People v Ryan

545 N.W.2d 612, 451 Mich. 30

• Court: Michigan Supreme Court
• Decided: March 22, 1996
• Docket: 100054, Calendar No. 6
• Status: Published

Opinions

Weaver, J.

At issue in this appeal is whether the federal Drug Enforcement Agency’s referral of defendant to state prosecution rendered the state prosecution vindictive. This Court has addressed the issue of vindictive prosecution where a sentence is increased after a defendant’s appeal from a criminal conviction,¹ but has not directly addressed alleged actual vindictiveness arising in the dual-sovereign pretrial context.²

We find that the defendant in this case failed to affirmatively prove actual vindictiveness because he did not show that the Wayne County prosecutor, by prosecuting under Michigan law, sought to penalize defendant for exercising his constitutional right to counsel. Nor did defendant present any evidence of untoward collusion between the federal investigation and the state prosecution. The Court of Appeals is reversed and the defendant’s conviction reinstated.

i

Defendant, Thomas J. Ryan, was arrested with a kilogram of cocaine in Livonia, Michigan on the evening of March 21, 1987, as part of a federal drug investigation. Local Livonia police support was solicited to facilitate defendant’s arrest. Federal agent Hubert Coleman questioned defendant at the scene and told him that if he cooperated with the federal investigation, Agent Coleman would pursue federal rather than state charges. This “deal” was favorable to defendant because a conviction in the State of Michigan for possession with intent to deliver 650 grams of cocaine carries a mandatory life sentence, while federal prosecution for the same act carries only a possible sentence of twenty-four to thirty-six months in jail.

Defendant was taken to the Livonia police station where federal agents played audiotapes involving defendant’s conversations with a Cleveland contact. Later that night, Agent Coleman traveled to Cleveland in an unsuccessful attempt to locate an additional two kilograms of cocaine thought to be connected to defendant’s operation.

At some point during questioning, defendant requested counsel.³ Because defendant’s attorney, Kenneth Cockrel, was unavailable, attorney James Feinberg responded to defendant’s call. However, attorney Feinberg made it clear, at least to defendant, that he would not represent defendant if he cooperated with the federal investigation.⁴ Attorney Cockrel arrived the next day to represent defendant, but found that the “deal” was off the table.⁵

Defendant’s case was referred to the Wayne County prosecutor, and he was arraigned on March 23, 1987, two days after his arrest. Defendant was convicted in state court of possession with intent to deliver more than 650 grams of cocaine and sentenced to life in prison.

The Court of Appeals affirmed his conviction, but found that the defendant had established a prima facie case of actual governmental vindictiveness and, therefore, remanded for an evidentiary hearing. Unpublished opinion per curiam, issued May 9, 1991 (Docket No. 113547). The Court of Appeals did not retain jurisdiction.

On remand, the trial court heard testimony from federal agents, attorney James Feinberg, and the defendant. The trial court found that Agent Coleman went to Cleveland only because of information provided by defendant after defendant requested counsel but before defendant spoke to counsel, that Agent Coleman knew that defendant did not yet have an attorney when Agent Coleman went to Cleveland, and that defendant did not have the opportunity to consult with an attorney before the deal was removed from the table.

On the basis of these findings the trial court concluded: “Dea Agents, particularly, supervising agent Hubert Colman [sic], indulged in a forbidden form of forum shopping in this instance . . . that as a result of that alone, defendant was prosecuted in the criminal justice system of the State of Michigan.” Detroit Recorder’s Court, Docket No. 87-03365, pp 12-13. This, the trial court concluded, “not only denied defendant his right to counsel but violated his rights under the Due Process Clause of the Fourteenth Amendment to the Federal Constitution as well.” Id., p 14.

The Court of Appeals affirmed the trial court’s dismissal in an unpublished opinion per curiam, entered February 24, 1994 (Docket No. 144052). We granted leave by order entered January 5, 1995. 448 Mich 852.

n

It is a violation of due process to punish a person for asserting a protected statutory or constitutional right. North Carolina v Pearce, 395 US 711; 89 S Ct 2072; 23 L Ed 2d 656 (1969); People v Goeddeke, 174 Mich App 534, ; 436 NW2d 407 (1988). “To punish a person because he has done what the law plainly allows him to do is a due process violation of the most basic sort . . . .” Bordenkircher v Hayes, 434 US 357, 363; 98 S Ct 663; 54 L Ed 2d 604 (1978).

Such punishment is referred to as prosecutorial vindictiveness. There are two types of prosecutorial vindictiveness, presumed vindictiveness and actual vindictiveness. Actual vindictiveness will be found only where objective evidence of an “expressed hostility or threat”⁶ suggests that the defendant was deliberately penalized for his exercise of a procedural, statutory, or constitutional right. See, e.g., United States v Goodwin, 457 US 368, 374, 380, n 12; 102 S Ct 2485; 73 L Ed 2d 74 (1982).⁷ The burden is on the defendant to affirmatively establish actual vindictiveness. People v Watts, 149 Mich App 502, 511; 386 NW2d 565 (1986). The mere threat of additional charges during plea negotiations does not amount to actual vindictiveness where bringing the additional charges is within the prosecutor’s charging discretion.⁸

The Court of Appeals found that defendant established a prima facie case of actual vindictiveness and was entitled to an evidentiary hearing.⁹ The Court relied on

assertions by defendant that the drug enforcement administration threatened to bring charges in Michigan and ultimately did so after defendant requested assistance of counsel in deciding whether to cooperate with the administration . . . .[¹⁰]

We agree that the evidence is undisputed that federal agent Coleman told defendant during initial questioning that if defendant refused to cooperate, the case would be referred for state prosecution. It is also undisputed that defendant requested counsel. Sometime thereafter, before defendant met with Attorney Cockrel, the “deal” was withdrawn and the case was referred by the federal agent to state prosecutors. However, this sequence of events does not dictate a conclusion that the defendant was vindictively deprived of his constitutional right to counsel.

We find that the mere threat to refer the case for state prosecution does not amount to objective evidence of hostile motive because it came from an individual who lacked authority to prohibit the Wayne County prosecutor from exercising his legitimate power to prosecute violations of Michigan law.

Implicit in the trial court’s reasoning is that the state would have been unable to prosecute defendant if the federal government had also pursued charges. But the state has independent authority to prosecute crimes within its borders. In In re Illova, 351 Mich 204, 209; 88 NW2d 589 (1958) (rev’d on other grounds), this Court stated:

When a defendant has violated both State and Federal laws he is liable to each sovereign and subject to prosecution by each. It is not his privilege to choose which shall first inflict punishment. If any comity between sovereigns is violated, the offended sovereign may complain, not the defendant.

Thus, the Wayne County prosecutor had independent authority to pursue charges against this defendant regardless of any “deal” suggested by the federal agent. It is also well accepted that the vindictiveness of one sovereign is not normally chargeable to the independent decision to prosecute by a separate sovereign because the likelihood of prosecutorial abuse is minimized. United States v Schoolcraft, 879 F2d 64, 68 (CA 3, 1989), citing United States v Ballester, 763 F2d 368, 370 (CA 9, 1985).

For example, in United States v Schoolcraft, supra, the defendant argued that a state prosecutor had acted vindictively when he referred a federal firearms offense to the United States attorney. The defendant made two allegations: first, the defendant claimed that the state prosecutor made the referral because the federal penalties were stiffer than the state’s penalties; and, second, he alleged that the state prosecutor, as private counsel, had represented parties that settled a civil suit favorable to defendant. At the conclusion of the civil suit, the prosecutor allegedly stated that he would “nail [defendant] to the wall” if he ever came before him. Id. at 67.

On these facts, the United States Court of Appeals for the Third Circuit found no vindictive prosecution. The court stated that it would not focus on the actions of the state prosecutor, but rather on the United States attorney who prosecuted defendant’s case.

The Court of Appeals employed a similar analysis in United States v Fulford, 825 F2d 3 (CA 3, 1987). In Fulford, the defendant asserted that the state prosecutor “badgered” and “pressured” a federal agent into seeking an indictment against the defendant for counterfeiting. The defendant claimed that the state prosecutor wanted the federal indictment so that he could use it as leverage in his attempt to get the defendant to cooperate in the prosecution of another individual on state charges.

Again, the court found that the defendant had failed to make out a claim of vindictiveness because he had failed to show improper conduct on the part of the sovereign that ultimately prosecuted the matter. In reaching its decision, the court stressed that the federal government’s authority to prosecute violations of federal law is independent of the prosecutorial rights of other sovereigns.

The same can be said of the State of Michigan’s authority to prosecute the present case. The authority exists independently from that of other sovereigns. Except in the rarest of circumstances, that authority cannot be undermined by the unlawful actions of other sovereigns.

Furthermore, to find that a federal agent’s actions could so taint a state decision to prosecute, there would have to be evidence of some untoward collusion between the federal referral and the state prosecution where the state acted as a “stalking horse” for the federal investigation. Schoolcraft, supra at 68. In the case before us, there simply was no evidence presented of such impermissible collusion. In fact, while the dea made the referral in this case, local police were at the scene of defendant’s arrest and were certainly aware that he had violated Michigan law by possessing a kilogram of drugs. This information was obtained independently from Agent Coleman’s referral of the facts to the prosecutor. Thus, it is altogether possible that, even without Agent Coleman’s referral, Livonia Police would have eventually involved the state prosecutor in this case. In any event, we hesitate to forestall such action with a ruling that would prohibit state authorities from prosecuting where they clearly had a right to do so.

Finally, the trial court clearly erred when it relied on the activities of the federal agent, given the fact that the agent had no authority to preclude state prosecution.¹¹ Implicit in the trial court’s analysis is the misconception that if the defendant did give information to the agents at the station that motivated the Cleveland trip, his cooperation created a quid pro quo requiring the agents to keep the deal available.¹²

As a general rule, “ ‘fundamental fairness requires that promises made during plea-bargaining and analogous contexts be respected’ . . . United States v Streebing, 987 F2d 368, 372 (CA 6, 1993) (quoting Johnson v Lumpkin, 769 F2d 630, 633 [CA 9, 1985]). However, this rule has two conditions: “(1) the agent must be authorized to make the promise; and (2) the defendant must rely to his detriment on the promise.” Streebing, supra at 372. There is no evidence that Agent Coleman was authorized by federal or state prosecutors to make promises to defendant that would preclude state prosecution.¹³ As we have noted, the state had the sovereign authority to pursue charges against this defendant. Furthermore, we do not see that the defendant’s difficulty in obtaining counsel amounts to detrimental reliance.¹⁴

Because defendant failed to affirmatively prove with objective evidence that the state prosecution was motivated by hostility or that there was an unjustifiable connection between the federal agent’s threats and the state prosecution, we find no actual vindictiveness.

in

There is no doubt that defendant had a constitutional right to counsel. Nevertheless, the issue we dealt with involves whether the defendant was vindictively prosecuted in derogation of that right. We find that he was not. Vindictive prosecution in the dual-sovereign context does not occur where the prosecuting sovereign does nothing improper. A contrary result is inconsistent with a system of government that recognizes the state’s independent authority to punish those who commit crimes within its borders. Accordingly, we reverse the Court of Appeals and reinstate the defendant’s conviction.

Brickley, C.J., and Riley and Boyle, JJ., concurred with Weaver, J.

1 People v Payne, 386 Mich 84; 191 NW2d 375 (1971); People v Jones, 403 Mich 527; 271 NW2d 515 (1978); People v Mazzie, 429 Mich 29; 413 NW2d 1 (1987).

2 This Court denied leave in two cases involving preconviction prosecutorial conduct: People v Watts, 149 Mich App 502; 386 NW2d 565 (1986), and People v Goeddeke, 174 Mich App 534; 436 NW2d 407 (1988).

3 There was no claim raised or argued regarding any violation of defendant’s Fifth Amendment right to counsel; therefore, the dissent’s suggestion that evidence should have been suppressed, see post, p 60, n 30, is misleading and unsupportable.

4 Though attorney Feinberg’s personal convictions may have made representation of a cooperating defendant uncomfortable, his refusal to represent the defendant under these circumstances and his failure to clearly communicate his intention not to represent this defendant to the federal agents unnecessarily aggravated defendant’s circumstances.

5 The trial court stated:

Defendant testified also, that he asked Mr. Feinberg to contact Mr. Cockrel, and that Mr. Feinberg must have done so, since Mr. Cockrel did come to see him. When Mr. Cockrel came, defendant informed that he wanted to “cooperate.” Mr. Cockrel replied, “Tom, its too late, they’ve pulled the deal off the table, they don’t want to hear any discussions whatsoever.” Defendant said that this conversation took place before he was arraigned. (No objection was made to this hearsay testimony.) [Detroit Recorder’s Court, Docket No. 87-03365, p 8.]

6 United States v Gallegos-Curiel, 681 F2d 1164, 1168 (CA 9, 1982).

7 In this case, the Court of Appeals did not address whether a presumption of vindictiveness arose; therefore, we need only address whether actual vindictiveness is apparent in the federal agent’s referral of defendant for state prosecution.

8 Bordenkircher, supra at 364-365. Bordenkircher stated further:

To hold that the prosecutor’s desire to induce a guilty plea is an “uiu'ustifiable standard,” which, like race or religion, may play no part in his charging decision, would contradict the very premises that underlie the concept of plea bargaining itself. Moreover, a rigid constitutional rule that would prohibit a prosecutor from acting forthrightly in his dealings with the defense could only invite unhealthy subterfuge that would drive the practice of plea bargaining back into the shadows from which it has so recently emerged.

9 The Court of Appeals erroneously cited People v Watts, supra at 511, for the proposition that a presumption of vindictiveness would never arise in the pretrial context and, therefore, it was necessary for the defendant to affirmatively prove actual vindictiveness. People v Watts simply declined to apply the presumption to the facts of that case.

10 Unpublished opinion per curiam, entered May 9, 1991 (Docket No. 113547), slip op at 2.

11 The trial court concluded: “It is also clear that the agent did obtain some information from the defendant” because if the Cleveland information had been on the tapes, the agent would not have needed to question the defendant further at the Livonia station. Detroit Recorder’s Court, Docket No. 87-03365, p 10.

12 The trial court concluded:

This court also [sic] as a fact that the Government denied the defendant defendant’s right to obtain counsel in order to negotiate for the bargain it invited. A fair review of Agent Colman’s [sic] testi[m]ony as well as his actions, and a fair review of the testimony of the other witnesses leads to that conclusion. [Detroit Recorder’s Court, Docket No. 87-03365, p 12.]

13 This court addressed enforcement of unauthorized promises made by police in People v Gallego, 430 Mich 443; 424 NW2d 470 (1988). In Gallego, this Court declined to make binding unauthorized promises made by police. To assume that the unauthorized “deal” in this case was binding would preclude an otherwise valid conviction.

14 The argument for detrimental reliance is especially weak in this case, since the defendant never agreed to “deal” with the police. In other words, there is no preagreement position to which this Court could return defendant. Compare People v Gallego, n 13 supra, 455-457.