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A prosecution is vindictive and a violation of due process if undertaken to punish a person because he has done what the law plainly allows him to do. In order to be successful on a claim of prosecutorial vindictiveness, a defendant must affirmatively show through objective evidence that the prosecutorial conduct at issue is motivated by some form of prosecutorial animus. A presumption of vindictiveness does not arise where, prior to trial, the prosecutor brings enhanced charges following the defendant's exercise of a procedural right. Where either a presumption of vindictiveness applies or the defendant has come forward with objective evidence of actual vindictiveness, the burden shifts to the government to come forward with evidence that the motivation behind the charges was proper.
Defendant Jerome W. Bullis, a dairy manager, was charged with various crimes for his involvement in a conspiracy to fix milk prices sold to school districts. Following a two-week trial, defendant's co-conspirators testified under grants of immunity, and the jury convicted defendant. The district court sentenced defendant to 30 months of incarceration and one year of supervised release. On appeal, defendant asserted that the district court erred in denying his motion to dismiss the superseding indictment on the ground that the superseding indictment was the result of prosecutorial vindictiveness.
Was the superseding indictment a result of prosecutorial vindictiveness, thereby warranting the reversal of defendant’s conviction?
The court held that defendant did not present sufficient evidence of prosecutorial animus. The court found that the superseding indictment was motivated by permissible factors. The court also held that a reasonable jury could have inferred from the evidence at trial that defendant was involved in a single conspiracy. The court determined that defendant waived his objection that he withdrew from the conspiracy and concluded that the government met its burden of showing that defendant had not withdrawn. The judgment was affirmed.