UNITED STATES OF AMERICA, PETITIONER V. CHRISTINE MEYER, ET AL. No. 87-730 In the Supreme Court of the United States October Term, 1987 The Solicitor General, on behalf of the United States, petitions for a writ of certiorari to review the judgment of the United States Court of Appeals for the District of Columbia Circuit in this case. Petition for a Writ of Certiorari to the United States Court of Appeals for the District of Columbia Circuit PARTIES TO THE PROCEEDINGS Petitioner is the United States of America. Appellees in the court of appeals and respondents in this Court are Christine A. Meyer, Theresa Fitzgibbon, Norman C. Jimerson, Angela J. Keefe, Susan J. Blake, Jo Ellen Childers, Kitty Fives, Julie L. Sinai, Richard Spener, Lisa Tarver, Mindy Washington, Maria R. Conners, Jeanne Marie Walsh, Judith Hand, Robert G. Coleman, Margaret E. DeColigny, Wallie H. Mason, Edward R. Rauber, Mary S. Dailey, Virginia Senders, Joan E. Whitney, Judith Hearn, Teri K. Galvin, Cheryl L. Hughes, Margaret Arteago, Carol L. Bellin, Marguerite Toll, Renata E. Eustis, Martin G. Weiner, Dawn M. Cook, Marjorie N. Van Clief, Jacob Weinstein, Carol J. Chappell, Richard Deyo, Ann Marie Eisenberg, and Kevin Raymond Reilly. TABLE OF CONTENTS Questions Presented Parties to the Proceedings Opinions below Jurisdiction Statement Reasons for granting the petition Conclusion OPINIONS BELOW The opinion of the court of appeals (App., infra, 1a-15a) is reported at 810 F.2d 1242. The opinions accompanying the vacatur of the order granting rehearing en banc and the denial of rehearing (App., infra, 16a-50a) are reported at 824 F.2d 1240. The bench ruling of the district court granting respondents' motion to dismiss the informations (App., infra, 51a-54a) is unreported. The opinion of the district court denying the government's motion for reconsideration (App., infra, 55a-57a) is reported at 664 F. Supp. 550. JURISDICTION The judgment of the court of appeals (App., infra, 58a-59a) was entered on February 13, 1987. A petition for rehearing was denied on July 31, 1987 (App., infra, 63a). /1/ On September 22, 1987, the Chief Justice entered an order extending the time within which to file a petition for a writ of certiorari to and including October 29, 1987. The jurisdiction of this Court rests on 28 U.S.C. 1254(1). QUESTION PRESENTED 1. Whether a presumption of vindictiveness can attach to a prosecutor's decision to increase the charges against a defendant prior to trial. 2. Whether a district court may dismiss a charge that is untainted by any allegation of vindictiveness in connection with a separate charge. STATEMENT 1. On April 22, 1985, United States Park Service police officers issued citations to approximately 200 persons who were demonstrating outside the White House. Each citation alleged a violation of 36 C.F.R. 50.19 (1985), which makes it a misdemeanor to demonstrate on national park grounds without a permit. That offense carried a maximum penalty of six months' imprisonment and a $500 fine (36 C.F.R. 50.5(d) (1985)). Some of the demonstrators posted and forfeited $50 collateral in full satisfaction of the charge. /2/ Others decided to contest their citations in court. On the date of arraignment, the prosecutor filed two-count informations against most of the remaining demonstrators, including respondents. The informations charged each of the defendants with one count of demonstrating without a permit, in violation of 36 C.F.R. 50.19, and one count of obstructing sidewalks adjacent to the White House, in violation of 36 C.F.R. 50.30 (1985). The second count, like the first, carried a maximum penalty of six months' imprisonment and a $500 fine (36 C.F.R. 50.5(a) (1985)). Most of the defendants then entered please of not guilty to both counts of the informations. A small number, however, pleaded no contest to a single charge of demonstrating without a permit. They were sentenced to brief terms of unsupervised probation. The remaining count of obstructing the sidewalk was dismissed against those defendants. The defendants who entered pleas of not guilty were ordered to return for trial on September 11, 1985. 2. On that date, respondents moved to dismiss the informations on the ground of prosecutorial "vindictiveness," i.e., that the government added the second misdemeanor charge to punish respondents for choosing to stand trial, rather than forfeiting collateral. At the outset of the district court's hearing on the motion, the prosecutor moved to dismiss the charge of obstructing the sidewalks in order to avoid the need for a jury trial. The district court granted the motion (9/11/85 Tr. 3). Respondents, however, contended that they were entitled to a dismissal of both charges against them because of the alleged vindictiveness of the prosecutor in bringing the second charge after they had insisted on a trial (id. at 14-38). Respondents claimed that they had no notice that the prosecutor would add a new charge if they refused to plead guilty and went to trial. Respondents also alleged that they had not been informed that they could forfeit the $50 collateral and terminate the case at any time (9/11/85 Tr. 15, 17). Finally, respondents asserted that the prosecutor added the second misdemeanor charge simply to "coerc(e) or pressur(e) the defendants to enter guilty pleas or to pay the $50 fine(,) with the threat of prosecution and a year of prison behind that should they choose to exercise their right to trial" (id. at 16-17). In response, the prosecutor contended that, under United States v. Goodwin, 457 U.S. 368 (1982), a prosecutor's pretrial decision to increase the charges against a defendant is not presumptively "vindictive" (9/11/85 Tr. 19-20). The prosecutor explained that the government added the second misdemeanor charge after a representative of the United States Attorney's office first examined the case, which occurred only after respondents had been arrested on the initial misdemeanor charge and had decided to stand trial (id. at 21). /3/ Lastly, the prosecutor stated that "the offer for individuals to forfeit the $50 collateral remains open to today up to the beginning of trial and has remained open throughout" (id. at 21). The district court granted the motion to dismiss, ruling that the government's decision to add a second charge was vindictive because it was made without giving respondents any notice (App., infra, 51a-54a). As the district court put it, "to this Court it's a clear indication that in the exercise of your right to have a jury trial, the government upped the ante, as far as the government is concerned, with no notice, no consultation, with no opportunity for you to make an election" (id. at 54a). The district court reiterated that conclusion in a later order denying the government's motion for reconsideration (id. at 55a-57a). 3. The government appealed the district court's ruling, and the court of appeals affirmed (App., infra, 1a-15a). The court declined to decide whether the prosecutor who filed the second misdemeanor charge against respondents was actually motivated by vindictiveness (id. at 6a). Instead, the court concluded that a presumption of vindictiveness was justified, for several reasons (id. at 7a-14a). First, the court found that "the most important" factor justifying a presumption of vindictiveness was that the government treated differently those demonstrators who chose to forfeit collateral and those who chose to stand trial, since only persons in the latter group were charged with two misdemeanors (App., infra, 8a). Second, the court stated that the simplicity of the facts underlying the charges and the complexity of the legal arguments that respondents could assert in their defense justified a presumption that the prosecutor had increased the charges solely because respondents elected to stand trial (id. at 9a). Third, the prosecutor's decision to drop the second charge against respondents once they chose to stand trial manifested, in the court of appeals' view, "a disturbing willingness to toy with the defendants" (id. at 10a). Finally, the court concluded that the prosecutor had a motive for acting vindictively. Because many of the demonstrators had expressed an intention to contest the charges on First Amendment grounds, the court stated, "(t)he government had a strong incentive to try to keep clear of this courtroom morass" and "to avoid the annoyance and expense of prosecuting these minor cases at a potentially drawn-out trial" (ibid). The court therefore concluded that it was appropriate to presume that the prosecutor had acted vindictively and to shift to him the burden of going forward to show that his conduct was not the product of vindictiveness. Because the government made no attempt, in the court's view, to rebut the presumption of vindictiveness, the court upheld the district court's conclusion that the government had acted vindictively (id. at 10a-13a). The court of appeals also upheld the district court's remedy -- dismissal of the original misdemeanor charge -- even though the original charge was untainted by any allegation of prosecutorial vindictiveness (App., infra, 13a-15a). The court held that a district court may dismiss an untainted charge in order to deter prosecutors from acting vindictively in the future (id. at 14a). 4. The court of appeals granted the government's suggestion for rehearing en banc, but the court later vacated that order and reinstated the panel opinion (App., infra 22a). Five judges dissented from the order vacating the decision to rehear the case en banc (id. at 41a-48a (opinion of Bork, J.)). REASONS FOR GRANTING THE PETITION Because it affects the traditional independence of the prosecutor to select charges and decide what plea dispositions to accept, the doctrine of vindictive prosecution has been restricted to cases in which there has been a compelling need for judicial intervention. By applying a presumption of vindictiveness to a prosecutor's pretrial charging decision, the court of appeals has extended the doctrine of vindictive prosecution well beyond the limits established by this Court. The court of appeals' decision is contrary to this Court's precedents in three respects. First, the court of appeals' holding that the prosecutor's action was presumptively invalid cannot be reconciled with this Court's 1982 decision in United States v. Goodwin, 457 U.S. 368, in which the Court refused to adopt any such presumption in the context of a pretrial increase in charges. Second, by ignoring the fact that respondents were free to forfeit $50 collateral on the original misdemeanor charge and thereby end the case, the court of appeals failed even to consider this Court's decisions that a prosecutor does not act vindictively when he does no more than present a defendant with the alternatives of pleading guilty to a lesser offense or standing trial on an enhanced charge. Bordenkircher v. Hayes, 434 U.S. 357 (1978); Corbitt v. New Jersey, 439 U.S. 212 (1978). Third, by upholding the dismissal of the original, untainted misdemeanor charge solely to deter other prosecutors from acting vindictively, the court of appeals confused the question whether the prosecutor was culpable with the question whether respondents were prejudiced by the prosecutor's actions. The court of appeals thus endorsed a sanction that conflicts with the one this Court has approved for cases of prosecutorial vindictiveness (Blackledge v. Perry, 417 U.S. 21, 31 n.8 (1974)) and that is inconsistent with "the general rule that remedies should be tailored to the injury suffered from the constitutional violation and should not unnecessarily infringe on competing interests" (United States v. Morrison, 449 U.S. 361, 364 (1981)). 1. a. In United States v. Goodwin, Supra, the defendant was charged by a police officer with several misdemeanors and petty offenses, and the case was initially handled by a prosecutor with limited authority. Plea negotiations broke down, and the defendant demanded a jury trial. The case was then transferred to another prosecutor, who added a felony charge after reviewing the case. The court of appeals believed that this series of events justified a presumption that the new charge was added to punish the defendant for exercising his right to a jury trial. This court reversed. The court rejected the claim that a prosecutor's decision to increase charges against a defendant before trial is presumptively unlawful even if the defendant demands a jury trial. 457 U.S. at 380-384. Thus, "the mere fact that a defendant refuses to plead guilty and forces the government to prove its case is insufficient to warrant a presumption that subsequent changes in the charging decision are unjustified" (id. at 382-383). That is true, the Court explained, because "(t)he possibility that a prosecutor would respond to a defendant's pretrial demand for a jury trial by brining charges not in the public interest that could be explained only as a penalty imposed on the defendant is so unlikely that a presumption of vindictiveness is certainly not warranted" (id. at 384 (emphasis in original)). In that setting, the Court held, the defendant may obtain relief only by proving actual vindictiveness, i.e., "that the prosecutor's charging decision was motivated by a desire to punish him for doing something that the law plainly allowed him to do" (id. at 384). This Court has recently reaffirmed the principle of Goodwin, that a prosecutor's decision to increase the charges against a defendant is presumptively valid even if the increase comes after the defendant has exercised some legal right. See Thigpen v. Roberts, 468 U.S. 27, 30 n.4 (1984) (the "presumption (of vindictiveness) does not apply when charges are enhanced following a pretrial demand for a jury trial"); Wasman v. United States, 468 U.S. 559, 568 (1984) (plurality opinion). Other courts of appeals that have addressed the issue since Goodwin have likewise found the presumption of vindictiveness inapplicable to pretrial charging decisions. See United States v. Oliver, 787 F.2d 124, 126 n.1 (3d Cir. 1986); United States v. Martinez, 785 F.2d 663, 668-669 (9th Cir. 1986); United States v. Gallegos-Curiel, 681 F.2d 1164 (9th Cir. 1982). The court of appeals disregarded this principle. According to the court of appeals, the Court in Goodwin did not mean to hold that the presumption of vindictiveness is generally inapplicable in the pretrial setting, but only that it is inapplicable to cases identical to Goodwin. Slight changes in the circumstances, the court of appeals held, can require the invocation of the presumption even in the pretrial context (App., infra, 8a-10a; id. at 30a (opinion of Mikva, J.)). That proposition finds no support in the Goodwin decision. Goodwin did not suggest that the applicability of the presumption of vindictiveness turns on the precise facts of each case. On the contrary, because of the circumstances common to the pretrial stage of all cases, the Court in Goodwin concluded that the presumption of vindictiveness should not be applied in the pretrial stage at all. See 457 U.S. at 381-384. b. In any event, the distinctions drawn by the court of appeals between this case and Goodwin are not persuasive, and do not justify finding the prosecutor's charging decision in this case to be vindictive. The "most important" reason for invoking the presumption of vindictiveness, according to the court of appeals, was that the government treated the demonstrators who decided to stand trial differently from those who forfeited the $50 collateral (App., infra, 8a). Yet that difference in treatment was due to the fact that the other demonstrators forfeited collateral or pleaded no contest pursuant to a form of plea bargaining codified by rule of court. That difference is an inevitable (and permissible) result of plea bargaining and raises no due process issue. In Corbitt v. New Jersey, 439 U.S. at 223-224, this Court held that a variance in the penalties received by different defendants does not give rise to a presumption that one who receives a more severe punishment has been a victim of retaliation when the difference stems from plea bargaining. The proposition embraced by the court of appeals is not significantly different from the one this Court rejected in Corbitt. The court of appeals also found (App., infra, 9a) that "(t)he simplicity and clarity of both the facts and law" relevant to the case gave rise to a suspicion that the prosecutor added the new misdemeanor charge for the purpose of retaliation. That conclusion ignores the fact that no prosecutor had undertaken any legal analysis of the case until respondents declined to forfeit collateral and their cases were referred to the United States Attorney. Goodwin refused to bind the government to the charging decision made by a lawyer who lacked authority to indict or try a felony prosecution. It necessarily follows that the government should not be bound by the charging decision made by an arresting police officer. /4/ The court of appeals also emphasized the fact that the prosecutor sought to dismiss the additional misdemeanor charge once the district court concluded that respondents were entitled to a jury trial, believing that the prosecutor's action evidenced "a disturbing willingness to toy with the defendants" (App., infra, 10a). Yet there is nothing improper in a prosecutor's judgment that a case is not sufficiently serious to warrant the additional commitment of resources necessary for a jury trial. That judgment, made every day by prosecutors, is a proper exercise of prosecutorial discretion. The decision to dismiss a count rather than needlessly to spend additional resources hardly supports a finding that the earlier decision to add the charge was retaliatory. 2. The court of appeals' decision was wrong for a second reason as well. Even after the prosecutor added the second charge, each respondent had the opportunity to forfeit the $50 collateral in full satisfaction of the charges and thereby avoid any risk of suffering a more severe penalty following a trial. The prosecutor made clear during the hearing on respondents' motion to dismiss that each respondent could forfeit collateral, as was noted on the original citations, and end the case (9/11/85 Tr. 21). /5/ Thus, even if respondents were correct that the prosecutor added the second misdemeanor charge to "coerc(e) or pressur(e)" them to forfeit collateral rather than to stand trial (id. at 16-17), respondents would be entitled to no relief. The Court's decision in Bordenkircher v. Hayes, supra, makes clear that a prosecutor does not act unlawfully if he brings additional charges against a defendant to encourage him to plead guilty to a lesser offense. /6/ Accordingly, neither the reason underlying the prosecutor's exercise of charging discretion, nor the fact that he "openly presented the defendant with the unpleasant alternatives of forgoing trial or facing charges on which he was plainly subject to prosecution," violated due process. Bordenkircher, 434 U.S. at 364-365; see also Goodwin, 457 U.S. at 378-379 & n.10. Once again, every other court of appeals that has addressed the issue has found it lawful for the prosecution to employ such pressures as part of the give and take of plea bargaining. People of the Territory of Guam v. Fegurgur, 800 F.2d 1470, 1473 (9th Cir. 1986), cert. denied, No. 86-1194 (Mar. 23, 1987); United States v. Oliver, 787 F.2d 124 (3d Cir. 1986); Luna v. Black, 772 F.2d 448 (8th Cir. 1985); United States v. Cole, 755 F.2d 748 (11th Cir. 1985). /7/ 3. The court of appeals also was fundamentally wrong in upholding the dismissal of the original misdemeanor charge lodged by the Park Police, a charge that was untainted by any allegation of vindictiveness. The court of appeals reasoned that there must be some penalty for the improper addition of a charge, and that the trial judge had the discretion to dismiss the original charge in order to deter such conduct by other government lawyers. The fact that respondents could claim no illegality in the original charge, or any prejudice in defending against it traceable to the misconduct, the court held, was inconsequential. That ruling was plainly in error. "(T)he touchstone of due process analysis in cases of alleged prosecutorial misconduct is the fairness of the trial, not the culpability of the prosecutor." Smith v. Phillips, 455 U.S. 209, 219 (1982). As Judge Bork explained below (App., infra, 47a-48a), there is no valid reason that respondents should be given immunity on valid charges because of misconduct by the prosecutor concerning another charge that did not impair their defense to the original misdemeanor count. This Court made clear in United States v. Morrison, 449 U.S. at 365 (footnote omitted), that "absent demonstrable prejudice, or substantial threat thereof, dismissal of the indictment is plainly inappropriate, even though the violation may have been deliberate." As the Court explained (id. at 364), "Sixth Amendment deprivations are subject to the general rule that remedies should be tailored to the injury suffered from the constitutional violation and should not unnecessarily infringe on competing interests." Cf. United States v. Payner, 447 U.S. 727 (1980) (district courts lack supervisory power to violate a defendant's constitutional rights); United States v. Mitchell, 322 U.S. 65, 70-71 (1944) (courts' inherent power to "shap(e) rules of evidence relates to the propriety of admitting evidence" and "is not to be used as an indirect mode of disciplining misconduct"). In addition to being inconsistent with the principles of Morrison, the court of appeals' ruling conflicts with this Court's decision in Blackledge v. Perry, supra. In Blackledge, this Court made clear that the presumption of vindictiveness adopted in that case would not provide a defendant with immunity from prosecution, as the dissent feared (417 U.S. at 39 (Rehnquist, J., dissenting)). "Contrary to the dissenting opinion, our decision today does not 'assure that no penalty will be imposed' on respondent. * * * While the Due Process Clause * * * bars trial of Perry on the felony assult charges in the Superior Court, North Carolina is wholly free to conduct a trial de novo in the Superior Court on the original misdemeanor assault charge." Id. at 31 n.8. The Ninth and Sixth Circuit subsequently followed Blackledge on that point, and the decision of those courts therefore also conflict with the decision of the court of appeals in this case. In United States v. Hollywood Motor Car Co., 646 F.2d 384 (9th Cir. 1981), rev'd on other grounds, 458 U.S. 263 (1982), the defendant advanced the same argument that the court of appeals accepted in this case: that all of the counts in an indictment, tainted and untainted alike, must be dismissed once the government has acted vindictively, since allowing the government to proceed on the original charges would undermine the deterrent effect of the prohibition against prosecutorial vindictiveness. The Ninth Circuit disagreed. Relying on this Court's decision in United States v. Morrison, supra, the Ninth Circuit ruled that the government could go forward on the original, untainted counts because the defendant had not established "a pattern of recurring violations" necessary before a court could consider whether to dismiss dismiss an indictment. Hollywood Motor Car, 646 F.2d at 389. Similarly, in United States v. Andrews, 633 F.2d 449 (1980) (en banc), cert. denied, 450 U.S. 927 (1981), the Sixth Circuit ruled that "the ordinary remedy" for prosecutorial vindictiveness "is to bar the augmented charge." 633 F.2d at 455. The decision below is flatly inconsistent with the approach endorsed in Blackledge, Hollywood Motor Car, and Andrews, and for that reason as well, it warrants review by this Court. 4. In addition to being inconsistent with this Court's precedents on the subject of vindictive prosecution and the decisions of other courts of appeals that have applied those precedents, the decision of the court of appeals in this case may significantly hamper the functioning of the magistrates' citation system in cases involving mass demonstrations in the District of Columbia (see App., infra, 42a, 48a (opinion of Bork, J.)). The only evidence that respondents adduced to support their due process claim was that some protestors chose to forfeit collateral on a charge listed by an arresting officer, that the cases of other demonstrators who chose to stand trial were forwarded to a prosecutor for his review, and that, after reviewing the case, the prosecutor brought an additional misdemeanor charge against respondents. In Goodwin, this Court put to rest the notion that this sequence of events gives rise to a presumption of vindictiveness. Nonetheless, the court of appeals ruled that the events of this case -- a scenario that is likely to be repeated in other mass protests in the District of Columbia -- dictated a presumption that the prosecutor was vindictively motivated. Unless the court of appeals subsequently treats this decision as nothing more than "a restricted railroad ticket, good for this day and train only" (Smith v. Allwright, 321 U.S. 649, 669 (1944) (Roberts, J., dissenting)), the court's ruling will disrupt the government's ability expeditiously to handle the type of mass demonstrations that are a commonplace in the District of Columbia. /8/ That result would be unfortunate for both the government and defendants. Prosecutors must be able to reassess charging decisions made by the police since "(a) policeman on the scene cannot be expected to assay the evidence with the technical precision of a prosecutor drawing an information." Washington Mobilization Committee v. Cullinane, 566 F.2d 107, 123 (D.C. Cir. 1977). In addition, the fact that some defendants select a summary disposition of charges does not mean that a prosecutor must treat every other defendant in the same way. Newman v. United States, 382 F.2d 479, 481-482 (D.C. Cir. 1967) ("Two persons may have committed what is precisely the same legal offense(,) but the prosecutor is not compelled by law, duty or tradition to treat them the same as to charges."). The alternatives to the present system are also burdensome. The government could forego use of the magistrates' citation system, or at least preclude anyone from forfeiting collateral until a procesutor has reviewed the charges. Obviously, any such procedure would be cumbersome and costly. Permitting petty offenders to dispose of their charges expeditiously by forfeiture of collateral, without prosecutorial review, is a valuable, cost-effective procedure. Moreover, allowing a defendant to terminate a case by immediately forfeiting collateral is advantageous from his perspective, since it permits him to dispose of the charges quickly, without awaiting prosecutorial review and without risking a possible jail sentence. /9/ Accordingly, the procedures for forfeiting collateral should not be encumbered by requiring or encouraging preview of the charges by prosecutors, which is a necessary result of the court of appeals' ruling. The degree to which that ruling undercuts the utility of a system as beneficial as the system of magistrate citations is powerful evidence that the court of appeals' decision is untenable in the first place. CONCLUSION The petition for a writ of certiorari should be granted. The Court may wish to consider summary reversal. Respectfully submitted. CHARLES FRIED Solicitor General WILLIAM F. WELD Assistant Attorney General WILLIAM C. BRYSON Deputy Solicitor General PAUL J. LARKIN, JR. Assistant to the Solicitor General ROBERT J. ERICKSON Attorney OCTOBER 1987 /1/ The panel denied the government's petition for rehearing on April 30, 1987 (App., infra, 60a). On that date, however, the full court of appeals entered an order granting the government's suggestion for rehearing en banc (App., infra, 61a). By an order entered on July 31, 1987, the full court vacated its April 30, 1987, order and reinstated the judgment and panel opinion entered on February 13, 1987 (App., infra, 22a). On July 31, 1987, the panel entered an order again denying the government's petition for rehearing (App., infra, 63a). /2/ Pursuant to Local Rule 3-8(a)(16) (now Rule 505(d)) of the Rules of the United States District Court for the District of Columbia, the magistrates have prescribed $50 as the appropriate fine for disposing of the charge of demonstrating without a permit. That fine is paid by forfeiture of collateral, as permitted by Rule 4 of the Rules of Procedure for the Trial of Misdemeanors Before United States Magistrates, 18 U.S.C. App. at 675. /3/ The prosecutor engaged in the following colloquy with the district court (9/11/85 Tr. 20-21): MR. MC DANIEL (the prosecutor): Your Honor, I would suggest because of the vast number of arrests and the amount of paper work that had to be processed -- THE COURT: If what you say is true, then there would be different charges against different individuals arising out of the additional information. MR. MC DANIEL: Perhaps, your Honor. THE COURT: You knew everything except the details of what the officer would testify to and the confirmation of the alleged misconduct was known at the time that they were given the ticket. MR. MC DANIEL: The facts were known, your Honor. THE COURT: Certainly they were known. MR. MC DANIEL: The recognition of which legal theory the government wished to proceed on was a different matter. That is something that required a certain amount of contemplation and analysis by members of the United States Attorney's Office and that was motivated, I would suggest, solely by a balancing of the societal interests in controlling unruly demonstrations and the relative gravity of this particular offense given its effect upon the community. /4/ There is also no basis for the court of appeals' supposition that the prosecutor who initially examined this case had an "institutional" desire to punish respondents for exercising their rights (App., infra, 11a). No facts are cited to support that assertion, and the only decision cited by the court of appeals, Thigpen v. Roberts, supra, did not involve a prosecutor's pretrial decision to increase the charges against a defendant. The Thigpen case, like Blackledge v. Perry, supra, involved a prosecutor's decision to increase charges against a defendant who sought a trial de novo after he had been convicted. /5/ At the hearing on respondents' motion, the parties disputed whether the prosecutor had renewed the offer to appellees to forfeit the $50 collateral in satisfaction of the charges before the hearing began. There is no dispute, however, that the prosecutor stated at the hearing that respondents had that option. It is therefore clear that, regardless of what transpired before the hearing began, respondents at that point had a choice between pleading guilty and incurring a lesser penalty, or going to trial and facing a more severe penalty (albeit only on the original misdemeanor charge). /6/ Bordenkircher held that due process does not prohibit a prosecutor from carrying out a threat made during plea negotiations to bring additional charges against the accused if he refuses to plead guilty to the original charge and demands a trial. 434 U.S. at 363-365. The Court explained that, by approving and encouraging the practice of plea bargaining, it had endorsed as legitimate a prosecutor's decision to exercise charging discretion in order to encourage a defendant to plead guilty. Id. at 363. See Goodwin, 457 U.S. at 378 (cases preceding Bordenkircher involving plea bargaining had "accepted as constitutionally legitimate the simply, reality that the prosecutor's interest at the bargaining table is to persuade the defendant to forgo his constitutional right to stand trial"). There is also no material difference, the Court held, between a prosecutor's decision to dismiss the charges originally brought against the defendant in exchange for his entry of a guilty plea, and a prosecutor's decision to add new charges against the defendant if plea negotiations fell apart. Bordenkircher, 434 U.S. at 360-361, 365. /7/ In its effort to distinguish Goodwin, the court of appeals asserted that the prosecutor had a motive for acting vindictively: he might have added the second misdemeanor charge to convince respondents to abandon their First Amendment challenges to this prosecution and to deter other demonstrators from raising similar claims (App., infra, 10a). But increasing the charges against a defendant to induce him to plead guilty rather than to stand trial is precisely what Bordenkircher permits a prosecutor to do. The fact that the effect of a guilty plea would be that respondents would abandon their First Amendment claims does not render Bordenkircher any less applicable. It is therefore irrelevant whether that motivation played any part in the prosecutor's decision. /8/ The court of appeals offered three reasons why its holding may not bind prosecutors in the District of Columbia to all charging decisions of arresting officers, but none of those reasons stands up under analysis. First, the court of appeals stated that "such a holding is limited to the precise circumstances of this case; in other cases, with different facts, the presumption may not lie" (App., infra, 12a). That prediction is unconvincing. The circumstances to which the court of appeals attached significance are likely to be present in virtually every case involving arrests during demonstrations in the District of Columbia. Second, the court of appeals said that the government can always rebut the presumption of vindictiveness (App., infra, 12a). That suggestion is, of course, no justification for adopting an erroneous presumption to begin with. Moreover, the court of appeals' suggestion is more fiction than fact, since the prosecutor offered a legitimate explanation for the second charge (9/11/85 Tr. 21; page 4 note 3, supra), and the court of appeals ignored it. Finally, relying on Bordenkircher, the court of appeals suggested "the possibility" (the court went no further) that the government could note on citation forms that a person will expose himself to enhanced charges if he decides to stand trial (App., infra, 12a-13a). It is hard to believe that the court of appeals, having found that it was improper for the prosecutor to increase the charges against respondents after they requested a jury trial, would allow a prosecutor to strike "foul" blows (Berger v. United States, 295 U.S. 78, 88 (1935)) as long as they are telegraphed in advance. /9/ Cf. United States v. Mills, 472 F.2d 1231, 1239-1241 (D.C. Cir. 1972) (en banc), in which the court of appeals held that the opportunity to post collateral was such a crucial procedural right that a search ancillary to booking, which was conducted without first advising the defendant of his right to post collateral and leave the stationhouse, violated the Fourth Amendment. Accord United States v. Robinson, 471 F.2d 1082, 1101-1103 (D.C. Cir. 1972) (en banc), rev'd on other grounds, 414 U.S. 218 (1973). APPENDIX