United States v. Tallice Andrews and Thurston Brooks

633 F.2d 449, 1980 U.S. App. LEXIS 13581

Opinions

KEITH, Circuit Judge.

The simple and undisputed facts of this case present interesting questions regarding the limits of prosecutorial discretion. Specifically, we are called upon to apply the doctrine of “prosecutorial vindictiveness” outlined in Blackledge v. Perry, 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974). A panel of this Court considered this question and produced three separate opinions without any consensus. United States v. Andrews, 612 F.2d 235 (6th Cir. 1979). Given the importance of the issue and the division of the panel, we granted the parties’ cross-petitions for rehearing en banc.

FACTS

Tallice Andrews, Thurston Brooks and Fannie Braswell were arrested at Detroit’s Metropolitan Airport on November 16, 1975.¹ On November 8, 1976, they were jointly indicted for narcotics and firearms offenses.² On December 29, 1976, defendants Andrews and Brooks were arraigned before a Magistrate on the offenses. Both requested that they be released on bail pending trial, but the government was strongly opposed. Apparently, the third defendant, Fannie Braswell, had turned state’s evidence and had been threatened. The government responded by placing Ms. Braswell in the federal witness protection program and urging that defendants Brooks and Andrews not be released on bail. Based on testimony by the Assistant United States Attorney regarding the threats, the Magistrate denied bail and remanded the two defendants to federal custody. On January 7, 1977, the jailed defendants appealed the Magistrate’s decision to the district judge to whom the case was assigned. The judge overturned the Magistrate’s decision and the defendants were released on bond on January 11,1977. Two days later, on January 13, 1977, the Assistant United States Attorney sought and obtained a superseding indictment charging defendants with an additional conspiracy count.³

The district court, in a comprehensive opinion reported at 444 F.Supp. 1238 (E.D. Mich.1978), concluded that the conspiracy charge, added after defendants successfully pressed their bail appeal, was impermissible under Blackledge v. Perry, 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974), and North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). The government appealed.

A divided panel of this court reversed. 612 F.2d 253 (6th Cir. 1979). There was no unifying rationale among the members of the panel. Judge Green advanced a rebut-table prima-facie vindictiveness test and remanded to the district court for reconsideration in light of that test. Judge Merritt concurred “in the result and much of the reasoning of Judge Green’s opinion for the court,” but stated that prosecutorial vindictiveness issues should be restricted to “post trial prosecutorial conduct which undermines double jeopardy values.” Judge Merritt’s view called for outright reversal, not remand. The author of this opinion dissented. I advanced an overall balancing test, and, applying that test, would have affirmed the district court.

Upon rehearing en banc, a majority of the court has agreed on the views expressed herein.

I.

There are three Supreme Court cases which are relevant to our inquiry, all authored by Mr. Justice Stewart. First, is North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). There, the Court ruled that a trial judge could not resentence a defendant to a longer sentence than had been originally imposed where the defendant was convicted, sentenced, won reversal on appeal and was then reconvicted and resentenced. The Court advanced two reasons for its holding. First, “[d]ue process of law .. . requires that vindictiveness against a defendant for having successfully attacked his first conviction must play no part in the sentence he receives after a new trial.” Second, “since the fear of such vindictiveness may unconstitutionally deter a defendant’s exercise of the right to appeal or collaterally attack his first conviction, due process also requires that a defendant be freed of apprehension of such a retaliatory motivation on the part of the sentencing judge.” Pearce, supra, 395 U.S. at 725, 89 S.Ct. at 2080. In order to effectively police vindictive judicial behavior, the Court advanced a “prophylactic rule.” A stiffer re-sentencing could only occur where there were objective, on the record facts concerning conduct which took place after the initial sentencing. Id. at 726, 89 S.Ct. at 2081.

In two later cases, the Court declined to apply Pearce. In Colten v. Kentucky, 407 U.S. 104, 92 S.Ct. 1953, 32 L.Ed.2d 584 (1972), the defendant appealed a misdemeanor conviction to a trial de novo before a different judge. The Court had no problem with a stiffer sentence on retrial since “[t]he possibility of vindictiveness, found to exist in Pearce, is not inherent in the Kentucky two — tier system.” Id. at 116, 92 S.Ct. at 1960. The Court thought that there was little chance of “personal vindictiveness” before a different judge. In Chaffin v. Stynchcombe, 412 U.S. 17, 93 S.Ct. 1977, 36 L.Ed.2d 714 (1973), the Court considered a situation where the petitioner was recon-victed and resentenced by a different jury after having an initial conviction overturned on appeal. The Court concluded that Pearce was inapplicable because “[t]he potential for such abuse of the sentencing process by the jury is ... de minimis in a properly controlled retrial.” Id. at 26, 93 S.Ct. at 1982. The Court explained that “the jury, unlike the judge who has been reversed, will have no personal stake in the prior conviction and no motivation to engage in self-vindication.” Id. at 27, 93 S.Ct. at 1983.

After this, the Court decided Blackledge v. Perry, 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974). There, a defendant was convicted on a misdemeanor assault charge in a state court of limited jurisdiction. The defendant exercised his statutory right to appeal to a trial de novo. The prosecutor responded by bringing a more serious felony assault charge against the defendant. This charge encompassed the same conduct for which the defendant had been charged with a misdemeanor in the lower court. The Supreme Court held that this conduct by the prosecutor violated due process. The Court contrasted Colten and Chaffin by noting that in those cases there was no “realistic likelihood of vindictiveness.” Id. at 27, 94 S.Ct. at 2102. In the case before it, however, the Court concluded that the prosecutor had a “considerable stake in discouraging convicted misdemeanants from appealing and thus obtaining a trial de novo in the Superior Court.” Id. This was because “such an appeal will clearly require increased expenditures of prosecutorial resources before the defendant’s conviction becomes final, and may even result in a formerly convicted defendant’s going free.” Id. The Court concluded by following the rationale of Pearce and applying it to the prosecutor’s conduct:

There is, of course, no evidence that the prosecutor in this case acted in bad faith or maliciously in seeking a felony indictment against Perry. The rationale of our judgment in the Pearce case, however, was not grounded upon the proposition that actual retaliatory motivation must inevitably exist. Rather, we emphasized that “since the fear of such vindictiveness may unconstitutionally deter a defendant’s exercise of the right to appeal or collaterally attack his first conviction, due process also requires that a defendant be freed of apprehension of such a retaliatory motivation on the part of the sentencing judge.” 395 U.S., at 725, [89 S.Ct. at 2080]. We think it clear that the same considerations apply here. A person convicted of an offense is entitled to pursue his statutory right to a trial de novo without apprehension that the state will retaliate by substituting a more serious charge for the original one, thus subjecting him to a significantly increased potential period of incarceration. Blackledge, supra, 417 U.S. at 28, 94 S.Ct. at 2102.

II.

In the case at bar, the factual situation is different from that in Blackledge. First, this case presents a pre-trial situation where the government and the defendants wrangled over a bail motion. Second, in this case, the government added an additional conspiracy charge which encompassed the same basic conduct for which the defendants had been originally charged. In Pearce, the prosecutor substituted a more severe charge.

The policy questions which this ease presents were the subject of a lively debate among the members of the original panel. Prosecutorial vindictiveness issues have similarly divided other courts.⁴ We will not repeat the extensive discussion conducted in the panel opinions. Simply stated, we must reconcile two conflicting rules of law: 1) prosecutors have and need broad discretion to file charges where there is probable cause that someone has broken the law; 2) vindictive conduct by persons with the awesome power of prosecutors (and judges) is unacceptable and requires control.

We think that Blackledge points the way to the standard which a court must test for in prosecutorial vindictiveness situations. That standard is whether, in the particular factual situation presented, there existed a “realistic likelihood of vindictiveness” for the prosecutor’s augmentation of the charges.

Blackledge was a clear case. The prosecutor had not just an incentive but a “considerable stake” in deterring a defendant from appealing to a trial de novo. Such an appeal meant that the prosecutor had to present his case over again. In addition, the prosecutor substituted the felony assault charge after charging the defendant with the misdemeanor assault charge in the lower court. Unlike a situation where a prosecutor could argue that he forgot to add an additional count where a defendant committed multiple criminal acts, the prosecutor in Blackledge brought a felony charge only after he exercised his discretion to simply charge the defendant with a lesser offense at the first trial. Finally the prosecutor did not try to explain his actions. Anyone who assessed these facts objectively would conclude that the prosecutor had retaliated against the defendant. Blackledge presented the clearest possible case of pros-ecutorial vindictiveness short of an actual confession by the prosecutor.

Despite this, the Court did not base its ruling in Blackledge on a finding that actual vindictive conduct had taken place. Rather, the Court found it sufficient that there existed a “realistic likelihood of vindictiveness.” Put another way, the Court concluded that “the opportunities for vindictiveness in this situation [were] such as to impel the conclusion that due process of law requires a rule analogous to that of the Pearce case.” Id. at 27, 94 S.Ct. at 2102.

We think that a court faced with vindictiveness allegations must assess the fact situation before it to see if the above-stated standard is met. In order to make this assessment, a court must weigh two factors. First, there is the prosecutor’s “stake” in deterring the exercise of some right. In Blackledge the Court described the prosecutor’s “stake” in deterring appeals to a trial de novo as “considerable” since the prosecutor would have to try the case all over again. In this case, the prosecutor’s interest in deterring a bail motion is not as great as a prosecutor’s interest in deterring appeals to a trial de novo. A prosecutor who loses a bail motion does not have to retry a case. However, we cannot accept the government’s argument that the prosecutorial stake in a pretrial setting is always so de minimus that there can never be a “realistic likelihood of vindictiveness” in a pre-trial setting.⁵ Each situation will necessarily turn on its own facts.

Second, there is the prosecutor’s conduct. A prosecutor who adds on extra charges after the exercise of a procedural right is arguably acting less vindictively than a prosecutor who substitutes a more severe charge for a less severe one. In the first situation, a prosecutor might well have made an honest mistake. This is especially true where a defendant has committed multiple criminal acts. However, in the second situation, the prosecutor will have already exercised his discretion, and the probability that the prosecutor acted vindictively is higher. See United States v. Andrews, 612 F.2d at 240-41 (opinion of Green, J.). Again, there is no per se rule here.

By carefully analyzing the circumstances, the district court can make the determination whether there existed a realistic likelihood of vindictiveness. The standard itself, however, is an objective one-whether a reasonable person would think there existed a realistic likelihood of vindictiveness. The proper standard does not depend on a defendant’s subjective impressions.

III.

We emphasize that Blackledge does not require that a defendant show that a prosecutor was actually vindictive. Blackledge’s proscriptions are triggered where a defendant shows that there is a realistic likelihood that a prosecutor acted vindictively.⁶ There are sound reasons for this. First, this takes into account the due process value that defendants be “freed of apprehension of such a retaliatory motivation” on the part of a judge or prosecutor. Blackledge, supra 417 U.S. at 28, 94 S.Ct. at 2102, quoting Pearce, supra 395 U.S. at 725, 89 5. Ct. at 2080. Second, such a standard is the only realistic way to police vindictiveness. As the Court noted in Pearce, supra at 724 n.20, 89 S.Ct. at 2080 n.20, “the existence of a retaliatory motivation would, of course, be extremely difficult to prove in any individual case.”⁷ Third, there is an important policy consideration. Prosecutors and criminal defendants are adversaries and prosecutors make honest mistakes. If the standard to be applied was proof of actual vindictiveness, a trial judge would have the Hobson’s choice of either not barring the extra charge or of saying that a prosecutor acted wrongly. In some cases, a trial judge would, in effect, be calling a prosecutor a liar where the prosecutor claimed inadvertence and the judge ruled against him. We do not think that such confrontations before the judiciary and the executive branch are desirable. A standard of “realistic likelihood of vindictiveness” allows the barring of charges in appropriate situations without the need to find that the prosecutor acted in bad faith.⁸

IV.

The government relies on a statement in the Supreme Court’s later opinion in Bor-denkircher v. Hayes, 434 U.S. 357, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978), a decision which will be more fully discussed below. In Bor-denkircher the Court stated:

The court has emphasized that due process violation in cases such as Pearce and Perry lay not in the possibility that a defendant might be deterred from the exercise of a legal right ... but rather in the danger that the state might be retaliating against the accused for lawfully attacking his conviction. Bordenkircher, supra at 363,98 S.Ct. at 667-68. (emphasis added)

From this, the government argues that the sole consideration for a court faced with prosecutorial vindictiveness questions is whether the prosecutor, in fact, acted vindictively. In other words, the government is saying that the alternative due process rationale of Blackledge, halting defendants’ apprehension of vindictiveness, does not survive Bordenkircher.9

We agree with the government that the mere possibility that prosecutorial or judicial conduct may be vindictive is insufficient to trigger judicial sanctions. It is only where the possibility of vindictiveness is substantial that Pearce-Blackledge sanctions are triggered. The simple fear on the part of a defendant that a prosecutor may be retaliating against him is insufficient, by itself. Put another way, the mere appearance of vindictiveness is not enough to trigger Pearce-Blackledge sanctions. The factual situation must pose a realistic likelihood of vindictiveness. See Chaffin v. Stynchcombe, 412 U.S. 17, 29, 93 S.Ct. 1977, 1984, 36 L.Ed.2d 714 (1973) (“the court [in Pearce] intimated no doubt about the constitutional validity of higher sentences in the absence of vindictiveness despite whatever incidental deterrent effect they might have on the right to appeal.”)

The due process principle that defendants not be deterred from exercising their rights is a limited one. As the Court explained in Chaffin, many situations present difficult choices for defendants and arguably chill the exercise of a right. By itself, however, defendants’ apprehension does not justify due process protection. Only when there is a situation presenting a probability of vindictiveness does this due process interest come into play.

If, after carefully assessing a prosecutor’s seemingly retaliatory adding of charges, a court finds that the situation before it presents a realistic likelihood of vindictiveness, the ordinary remedy is to bar the augmented charge. This was the remedy used in Blackledge.

In Blackledge, however, the prosecutor did not try to justify his conduct. In this case the government strongly argues that it did not retaliate against the defendant. The district court did not pass on the government’s proffered explanations. The court simply ruled that the explanations were legally inadequate. 444 F.Supp. at 1243. We think that the government should be given an opportunity to rebut a finding of realistic likelihood of vindictiveness. In this case we are dealing with a pre-trial bail motion; not, as in Pearce and Blackledge, with post-trial efforts to secure a new trial. Whatever “rebuttal rights” exist in other settings, we think that the government should have a right of rebuttal here.

We emphasize that once a court has found the existence of a realistic likelihood of vindictiveness the burden of disproving it is on the government. For reasons outlined above, we do not think that judges should pass on subjective good faith assertions by prosecutors. Both Pearce and Blackledge went out of their way to avoid such difficult and unpleasant decision-making. At the same time, in Blackledge the Court noted in a footnote that “[t]his would clearly be a different case if the state had shown that it was impossible to proceed on the more serious charge at the outset.” Id. 417 U.S. at 29 n.7, 94 S.Ct. at 2103 n.7. From this, we think that only objective, on-the-record explanations can suffice to rebut a finding of realistic likelihood of vindictiveness.¹⁰ In this case, the fact that the prosecutor said she made a mistake is not, by itself, sufficient to rebut. However, her claims that the Grand Jury was unavailable and that she was inexperienced do have an objective basis and deserve consideration. If, in light of the prosecutor’s explanation, the district court no longer believes that there exists a realistic likelihood of vindictiveness, then the charge will not be barred.

V.

The only remaining question for us to examine is the effect of Bordenkircher v. Hayes, 434 U.S. 357, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978), on this case. In Borden-kircher, the defendant had been charged with forgery. The state prosecutor threatened the defendant that unless he pleaded guilty to the forgery charge, he (the prosecutor) would bring habitual criminal offender charges which carried a mandatory life imprisonment term. When the defendant refused to plead guilty, the prosecutor lived up to his threat. The defendant was duly convicted of the more severe charges. This court granted the writ of habeas corpus. Hayes v. Cowan, 547 F.2d 42 (6th Cir. 1976). Not only was there a realistic likelihood of vindictiveness, the prosecutor openly admitted that he had acted vindictively. Id. at 43 n.2 and 45. The case thus presented the truly rare situation where actual retaliatory vindictiveness was clear on the record.

The Supreme Court reversed. Bordenkircher v. Hayes, supra. The Court focused on the plea bargaining situation before it and concluded that “there is no such element of punishment or retaliation as long as the accused is free to accept or reject the prosecutor’s offer.” 434 U.S. at 363, 98 S.Ct. at 668. The Court contrasted the “give and take” of plea bargaining where a defendant could choose to accept or reject a plea bargain with the “unilateral imposition of a penalty upon a defendant who had chosen to exercise a legal right.” 434 U.S. at 362, 98 S.Ct. at 667. Significantly, however, the Court stated that “[t]o 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 ...” 434 U.S. at 363, 98 S.Ct. at 668.

We think that Bordenkircher must be confined to the plea bargaining context in which it arose. Pearce and Blackledge hold that actual retaliatory behavior is unacceptable under the due process clause. Borden-kircher holds that actual retaliatory behavior is acceptable, at least in the plea bargaining context. An expansive reading of Bordenkircher makes that decision irreconcilable with Blackledge and Pearce. The dissent has no difficulty ruling that Bordenkircher effectively overrules Blackledge.11 Given the narrow language of the Court’s opinion in Bordenkircher, we cannot agree. We do not think that we, as a lower federal court, should nullify a doctrine established by the Supreme Court absent far stronger evidence than we have before us that the Court itself would no longer apply that doctrine.

We do not need to discuss any policy arguments regarding prosecutorial vindictiveness. These arguments were the subject of much debate among the members of the panel. We think that deference to the Supreme Court mandates a holding that Blackledge is alive and well outside of a plea bargaining situation. We regard Bor-denkircher as a unique ease where a prosecutor acted vindictively, but an independent faetor-the defendant’s ability to choose-eliminated any due process problems.

VI.

The district court applied a near per se appearance of vindictiveness standard, /. e. where the prosecutor adds charges after the defendant’s exercise of a procedural right, there arises an appearance of vindictiveness which the government has the “heavy burden” to rebut. 444 F.Supp. at 1244. We think that this standard is too harsh and operates to unduly limit prosecutorial discretion. The proper standard, in the opinion of the en banc court is not whether there is an appearance of vindictiveness, but whether there exists a “realistic likelihood of vindictiveness.” Only then should the government be required to assume the burden of rebutting with objective facts.

Accordingly, the judgment of the district court is vacated and the case remanded for further proceedings consistent with this opinion. The district court should conduct an evidentiary hearing where the government’s ' explanations can be formally presented and tested.

1

. The circumstances and legality of this initial stop is discussed in our separate opinion in United States v. Andrews, 600 F.2d 563 (6th Cir. 1979).

2

. The defendants were charged with possession of heroin with intent to distribute, 21 U.S.C. § 841(a)(1) and possession of a firearm during the commission of a felony, 18 U.S.C. § 924(b).

3

. The defendants were charged with conspiracy to commit the above-mentioned substantive offenses. 21 U.S.C. § 846.

4

. The district court followed the rule used in a series of Ninth Circuit decisions. Where a prosecutor adds on charges after the defendant exercises a procedural right, the prosecutor bears a heavy burden of dispelling the resultant presumption of vindictiveness. United States v. Groves, 571 F.2d 450 (9th Cir. 1978); United States v. Alvarado-Sandoval, 557 F.2d 645 (9th Cir. 1977); United States v. DeMarco, 550 F.2d 1224 (9th Cir.), cert. denied, 434 U.S. 827, 98 S.Ct. 105, 54 L.Ed.2d 85 (1977); United States v. Ruesga-Martinez, 534 F.2d 1367 (9th Cir. 1976) . But see United States v. Preciado-Gomez, 529 F.2d 935 (9th Cir.), cert. denied, 425 U.S. 953, 96 S.Ct. 1730, 48 L.Ed.2d 197 (1976). The Fifth Circuit has advanced varying standards. If a prosecutor adds on charges relating to separate criminal acts, in apparent retaliation against a defendant’s exercise of a procedural right, the prosecutor need only present non-vindictive reasons to justify his behavior. Hardwick v. Doolittle, 558 F.2d 292 (5th Cir. 1977), cert. denied, 434 U.S. 1049, 98 S.Ct. 897, 54 L.Ed.2d 801 (1978). If the added-on charges relate to the same basic criminal activity which was the subject of the original indictment, then the Fifth Circuit applies a balancing test. Applying this test, a court determines whether to bar the added charge or, as in Hardwick, to allow any non-vindictive explanation to justify the prosecutor’s conduct. Jackson v. Walker, 585 F.2d 139 (5th Cir. 1978). See United States v. Thomas, 593 F.2d 615, 624 (5th Cir. 1979), appeal after remand, 617 F.2d 436 (1980); Miracle v. Estelle, 592 F.2d 1269 (5th Cir. 1979). The other courts of appeals have dealt with vindictiveness questions on an ad hoc basis. See United States v. Jamison, 505 F.2d 407 (D.C.Cir.1974); Lovett v. Butterworth, 610 F.2d 1002 (1st Cir. 1979); cert. denied, — U.S. —, 100 S.Ct. 3038, 65 L.Ed.2d 1130 (1980); United States v. Ricard, 563 F.2d 45 (2d Cir. 1977); United States v. Johnson, 537 F.2d 1170 (4th Cir. 1976); United States v. Partyka, 561 F.2d 118 (8th Cir. 1977). See also United States v. McFadyen-Snider, 590 F.2d 654 (6th Cir. 1979) (perjury indictment would probably not have been brought had defendant not succeeded in her appeal from an initial conviction.)

See the discussion of the above cases in the panel decision. United States v. Andrews, 612 F.2d 235, 242-44 (6th Cir. 1979) (opinion of Green, J.); id. at 250-52 (Keith, J., dissenting).

5

. The government has argued throughout this appeal that a prosecutor does not have a stake in deterring bail motions or appeals from the denial of bail motions. While this may be true in some cases, it appears that in this case the government did have a strong desire that the defendants not be released on bail. See United States v. Andrews, 612 F.2d 235, 248 n.2 (6th Cir. 1979) (Keith, J. dissenting). The exact nature of the government’s stake in this case, of course, will have to be addressed by the district court on remand.

In a supplemental brief on rehearing en banc, the government has changed its argument a bit. It now argues that it “has no systematic interest whatsoever in preventing all defendants from appealing adverse bail determinations.” Supp.Br. at 37. Whether the government has a systematic interest or not is unimportant. What matters is whether in the case before it, a court finds a prosecutorial interest in deterring the exercise of a right. In Chaffin v. Stynch-combe, 412 U.S. 17, 93 S.Ct. 1977, 36 L.Ed.2d 714 (1973), the Court held that there was a minimal possibility of vindictiveness where a different jury imposed a stiffer sentence on retrial after the defendant had won reversal of his initial conviction on appeal. Even so, the Court noted that Pearce’s vindictiveness proscriptions might apply where the second jury on retrial was informed of the first jury’s sentence. Id. at 28 n. 14, 93 S.Ct. at 1983.

6

. “There is, of course, no evidence that the prosecutor acted in bad faith or maliciously in seeking a felony indictment against Perry.” Blackledge, supra, 417 U.S. at 28, 94 S.Ct. at 2102. (emphasis added)

7

. Mr. Justice Stewart, the author of Pearce and Blackledge, noted in his dissent in Chaffin, supra, 412 U.S. at 37, 93 S.Ct. at 1988, that “[i]t was to purge [the] possibility of retaliation that Pearce required prophylactic measures for judicial sentencing. Without such procedures, as the Court pointed out in Pearce, it would be extremely difficult for a defendant to establish that his higher sentence was the result of a retaliatory motivation.”

8

. A reluctance to find bad faith conduct on the part of the prosecutor was present in Black-ledge. See n.6, supra. See also United States v. Andrews, 612 F.2d at 249 n.3.

9

. In his opinion for the panel, Judge Green came close to embracing this argument. However, Judge Green still noted that in assessing prosecutorial vindictiveness, a court “must take into account a reasonable apprehension of retaliatory motivation on the part of the defendant.” 612 F.2d at 244.

10

. As the district noted, two such explanations would be 1) governmental discovery of previously unknown evidence, 2) previous legal impossibility. 444 F.Supp. at 1243, 1244.

11

. We note that the government does not support the dissent’s position. In its supplemental brief the government states:

“The government concedes that these defendants are entitled to relief if a realistic likelihood existed that the prosecutor retaliated against the defendants for exercising their rights to seek review of the bail determination, because reason, logic and precedent do not suggest that a constitutionally permissible burden .. . may be imposed on exercise of the right to seek review of an unfavorable bail determination.” Supp. Br. at 33-34.