertoire of evidence against Jenkins, we find the government’s explanation unpersuasive.

As the district court noted, it was not necessary to wait to file charges until Jenkins took the witness stand and confessed under oath: “cases for illegal alien smuggling in this district are proven on much less than that.” Although we are reviewing the issue of vindictive prosecution de novo, we recognize that the district judge is well-positioned to relate how cases are usually conducted in his district. We also are unconvinced by the government’s argument that it brought the alien smuggling charges precisely because bringing them after trial would have seemed vindictive.

From the moment she was apprehended for smuggling marijuana, Jenkins maintained that she believed she was smuggling aliens and pointed to her October apprehensions. There was no reason for the government to think that she would not continue with this defense at trial. If the government had been concerned with appearing vindictive, it could have filed the alien smuggling charges in January, when Jenkins first asserted that she did not know she was smuggling marijuana.

We therefore conclude that the justifications offered by the government do not suffice to dispel the appearance of vindictiveness created by the timing of the alien smuggling charges. IV. Conclusion For the reasons set forth above, the judgment of the district court is AFFIRMED. . The passage to be amended may also be found at 2007 WL 2034037 *4, second paragraph with headnote number [9], . The next day, the jury informed the court that it could not reach a unanimous verdict. Jenkins was retried and convicted, and her conviction was affirmed on appeal. United States v. Jenkins, 214 Fed.Appx. 678 (9th Cir.2006).

She is serving a 63-month sentence. . Jenkins made the second and third statements after being given warnings pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The police report describing the first statement does not indicate whether Jenkins was Mirandized. . "For example, if the victim of an assault has died since the return of the first indictment, a subsequent indictment may properly charge the accused with murder rather than assault.” Ruesga-Martinez, 534 F.2d at 1370 n. 4 (citing Blackledge v. Perry, 417 U.S. 21, 29 n. 7, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974)).