that the prosecutor had used the threat of a criminal investigation to force the contractor to reopen an administrative award of cost overruns on a government contract. United States v. Litton Systems, Cr. No. 77-70 (E.D.Va., filed May 25, 1977) (reported in 21 Cr.L.Rptr. 2258, June 22, 1977).
The burden imposed by Pearce and Blackledge upon a prosecutor who brings harsher charges after an accused exercises a procedural right is a heavy one. See United States v. Ruesga-Martinez, 534 F.2d at 1369. When there is no new evidence discovered subsequent to the original charges, courts have not hesitated to deem the amplified charges inherently suspect. Blackledge v. Perry, 417 U.S. 21, 23, 28, 94 S. Ct. 2098, 40 L. Ed. 2d 628; North Carolina v. Pearce, 395 U.S. 711, 717-18, 89 S. Ct. 2072, 23 L. Ed. 2d 656; United States v. Ruesga-Martinez, 534 F.2d at 1369-70; United States v. Jamison, 164 U.S.App.D.C. 300, 505 F.2d 407, 417 (1974); United States v. Gerard, 491 F.2d 1300, 1306 (9th Cir. 1974). When the absence of newly discovered evidence is accompanied by evidence of improper motive, in the form of prosecutorial threats of the prospect of heavier charges if an accused insists on his rights, the prophylactic rule has been applied with even greater vigor. Hayes v. Cowan, 547 F.2d at 43; United States v. De Marco, 550 F.2d at 1227-28;
United States v. Litton Systems, supra.
The lower courts have emphasized, however, that the Pearce-Blackledge rule is not limited to situations in which the government was aware of facts essential to the second indictment when the first charges were brought.
In United States v. Johnson, supra, the prosecutor contended that a harsher indictment was exempt from the application of the rule because it was based on facts discovered after the original charges were filed. 537 F.2d at 1172-73. The Fourth Circuit quickly rejected this argument. It read Blackledge not as a restrictive listing of the tactics that might give rise to fear of prosecutorial vindictiveness, but as an unequivocal assurance that a defendant need not fear retaliatory consequences for the exercise of his appellate rights. Accordingly the court refused to restrict the time for assessing the prosecutor's knowledge to the time of the original charges and ruled that all of the surrounding circumstances must be examined to determine whether a defendant has been subject to a realistic apprehension of retaliation. Id. at 1173. It found that the new facts on which the second indictment was based had been discovered by the prosecutor prior to the time when defendant changed his plea to guilty. During the many months that the guilty plea stood, the government made no attempt to bring additional charges on the new material. From the filing of numerous new charges after vacation of the guilty plea, the court found a realistic possibility of vindictiveness and dismissed the indictment.
Id. Similarly, in United States v. Gerard, supra, a case decided after Pearce but before Blackledge, the court approved dismissal of an additional count added when the original three count indictment was revived after withdrawal of a guilty plea. The court found that, since the facts underlying the weapons count had been known to the prosecutor at the time the plea was withdrawn, there was sufficient appearance of vindictiveness to require dismissal of the added count. 491 F.2d at 1306-07. See also U.S. v. Litton Systems, supra (discovery of new evidence of criminal intent in second investigation did not change court's finding that second investigation was an attempt to pressure contractor into consenting to reopening of civil proceedings that had terminated in its favor).
The facts of the present case, as the court perceives them, readily reveal the appearance of prosecutorial vindictiveness. The prosecutor has forthrightly detailed two conversations, one prior and one subsequent to defendant's election of forum, in which he threatened to bring additional charges or felony charges against Lippi, unless he waived his statutory rights to a trial by a district judge. The prosecutor also admitted that he learned that there was evidence to support four additional charges and increased charges from his conversations with the postal inspector prior to his first conversation with defense counsel. Lastly, the prosecutor's affidavit reveals his "stake" in having this matter tried by a magistrate rather than a district judge. Such proceedings are less formal in keeping with the lesser penalties that may be imposed, and thus require less expenditure of prosecutorial resources than a district court trial. The affidavits hint that an additional consideration favoring magistrate trials of misdemeanor cases is the thought that district judges may become "irritated" at the prosecutor for adding misdemeanor cases to their crowded criminal dockets.
Although it is argued that the indictment was prompted solely by the discovery of new evidence, the new material is neither so significant nor so unforeseeable as to counter the distinct appearance of vindictiveness that arises from the prosecutor's statements to defense counsel. The court must find that the prosecutor has failed to carry the burden of dispelling this appearance of vindictiveness. The court cannot say that the fear of prosecutorial vindictiveness under all these circumstances is unreasonable. The atmosphere of improper coercion and retaliation created by the prosecutor infects this indictment with fatal taint.
The prosecutor makes two legal arguments that merit attention. Both may be treated briefly. The first is that the Pearce-Blackledge rule applies only to prosecutorial retaliation for the exercise of rights that have "due process implications." Cf. United States v. De Marco, 550 F.2d at 1227. Although the Ruesga-Martinez court failed to discuss this point with reference to the exercise of § 3401 rights,
the drafters of the statute emphasized the importance of the right to a trial by a district judge in the language of the statute itself. The second sentence of § 3401(b) reads as follows:
The magistrate shall carefully explain to the defendant that he has a right to trial before a judge of the district court and that he may have a right to trial by jury before such judge and shall not proceed to try the case unless the defendant, after such explanation, signs a written consent to be tried before the magistrate that specifically waives both a trial before a judge of the district court and any right to trial by jury that he may have.
The last clause of the sentence indicates the drafters' awareness that most misdemeanor defendants in the magistrate courts will not be entitled to a jury trial.
The language of the statute requires even more emphatic protection, then, of a defendant's right to a trial by a district court. In view of the mandatory language in the statute and the defendant's interest in being tried by an Article III judge who will act as the sole factfinder in a non-jury criminal trial,
this court cannot say that a defendant's right to a district court trial is devoid of "due process implications."
Secondly, the prosecution argues that the application of the Pearce-Blackledge rule to the early stages of criminal prosecution will deprive the government of its ability to engage in plea bargaining,
because the government will be deprived of "its right to prosecute [minor] matters as felonies if the defendant [refuses] to consent to the jurisdiction of the Magistrate . . . ." Government's Brief at 12. Although the Supreme Court has approved of the practice of plea bargaining in cases in which there is no substantial issue as to the defendant's guilt, Brady v. United States, 397 U.S. 742, 752, 90 S. Ct. 1463, 25 L. Ed. 2d 747 (1970), it has recognized that the prosecutor does not enjoy unlimited freedom in the tactics he may use in plea bargaining. See Santobello v. New York, 404 U.S. 257, 92 S. Ct. 495, 30 L. Ed. 2d 427 (1971). The legitimate purposes of plea bargaining are as ill-served when a prosecutor uses his charging power to coerce unwilling defendants to waive their statutory rights as when it is used to coerce them to plead guilty, Hayes v. Cowan, 547 F.2d at 43-44. See Brady, supra, at 751 n. 8, 90 S. Ct. 1463.
The application of the Pearce-Blackledge rule to the early stages of prosecutions in no way detracts from the prosecutor's ability to offer a defendant concessions under an existing indictment, see United States ex rel. Williams v. McMann, 436 F.2d 103 (2d Cir. 1970), cert. denied 402 U.S. 914, 91 S. Ct. 1396, 28 L. Ed. 2d 656 (1971), or from his discretionary power to decide that the interests of the state are served by not seeking the most severe charges that the facts known might permit, cf. United States v. Johnson, 537 F.2d 1170 (4th Cir. 1976). But nothing in the discretionary power of a prosecutor authorizes him to threaten a defendant that a failure to waive statutory or constitutional procedural right will result in increased or additional charges being filed against him.
Since the Pearce-Blackledge prophylactic rule is designed not only to protect the defendant from retaliation for the exercise of his rights but to prevent the chilling of the exercise of such rights by other defendants who may be faced with similar choices in the future, it appears that dismissal of these indictments is the only effective method of curing the taint of vindictiveness in this case. Defendant's motion will be granted in an order entered by the court.