United States v. Goodwin, 457 U.S. 368 (1982) Overview Opinions __ Materials Argued: April 21,1982 Syllabus U.S. Supreme Court United States v. Goodwin, 457 US. 368 (1982) United States v. Goodwin No. 80-2105, Argued April 21, 1082 Decided June 18, 1982 457 US. 368 Sillabus After intially expressing en intrest in plea bargaining on misdemeanor charges, respondent decided not to pled sity and requested atrial by jury. While the misdemeanor charges were still pending, he was indicted and convicted in Federal District Court on a felony charge arising out ofthe same incident asthe misdemeanor charges, Respondent moved to set aside the verdict on the ground of prosecutorial vindictiveness, contending thatthe felony indicement gave rise toan impermissible appearance of retaliation. The District Court denied the motion The Court of Appeals reversed, holding that, although the prosecutor didnot act with aetual vindictiveness in seeking a felony indictment, the Due Process Cause prohibits the Government from bringing more serious charges against the defendant ater he has invoked bis right tos jury tril unless the prosecutor comes forward with objective evidence that the increased charges could not have been brought before the defendant exercised his right. Believing that the circumstances surrounding the felony indietment gave rise toa gemuine risk of retaliation, the court adopted legal presumption af prosecutorial vindietiveness, Held; presumption of proseeutorial vindictiveness was not warranted inthis case, and absent sucha presumption, no due process violation was established. Pp. 457 U.S. 372-38. (a) In eases in which ation detrimental toa defendant has been taken after the exerese ofa legal ight, the presumption of an improper vindictive motive as been applied only where a reasonable likelihood of Vinditveness existed. North Carolina v. Pearee, 395 U..711; Blackledge v. Pern, 417 U. 8. 21-Of Bordenkircher v. Hayes, 494 U.S.67-Pp. 457 U. 8. 372-38. ()A change in the prosecutor's charging decison made ater an inital trials ompleted is much moze likely tobe Improperly motivated than isa pretrial decision. I is unreaisti to assume that a prosecutor's probable response tasuch pretrial motions as tobe tried by’ a jury it to seek to penalize and to deter. Here, the timing ofthe prosecutor's action suggests that presumption of vindictiveness was not warranted, A prosecutor should remain free before trial to exercise his discretion to determine the extent of the societal interest in the prosecution. The intialPage 457U. 8.369 charges Sled by a prosecutor may not reflect the extent to which an individuals legitimately subject to prosecution. Bordenkireher, supra. Pp. 457 U.S. 380-a82. (©The nature ofthe right asserted by respondent confirms that a presumption of vindictiveness was not warranted in this case. The mere fact that a defendant refuses to plead guilty and fore the government to prove ts ease i insufficient to warrant a presumption that subsequent changes in the charging decision are unwarranted, Bordenkircher, supra. Pp. 457 U.S. 382-983, () The fact that respondent, as opposed to having a bench tra, requested a jury tral does not compel a special presumption of prosecutorial vindictiveness whenever additions charges are thereafter brought. Whi there may have been an opportunity for vindictiveness here, a mere opportunity for vindictiveness insufficient to justify the imposition of «prophylactic rule. The possiblity that aprosceutor would respond toa defendant's pretrial demand fora jury trial by bringing charges notin the public interest that could be explained only as a penalty imposed on the defendant is so unlikely that presumption of vindictiveness is certainly not warranted. Pp. 457 U. S. 983-384, 637 F.2d 250, reversed and remanded, STEVENS, J, delivered the opinion of the Court, in which BURGER, C1, and WHITE, POWELL, REHNQUIST, and O'CONNOR, J, joined. BLACKMUN, J, fle an opinion concurring inthe julgment, post at 457 U.S. 385. [BRENNAN fled a dissenting opinion, in which MARSHALL, J, joined, post at 4571S. 986, Read More Opinions Opinions & DissentsU.S. Supreme Court United States v. Goodwin, 457 U.S. 368 (1982) United States v. Goodwin No. 80-2195, Argued April 21, 1982 Decided June 18, 1982 457 US. 368 CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR ‘THe FOURTH CIRCUIT Syllabus _Afvr initially expressing an interest in plea bargaining on misdemeanor cherges, respondent decided not to pleed sulky and requested atrial by jury. While the misdemeanor charges were stil pending, he was indicted and convicted in Federal District Court on a felony charge arising oat ofthe same incident asthe misdemeanor charges, Respondent moved to set aside the verdict onthe ground of prosceutcrial vindictiveness, contending thatthe felony indictment gave rise to an impermissible appearance of retaliation. The District Court denied the motion. ‘The Court of Appeals reversed, holding that although the prosecutor id not act with actual vinditveness in secking a felony indictment, the Due Process Clause prohibits the Government from bringing more serious charges gains the defendant after he has invoked his right toa jury tril unless the prosecutor comes forward with bjective evidence that the increased charges could not have been brought before the defendant exercised his right. Belioving that the circumstances surrounding the felony indictment gave rise toa genuine risk of retaliation, the court adopted legal presumption of prosecutorial vindictiveness Held: presumption of prosecutorial vindictiveness was not warranted inthis ease, and absent sucha presumption, no due process violation was established. Pp. 457 U.S. 372-384. (@) In cases in which action detrimental oa defendant has been taken after the exercise ofa legal right, the presumption of an improper vindietive motive has been applied only where a reasonable ikehood of vindictiveness existed. North Corona v. Pearce, g95 U.S.711; Blackledge v. Perry, 417 U-8.21.Cf ordenkircher v. Hayes, 494 U.S.387-Pp. 457 U.S. 372-380. (6) A change in te prosecutor's charging decision mace ater an inital trial is completed is much more likely tobe Improperly motivated than isa pretrial decision. I is unrealisti to assume that a prosecutor's probable response tasuch pretrial motions as tobe tried bya jury sto seek to penalize and to deter. Here, the ting ofthe prosecutor's aetion suggests that presumption of vindictiveness was not warranted, A prosecutor should remain fee before trial to exerese his discretion to determine the extent of the societal interest in the prosecution. The intial Page 457U.$.369 charges fled by a prosecutor may not reflet the extent to which an individuals leptimately subject to prosecution. Bordenkircher, supra. Pp. 457 U.S. 380-382. (©) The nature ofthe eight asserted by respondent confirms that a presumption ofvindtiveness was not warranted inthis case. The mere fact that a defendant refuses to plead gully and forces the goverment to prove As case is insufficient to warrant a presumption that subsequent changes in Ube charging decision are unwaeranted, Bordenkircher, supra, Pp. 457 U-S. 382-283. (The fact that respondent, as opposed to having a bene tral, requested a jry trial does not compel special presumption of prosecutorial vindtiveness whenever addtional eharges ae thereafter brought, Whie there may have been an opportunity for vindictiveness here, a mere opportunity for vindictiveness insufBcient to justi the imposition ofa prophylactic rule. The possiblity that aproseeutor would respond toa defendant's pretrial‘demand fora jury trial by bringing charges notin the publi interest that eould be explained only as penalty ‘imposed on the defendant is so unlikely that a presumption of vindictiveness certainly not warranted. Pp. 457 U. S. 383-384, 637 F.2d 250, reversed and remanded, STEVENS, J, delivered the opinion of the Court, in which BURGER, C.J, and WITTE, POWELL, RELINQUIST, and O'CONNOR, J, joined. BLACKMUN, J, fed an opinion coneuring inthe judgment, postal 457 U.S. 385, BRENNAN, J fled a dissenting opinion, in which MARSHALL, J, joined, post at 457 U.S. 386, JUSTICE STEVENS delivered the opinion ofthe Court ‘This case involves presumptions, The question presented is whether a presumption that has been used to evaluate «judi or prosecutorial response to criminal defendant's exercise of aright tobe retried after le has been convicted Page 457U.S.970 should also be applied to evaluate a prosceutor's pretrial response toa defendant's demand fora jury tra _Afver the respondent requested a tral by jury on pending misdemeanor charges, he was indicted and convicted on ‘felony charge. Believing that the sequence of events gave rise toan impermissible appearance of prosecutorial rotallation agunst the defendant's exercise of his right tobe trod by jury the United States Court of Appeals for the Fourth Circuit reversed the felony conviction. 637 ¥2d 250. Because this case presents an important question concerning the scope of our holdings in North Carolina v. Pearce, 39§ U, 8.733, and Blackledge v. Perry, 42? U.S. 21, we granted the Government’ petition fr certiorari. 454 U.S. 1079, 1 Respondent Goodwin was stopped for speeding by a United States Park Policeman onthe Baltimore- Washington Parkway. Goodwin emerged from his arto talk tothe policeman, Ater a brief discussion, the ofier noticed a clear plastic bag underneath the armrest next to the driver's seat of Goodwins ca. The officer asked Goodwin to return tohit ear and to raise the armrest, Respondent did so, but athe raised the armrest, he placed the er into sear and acelerated rapidly. The car struck the officer, knocking hm first ont the back ofthe car and then onto the highway. The policeman returned to his ear, but Goodwin cluded him ina high-speed chase. ‘The fllowing day, the officer fed a complaint in the Distriet Court charging respondent with several misdemeanor and petty offenses, including assault. Goodwin was arrested and azraigned before a United States Magistrate. The Magistrate set a date fr tral, but respondent fled the urisdietin. Three years later, Goodwin was found in custody in Virginia, and was returned to Maryland, Upon his return, respondent's case was assigned to an attorney from the Department of Justice, who was detailed Page 457 U.S. 971 temporarily to try petty crime and misdemeanor cases before the Magistrate. The attorney didnot have authority totry felony cases o to seek indictments from the grand jury. Respondent initiated plea negotiations with the prosecutor, but later advised the Gavernment that he did not wish to plead guilty and desired «tral by jury inthe Distriet Court. [Footnote 1} “The ease was transferred tothe District Curt and responsibilty fr the prosecution was assumed by an Assistant United States Attorney. Approximately si weeks later, after reviewing the ease and discussing it with several partes, the prosecutor obtained a four-count indictment charging respondent with one felony count of foreibly assaulting a federal officer and three related counts arising from the same incident. [Footnote 2) jury convicted respondent onthe felony count and on one misdemeanor count. Respondent moved to et aside the verdict on the ground of prosecutorial vindictiveness, contending thatthe Indietment onthe felony charge gave rise to en impermissible appearance of etaaton. The District Court denied the motion, finding that "the proseeutor in this ease has adequately dispelled any appearance of retaliatory intent. [Footnote 3} Page 457 U.S. 372Although the Court of Appests readily conchuded that “the prosecutor did not act with actual vinditveness in seeking felony indictment,” 67 Fad at 252, it nevertheless reversed. Relying on our decisions in North Carolina », Pearee, supra, and Blackledge v. Perry, supr, the court hed thatthe Due Process Clause ofthe ith ‘Amendment prohibits the Government from bringing more seriou charges against a defendant ater he has invoked his right to jary tral, unless the prosecutor comes forward with objective evidence to show tha the Increased charges could not have been brought before the defendant exercised his rights. Beeaus the court believed that the ereumstances surrounding the felony indictment gave rise to genuine risk of retaliation, t adopted a legal presumption designed to spare courts the “unseemly task" of probing the actual motives ofthe prosecutor. 697 Fad at 255. 1 “To punish a person because he has done what the law plainly allows him todos a due process violation “of the ‘most basic sort." Bordenkircher v. Hayes, 434 U. 8.357, 434 U-S. 369. In a series of cases besinning with North Carolina v. Pearce and culminating in Bordenkircherv, Hayes, the Court has recognized tis basie-- and itself ‘uncontroversial principle. For while an individual certainly may be penalized for violating the lav, he just as certainly may not be punisied for exercising a protected statutory or constitutional right. [Footnote 4) ‘The imposition of punishment isthe very purpose of virtually all criminal proceedings. The presence ofa punitive Page 4570.5. 373 ‘motivation, therefore, does not provide an edequate basis for distinguishing governmental ation that i fully stifled aa legitimate response to pereeved criminal conduct from governmental action that in impermissible response to noneriminal, protected activity. Motives are complex and diffcalt to prave. Asa rest, in certain cases in which action detrimental tothe defendant has been taken after the exercise ofa legal right, the Court has found It necessary to "presume an improper vinditive motive. Given the severity of sch a presumption, however — Which may operate inthe absence of any proof ofan improper motive and thus may block alegtimate response to criminal conduct -- the Court as done so only i cases in which a reasonable ikelinod of vindictiveness exists In North Carolina v. Pearce, the Court hel that neither the Double Jeopardy Clause nor the Equal Protection Clause prohibits tral judge fom imposing a harsher sentence on retrial after a criminal defendant suovessilly attacks an inital conviction on appeal. The Court stated, however, that "ltcan hardly be doubted that i would be a fagrant violation [o the Due Process Clause] ofthe Fourteenth Amendment for a state tra ourt to follow an announced practice ofimposing a heavier sentence upon every reconvicted defendant for the explicit purpose of punishing the defendant for his having suceeded in geting his ‘ocginl conviction set ase.” 395 US. at 395 U.S. 723-724. The Court continued: "Due process oflaw, then, requires that vindictiveness against a defendant for having sucessfully attacked his frst conviction must ply no part in the sentence he receives afte anew rial And since the fea of such vindictiveness may unconstitutionaly deter a defendant's exercise ofthe right to appeal or elateraly attack his frst conviction, due process also requires that a defendant be freed of apprehension of such a retaliatory Page 457 U.S. 274 ‘motivation onthe par of the sentencing judge. {dat 995 U.S. 725. In order to assure the absence of such a motivation, the Court concluded: [Whenever a judge imposes a more severe sentence upon a defendant after anew trial the reasons for his doing so must afrmatively appear. Those reasons must be based upon objective information concerning identifiable conduct om the part ofthe defendant occurring after the time ofthe original sentencing proceeding. And the factual data upon which the increased sentence is based must be made part ofthe record, so thatthe constitutional legitimacy ofthe increased sentence may be fully reviewed on appeal” 4d, at 995 U.S. 726. In sum, the Court applied a presumption of vindictiveness, which may be overcome only by ‘objective information in the record justifying the increased sentence. (Footnote 5]In Blackledge v. Perry, 417 U-8.23, the Court confronted the problem of inereased punishment upon retrial after ‘sppeal ina setting diferent from that considered in Pearce. Perry was convicted of assault in an inferior court having exclusive jurisdiction forthe rial of misdemeanors. The court imposed a & month sentence. Under North Carolina law, Perry had an absolute right toa trial de novo inthe Superior Court, which possessed felony jurisdiction. After Perry fled his otice of appeal, the prosecutor obtained a felony indictment charging him with assault with a deadly weapon. Perry pleaded guilty to the felony and was sentenced toa term of five to seven ‘years in prison. In reviewing Perry's felony convstion and increased sentence, (Footnote 6] this Court fist stated the essence of the boldings in Pearce and the cases that hed fllowed it “The lesson that emerges from Pearce, Colten, and Chaffin is thatthe Due Process Cause isnot offended by all possibilities of increased punishment upon retrial after appeal, but only by those that pose a realist ikelinood of ‘vindictiveness. 417 US. at 417 U.S. 27. The Court held that the opportunites fr vindictiveness inthe situation before it were such "es to impel the conclusion that due process af law requires a rule enalogous tothat ofthe Pearce case" Ibid It explained: Page 4570.8. 375, "A prosecutor clearly has a considerable stake in discouraging convicted misdemeanants from appealing, and thus obtaining a trial de novo in the Superior Cour, since such an appeal will clearly require increased expenditures of prosecutorial resources before the defendant's conviction becomes final, and may even result in a formerly convicted defendant's going fee. And, ifthe prosecutor has the means realy at hand to discourage such appeals ~ by ‘upping the ante'through a felony indictment whenever a convited misdemeanant pursues his statutory appellate remedy ~ the State can insure tha only the most hardy defendants will brave the hazards of ade novo 1d. at 427 U.S. 27-28. The Court emphasized in Blackledge that i dd not matter that no evidence was present thatthe prasecutor had acted in bad faith or with malice in secking the felony indictment. [Footnote 7] Asin Pearce, tbe Court hel that the ikelood of vindictiveness justified presumption that would free defendants of apprehension of such a retaliatory motivation on the part af the prosecutor. [Footnote 8] Both Pearce and Blackledge involved the defendant's exercise of procedural right that caused a complete retrial ater he had heen once tried and convicted. The decisions in these eases reflect a reezgition by the Court ofthe Institutional bas inherent inthe judicial system against the retrial of sues that have already been decided. The Aoctrines of tare decisis, res judieata, the lw of the ease, and double jeopardy ll are based, atleast in part, on that deep-seated bi. Page 457U.S.a77 Wile none ofthese doctrines barred the retrial in Pearee and Blackledge the same institutional pressure that supports them might alo subconsciously motivate a vinditive prosecutorial ar judicial response toa defendant's exercise of it right to obtain a retrial ofa decided question. In Bordenkircher v. Hayes, 434 U.S. 357, the Court forthe frst time considered an allegation of vindictiveness that arose ina pretial setting In that case, the Court held that the Due Prooess Clause of the Fourteenth Amendment didnot probit a prosecutor from carrying ot a threat, made during plea negotiations to bring additional charges against an accused who refused to plead guy tothe offense with whieh he was originally charged. The prosecutor in that eae had explicitly told the defendant that, ihe didnot plead guty aad "save the ‘court the inconvenience and necessity of tia” he would return to the grand jury to oblain an additional charge that would significantly inerease the defendant's potential punishment. [Footnote 9] The defendant refused to plead guilty, andthe prosecutor obtained the indictment. It was not disputed that the additonal charge was justified by the evidence, thatthe prosecutor was in possession of this evidence atthe time the original indictment ‘was obtained, and thatthe prosecutor sought the additional charge because ofthe accused's refusal to plead guilty tothe original charge, In finding no due process visaton, the Court in Bordenkircher considered the decisions in Pearce and Blackledge,and stated: "In those cases, the Court was dealing with the State's una chosen to exercise a legal ight to attack his original convition imposition ofa penalty upon a defendant who had situation Very different from the give-and-take Page 457 U.S. 378 negotiation common in plea bargaining between the prasecution and defense, which arguably possess relatively ‘equal barguining power’ Parker v. North Caroling, 397 U. 8.790, 397 U.S. 809 (opinion of BRENNAN, J 434 US.at 434 U.S. 962. The Court stated thatthe due process violation in Pearee and Blackledge ay notin the possibilty that a defendant might be deterred from the exercise of legal ight... , but rather in the danger that the State might be retaliating against the accused for lawl attacking his convietion." 4s US, 494 U.S. 363 ‘The Court held however, that there was no such element of punishment inthe "sive-and-take" of plea negotiation, solong asthe accused "is fre to accept or reject the prosecution’ offer." Ibid."The Court noted that, by tolerating and encouraging the negotiation of plea, this Court had accepted as constitutionally legitimate the simple reality that the prosecutor's interest atthe bargaining table is to persuade the defendant to forgo his constitutional right to stand trial The Court concluded: "We hold only thatthe course of conduct engaged in bythe prosecutor inthis cas, which no more than openly presented the defendant with the unpleasant akernatives of forgoing trial or facing charges on which he was plainly subject to prosecution, id not violate the Due Process Clause ofthe Fourteenth Amendment. I. a 434 U.S. 365. The outcome in Bordenkircher was mandated by this Court's acceptance of pea negotiation as a legitimate process. (Footnote 10] Ta deeining to apply a presumption of vindictiveness, Page 4570.8.379, the Court recognized that “additional” charges obtained by «prosecutor could not necessarily be characterized as sn impermissible “penalty.” Since charges brought in an orignal indictment may be abandoned by the prosecutor inthe course of plea negotiation in often what i clearly a "benefit" tothe defendant -- changes inthe charging decison that ceeut inthe Page 457 U.S. 980 context of plea negotiation are an inaecurate measure of improper prosecutorial "vindictiveness." [Footnote 13) An intial indictment -- from whieh the prosecutor embarks ona course of plea negotiation —- does not necessarily define the extent ofthe legitimate interest n prosecution, For just as a prosecutor may forgo legitimate charges already brought inan effort to save the time and expense of trial a prosecutor may fle adlitinal charges fan intial expectation tha a defendant would plead guilty tolesser charges proves unfounded, [Footnote 12] Mm This case, like Bordenkircher, arses from a pretrial decision to modify the charges against the defendant, Unlike LBordenkircher, however, there is no evidence inthis ease that could give rise toa chim of actual vindictiveness; the Page 457 U.S. 981 prosecutor never suggested thatthe charge was brought to in luence the respondents conduct. [Footnote 1g} The conviction inthis ease may be reversed only ia presumption of vindictiveness applicable in alleases is warranted, There is good reason tobe cautious before adopting an inflexible presumption of prosecutorial vindictiveness in & pretrial setting. In the course of preparing «case for trial, the prosecutor may uncuver additional information that suggests a basis fr further prosecution or he simply may come to realize that information possessed by the State has a broader significance. At this stage ofthe proceedings, the prosecutor's assessment ofthe proper extent ofprosecution may aot nave erystalized. 1 contrast, once a trial begs -~ and certainly by the time a conviction nas ‘boon obtained it is much more likely that the State has discovered and assessed all of the information against an accused and has made a determination on the basis of that information, of the extent to which he should be prosecuted. Thus, a change inthe charging decision made after an inital trial is completed is much more likely to ‘be improperly motivated than i pretrial decision, {In addition, a defendant before trial is expected to invoke procedural rights thet inevitably impose some "burden" on the prosecutor. Defense counsel routinely fle pretrial motions to suppress evidence; to challenge the sufficiency and form of an indictment; to plead an afirmative defense; to request psyehistrc services; to obtain access to government files; tobe tried by jury. Ii unrealistic to assume that a prosecutor's probable response to such ‘motions is to seek to penalize and to deter. The invocation of procedural rights i an integral part ofthe adversary process in which ur criminal justice systems operates. ‘Thus the timing ofthe prosecutor's action in this ease suggests that warranted. presumption of vindictiveness isnot Page 457 U.S. 382 [A prosecutor should remain free hefore trial to exercise the broad discretion entrusted to him to determine the extent ofthe societal interest in prosecution. An initial decision should not freeze future conduct [Footnote 14) AS we made clear in Bordenkivcher, the intial charges fed by a prosecutor may not reflec the extent to which an Individuals legitimately subject to prosecution. (Footnote 15] ‘The nature ofthe right asserted by the respondent confirms that a presumption of vindictiveness snot warranted inthis eae. after intially expressing an interest in plea negotiation, respondent decided not to plead guilty, and requested atrial by jury in Distriet Court. In doing so he forced the Government to bear the burdens and ‘uncertainty ofa tri This Court in Bordenkiveher, made clear thatthe mere fact chat a defendant refuses to plead sully and foroes the government to prove is casei insufficient to warrant a presumption that subsequent changes inthe charging decision Page 457.8. 382 are unjustifed. Respondent argues that such a presumption is warranted inthis ease, however, becuse he not only requested atrial ~ he requested tril by jury We cannot agree. The distintion between a bench tral anda jury tral does not compel a special presumption of prosecutorial vindictiveness whenever ational charges are brought after @ jury is demanded. To be sure, jury rial is more burdensome than a bene® trial. The defendant may challenge the selection ofthe venites the jury Itself must be impaneled; witnesses and arguments must be prepared more carefully to avoid the danger of mistrial These matters are much less significant, however, than the fet tht, befae either jury ra judge, the State must present its fll case against Ube accused and the defendant i entitled to offer a full defense. As compared tothe complete trial de novo at issue in Blackledge, a jury tral -- as opposed toa bench trial-- does not require duplicative expenditures of prosecutorial resources before a final judgment may be obtained. Moreover, unlike the trial judge in Peare, no pact i asked "todo aver what it uhought it bad already done correctly.” [Footnote 16] A prosecutor has no "personal stake" in a bench tril and thus no reason to engage in "sel vindication” upon a defendant's request fora jury trial. [Footnote 17] Perhaps most importantly, the institutional bias against the retrial ofa decided question that supported the decisions in Pearee and Blackledge simply has no ‘counterpart in ths ease. [Footnote 18] Page 457 U.S. 984 ‘There is an opportunity for vindictiveness as there was in Colten and Chaffin. Those cases demonstrate, however, that a mere opportunity fr vindictiveness is insufficient to justify the imposition ofa prophylactic rule. As Blackledge makes clear, "the Due Process Clause isnot offended by all possiblities of increased punishment... but only by those that pose a realistic elthood of vindictiveness.” 417 US. at 417 U. 8.27. The possibilty that a preseeutor would respond toa defendant's pretrial demand for a jury trial by bringing charges not inthe public interes that could be explained only asa penalty impased on the defendant iso unlikely that a presumption of vindictiveness certainly is not warranted,Ww In decining to apply a presumption of vindictiveness, we ofcourse do not foreclose the possibilty that a defendant, nan appropriate case, might prove objectively thatthe prosecutor's charging decision was motivated by a desire to punish him for doing Something thatthe law plainly allowed hin todo. (Footnote 19] In this case, however, the (Couttof Appeals stated: "On this record, we eadily conclude that the prosecutor dd not at with actual vindictiveness in seckng a felony indictment.” 637 F.2d at 252. Respondent does not challenge that finding, Absent a presumption of vinditiveness, no due process violation has been established, “The judgment ofthe Court of Appeals is reversed The Page 457 U8. 385 cas is remanded for further proceedings consistent with this opinion tis 0 ordered. [Footnote 1] _At that tine, there was no sttutery provision allowing a tral by jury before a magistrate (Fectcte 2] By afidevit, the Assistant United States Attorney later st forth his reasons fr this ation: (2) he eonsidered respondent’ conduct on the date in question tobe e serous violation of lw, (2) respondent had lengthy bistory of valent crime, (a) the prosecutor considered respondent's conduct tobe related to major narcotics transactions, (4) the prosecutor believed that respondent had committed perjury at is preliminary hearing, end (5) respondent hd failed to appear fr trial as originally scheduled. Tse Government attorney stated that his decision to sock 2 felony indictment was not motivated in any way by Goodwin's request for a jury tral n Distriet Cours. [Footnote 3} App. to Pet for Cert. 228; ef 2, supra. The District Court considered the merits of respondents motion even though it was no timely fled in accordance with Rule 12(b)() ofthe Federal Rules of Criminal Procedure. The Distrit Court found sufcent “cause” for respondents procedural defacit pursuant to Federal Rule of Crzsinal Procedure 12(0. The Court of Appeals did not consider the propriety ofthe District Court's ruling in this regaré, and neither do we. (Footnote 4) [Flor an agent ofthe State to pursue a course of action whose objective is to penalize a person's reliance om his legal right is ‘patently unconstitutional” ordenkircher v. Hayes, 434 U.S.367, 484 U.S. 363 (quoting Chain. Stynchcombe, 412 U.S.17, 412 U.S, 323,20). [Footnote 5) ‘Two subsequent cases developed the principles set forth in Pearce. In Cote v. Kentucky, 407 U..104, the Court refused to apply the prophyltc rule of Pearee to an llegaton of vindetiveness that arose in a case involving Kentucky’s two-tier system for adjudicating less serious criminal charges. In that system, a defendant ‘who is convicted and sentenced in an inferior corti entitled toa tril de nove in a court of general jurisdiction ‘The defendant in Colten exercised that right and received a more severe sentence from the cout of general Jurisdiction. This Court found that “[Ube possibilty of vindictiveness, found to exist in Pearce, isnot inherent in the Kentucky two-tier system.” 407 US. at 407 U.S. 116, The Court emphasized that the second trial was ‘conducted and the final sentence was imposed, by a diferent cour that was not asked "todo over what it thought ‘had already done coreectly "Fd. at 407 U-8, 117. The Coutt note "Te may often be thatthe superior court wil impose a punishment more severe than that received from an inferior ‘court But tno more follows that such a sentence is a vindictive penalty for seeking «superior cour tral than that the inferior oourt imposed a lenient penaltybid, Uimately, the Court described the sentence received from the inferior tribunals, "in eect ..., no more than an offer in settlement.” Fa at 407 U. 8.119. {In Chaffin v, Stynchcombe, 412 U.S. 17, the Court held thatthe prophylactic rule of Pearce doesnot apply when. the second sentence is imposed on retcal by ajury."The Court emphasized thatthe decison in Pearce "was premised on the apparent need to guard ayainstvindetivenes in the resentencing process” 412 US. at 412 U.S. 25 (emphasis in orginal. The Court found that the possblty of vindictiveness was de minimis when resentencing was by jury ina properly controled retrial The Court noted that (1) the jury typically will not be aware ofthe prior sentence, 2) the jury, unlike a judge who as been reversed, wil ave no personal stake in the prior ‘conviction and no motivation to engage in selvindiction, and (3) the jury wil not kel be sensitive tothe Institutional interests tht might occasion higher sentences by a judge desirous of discouraging what he regards as rmeriless appeals Jd. at 412 U.S, 26-27. [Footnote 61 ‘The Court held that, in pleading guilty, erry had not waived the right “aot toe haled into court tall upon the felony charge” 417 US. at 417 U.8.30. [ootnote 7] "There i, of eourse, no evidence thatthe prosceutor inthis case ated in bad feith or maliciously in secking a felony indictment against Perry." Id at 447 U.S. 28. [Footnote 81 ‘The presumption again could be overcome by objective evidence justifving the prosecutor's action. The Court ated "his would dearly bea diferent ces f the State had shown that it wes impossible to proceed onthe more seriaas charge at the outsct, asin Diaz v, United States, 208 U.S. 442." 1d. at 417 U.S. 29, 0.7, (Footnote 9] ‘The prosecutor advised the defendant thet he would obtain an indictment under the Kentucky Habitual Criminal Act which would subject the accused toa mandatory sentence of life imprisonment by reason of his two prior felony convietions. Absent the additional indictment, the defendant was subject toa punishment of 2 to 10 years in prison, [Footnote 10) 494 US. at 434 U.S. 964-965 ("To hold that the prasoeutor's desire toinduce aguity plea... may play no prt in his charging decision would contradict the very premises that underlie the concept of plea bargaining tsel"). If prosecutor could not threaten to bring aditinal charges durin ples negotiation, and then obtain those charges when ples negotiation fed, an equally compelling argument ould be made that a prosecutor's intial charging decision could never be inftenced by what he hoped to gain inthe course of plea negotiation, ‘Whether “additional” charges were brought originally and dismissed, or merely threatened during ples ‘negotiations, the prosecutor could be accused of using those charges to induce a defendant to forgo his right to stand tral. Ifsuch use of “addtional” charges were presumptively invalid the institution of pes negotiation could ‘ot survive. Thus, to preserve the plea negotiation proces, with its correspondent advantages fr both the defendant and the State, the Court in Bordenkireher held that “additional” charges my be used to induce defendant to plead guity. Once that conslsion was accepted, it necessarily followed that it id not matter whether the “additional” charges were obtained inthe orginal indictment or merely threatened in plea negotiations and obtained once those negotiations broke down. Inthe former situation, the prosecutor coud be sai simply to have ‘antiipated” thatthe defendant might refuse to plead guilty and, asa result, to have placed his threat in the ‘ovginl indictment. Cf. at 424 U.S. 60-361 ("AS a practical matter, in shor, this case would be no diferent i the grand jury had indisted Hayes as a recidivist from the outset, and the prosecutor had offered to drop that charge as part ofthe ple bargain’) ‘The decison in Bordenkireher also was influenced by the fet that, had the Court recognized distinction of‘sonstutional aumension nerween the axmisat or enarges nrooght mm an orginal naument ane Tae agton of charges ater pla negotiation, te aggressive prosecutor would merely be prompted "to bring the greater charge intially in every case, and only thereafter to bargain.” Id. at 434 U.S. 368 (BLACKMUN, J, dissenting). The ‘eonsequenees af sucha decision often would be prejudicial to defendants, fr an accused "would bargain against a greater charge, face the ikeliod ofinereased bail and run the risk that the eouet would be es inclined to accept a bargained plea.” id, Moreover, in those cases in whieh a defendant accepted the prosecution's offer, his reputation would be spared the unnecessary damage that would result feom the placement ofthe addtional charge on the pubic record. [Footnote 11] ‘The Court in Bordenkircher stated thatthe validity of pretrial charging decision must be measured against the broad discretion held by the prosecutor to select the charges against an accused, "Within the limits set by Uhe legislature's constitutionally valid definition of chargeable offenses, the conscious exercise of some selectivity in enforcement i ot itself federal constitutional violation’ so Tong as the selection was [ot] deliberately based upon an unjustifiable standard such as race, religion, oF other arbitrary classifieation.™ dat 434 U.S. 964 (quoting Oyler v. Roles, 968 U.S. 448, 368 U-S. 456). A charging decision does not levy an improper "penalty" uales it results solely from the defendant's exercise ofa protected legal right, rather than the prosecutor's normal assessment ofthe societal interest in prosecution, See Westen & Westin, A Constitutional Law of Remedies for Broken Plea Bargains, 66 Cali L Rev. 471, 486 (1978). (Footnote 12] In rejecting a presumption of vindictiveness, the Court in Rordenkircher di not fredose the possibilty that a defendant might prove through objective evidence an improper prosecutorial motive. Inthe ease befare it, however, the Caurt did not find such proof in the fact tat the prosecutor had stated explicitly that addtional charges were brought to persuade the defendant to plead gully. The fact that the prosecutor threatened the defendant did not prove thatthe action threatened was not permissible; the prasecutor's conduct didnot establish thatthe additional charges were brought solely to "penalize" the defendant, and eould not be justified as a proper exercise of prosecutorial discretion [Footnote 13] ‘See n2, supra, (Footnote 14] Wie recognize that prosecutors may be trained to bring all legitimate charges agaist an individual tthe outset. Certainly, a praseestor should not file any charge unt he has investigated fll all ofthe circumstances surrounding a case. To presume that every ease is complete at the time an initial change is fled, however, isto presume that every prosecutor i infalible-- an assumption that woud ignore the pr ints imposed by ‘often limited prosecutorial resources. Moreaver, there are certain advantages in avoiding a rule that would compel prosecutors to attempt to place every conceivable charge against an individual onthe public record from the tect Seen 10, supra [Footnote 15) Respondent argues thatthe Court's refusal to presume vindictiveness in Bordenkincher is not controlling in this case because he had refused to plead guity, and the plea negotiation process was over. Respondent's argument is rat strengthened, however, by the fac that the addtional charge in this ease was brought outsie the context of plea negotiation. The fact tat the inressed charge in Bordenkincher was brought after a "warning" made during plea negotiation was the prinsipal basis forthe defendant's claims that the charge was an unjustified response to his legal right to stan tial. But ef 12, supra. Respondent's argument inthis eae has no such predicate; unlike the defendant in Bordenkircher, the only evidence respondent i able to marshal in support of his allegation of ‘vindictiveness is thatthe adlitional charge was brought ata point in time after his exercise of protected legal right(Foctote 16) F Colen v. Kentucky 407 US. at 407 8.197 (Footnote 17] © Chaffin». Stymehcombe, 412 US. st 412 U.8.27. Lootnote 18] Indeed, there isa strong tration in this country in favor of jury trials, despite the sitonal burdens that they ental forall partis. In many eases ~~ and for many reasons - bath the judge end the prosecutor may prefer to havea case tried by jury. See, e4, Vines v, Muncy, 553 Fad 242 (CA4 1977); United States v. Morlang, 531 F.2d 183 (CA4 1975); United States v. Coa, 451 Fad 399 (CAt 1972); see also Fed.Rule Crim.Proe, 29()- To Singer v. United Stares, 380 U.S. 24, this Couet held that aeriminal defendant does not have a constitutional right to waive ‘jury til and to have his case tried before a judge alone. The Court stated: "Trial by jury has been established by the Constittion asthe ‘normal and ... preferable mode of disposing of Issues of fact in criminal eases’ Patton v, United States, 281 U.S. 276, 281 U.S, 312." Hd. 380 U. 8.35 [Footnote 19] As the Government states ints bret: " Accordingly, while the prosecutor's charging decision is presumptively lawful, andthe prosecutor i not required {osustai any burden ofustifieation for an increase in charges, the defendant is (ree to tender evidence tothe ‘court to support a claim that enhanced charges are a direct and unjustifiable penalty forthe exercise ofa procedural righ. Ofcourse, only ina rare case woulda defendant be able to overcome the presumptive validity of the prosecutor's ations through such a demonstration" Brief for United States 28,09. JUSTICE BLACKMUN, concurring in the judgment, Like JUSTICE BRENNAN, [ belive that our precedents mandate the conclusion that "a realistic ketbood of vindictiveness” arises inthis context, Blackledge v. Perry, 417 U.S. 21, 417 U.S. 27 (1974). The Assistant United States Attorney responsible for increasing the charges against respondent was aware of the ital charging decision; he ha the means available to discourage respondent from electing a jury tril in Distret Court; he had a substantial stake in dissuading respondent from exercising that option; and he was famiiar with, and sensitive fo, the institutional interests that favored a trial before the Magistrate Moreover, I find no suppor in our prior eases for any distinction between pretrial and post-trial vindictiveness. As I have said befor: "Prosecutoril vindictiveness in any context i still prosecutorial vindictiveness. The Due Process Clause should protect an accused agains it, however it asserts itso" Bordenkircher v. Hayes, 494 U.S. 357,434 U-S. 968 (1978) (dissenting opinion). And, as JUSTICE BRENNAN points out, Bordenkircher does not dictate the result here. Infact in Bordenkircher, the Court expressly distinguished and left unresclved cases such as this one, "winere the prosecstor, without notice, brought an additional and more serious charge after plea negotiations +olating ony to the original [charges] had ended with the defendant's insistence on pleading not guy.” Id. at 434 U.S. 360. ‘The Cour's ruling in Bordenkircher did not depend on a distinction between the pretrial and past-rial settings rather, the Court detined to apply its prior opinions in Blackledge and North Carolina v.Pearee, 395 U.S.711 (1969), because those eases involved "the State's unilateral imposition ofa penalty,” rather than "the give-and?- take negotiation common in plea bargaining.” 434 US. atPage 457 U.S. 386 362, quoting Parker v. North Carolina, 397 U.S. 790, 397 U.S. 809 (1970) (opinion of BRENNAN, 1.) Here, as in Pearce and Blackledge, the prosecutor unilaterally imposed « penalty in response to respondent's exercise of a legal right Adopting the prophylactic rule of Pearce and Blackledge inthis ase wil not, as the Court woud insist, undereut "he broad discretion entrusted to {the prosecutor} to determine the extent of the societal interest in prosecution.” Ante at 457 U.S. 382 ‘The prosecutor initlly ‘makes a discretionary determination that the interest ofthe state are served by not seeking more serious charges.” Bordenkircher v. Hayes, 434 US. at 434 U. 8.367 (dissenting opision), quoting Hayes v. Cowan, 547 F.2d 42,44 (C46 1976). Moreover, the Due Process Clause doesnot deprive a prosecutor of the flexibity toadd charges after defendant has decided not to plead gut and has elected a ary tral in Dstrit Court -- slang asthe adjustment is based on “objective information concerning dentiable conduct onthe pat of he defendant ‘ocearting ater the time ofthe original” charging decision. North Carolina v. Pearee, 395 US. at 395 U.$.726. 10 addition, I believe thatthe prosecutor adequately explains an inereased charge by pointing to objective Information that he could not reasonably have been aware of tthe time charges were intial fled. Cf: ante at 457, U.S. 381 ‘Because I find that the Assistant United States Attorney's explanation for seeking a felony indictment satisies these standards, see ante at 457 U.S. 371, n- 2 T conclude thatthe Government has dispelled the appearance of Vinditiveness and, therefore, thatthe imposition of additional charges did not volte respondent's due process rights. Accordingly, Tconeu in the judgment. JUSTICE BRENNAN, with whom JUSTICE MARSHALL, jin, dissenting, In Blackiedge v. Perry, 417 U-8. 21 (1974), this Court held that the Due Process Cause prohibits a prosecutor from responding, Page 457U. 8.387 tothe defendants invocation ofhis statutory right total de novo by bringing more serious charges against him that arse out ofthe same conduct. In the ease before us, the prosecutor responded tothe defendant's invocation of his statutory and constitutional eight toa trial by jury by ralsing petty offenses to felony charges based the same conduct. Yet the Court hols, in the teeth of Blackledge, that ere there i no denial of due prooess. In my View, Blackledge requires afirmance ofthe Court of Appeals, and the Court's attempt to distinguish that case from the present one is completely unpersuasive, ‘The salient facts of this ease are quite simple. Respondent was originally charged with several petty offenses and misdemeanors ~ speeding, reckless driving, fling to give aid atthe seene ofan accident, fleeing from a police oficer, and assault by striking a police offer - arising from his conduct onthe Baltimore-Washington Parkway Assuming that respondent had been convicted on every count charged in this orignal complaint, the maximum. punishment to which he conceivably ould have been exposed was fine of $3,500 and 28 months in prison [ootnote 2/11 Because all ofthe charges against respondent were petty offenses or misdemeanors, they were selieduled for trial before a magistrate, see 28 U.S.C. § 636(a)9); 18 U.SC.§ 3401(a), who was not authorized to Page 457 U.S. 988 conduct jury tral, see ante at 457 U.S. 971, In addition, the case was assigned toa prosecutor who, wing to inexperience, wes not even authorized to try felony cases. Thus the Government recognized that respondent's alleged crimes were relatively minor, and attempted to dispose of them in an expedited manner. But respondent frustrated this attempt at summary justice by demanding a jury tril in Federal District Court. This was his right, ofcourse, not only under the applicable statute, 18 US.C.§ 2401(b), ut also under the Constitution. [Footnote 2/2] Respondent's demand require thatthe case be transfered from the Magistrates Court in Hyattsville tothe District Court in Halkimore, and thatthe prosecution be reassigned to an Assistant United States Attorney, who was authorized to prosecute cases in the Distret Court. The new prosecutor sought and obtained a second, four-count indictment, in which the same conduct originlly charged as petty offense and misdemeanor counts was now charged as a misdemeanor and two felonies: assaulting, resisting, o impeding a federal officer witha deadly weapon, and assauit with a dangerous weapon. If we assume (2s before) that respondent was convicted on all of these charges, his maximum exposure to punishment had now become fines of $13,500 and 15 years in prison, [Footnote 2/3} Responden’s clam below was that such Page 457 U.8.989 an elevation ofthe charges aginst him from petty offenses to felonies, follwing his exercise of his statutory and constitutional right to a jury tral, reflected prosecutorial vindictiveness that denied him due process of lw. ‘The Court attempis to denigrate respondent's claim by asserting that this case “involves presumption," ante at 4457 U.S. 369, and by arguing that "there is no evidence in this case that could give rise toa claim of actual vindictiveness," ante at 457 U.S. 380 (emphasis in origina. By casting respondent’ claim in terms of a"mere™ legal presumption, the Court hopes to make that claim appear tobe unreal or technica. But such an approach is contrary tothe leter and spire of Blackledge. There we focused upon the accused's “apprehension of retaliatory motivation,” 417 US. at 417 U.S. 28, and we held that the Due Process Clause is violated when ‘tuations involving increased punishment "pose a realistic ikelinod of vindictiveness," id. at 4r7 U.S. 27. In such situations, the eriminal defendant's apprehension of retaliatory motivation does not amount to an unreal or technical violation of his constitutional rights. On the contrary as we recognized in North Carolina v. Pearce, 1395 U.S. 721, 395 US. 725 (1960), “the fear of such vindictiveness may unconstitutional deter a defendant's exercise” of his rights ‘The Court does not contend that Blackledge is inapplicable to instances of pretrial as well as post-trial ‘vindictiveness, But after examining the reord before us for objective indications of such vindtiveness the Court concludes, ante at 457 U.S. 388, that "a presumption of vindietivenesss not warranted in this case.” With all respect, I disagree both withthe Court's conclusion and with is reasoning. In my view, the question here is not ‘ne of presumptions." Rather, I would analyze respondent's claim inthe terms employed by our precedents. Did the elevation of the charges against respondent "pose a realistic ikehood of vindictiveness?” See Blackledge v Perry, 417 US. at 417 U.S. 27. Ist possible that "the fear of such vinetiveness may unconstitutonally deter” a ‘person in respondents position from exeresing his statutory and Page 457U.$.390 constitutional right toa jury tial? See North Carolina v. Pearce, supra, at 395 U. $.725. The answer to these ‘questions is plainly "Yes." ‘The Court suggests, ante at 457 U.S. 389, thatthe distinction between a bench tral anda jury tral is unimportant Inthis context, Such a suggestion is demonstrably fallacious. Experienced erininal practitioners, for both prosecution and defense, know that a jury tal ental far more prosecutorial work than a bench cal, Defense hullenges tothe potential juror array, voir dir examination of potential jurors, and suppression hearings all take pa prosecutor's time before a jury trial, adding to his scheduling difiulties and caseload, More cae in the preparation of his requested instruction, of his witnesses, and ofhis own remarks is necessary inorder to void mistrial or reversible error. And there i always the specter of the Vitratonal” acquittal by a jury that is ‘unreviewable on appeal. Thus itis simply inconceivable that aeriminal defendant’ lection tobe tried by jury ‘would be a matter of indifference tohis prosecutor. On the contrary the prosecutor would almost alway’ prefer thatthe defendant waive sucha "troublesome" right. Andif the defendant refuses to do so, the prosecutor's subsequent elevation ofthe charges against the defendant manifestly pots a realistic Hkelhood of vindictiveness ‘The truth ofmy condusion, andthe patent fllacy of the Court's particularly evident on the record before us. ‘The practical effect of respondent's demand fora jury tral was that the Government had to transfer the ese fom ‘atrial before a Magistrate in Hyattsville toa tral befae a Distriet Judge and jury in Halimore, and ad to substitute one prosecutor for another. The Government thus suffered not only administrative inconvenience; it also lst the value of the preparation and services ofthe fist prosecutor, and was forced to commit a second, prosecutor to prepare the case from scratch, Thus, just a in Blackledge, respondent's election Page 457 U.S. 391 had the effect of leary requiring) increased expenditures of prosecutorial resources before the defendant's conviction” could nally be achieved. 417 US. at 417 U. 8.27. And, to paraphrase Blackledge,"if the prosecutor has the means readily at hand to dseourage such [elections] by ‘upping the ante through a felony indictment... - the State can insure that only the most hardy defendants will brave the hazards of Gury] ria” (Fiat 427 U.S. 27-28. I conclude thatthe facts ofthis case easly support the inference of "a realistic Hkelhod cof vindictiveness. ‘The Court discusses Bordenkircher v. Hayes, 494 U.S.357 (1978), ane at 457 U.S. 377-380, and suggests some analogy between that case and the present one, ante at 457 U.S. 980. In my view, such an analogy i quite inapt. Bordenkircher dealt only withthe context of plea bargaining and with the narrow situation in Which the prosecutor “openly presented the defendant with the unpleasant alternatives of forgoing trial or facing (increased) charges.” 434 US.at 434 U.S. 965. Bordenkircher did not remotely suggest that a pretrial increase in charges, made as 8 response toa demand for jury tral, would not present a realistic iklihood of vindictiveness when the demand put the prosecution to an added burden such as that imposed inthis case. Indeed, Bordenkincher expressly distinguished its fact from those in Blackledge and Pearce: "in those cases the Court was dealing with the State's unilateral imposition of penalty upon a defendant who had chosen to exercises legal right ...--astuation very diferent from the give-and-take negotiation esmmon in ples Dergaining..." 434 US. ot 434 U.S. 362, quoting Parker v. North Carolina, 397 U. $.790, 397 U.S. 809 (1970). The facts inthis case plainly fit within the pattern of Pearce and Blackledge, not of Bordenkivcher. There was no ongoing "give- and-take negotiation” between respondent and the Government, and there Page 457.8. 398 ra the “unilateral imposition of pealy”in response to respondent's choie "to exercise a legal right” Because seems cleat tome that lackede request 1 would afm the judgment af the Cour of Appeal (Footnote 2/11 ‘Two counts of speeding” and one evunt of reckless diving,” in voltion of 36 CFR 6§ 50.21, 50.32 (1981), are each punishable by fines of ot more than $500, or impesonment for not more than sic months, or both, 36 CFR § '50.5(@) (1981). One count of "ailing to ive aid atthe scene ofan accident,” in Violation of 18 USC. 88 7,13, MaTransp Cae Ann, §§ 20-102, 20-104 (1977), punishable by a fine of not more than $3,000, Imprisonment for not more than four months, or both, 8§ 27-101(0)(12),(14).One count of "een from a police fice," violation of 18 U.S.C $87, 13, Md:Transp Code Ann, § 21-904 (1977), punishable by a fie of not ‘mare than $500, §27-101(b). One ent of assault by striking” a pole officer, in violation of 18 US.C.§ 11360, i punishable bya fine of nat more then $500, or imprisonment for not more than sic months, or bot. [Footnote 2/2} ‘See District of Columbia v, Colts, 282 U.S, 63, 282 U. 8. 73-74 (1990); United States v. Hamdan, 552 F.2d 276, 278-280 (CAg 1977); United States v. Sanchez- Meza, 547 F.2d 461, 464-465 (CA9 1976); United States v. Potvin, 481 F.2d 380, 381-383 (CA10 1973). [Pootnote 2/3) "Ascaulting, resisting or impeding” a federal officer with a deadly weapon, in violation of 18 US.C. 8.411, i punishable bya fine of not more than $10,000, or imprisonment for not more than 10 years, or both "Assault with a dangerous weapon,” in violation of 8 US. §113(¢), is punishable by afine of not mare than $1,000, or imprisonment for not more than five years, or both, A third count inthe new indictment was "fleeing from a pice ‘ofice," in violation of 8 US. $87, 13, MA‘Transp Code Ann, § 21-904 (1977), which fs punishable bya fine of ‘ot more than $500, §27-101(b). The fourth count of the indictment was "falure to appear," in violation of 18 USC $50.Materials Oral Arguments Oral Argument - April 21, 982 Search This Case Google Scholar Google Books Google Web Google News Chicago, Mlinois Lawyers Sponsored Listings| Andy Hale (312) 341-9646 (ii Rigs, Personal nary