Taylor

MEMORANDUM **

Due process protects against vindictive prosecution, Bordenkircher v. Hayes, 434 U.S. 357, 362-63 , 98 S.Ct. 663 , 54 L.Ed.2d 604 (1978), but “a defendant must show either direct evidence of actual vindictiveness or facts that warrant an appearance of such,” United States v. Hernandez, 80 F.3d 1253, 1260-61 (9th Cir.1996), overruled in irrelevant part by Muscarello v. United States, 524 U.S. 125 , 118 S.Ct. 1911 , 141 L.Ed.2d 111 (1998).

The prosecution’s decision to try Taylor separately for two unrelated bouts of criminal activity does not “warrant an appearance” of vindictiveness because the second set of charges was unrelated to the first. See United States v. Martinez, 785 F.2d 663, 669 (9th Cir.1986) (explaining that “[i]f ... the second charge is unrelated to the first, the presumption [of vindictiveness] does not arise” as it would if the prosecution charged related criminal conduct separately). Moreover, the prosecution’s decision did not ultimately harm him because the district court was not constrained in its sentencing decision and had discretion to depart downward if it believed that unfair prejudice resulted from the timing of the indictments. See…