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United States v. DeMarco

United States Court of Appeals, Ninth Circuit
Mar 30, 1977
550 F.2d 1224 (9th Cir. 1977)


holding that factual findings necessary to determination of vindictive prosecution were "amply supported by the record"

Summary of this case from U.S. v. Kent


No. 75-3824.

March 30, 1977.

Frank M. Tuerkheimer, Special Asst. Pros., Madison, Wis., Charles F. Ruff, Special Pros., Watergate Special Prosecution Force, Washington, D.C., argued, for appellant.

Donald C. Smaltz., George A. Wedner, Los Angeles, Cal., Charles A. McNelis, Welch Morgan, Washington, D.C., argued, for appellee.

Appeal from the United States District Court for the Central District of California.

Before HUFSTEDLER and GOODWIN, Circuit Judges, and KING, District Judge.

Honorable Samuel P. King, Chief Judge, United States District Court, District of Hawaii, sitting by designation.

The Government appeals, under 18 U.S.C. § 3731, from the dismissal of an indictment against DeMarco. The district court gave two reasons for dismissing the indictment: (1) The challenged indictment was the culmination of governmental efforts designed to discourage or to prevent DeMarco from asserting his statutory venue rights, and failure to dismiss the indictment would permit the "potential for vindictiveness" proscribed in Blackledge v. Perry (1974) 417 U.S. 21, 28, 94 S.Ct. 2098, 40 L.Ed.2d 628; and (2) the failure of the prosecutor to inform the grand jury about the facts leading the prosecutor to seek the California indictment interfered with the deliberative function of he grand jury. Because we agree with the district court's application of Blackledge, we do not reach the second ground for the district court's decision.

The district court's opinion is reported at 401 F. Supp. 505.

This case grew out of an investigation into the preparation of President Nixon's 1969 income tax return in which a deduction was claimed for the gift of pre-Presidential papers to the National Archives. DeMarco and Ralph Newman were indicted in February, 1975, in the District of Columbia. The indictments charged them with conspiring to defraud the United States; with making false statements to the Staff of the Joint Committee on Internal Revenue Taxation, to Treasury agents, and to agents of the Internal Revenue Service ("IRS") in the district of Columbia; and with obstructing the congressional investigation of President Nixon's tax returns. Newman and DeMarco moved to change venue to the districts of their residence, Chicago and Los Angeles respectively. ( 18 U.S.C. § 3237(b); Fed.R.Crim.P. 21(b).) The Government vigorously opposed the motions and the resulting severance of the defendants' trials. The district court in the District of Columbia granted the motions. The district court below found that, after the motions were granted, the prosecutor told DeMarco's counsel that "the government was considering filing a motion for reconsideration of the order of transfer, that if [DeMarco] successfully transferred his case to California the government would consider more counts against him, and that the government would `restructure' the case against him if it came to California." (401 F. Supp. at 508.) The prosecutor also told defense counsel that "restructuring" might possibly lead to his recommending dismissal of some of the original charges. DeMarco insisted upon his venue rights, and the original indictment was transferred to California. The Government obtained a second indictment in California, based on substantially the same facts as the first indictment, with the addition of a specific charge relating to statements that DeMarco made to IRS agents in a California interviews on February 22, 1974. The facts upon which the second indictment was founded had been known to the Government long before the first indictment was returned.

The case went to trial on the original indictment but the indictment was dismissed during the course of trial on grounds unrelated to those involved in this case. the dismissal of the original indictment is not involved on this appeal.

The district court found that "the government deliberately used the threat of a new indictment in California to deter the defendant from exercising his statutory [venue] rights" and that the government "threatened to respond [to his exercising his rights] by `upping the ante.'" (401 F. Supp. at 508-09, quoting Blackledge, 417 U.S. at 28, 94 S.Ct. 2098.) Those findings are amply supported by the record.

The Government argues that Blackledge does not control because here, unlike Blackledge, the first and second indictments were not based on identical facts and because the motivations for the Government's threats grew out of limits placed on the original indictment resulting from the policy of the Department of Justice not to pursue contemporaneous indictments, rather than any vindictiveness against the defendant. The Government's contentions rest on misperception of the record and a misreading of Blackledge.

The Government's contention that there had occurred a "major change legitimately bearing on the prosecution function" which justifies distinguishing Blackledge is unsupported by the record. The only "major change" was severance resulting from DeMarco's exercise of his statutory venue right. The Government cannot rely on the exercise of that right to defeat Blackledge. The factual nucleus of both indictments was the same. The District of Columbia indictment did not specifically charge an offense based upon DeMarco's interview with IRS agents in California on February 22, 1974, but the California statement was part of the evidence presented to the District of Columbia grand jury. Moreover, the California statement was a duplicate of DeMarco's statement in the District of Columbia to the Joint Committee, upon which the original indictment was, in part, based.

Even if the first and second indictments were not based on facts that were so similar that a trial on one would have prevented trial on the other upon double jeopardy grounds, that situation would not distinguish this case from Blackledge. In Blackledge the Court specifically eschewed reliance on double jeopardy. (417 U.S. at 31,94 S.Ct. 2098) See also United States v. Ruesga-Martinez (9th Cir. 1976) 534 F.2d 1367). Rather, the progenitor of Blackledge was North Carolina v. Pearce (1969), 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed. 656. Pearce forbade increasing a sentence upon retrial after the defendant had successfully appealed, absent new facts unrelated to the appeal, affecting sentencing. The Court reasoned that fear of vindictiveness for exercising a statutory right to appeal was as forceful as actual vindictiveness in chilling a defendant's "free and unfettered" ( id. at 724, 89 S.Ct. 2072) choice in deciding to appeal. ("[D]ue process also requires that a defendant be freed of apprehension of such a retaliatory motivation on the part of the sentencing judge." Id. at 725, 89 S.Ct. at 2080.) Apprehension of vindictiveness and the "appearance of vindictiveness" ( United States v. Ruesga-Martinez (9th Cir. 1976) 534 F.2d 1367, 1369) are adequate to bring this case squarely within Blackledge. The district court found those facts against the Government, and we have no basis to disturb those findings.

DeMarco is controlled by the teaching of Blackledge unless the statutory right involved (change of venue to the defendant's residence) is so different from the statutory rights to appeal ( North Carolina v. Pierce, supra) and to a trial de novo ( Blackledge v. Perry, supra) as to justify a different result. We perceive no basis for distinguishing DeMarco's venue right under 18 U.S.C. § 3237(b) from the statutory rights considered in Blackledge and Pearce. As in those cases, the statutory right involved has due process overtones, although none of the rights constitutionally mandated. The Section 3227(b) venue right is laden with due process concern for a fair trial in which the litigating burdens are not inordinately cast on the descendant. Congress intended, to relieve the defendant from the "heavy burden" caused by tax prosecution in a judicial district "substantially distant" from the defendant's residence. (Senate Rep. No. 1952, 85th Cong., 2d Sees. (1958); 1958 U.S.Code Cong. Admin.News, p. 3262.) The defendant's expense and his difficulties in securing counsel, his problems in finding witnesses (especially character witnesses) who would be able to travel to a distant forum were all considered by Congress in its decision to relieve the defendant from defending himself away from his residence. ( Id.)

As in Blackledge, "the central figure is not the judge or the jury, but the prosecutor. The question is whether the opportunities for vindictiveness in this situation are such as to impel the conclusion that due process of law requires a rule analogous to that of the Pearce case. We conclude that the answer must be in the affirmative." (417 U.S. at 27, 94 S.Ct. at 2102. See also United States v. Ruesga-Martinez, supra, 534, F.2d at 1370-71.) Here, as in Blackledge, a prosecutor "has considerable stake in discouraging" defendants from exercising their venue rights when the effect "will clearly require increased expenditures of prosecutorial resources" because the prosecutor loses the advantages of trying alleged conspirators together and must also conduct two trials in different parts of the country. ( Id.)

Blackledge and Pearce each establish a prophylactic rule imposing limits upon prosecutorial discretion is seeking new indictment or in conducting retrials when such actions carry with them the opportunity of retaliation for a defendant's exercise of a statutory right that has due process implications. It is irrelevant that a particular defendant exercises his statutory rights, despite his fear of vindictiveness and despite the lack of vindictiveness in fact in subsequent proceedings instituted by the prosecutor. The prophylactic rule is designed not only to relieve the defendant who has asserted his right from bearing the burden from "upping the ante" but also to prevent chilling the exercise of such rights by other defendants who must make their choices under similar circumstances in the future.

Under Pearce and Blackledge, it was not constitutionally permissible for the Government to threaten to "up the ante" to discourage DeMarco from exercising his venue right; a fortiori it was constitutionally impermissible to follow up the threat with the California indictment. No abuse of discretion is involved in the district court's dismissing the indictment for Blackledge taint.


Summaries of

United States v. DeMarco

United States Court of Appeals, Ninth Circuit
Mar 30, 1977
550 F.2d 1224 (9th Cir. 1977)

holding that factual findings necessary to determination of vindictive prosecution were "amply supported by the record"

Summary of this case from U.S. v. Kent

dismissing indictment when government brought additional charges because defendant obtained severance and change of venue

Summary of this case from U.S. v. Garza-Juarez

In 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), we addressed whether there was an opportunity for vindictiveness in the situation where the government sought an additional indictment after the defendant exercised his statutory right to change venue in an earlier prosecution.

Summary of this case from United States v. Allen

In 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), the Ninth Circuit affirmed the dismissal of an indictment on grounds almost identical to those asserted in this case.

Summary of this case from United States v. Grabinski

In DeMarco, the defendant was indicted in the District of Columbia in connection with his activities relating to preparation of former President Nixon's income tax returns.

Summary of this case from United States v. Hollywood Motor Car Co., Inc.

In DeMarco, supra, the defendant was first indicted in the District of Columbia. After the defendant successfully had his case transferred to the Central District of California, the government brought more charges against him (in retaliation for the transfer).

Summary of this case from United States v. Burt

In DeMarco, the government argued that Blackledge was to be distinguished because the first and second indictments were not based on identical facts.

Summary of this case from United States v. Groves

In United States v. De Marco, 550 F.2d 1224 (9th Cir. 1977), the government obtained a superceding indictment on the same facts as the original indictment.

Summary of this case from United States v. Computer Sciences Corp.

In DeMarco the court ruled that a departmental policy with broad application to many cases does not override a defendant's right to be charged in proceedings free of the appearance of vindictiveness.

Summary of this case from United States v. Andrews

In DeMarco the defendant was originally charged in the District of Columbia with making false statements to the Internal Revenue Service. The defendant asserted his statutory venue rights to be tried in the Central District of California despite a prosecution threat to consider seeking additional counts if the case was transferred.

Summary of this case from United States v. Andrews

In United States v. De Marco, 550 F.2d 1224 (9th Cir. 1977), the court approved dismissal of an increased indictment brought after defendant refused to abandon a successful motion to transfer venue (which resulted in his severance from a co-defendant) despite the prosecutor's threats that additional charges would be brought if he persisted.

Summary of this case from United States v. Lippi
Case details for

United States v. DeMarco

Case Details


Court:United States Court of Appeals, Ninth Circuit

Date published: Mar 30, 1977


550 F.2d 1224 (9th Cir. 1977)

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