United States v. Thomas William Ballester, United States of America v. Richard Thomas McGiffen United States of America v. Daniel Elton Hayes

The denial of appellants’ motion to dismiss on the ground of vindictive prosecution was not error.

I

While, generally, claims of prosecutorial vindictiveness are not reviewable on appeal because they constitute an interlocutory appeal under 28 U.S.C. § 1291 , United States v. Hollywood Motor Car Co., 458 U.S. 263 , 102 S.Ct. 3081 , 73 L.Ed.2d 754 (1982), this appeal is not interlocutory. Appellants have entered conditional guilty pleas and have been sentenced. This court, therefore, possesses appellate jurisdiction.

II

The Government may not either threaten to increase charges in order to discourage a defendant from exercising a statutory or constitutional right or follow through on such a threat. United States v. DeMarco, 550 F.2d 1224, 1227-28 (9th Cir.), cert. denied, 434 U.S. 827 , 98 S.Ct. 105 , 54 L.Ed.2d 85 (1977). The district attorney’s statement that he would refer the matter to federal authorities if appellants persisted in their efforts to gain dismissal of the state indictment did not, however, constitute a threat or an expression of hostility. Instead, the district attorney was simply demonstrating that state dismissal would not terminate the effort to bring…