transaction occurring at a distinct time. Proof beyond a reasonable doubt that such transaction occurred, however, does not prove that an identical transaction occurred on any other day. These offenses, occurring at different times, cannot be considered the same for purposes of the double jeopardy clause of the Fifth Amendment. Therefore, the defendant has not been subject to multiple or fragmented prosecutions for the offense or activity.
The case of United States v. Allen, 539 F. Supp. 296 (C.D.Cal. 1982) is inapposite. In that case, the defendants were charged in successive indictments with separate counts of conspiracy to commit mail fraud and substantive mail fraud. The defendants moved to dismiss the indictment on the grounds that prosecutor's failure to join in one proceeding all the substantive counts constituted a fragmentary prosecution in violation of the double jeopardy clause.
In the course of its analysis, the court stated that "the government is allowed only one attempt to prove the common facts, or elements, between any two offenses." Id. at 313. The court concluded, "in the case at bar, a common core of fact -- the scheme to defraud - connects all the substantive counts. Indeed, that common core constitutes the principal element of proof in each separate count." Id. "Because a material part of the new substantive counts - the scheme to defraud -- has been previously tried, the government may not relitigate that issue." Id. at 314. Therefore, the substantive counts in the second indictment were dismissed.
In the instant case, unlike Allen, the principal element of proof in each separate count is different. Each separate count requires proof that the drug transaction did in fact occur on the particular day in question. Among the four transactions which Esposito is alleged to have executed, there can be no similarity of proof as to this element. Admittedly, there are other elements of proof which do overlap. However, that alone is not sufficient to require joinder of all substantive counts in one indictment.
Accordingly, this Court concludes that the second indictment charging three separate incidents of substantive cocaine distribution does not constitute a multiple or fragmentary prosecution which violates the principles of the double jeopardy clause of the Fifth Amendment.
Defendant's final argument is that the circumstances of this indictment establish prosecutorial vindictiveness and therefore, due process requires dismissal of the indictment. In Blackledge v. Perry, 417 U.S. 21, 40 L. Ed. 2d 628, 94 S. Ct. 2098 (1974), the Supreme Court held that a due process violation arises when a prosecutor "ups the ante" by bringing a more serious charge against a defendant who exercises his statutory right of appeal on a prior conviction for a lesser offense. See 417 U.S. at 27-29. Actual vindictiveness in charging the more serious offense is not required; rather, a presumption of vindictiveness will arise if the possibility of increased punishment poses a realistic likelihood of a vindictive motive. See id. at 27.
The record before the Court in the instant case does not suggest that, by re-indicting Esposito on separate substantive offenses, the government has "upped the ante". The second indictment does not charge the defendant with an offense more serious than any that was charged against this defendant, under the Accetturo Indictment. Absent defendant's exposure to increased punishment from a more serious offense, this Court cannot conclude that the government has "upped the ante" so as to give rise to a presumption of vindictiveness.
The Supreme Court has stated that to presume vindictiveness on the part of a judge or prosecutor "may operate in the absence of any proof of an improper motive and thus may block a legitimate response to criminal conduct." United States v. Goodwin, 457 U.S. 368, 373, 73 L. Ed. 2d 74, 102 S. Ct. 2485 (1982). Therefore, the Court has held that a "presumption of vindictiveness" arises only in two limited instances: when the judge imposes a more severe sentence upon retrial, see North Carolina v. Pearce, 395 U.S. 711, 23 L. Ed. 2d 656, 89 S. Ct. 2072 (1969); and, as noted above, when the prosecutor "ups the ante" and charges a more serious offense after a defendant exercises some procedural or constitutional right, see Blackledge v. Perry, 417 U.S. 21, 40 L. Ed. 2d 628, 94 S. Ct. 2098 (1974). See Wasman v. United States, 468 U.S. 559, 568-69, 82 L. Ed. 2d 424, 104 S. Ct. 3217 (1984). In these two instances, a "reasonable likelihood" that the enhanced sentence or charge was motivated by actual vindictiveness is sufficient to presume vindictiveness. See Goodwin, 457 U.S. at 373. That presumption can be overcome only by objective information in the record justifying the judge's or the prosecutor's decision. See Wasman, 468 U.S. at 565. Absent circumstances indicating a "reasonable likelihood" of a vindictive motive, the defendant must prove "actual vindictiveness" to establish a due process violation. See id. at 569.
The Ninth Circuit has suggested that a presumption of vindictiveness may also arise when a defendant is confronted with "an additional charge arising out of the same nucleus of operative facts as the original charge." United States v. Robison, 644 F.2d 1270, 1272 (9th Cir. 1981); see United States v. Martinez, 785 F.2d 663, 669 (9th Cir. 1986). While apparently expanding the scope of prosecutorial vindictiveness, however, the Ninth Circuit did not rely on its expanded definition to dismiss the indictment in either of these cases.
This Court rejects and refuses to apply the Ninth Circuit's theory relating to the presumption of prosecutorial vindictiveness. To presume an improper vindictive motive is a severe sanction to impose on prosecutorial or judicial conduct. See Goodwin, 368 U.S. at 373. The mere fact that criminal charges in a second indictment arise out of "the same nucleus of operative facts" as a prior prosecution cannot justify imposing such a severe sanction. This is especially true where the second indictment passes the arduous muster of the double jeopardy standard, as well as that of collateral estoppel.
In this case, since the prosecutor has not "upped the ante" in bringing the second indictment, no presumption arises and the defendant must come forward with affirmative proof of actual vindictiveness on the part of the prosecutor to make out a due process violation.
A review of both the pleadings submitted by the defendant and the oral argument before the Court reveals that the defendant has failed to proffer to this Court any evidence of actual vindictiveness by the prosecutor in filing the second indictment. Accordingly, this Court concludes that the government's re-indictment of defendant on substantive distribution charges does not amount to prosecutorial vindictiveness.
For the foregoing reasons, defendant's motion to dismiss the indictment is DENIED.
Dated: December 7, 1989.