United States v. Bernardino Ribota

792 F.3d 837, 2015 U.S. App. LEXIS 11950, 2015 WL 4153636
CourtCourt of Appeals for the Seventh Circuit
DecidedJuly 10, 2015
Docket14-3026
StatusPublished
Cited by9 cases

This text of 792 F.3d 837 (United States v. Bernardino Ribota) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Bernardino Ribota, 792 F.3d 837, 2015 U.S. App. LEXIS 11950, 2015 WL 4153636 (7th Cir. 2015).

Opinion

ROVNER, Circuit Judge.

In 2002, Bernardino Ribota was charged with possession of a controlled substance with intent to distribute and possession of a firearm in furtherance of a drug trafficking crime, after a search of a residence revealed 25 kilograms of cocaine and two loaded firearms. Ribota was initially detained pending the posting of $50,000 secured bond, but once that bond was posted, on January 7, 2003, the magistrate judge ordered him released subject to an order requiring him to report to Pretrial Services as directed and to confine his travel within the Northern District of Illinois. Ribota did not comply with those restrictions, and on January 30, 2003, a bench warrant was issued after he failed to appear at Pretrial Services as mandated. Ribota eluded the authorities for more than nine years, until he was arrested in Denver, Colorado, in August 2012. A month later, he was arraigned on the 2003 indictment, and in September 2013 he filed a motion in that criminal case seeking to suppress evidence.

By that time, the prosecutor pursuing his criminal case was a different one from the one who had obtained the indictment in 2002. The prosecutor filed a response to the motion to suppress agreeing that the seizure of the challenged evidence had not complied with the Fourth Amendment and the evidence was therefore inadmissible. Accordingly, the court granted the motion to suppress on October 2, 2013, and granted the government’s oral motion to dismiss the indictment on November 21, 2013.

The day after the motion to suppress was granted in that criminal case, on October 3, 2013, the government charged Ribo-ta in a two-count indictment with contempt of court in violation of 18 U.S.C. § 401(3), alleging that Ribota willfully violated the court order by failing to report to Pretrial Services and to restrict his travel as required by court order. Ribota then moved to dismiss that indictment arguing that it was unconstitutional because it was based solely on prosecutorial vindictiveness. Ri-bota argues that the prosecutor filed the new indictment to penalize him for successfully pursuing a motion to suppress in the original criminal case that thwarted the ability of the government to successfully prosecute him in that case. The district court denied the motion, and Ribota appeals that determination.

A prosecution based solely on vindictiveness, such as one to penalize a person for pursuing his legal rights, violates the Due Process Clause of the Con *840 stitution. United States v. Goodwin, 457 U.S. 368, 372, 102 S.Ct. 2485, 73 L.Ed.2d 74 (1982). In assessing such a claim, however, we are mindful that government prosecutors must necessarily have wide discretion over whether, how, and when to bring a case. United States v. Jarrett, 447 F.3d 520, 525 (7th Cir.2006). The decision whether to prosecute involves consideration of myriad factors such as the enforcement priorities of the office, the determination as to the strength of the case, the prosecutorial resources available, and the prosecution’s general deterrence values, and those factors are ill-suited to judicial review. United States v. Scott, 631 F.3d 401, 406-07 (7th Cir.2011). “[S]o long as the prosecutor has probable cause to believe that the accused committed an offense defined by statute, the decision whether or not to prosecute, and what charge to file or bring before a grand jury, generally rests entirely in his discretion.” Bordenkircher v. Hayes, 434 U.S. 357, 364, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978); Scott, 631 F.3d at 406-07. Moreover, because the imposition of punishment is the purpose of a criminal proceeding, the mere existence of a punitive motivation is not an adequate basis of distinguishing proper governmental conduct from impermissible actions. Goodwin, 457 U.S. at 372-73, 102 S.Ct. 2485.

Therefore, a defendant alleging prosecutorial animus “ ‘must affirmatively show through objective evidence that the prosecutorial conduct at issue was motivated by some form of prosecutorial animus, such as a personal stake in the outcome of the case or an attempt to seek self-vindication.’ ” United States v. Falcon, 347 F.3d 1000, 1004 (7th Cir.2003) quoting United States v. Bullis, 77 F.3d 1553, 1559 (7th Cir.1996). Courts have recognized limited circumstances presenting an inherent risk of vindictiveness, in which the defendant is entitled to a rebuttable presumption of vindictiveness. Goodwin, 457 U.S. at 375, 102 S.Ct. 2485; Williams v. Bartow, 481 F.3d 492, 502 (7th Cir.2007); Bullis, 77 F.3d at 1559. For instance, where a defendant successfully exercised his right to appeal, and the prosecutor on retrial of the same conduct sought more severe charges and punishment, courts have recognized that institutional pressure may subconsciously motivate a vindictive prosecutorial response in such situations and therefore the presumption of vindictiveness is appropriate. Goodwin, 457 U.S. at 375-77, 102 S.Ct. 2485; Williams, 481 F.3d at 502. Where either that presumption applies, or the defendant has produced objective evidence of actual vindictiveness, the burden shifts to the government to come forward with evidence that the motivation for pursuing the charges was proper. Bullis, 77 F.3d at 1559.

Ribota has failed to meet his burden under either path. First, the procedural context of the charges does not raise the type of inherent risk of vindictiveness that supports a presumption of vindictiveness. We have not recognized any circumstances in which a presumption of vindictiveness has been deemed appropriate regarding events that occurred before trial. Williams, 481 F.3d at 504; Jarrett, 447 F.3d at 526; United States v. Pittman, 642 F.3d 583, 586 (7th Cir.2011). The Supreme Court has recognized that there is good reason to be cautious in applying such a presumption to the pretrial setting. Goodwin, 457 U.S. at 381, 102 S.Ct. 2485. At that stage, the prosecutor is still engaged in a process of assessing the weight of the evidence and the charges that can successfully be pursued, as well as discovering new facts that may alter that analysis. Id. Although a prosecutor’s view of the case may not have crystallized at that point, once a trial begins and certainly once a conviction is obtained, the prosecutor will have made a *841 reasoned determination as to the extent to which the defendant should be prosecuted. Id.

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Bluebook (online)
792 F.3d 837, 2015 U.S. App. LEXIS 11950, 2015 WL 4153636, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-bernardino-ribota-ca7-2015.