United States v. Jenkins - 504 F.3d 694 (9th Cir. 2007)

Rule:

To establish a presumption of vindictiveness, a defendant need not show that the prosecutor acted in bad faith or that he maliciously sought the indictment. Rather, the defendant must demonstrate a reasonable likelihood that the government would not have brought the charges had she not elected to exercise a protected right. The 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. The mere appearance of prosecutorial vindictiveness suffices to place the burden on the government because the doctrine of vindictive prosecution seeks to reduce or eliminate apprehension on the part of an accused that she may be punished for exercising her rights. 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.

Facts:

Sharon Ann 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. The United States appeals the district court's dismissal of an indictment of Jenkins for alien smuggling. The ground of dismissal was the appearance of vindictive prosecution.

Issue:

Did the prosecutor's conduct create the appearance of vindictive prosecution?

Answer:

Yes

Conclusion:

The 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 marijuana smuggling trial. Because the Government could have prosecuted Jenkins for alien smuggling well before she presented her theory of defense at the marijuana smuggling trial, its assertion that the case against Jenkins was much stronger after her in-court admission did not suffice to dispel the appearance of vindictiveness.