03-1032.006 February 7, 2005

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

UNITED STATES OF AMERICA, )

)

Plaintiff, )

)

 v. ) No. 03 CR 1032 

)

H. MARC WATZMAN, )

)

Defendant. )

MEMORANDUM OPINION AND ORDER

The court has under advisement the defendant’s motion to

dismiss the second superceding indictment for vindictive

prosecution. The theory of his motion is that the second

superceding indictment was returned only after he had refused the

government’s offer to plead guilty to a possession charge carrying

a five-year minimum penalty. The second superceding indictment

contains a new charge of money laundering, Count XI, which

defendant views as possibly involving a sentencing range “in the

vicinity of twenty (20) years.” (Def. Mot. at 5-6.) 

Defendant argues that “[a]dding an additional fifteen years of

sentencing exposure for having the audacity to suggest going to

trial is vindictive prosecution at its most blatant.” Id. at 6.

Language can be found in various cases which would seem to

suggest that adding more serious charges in an effort to induce a

guilty plea to a lesser charge amounts to vindictive prosecution,
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a due process violation. However, the weight of authority is

clearly to the contrary. It is permissible for the prosecution to

use more serious charges as a means of attempting to induce pleas

of guilty to lesser charges (provided, of course, that there is a

basis for the more serious charge). The case of Bordenkircher v.

Hayes, 434 U.S. 357 (1978) involved a fact situation very similar

to the one in this case. During plea negotiations, a Kentucky

prosecutor threatened to have the defendant reindicted on a more

serious (habitual criminal) charge if he did not plead guilty to

the original charge. The defendant refused, was convicted on the

habitual criminal charge and the case wound up before the Supreme

Court on a claim of vindictive prosecution. The similarity of the

cases is highlighted by the following statement:

It is not disputed that the recidivist charge was fully

justified by the evidence, that the prosecutor was in

possession of this evidence at the time of the original

indictment, and that Hayes' refusal to plead guilty to

the original charge was what led to his indictment under

the habitual criminal statute. 

Id. at 359.

The Court rejected the defendant’s claim of vindictive

prosecution and stated:

To hold that the prosecutor's desire to induce a guilty

plea is an "unjustifiable standard," which, like race or

religion, may play no part in his charging decision,

would contradict the very premises that underlie the

concept of plea bargaining itself.
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1/ We will refer to this question again later in this opinion. 

* * * *

We hold only that the course of conduct engaged in by the

prosecutor in this case, which no more than openly

presented the defendant with the unpleasant alternatives

of forgoing trial or facing charges on which he was

plainly subject to prosecution, did not violate the Due

Process Clause of the Fourteenth Amendment. 

Id. at 364-65. 

The Court did place emphasis on the fact that the threat of

the more serious charge was made during the plea negotiations, id.

at 360, whereas in the instant case the second superceding

indictment was returned without notice to the defendant. But we

are unable to see how this should make a difference, assuming the

opportunity to plead to the lesser charge is still open to the

defendant and has not been withdrawn in retaliation for his refusal

of the offer.1

In United States v. Goodwin, 457 U.S. 368 (1982), a

misdemeanor charge was increased to a felony charge after the

defendant made a jury demand. The Supreme Court rejected his claim

of vindictive prosecution and made the following comments:

If a prosecutor could not threaten to bring additional

charges during plea negotiation, and then obtain those

charges when plea negotiation failed, an equally

compelling argument could be made that a prosecutor's

initial charging decision could never be influenced by

what he hoped to gain in the course of plea negotiation.

Whether "additional" charges were brought originally and

dismissed, or merely threatened during plea negotiations,

the prosecutor could be accused of using those charges to
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induce a defendant to forgo his right to stand trial. If

such use of "additional" charges were presumptively

invalid, the institution of plea negotiation could not

survive. Thus, to preserve the plea negotiation process,

with its correspondent advantages for both the defendant

and the State, the Court in Bordenkircher held that

"additional" charges may be used to induce a defendant to

plead guilty. Once that conclusion was accepted, it

necessarily followed that it did not matter whether the

"additional" charges were obtained in the original

indictment or merely threatened in plea negotiations and

obtained once those negotiations broke down. 

Id. at 378-79 n.10.

The defendant admits that he is unable to demonstrate

prosecutorial vindictiveness at the present time but he seeks

discovery from the government in order to establish it. However,

in order to justify discovery the defendant must show a “colorable

basis” for the claim of vindictive prosecution. It must rise

“beyond the level of unsupported allegations.” United States v.

Heidecke, 900 F.2d 1155, 1159 (7th Cir. 1990). All the defendant

has shown is an increase in the charges following his rejection of

an offer to plead guilty to a lesser offense. In light of

Bordenkircher and Goodwin, this is clearly not a colorable basis

for a claim of vindictive prosecution. 

Defendant also seeks an evidentiary hearing. Before that

would be allowed, the defendant would have to make a prima facie

showing of [vindictive prosecution] by “specific, detailed, and

material facts.” United States v. Utecht, 238 F.3d 882, 887 (7th

Cir. 2001). The defendant has not done that, and no evidentiary

hearing would be appropriate at this time. 
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If the defendant were to make a prima facie showing of

vindictive prosecution, then the burden would shift to the

government “to come forward with evidence that the motivation

behind the charges was proper.” United States v. Bullis, 77 F.3d

1553, 1559 (7th Cir. 1996). For that to happen, something other

than increasing the charges to induce a plea of guilty would have

to be shown. Defendant has not suggested anything, but one

possibility occurs to us. If, for instance, the defendant were now

to offer to plead guilty to the lesser charge that carries a fiveyear minimum penalty, and the government were to refuse that offer

and insist on pursuing the money laundering charge, that might

shift the burden to the government to show that the second

superceding indictment was not brought in retaliation for the

defendant’s refusal to plead to the lesser charge. That bridge

will be crossed if and when it is reached. 

CONCLUSION

The defendant’s motion to dismiss the second superceding

indictment for vindictive prosecution, his motion for discovery and

his motion for an evidentiary hearing are all denied.
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DATED: February 7, 2005

ENTER: _________________________________________________

John F. Grady, United States District Judge