United States v. Agustin Gallegos-Curiel

This case requires us to examine a ruling based on the claim of vindictive prosecution. The district court dismissed a felony indictment for illegal entry on the ground of presumed vindictiveness because the indictment followed entry of a not guilty plea to a misdemeanor charge at an initial appearance before the magistrate. The Government appeals. We reverse.

In accordance with a long-standing agreement between the Immigration and Naturalization Service (“INS”) and the Arizona United States Attorney, designed for a heavy volume of illegal entry cases, INS has the authority to file misdemeanor illegal entry complaints for later prosecution by the U.S. Attorney. Felony complaints for illegal entry, though, require prior approval by the U.S. Attorney.

On March 1, 1981, immigration agents apprehended Gallegos-Curiel, the appellee here, for entering the country illegally. The next day an immigration agent prepared and filed a complaint charging appellee with misdemeanor illegal entry under 8 U.S.C. § 1325 (1976), and presented appel-lee before a magistrate, with counsel. Ap-pellee entered a plea of not guilty at the initial appearance.

When the U.S. Attorney’s office received the…