FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

No. 06-50049 Plaintiff-Appellant,

D.C. No.

v.  CR-05-00698-RTB

SHARON ANN JENKINS,

OPINION Defendant-Appellee. 

Appeal from the United States District Court

for the Southern District of California

Roger T. Benitez, District Judge, Presiding

Argued and Submitted

February 15, 2007—Pasadena, California

Filed July 17, 2007

Before: William C. Canby, Jr. and Sidney R. Thomas,

Circuit Judges, and Suzanne B. Conlon,* District Judge.

Opinion by Judge Canby;

Partial Dissent by Judge Conlon

*The Honorable Suzanne B. Conlon, Senior United States District

Judge for the Northern District of Illinois, sitting by designation. 

8677
COUNSEL

Bruce R. Castetter, Neville S. Hedley, Assistant United States

Attorneys, San Diego, California, for the plaintiff-appellant.

Martin G. Molina, San Diego, California, for the defendantappellee. 

OPINION

CANBY, Circuit Judge: 

The United States appeals the district court’s dismissal of

an indictment of Sharon Ann Jenkins for alien smuggling. The

ground of dismissal was the appearance of vindictive prosecution. 

Jenkins was apprehended twice for attempting to cross the

U.S.-Mexico border while driving a vehicle containing

undocumented aliens. Both times, Jenkins stated that she had

been paid to drive the car across the border. She was not

charged with any crime. Almost three months later, Jenkins

was apprehended while attempting to cross the border as a

passenger in a vehicle containing marijuana. She stated that

she had been paid to drive the car, which she believed con8680 UNITED STATES v. JENKINS
tained illegal aliens, across the border. Jenkins was charged

with importation of marijuana. At trial, she testified in her

own defense and maintained that she believed the vehicle in

which she had been a passenger contained illegal aliens

because she had been paid on two previous occasions to

smuggle aliens. While the jury was deliberating, the government filed alien smuggling charges against Jenkins in connection with her first two border apprehensions. 

The district court found that the prosecutor’s conduct created the appearance of vindictive prosecution because the

alien smuggling charges were brought only after Jenkins exercised her right to testify in her own defense at her separate

marijuana smuggling trial. We affirm. We conclude that,

because the government could have prosecuted Jenkins for

alien smuggling well before she presented her theory of

defense at the marijuana smuggling trial, the timing of the

charges created the appearance of vindictiveness. The government’s assertion that its case against Jenkins was much

stronger after her in-court admission does not suffice to dispel

the appearance of vindictiveness. We therefore conclude that

the indictment should be dismissed. 

I. Factual and Procedural Background

On October 19, 2004, Sharon Ann Jenkins, a United States

citizen, attempted to enter the United States at the San Ysidro

port of entry, driving a white Mazda. The officer inspecting

her vehicle discovered two non-citizens concealed in the

trunk. When questioned, Jenkins stated that she had been

offered $400 by a man named Pablo in exchange for bringing

the undocumented individuals into the country. 

The next day, Jenkins attempted to enter the United States

driving a Dodge Caravan. The inspecting officer discovered

two non-citizens concealed in the back of the vehicle. Jenkins

was issued Miranda warnings, waived her rights, and stated

that she was driving the vehicle across the border in exchange

UNITED STATES v. JENKINS 8681
for $100 from a man named Pablo. Jenkins said that she did

not know that the car contained illegal aliens, but that she was

aware that it is illegal to transport undocumented individuals

into the United States. The government did not press charges

at that time against Jenkins for the October 19 and October 20

incidents. 

On January 9, 2005, Jenkins attempted to enter the United

States as a passenger in a 1989 Dodge Ram van driven by her

husband. A search of the van uncovered marijuana concealed

in the interior panels, speaker compartment, and radio compartment of the van. Jenkins was given Miranda warnings and

waived her rights. She stated that she had been paid $500 by

a woman named Maria to bring an undocumented alien across

the border, and that she believed the vehicle contained an

undocumented alien. Jenkins also said that she had been paid

by a man named Pablo to smuggle aliens on two previous

occasions, and that she had been apprehended. The agent

interviewing Jenkins on January 9 possessed records detailing

her previous alien smuggling arrests. 

Jenkins was charged with importing marijuana in violation

of 21 U.S.C. §§ 952, 960. At trial on April 6, 2005, Jenkins

testified that she did not know that the van contained marijuana because she believed she was smuggling undocumented

aliens. She stated that she had met Maria, the woman who

paid her to drive across the border on January 9, through

Pablo, the man who previously had hired her to smuggle

aliens. Special Agent Chase testified that when he questioned

Jenkins on January 9, she told him that she had attempted

unsuccessfully to smuggle aliens on two previous occasions.

The jury began deliberation on April 6 but did not reach a

verdict by the end of the day.1 At 4:46 p.m., the government

1The next day, the jury informed the court that it could not reach a

unanimous verdict. Jenkins was retried and convicted, and her conviction

was affirmed on appeal. United States v. Jenkins, 2006 WL 3803372 (9th

Cir. 2006). She is serving a 63-month sentence. 

8682 UNITED STATES v. JENKINS
filed a complaint charging Jenkins with smuggling one of the

undocumented aliens involved in the October 20, 2004, incident. Jenkins subsequently was indicted for smuggling all

four of the individuals involved in the October 19 and 20 incidents. She pled not guilty to the alien smuggling charges. 

Jenkins moved to dismiss the alien smuggling indictment

on the ground of vindictive prosecution, arguing that the

charges were brought only after she elected to testify in her

defense at the marijuana importation trial. The Assistant

United States Attorney who filed the alien smuggling charges

against Jenkins testified at the motion hearing. He conceded

that the United States could have charged Jenkins with alien

smuggling both at the time of her October apprehensions and

at the time that the marijuana charges were filed, but he

asserted that Jenkins’s in-court testimony greatly strengthened

the government’s case. 

The district court granted Jenkins’s motion to dismiss the

indictment. The court noted that the government had been

aware of Jenkins’s alien smuggling activities well before it

decided to file charges, and that Jenkins’s in-court testimony

was not vital to the government’s case. The court explained

that its ruling was a “prophylactic” measure intended to prevent the chilling of a defendant’s ability to take the witness

stand. The government filed an unsuccessful motion for

reconsideration of the district court’s decision. This appeal

followed. 

II. Jurisdiction and Standard of Review

We have jurisdiction under 28 U.S.C. § 1291. The standard

of review of a district court’s decision whether to dismiss an

indictment for vindictive prosecution is unsettled in this circuit. United States v. Hernandez-Herrera, 273 F.3d 1213,

1217 (9th Cir. 2001). We have reviewed vindictive prosecution cases de novo, for abuse of discretion, and for clear error.

Id. 

UNITED STATES v. JENKINS 8683
We conclude that the district court’s decision should be

reviewed de novo because the issue presents a mixed question

of law and fact. The trial court first determines whether the

prosecutor’s course of conduct appears motivated by a desire

to punish the defendant for exercising a legal right. The court

then decides whether the prosecutor has come forth with sufficient evidence to dispel any appearance of vindictiveness.

Because our review of these determinations “requires us to

consider legal concepts in the mix of fact and law,” de novo

review is appropriate. United States v. Martinez, 785 F.2d

663, 666 (9th Cir. 1986) (reviewing vindictive prosecution

claim de novo) (quotations and citation omitted); see also

United States v. Bridges, 344 F.3d 1010, 1014 (9th Cir. 2003)

(motion to dismiss an indictment for improper or outrageous

government conduct is reviewed de novo); United States v.

Fuchs, 218 F.3d 957, 964 (9th Cir. 2000) (decision whether

to dismiss an indictment for prosecutorial misconduct is

reviewed de novo). 

III. Discussion

[1] The government violated Jenkins’s right to due process

of law if it filed the alien smuggling charges to penalize her

for exercising a protected statutory or constitutional right. See

United States v. Goodwin, 457 U.S. 368, 372 (1982). Jenkins

may establish prosecutorial vindictiveness by producing direct

evidence of the prosecutor’s punitive motivation towards her.

See United States v. Gallegos-Curiel, 681 F.2d 1164, 1168

(9th Cir. 1982). Alternatively, she is entitled to a presumption

of vindictiveness if she can show that the alien smuggling

charges “were filed because [she] exercised a statutory, procedural, or constitutional right in circumstances that give rise to

an appearance of vindictiveness.” Id. This case involves the

latter situation, as the record contains no direct evidence of

the government’s improper motivation. Cf. United States v.

Hollywood Motor Car Co., Inc., 646 F.2d 384, 388 (9th Cir.

1981) (finding actual vindictiveness when government threatened to bring additional charges against defendants if they

8684 UNITED STATES v. JENKINS
exercised their right to request change of venue), rev’d on

other grounds, 458 U.S. 263 (1982) (per curiam). 

A. Whether the filing of alien smuggling charges

created the appearance of vindictiveness 

[2] To establish a presumption of vindictiveness, Jenkins

need not show “that the prosecutor acted in bad faith” or that

he “maliciously sought” the alien smuggling indictment.

United States v. Groves, 571 F.2d 450, 453 (9th Cir. 1978);

see also United States v. Ruesga-Martinez, 534 F.2d 1367,

1369 (9th Cir. 1976) (“We do not intend . . . to impugn the

actual motives of the United States Attorney’s office in any

way.”). Rather, she must demonstrate a reasonable likelihood

that the government would not have brought the alien smuggling charges had she not elected to testify at her marijuana

smuggling trial and present her theory of the case. GallegosCuriel, 681 F.2d at 1169 (“[T]he appearance of vindictiveness

results only where, as a practical matter, there is a realistic or

reasonable likelihood of prosecutorial conduct that would not

have occurred but for hostility or a punitive animus towards

the defendant because he has exercised his specific legal

rights.”) (citing Goodwin, 457 U.S. at 373, 384). The mere

appearance of prosecutorial vindictiveness suffices to place

the burden on the government because the doctrine of vindictive prosecution “seeks[s] to reduce or eliminate apprehension

on the part of an accused” that she may be punished for exercising her rights. Ruesga-Martinez, 534 F.2d at 1369. As the

district court noted, the “prophylactic” doctrine is designed, in

part, “to prevent chilling the exercise of [legal] rights by other

defendants who must make their choices under similar circumstances in the future.” United States v. DeMarco, 550

F.2d 1224, 1227 (9th Cir. 1977). 

[3] The case before us presents an unusual situation

because the government’s alien smuggling case essentially

was open and shut even before Jenkins testified in court. The

government’s evidence prior to Jenkins’s in-court confession

UNITED STATES v. JENKINS 8685
included: (1) her October 19 admission that she had been paid

by a man named Pablo to smuggle aliens, (2) her October 20

admission that Pablo had paid her $100 to drive a car across

the border and that she was aware of the illegality of alien

smuggling, and (3) her January 9 admission that she had

smuggled aliens on October 19 and 20 and had been apprehended.2

 Indeed, the government admitted that prior to Jenkins’s testimony it “had enough to go forward, unquestionably,” and that it “could have brought charges earlier on.” In

these circumstances, the government’s decision to press

charges only after Jenkins asserted a reasonably credible

defense to the marijuana importation charges raises, at the

very least, a “reasonable or realistic likelihood” that the government’s decision was motivated by a retaliatory purpose.

We therefore conclude that the government’s conduct created

the appearance of vindictiveness. 

[4] We are sensitive to the government’s concern that the

dismissal of charges resulting from a defendant’s in-court

admission may hamstring prosecutorial efforts. This might be

a different case if the government had not been equipped with

Jenkins’s previous admissions at the time of her in-court testimony. But the government had more than enough evidence to

proceed with the alien smuggling charges prior to Jenkins’s

decision to testify. See Groves, 571 F.2d at 453-54 (finding

appearance of vindictiveness when government knew all of

the facts relating to the second charge against the defendant

at the time the first charge was brought, but only brought the

second charge once the defendant moved to dismiss the first

charge under the Speedy Trial Act). We therefore find it

appropriate to place the burden on the government to justify

its course of conduct. 

2

Jenkins made the second and third statements after being given warnings pursuant to Miranda v. Arizona, 384 U.S. 436 (1966). The police

report describing the first statement does not indicate whether Jenkins was

Mirandized. 

8686 UNITED STATES v. JENKINS
Finally, we reject the government’s argument that, because

the alien smuggling and marijuana importation charges do not

arise out of the same nucleus of operative fact, the doctrine of

vindictive prosecution is inapplicable. The fact that separate

charges brought against a criminal defendant are unrelated to

the pending charge is not “controlling in any case” or “dispositive on the question of vindictiveness”; it is “only one of the

factors bearing on the issue.” Id. at 454; see also United

States v. Robison, 644 F.2d 1270, 1272 (9th Cir. 1981) (relatedness of charges “is neither dispositive nor essential to prove

vindictiveness”) (citations omitted). Moreover, Jenkins maintains that both sets of charges derive from a single course of

conduct: she repeatedly drove vehicles across the border in

exchange for money from associated individuals. The government itself recognizes that it brought the alien smuggling

charges only because Jenkins admitted to them during the

marijuana importation trial. Therefore, to the extent that we

consider the relatedness of charges important to our analysis,

this factor does not foreclose application of the doctrine of

vindictive prosecution. 

B. Whether the government rebutted the presumption

of vindictiveness

[5] The presumption of vindictiveness raised by the prosecutor’s decision to file alien smuggling charges against Jenkins must be overcome by “objective evidence justifying the

prosecutor’s action.” Goodwin, 457 U.S. at 376 n.8. The prosecution must show that the additional charges “did not stem

from a vindictive motive, or [were] justified by independent

reasons or intervening circumstances that dispel the appearance of vindictiveness.” Gallegos-Curiel, 681 F.2d at 1168.3

3

“For example, if the victim of an assault has died since the return of

the first indictment, a subsequent indictment may properly charge the

accused with murder rather than assault.” Ruesga-Martinez, 534 F.2d at

1370 n.4 (citing Blackledge v. Perry, 417 U.S. 21, 29 n.7 (1974). 

UNITED STATES v. JENKINS 8687
[6] The government argues that, even if the content of the

evidence against Jenkins was available all along, the evidence

was stronger once Jenkins testified in court. The Assistant

United States Attorney stated that Jenkins gave the government “no choice but to bring charges” and that “to walk away

from [the opportunity] would be inexcusable.” Although a

confession in open court certainly added to the repertoire of

evidence against Jenkins, we find the government’s explanation unpersuasive. As the district court noted, it was not necessary to wait to file charges until Jenkins took the witness

stand and confessed under oath: “cases for illegal alien smuggling in this district are proven on much less than that.”

Although we are reviewing the issue of vindictive prosecution

de novo, we recognize that the district judge is wellpositioned to relate how cases are usually conducted in his

district. 

[7] We also are unconvinced by the government’s argument

that it brought the alien smuggling charges precisely because

bringing them after trial would have seemed vindictive. From

the moment she was apprehended for smuggling marijuana,

Jenkins maintained that she believed she was smuggling

aliens and pointed to her October apprehensions. There was

no reason for the government to think that she would not continue with this defense at trial. If the government had been

concerned with appearing vindictive, it could have filed the

alien smuggling charges in January, when Jenkins first

asserted that she did not know she was smuggling marijuana.

We therefore conclude that the justifications offered by the

government do not suffice to dispel the appearance of vindictiveness created by the timing of the alien smuggling charges.

IV. Conclusion

For the reasons set forth above, the judgment of the district

court is AFFIRMED.

8688 UNITED STATES v. JENKINS
CONLON, District Judge, dissenting in part: 

I concur in the majority’s statement of jurisdiction, as well

as the conclusion that de novo is the appropriate standard of

review. Whether the circumstances of this case created an

appearance of vindictiveness requires a mixed consideration

of legal principles and the facts of record. United States v.

Martinez, 785 F.2d 663, 666 (9th Cir. U.S. 1986). I respectfully dissent from the majority’s conclusion that the alien

smuggling indictment was properly dismissed by the district

court. 

I. Background

Sharon Ann Jenkins was arrested on January 9, 2005, at the

Otay Mesa port of entry in a Dodge van driven by her husband. Concealed in the van were 118.20 kilograms (more than

260 pounds) of marijuana. Jenkins told a border officer she

believed she was smuggling illegal aliens, and denied knowing there was marijuana in the van. Three months later, she

testified at trial on the drug charges that she believed she and

her husband were smuggling an undocumented alien into the

United States, not drugs. She testified that several months

before the drug arrest, she twice smuggled illegal aliens into

the United States in exchange for money. According to Jenkins, the person providing the Dodge van loaded with marijuana was introduced to her by the person who hired her to

smuggle aliens on two recent occasions, October 19 and 20,

2004. 

Indeed, Jenkins was stopped at the border twice with

undocumented aliens hidden in her vehicle two months before

the drug stop. On both prior occasions, she was questioned,

she admitted she was paid to drive the car across the border,

and she was released. A criminal complaint charging alien

smuggling was not filed against her until later the same day

she testified at her drug trial. The indictment that is the subject of this appeal followed several weeks later. 

UNITED STATES v. JENKINS 8689
II. Dismissal of the Indictment

Jenkins moved to dismiss the indictment relating to alien

smuggling on a vindictive prosecution theory: the government

brought the alien smuggling charges in retaliation for exercising her right to testify at her drug smuggling trial. According

to the district court, the United States had all the information

it needed to prosecute her for alien smuggling when she was

stopped at the border on October 19 and 20, almost five

months earlier. The United States responded that the alien

smuggling charges were initiated only after Jenkins admitted

under oath that on two occasions, she attempted to smuggle

undocumented aliens into the United States for money. The

supervising Assistant United States Attorney, who approved

the alien smuggling charges, testified at the hearing. He

explained to the district court that he approved prosecution

based on the content of Jenkins’ testimony, not her decision

to testify. The decision to prosecute was made when she confessed in detail to those other crimes under oath. The credibility of the prosecutor’s explanation was not questioned by the

court. 

The district court dismissed the indictment because the timing of the alien smuggling charges immediately following

Jenkins’ testimony gave rise to an appearance of vindictiveness. It was the district court’s opinion the government had

sufficient information to prosecute Jenkins without her courtroom confession. (“Cases for illegal alien smuggling in this

district are proven on much less than that”), 163. The court

characterized its decision as “prophylactic” to insure that a

defendant’s right to testify and defend herself is not “chilled.”

At the initial hearing on this issue, the district court stated,

“my ruling should not in any way, shape, or form be construed as casting doubt or indicating that I do not believe government’s counsel, or that I believe that they did anything

improper.” At a later hearing on the government’s motion to

reconsider, the court reiterated that the government did not do

8690 UNITED STATES v. JENKINS
“anything wrong.” But the timing of the alien smuggling

charges did not pass the “smell test” and gave the appearance

of being “coercive.” The sequence of events was the only reason given for finding an appearance of vindictiveness. The

prosecutive importance of Jenkins’ detailed in-court confession to alien smuggling was given no weight. The district

court relied instead on its opinion that the government could

have filed alien smuggling charges when Jenkins was first

detained in October 2004 and admitted the crime. The majority concludes that charges could have been brought when Jenkins was arrested in January 2005 for drug smuggling and

claimed she believed she was smuggling undocumented

aliens. In the view of both the majority and the district court,

the prosecutor’s explanation was insufficient to dispel an

appearance of vindictiveness. 

III. Analysis

A. An appearance of vindictiveness was not

established

Prosecutions are prohibited under circumstances that suggest a realistic likelihood of vindictiveness by the prosecutor.

Blackledge v. Perry, 417 U.S. 21, 27 (1974). There is no suggestion that the prosecutor was actually motivated by vindictiveness or engaged in any improper conduct to punish

Jenkins for testifying at her drug trial. Jenkins successfully

staked her claim on the timing of the alien smuggling charges

immediately after she testified to create an appearance of

retaliation for exercising a constitutional right. 

It is true that Jenkins need not show that the prosecutor

actually acted in bad faith or maliciously. United States v.

Ruesga-Martinez, 534 F.2d 1367, 1369 (9th Cir. 1976). But

the appearance of vindictiveness results only if there is a realistic or reasonable likelihood of retaliatory conduct. United

States v. Gallegos-Curiel, 681 F.2d 1164, 1169 (9th Cir.

1982). Jenkins failed to establish that there was a realistic or

UNITED STATES v. JENKINS 8691
reasonable likelihood that alien smuggling charges were

brought to punish her for taking the witness stand. The district

judge acknowledged that his ruling dismissing the indictment

had “absolutely no relationship to reality.” There was no reasonable basis to conclude the government likely would have

filed alien smuggling charges absent Jenkins’ unequivocal incourt confession to those crimes, just to punish her for taking

the stand. 

B. The government rebutted any appearance of

vindictiveness

There was a clear relationship between Jenkins’ in-court

confession and the ensuing alien smuggling charges. The

prosecutor was entitled to reevaluate his decision to prosecute

Jenkins in light of new information: Jenkins’ confession under

oath. The district court did not question the credibility of the

prosecutor’s explanation for the timing of the charges. There

is no evidence to suggest the prosecutor’s explanation was

pretextual. The district court recognized Jenkins’ in-court

confession was “that last piece of evidence” making a solid

case a “slam dunk” one. Nonetheless, the district court

applied a subjective “smell test” based on timing and its opinion that the government did not really need Jenkins’ in-court

confession to prosecute her. The district court equated the

purported admissions Jenkins made to border officers with her

detailed confession under oath. 

The majority minimizes the value of Jenkins’ in-court confession as merely adding to the repertoire of evidence against

her. However, purported admissions to law enforcement officers may be denied or challenged on a number of grounds,

including voluntariness and accuracy. As the majority notes,

there is no indication Jenkins was given Miranda warnings

before her first statement to law enforcement officers. In contrast, trial testimony under oath is virtually unchallengeable

and easy to present without the necessity of bringing in law

8692 UNITED STATES v. JENKINS
enforcement officers to testify about statements taken on three

different occasions. 

The prosecutor explained that the quality of the alien smuggling evidence against Jenkins became significantly stronger

with her in-court confession. Jenkins’ in-court confession provided an intervening circumstance justifying the alien smuggling charges. Gallegos-Curiel, 681 F.2d at 1168. Any

appearance of vindictiveness was adequately rebutted. 

C. Dismissal of the indictment preempted

prosecutorial discretion

The dismissal of the indictment was predicated on a finding

that the government did not need Jenkins’ in-court confession

to file alien smuggling charges; the charges could have been

filed either when she was apprehended with the aliens, or two

months later when she was stopped with the marijuana and

claimed she thought she was just smuggling aliens again. This

reasoning “second guesses” matters of prosecutorial discretion. The United States Attorney has broad discretion in determining prosecutorial policies and priorities. United States v.

Goodwin, 457 U.S. 368, 380 n. 11 (1982); Bordenkircher v.

Hayes, 434 U.S. 357, 364 (1978). Charging decisions are

“particularly ill-suited to judicial review.” Wayte v. United

States, 470 U.S. 598, 607 (1985). The Supreme Court has

admonished that a prosecution’s deterrence value, and prosecution priorities and plans “are not readily susceptible to the

kind of analysis the courts are competent to undertake.” Id.

The prosecutor is in the best position to evaluate the costs and

benefits of a particular strategy, allocation of resources, evidentiary problems, general or specific deterrence values, and

prosecution priorities. These considerations are all inherent in

the executive branch functions of United States Attorneys.

Substituting the conventional wisdom of judges as to when

charges could or should be filed inappropriately preempts the

prosecutor’s role. 

UNITED STATES v. JENKINS 8693
The Supreme Court has addressed similar issues in selective prosecution cases. In invoking judicial power over the

United States Attorney to preempt an executive function, the

government is presumed to have properly exercised its constitutional responsibilities to enforce the nation’s laws. United

States v. Armstrong, 517 U.S. 456, 463 (1996), quoting Heckler v. Chaney, 470 U.S. 821, 832 (1985). The presumption of

regularity in a prosecutorial decision is strong and must be

overcome with clear evidence. Id. Here, the prosecutor’s

explanation was not accorded a presumption of regularity.

Rather, the majority accepts the district court’s opinion that

Jenkins’ in-court confession was not vital to the government’s

case, so alien smuggling charges could have been filed either

when she was apprehended with illegal aliens, or two months

later when she was apprehended and claimed she thought the

contraband was human, not drugs. 

The doctrine of vindictive prosecution does not diminish

the principle of prosecutorial discretion. United States v. Griffin, 617 F.2d 1342, 1348 (9th Cir. 1980) (“[n]othing in Blackledge presumed to give a defendant a free ride for separate

crimes he may have committed, or to prevent a prosecutor

from bringing new charges as a result of changed or altered

circumstances which properly bear on prosecutorial discretion”). A prosecutor necessarily considers the quality and

strength of evidence in deciding when or whether to prosecute. Here, the prosecutor admittedly had sufficient evidence

to bring alien smuggling charges against Jenkins before she

testified, but he chose not to. His conclusion that Jenkins’ incourt confession greatly strengthened the alien smuggling

case and his decision to file a criminal complaint on these

charges fell within the bounds of prosecutorial discretion. 

I would reverse the dismissal of the indictment. 

8694 UNITED STATES v. JENKINS