Pursuing enhanced charges is vindictive and improper when it is motivated by retaliation for the defendant's exercise of a legal right or some other improper motive. United States v. Pittman, 642 F.3d 583, 586 (7th Cir. 2011). This occurs, for example, when the enhanced charges are motivated by the prosecutor's resentment for a defendant's successful appeal or the prosecutor's own personal interest.
Ribota has failed to meet his burden under either path. First, the procedural context of the charges does not raise the type of inherent risk of vindictiveness that supports a presumption of vindictiveness. We have not recognized any circumstances in which a presumption of vindictiveness has been deemed appropriate regarding events that occurred before trial. Williams, 481 F.3d at 504 ; Jarrett, 447 F.3d at 526 ; United States v. Pittman, 642 F.3d 583, 586 (7th Cir.2011). The Supreme Court has recognized that there is good reason to be cautious in applying such a presumption to the pretrial setting.
Vindictive prosecution may also exist when it can be shown that the government's actions were motivated by the prosecutor's "personal stake in the outcome of a case" or his desire to "seek self-vindication" for prior errors that he may have committed in a case.United States v. Pittman, 642 F.3d 583, 586 (7th Cir. 2011) (internal citations omitted). It has been said that claims of pretrial vindictiveness are "extraordinarily difficult to prove."
In the absence of any evidence of the prosecutor's malfeasance, the Court presumes that the government's pretrial decisions are proper. United States v. Pittman, 642 F.3d 583, 587 (7th Cir. 2011). Ribota's argument that his successful motion to suppress is somehow unique and more akin to a post-trial appeal also ignores the Supreme Court's guidance in Goodwin, where the Court stated "[d]efense counsel routinely file pretrial motions to suppress evidence..." and explained "it is unrealistic to assume that a prosecutor's probable response to such motions is to seek to penalize and to deter.
In addition, courts โpresume that public officials have properly discharged their official duties.โ Banks v. Dretke, 540 U.S. 668, 696, 124 S.Ct. 1256, 157 L.Ed.2d 1166 (2004); see also United States v. Pittman, 642 F.3d 583, 587โ88 (7th Cir.2011). It will be exceedingly rare (we hope) that a plaintiff will be presenting anything like the serious and disturbing allegations Whitlock and Steidl raise in this case.
One recognized form of personal stake is an attempt to seek self-vindication, a possibility long recognized in the vindictive prosecution context. Cf., e.g., United States v. Pittman, 642 F.3d 583, 586 (7th Cir. 2011) ("Vindictive prosecution may . . . exist when it can be shown that the government's actions were motivated by the prosecutor's . . . desire to seek self-vindication for prior errors that he may have committed in a case." (quotation omitted)).
But the Seventh Circuit has "repeatedly held . . . that evidence of suspicious timing alone does not indicate prosecutorial animus." Ribota, 792 F.3d at 842; see also United States v. Pittman, 642 F3d 583, 587 (7th Cir. 2011); United States v. Cooper, 461 F.3d 850, 856 (7th Cir. 2006); United States v. Falcon, 347 F.3d 1000, 1007 (7th Cir. 2003). Government prosecutors "have wide discretion over whether, how, and when to bring a case."
See United States v. Martin, 528 F.3d 746, 750 (10th Cir. 2008) (doubting that court could reject unconditional guilty plea as to certain charges "to avoid confusing the jury or complicating the evidentiary issues" as to the remaining claims where the requirements of Rule 11(b) were met). Indeed, that proposition is so well established that the Seventh Circuit has addressed the situation many times without hesitation. See, e.g., United States v. Pittman, 642 F.3d 583 (7th Cir. 2011) (rejecting vindictive prosecution argument where government continued to prosecute remaining counts in indictment after defendant pleaded guilty to only a "subset of the counts set forth in his indictment"); United States v. Edwards, 606 F. App'x 851, 852 (7th Cir. 2015) (discussing guilty plea to some but not all charged counts); United States v. Cox, 59 F. App'x 144, 145 (7th Cir. 2003) (same); Stewart v. Peters, 958 F.2d 1379, 1386 (7th Cir. 1992) (discussing impact of contemplated partial guilty plea); see also 1A Charles Allen Wright et al., Federal Practice & Procedure ยง 171 (4th ed. 2007) (discussing evidentiary issues implicated by partial guilty plea without questioning basis for the partial plea). Exacerbating this circumstance was Mr. Crawford's unfounded belief that Mr. Harmon would have to cooperate in the sense of disclosing the identity of his supplier.
A prosecution may be considered vindictive where it "was pursued in retaliation for the exercise of a protected statutory or constitutional right." United States v. Cooper, 461 F.3d 850, 856 (7th Cir. 2006) (citing United States v. Monsoor, 77 F.3d 1031, 1034 (7th Cir. 1996)); see also United States v. Pittman, 642 F.3d 583, 586 (7th Cir. 2011). For example, where a defendant succeeds in obtaining a reversal on appeal and the government brings more serious charges, there is a presumption of vindictiveness that the government must rebut.
Vindictive prosecution exists when the government's actions were motivated by the prosecutor's personal stake in the outcome of a case or a desire to seek self-vindication for prior errors that he or she may have committed in a case. United States v. Pittman, 642 F.3d 583, 586 (7th Cir. 2011).