Extra Charges After Case Remanded Were Vindictive

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By Lance J. Rogers

March 21 — The claim that a new prosecution team merely corrected an oversight when they hit a defendant with extra charges after he successfully appealed his flawed conviction and won a new trial, didn't overcome the presumption of vindictiveness triggered by the harsher treatment, the U.S. Court of Appeals for the Fifth Circuit ruled March 18.

The government must show that something specific happened in the interim that justified coming down harder on Jason Dvorin at his retrial for bank fraud to undo the presumption of vindictiveness, the court said in an opinion by Judge Catharina Haynes.

Presumption Stands

The government argued that the decision to add the forfeiture notice wasn't motivated by a vindictive desire to deter or punish Dvorin for his successful appeal. It pointed out that the superseding indictment was prepared by a different prosecution team and insisted that this team was merely correcting the original prosecutors' “mistake.”

That explanation wasn't satisfactory because it didn't identify an “objective event” triggering the harsher charges, the court said.

“Only after the district court issued its show cause order did the government file the superseding indictment that included the forfeiture count for the first time.” Judge Catharina Haynes

Objective events include things like a defendant's breach of the plea agreement or a change in the law, the court said.

It also said that the presumption of vindictiveness was a strong one here because the case was remanded due to prosecutorial misconduct. The government allowed a key prosecution witness to falsely testify that the government hadn't made any promises when, in fact, the witness had already reached a plea agreement with the government, the court said.

New Team, Same Office

The timing of the superseding indictment was also a significant factor, the court said.

“Only after the district court issued its show cause order did the government file the superseding indictment that included the forfeiture count for the first time,” it said.

The fact that this was a new “prosecution team” didn't sway the court. Although these are new attorneys, they are only “new” in the sense that they work in a different division of the same office, it said.

Under these circumstances, there isn't any objective evidence that would allay a reasonable apprehension by the accused that the extra charges were vindictive, it said.

Judges Edward C. Prado and Priscilla R. Owen were also on the panel.

The U.S. Attorney's Office, Dallas, represented the government. The Federal Public Defender's Office, Dallas, represented Dvorin.

To contact the reporter on this story: Lance J. Rogers in Washington at lrogers@bna.com

To contact the editor responsible for this story: C. Reilly Larson at rlarson@bna.com

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