In the

United States Court of Appeals

For the Seventh Circuit

No. 14-3026

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

BERNARDINO RIBOTA,

Defendant-Appellant.

Appeal from the United States District Court for the 

Northern District of Illinois, Eastern Division.

No. 1:13-cr-00808-1— Amy J. St. Eve, Judge.

ARGUED APRIL 13, 2015 — DECIDED JULY 10, 2015

Before WOOD, Chief Judge, and ROVNER, Circuit Judge, and

SPRINGMANN, District Judge.*

ROVNER, Circuit Judge. In 2002, Bernardino Ribota was

charged with possession of a controlled substance with intent

to distribute and possession of a firearm in furtherance of a

drug trafficking crime, after a search of a residence revealed 25

The Honorable Theresa L. Springmann, United States District Court for

*

the Northern District of Indiana, sitting by designation.
2 No. 14-3026

kilograms of cocaine and two loaded firearms. Ribota was

initially detained pending the posting of $50,000 secured bond,

but once that bond was posted, on January 7, 2003, the magistrate judge ordered him released subject to an order requiring

him to report to Pretrial Services as directed and to confine his

travel within the Northern District of Illinois. Ribota did not

comply with those restrictions, and on January 30, 2003, a

bench warrant was issued after he failed to appear at Pretrial

Services as mandated. Ribota eluded the authorities for more

than nine years, until he was arrested in Denver, Colorado, in

August 2012. A month later, he was arraigned on the 2003

indictment, and in September 2013 he filed a motion in that

criminal case seeking to suppress evidence. 

By that time, the prosecutor pursuing his criminal case was

a different one from the one who had obtained the indictment

in 2002. The prosecutor filed a response to the motion to

suppress agreeing that the seizure of the challenged evidence

had not complied with the Fourth Amendment and the

evidence was therefore inadmissible. Accordingly, the court

granted the motion to suppress on October 2, 2013, and

granted the government’s oral motion to dismiss the indictment on November 21, 2013.

The day after the motion to suppress was granted in that

criminal case, on October 3, 2013, the government charged

Ribota in a two-count indictment with contempt of court in

violation of 18 U.S.C. § 401(3), alleging that Ribota willfully

violated the court order by failing to report to Pretrial Services

and to restrict his travel as required by court order. Ribota then

moved to dismiss that indictment arguing that it was unconstitutional because it was based solely on prosecutorial vindic-
No. 14-3026 3

tiveness. Ribota argues that the prosecutor filed the new

indictment to penalize him for successfully pursuing a motion

to suppress in the original criminal case that thwarted the

ability of the government to successfully prosecute him in that

case. The district court denied the motion, and Ribota appeals

that determination.

A prosecution based solely on vindictiveness, such as one

to penalize a person for pursuing his legal rights, violates the

Due Process Clause of the Constitution. United States v.

Goodwin, 457 U.S. 368, 372 (1982). In assessing such a claim,

however, we are mindful that government prosecutors must

necessarily have wide discretion over whether, how, and when

to bring a case. United States v. Jarrett, 447 F.3d 520, 525 (7th Cir.

2006). The decision whether to prosecute involves consideration of myriad factors such as the enforcement prioritiesof the

office, the determination as to the strength of the case, the

prosecutorialresources available, and the prosecution’sgeneral

deterrence values, and those factors are ill-suited to judicial

review. United States v. Scott, 631 F.3d 401, 406-07 (7th Cir.

2011). “[S]o long as the prosecutor has probable cause to

believe that the accused committed an offense defined by

statute, the decision whether or not to prosecute, and what

charge to file or bring before a grand jury, generally rests

entirely in his discretion.” Bordenkircher v. Hayes, 434 U.S. 357,

364 (1978); Scott, 631 F.3d at 406-07. Moreover, because the

imposition of punishment is the purpose of a criminal proceeding, the mere existence of a punitive motivation is not an

adequate basis of distinguishing proper governmental conduct

from impermissible actions. Goodwin, 457 U.S. at 372-73. 
4 No. 14-3026

Therefore, a defendant alleging prosecutorial animus

“‘must affirmatively show through objective evidence that the

prosecutorial conduct at issue was motivated by some form of

prosecutorial animus, such as a personal stake in the outcome

of the case or an attempt to seek self-vindication.’” United

States v. Falcon, 347 F.3d 1000, 1004 (7th Cir. 2003) quoting

United States v. Bullis, 77 F.3d 1553, 1559 (7th Cir. 1996). Courts

have recognized limited circumstances presenting an inherent

risk of vindictiveness, in which the defendant is entitled to a

rebuttable presumption of vindictiveness. Goodwin, 457 U.S. at

375; Williams v. Bartow, 481 F.3d 492, 502 (7th Cir. 2007); Bullis,

77 F.3d at 1559. For instance, where a defendant successfully

exercised his right to appeal, and the prosecutor on retrial of

the same conduct sought more severe charges andpunishment,

courts have recognized that institutional pressure may subconsciously motivate a vindictive prosecutorial response in such

situations and therefore the presumption of vindictiveness is

appropriate. Goodwin, 457 U.S. at 375-77; Williams, 481 F.3d at

502. Where either that presumption applies, or the defendant

has produced objective evidence of actual vindictiveness, the

burden shifts to the government to come forward with

evidence that the motivation for pursuing the charges was

proper. Bullis, 77 F.3d at 1559. 

Ribota has failed to meet his burden under either path.

First, the procedural context of the charges does not raise the

type of inherent risk of vindictiveness that supports a presumption of vindictiveness. We have not recognized any

circumstances in which a presumption of vindictiveness has

been deemed appropriate regarding events that occurred

before trial. Williams, 481 F.3d at 504; Jarrett, 447 F.3d at 526;
No. 14-3026 5

United States v. Pittman, 642 F.3d 583, 586 (7th Cir. 2011). The

Supreme Court has recognized that there is good reason to be

cautious in applying such a presumption to the pretrial setting.

Goodwin, 457 U.S. at 381. At that stage, the prosecutor is still

engaged in a process of assessing the weight of the evidence

and the charges that can successfully be pursued, as well as

discovering new facts that may alterthat analysis. Id.Although

a prosecutor’s view of the case may not have crystallized at

that point, once a trial begins and certainly once a conviction is

obtained, the prosecutor willhavemade a reasoned determination as to the extent to which the defendant should be prosecuted. Id. A change in the charging decision following a

conviction and successful appeal is therefore much more likely

to be improperly motivated than a pretrial decision. Id.

Moreover, the Court recognized that there is no inherent risk

of vindictiveness raised by the defendant’s pursuit of various

pretrial rights including the right to seek to suppress evidence.

The Court noted that

a defendant before trial is expected to invoke

procedural rights that inevitably impose some

“burden” on the prosecutor. Defense counsel

routinely file pretrial motions to suppress evidence; to challenge the sufficiency and form of

an indictment; to plead an affirmative defense

... . It is unrealistic to assume that a prosecutor’s

probable response to such motions is to seek to

penalize and to deter.

Id. Here, the prosecutor’s agreement to the suppression of the

evidence illustrates the type of ongoing analysis of the case and
6 No. 14-3026

the appropriate charges that is inherent in the pretrial process,

and which properly falls within the discretion of the prosecutor. A decision to abandon one charge in favor of other charges

at that stage is an expected part of that process of discernment. 

Moreover, the spectre of vindictiveness is lacking where the

challenged charge is independent of the one that formed the

basis of the exercise of the legal right. Ribota filed the motion

to suppress in a drug and gun case. The challenged contempt

charge, however, did not involve the same conduct as that

case. Where a more severe charge is filed as to the same

conduct, the possibility of vindictiveness is raised because the

prosecutor presumably chose to forego the more serious

charge the first time around and, absent new circumstances,

the choice to pursue a more severe charge after the defendant

asserts a legal right raises the possibility that the motivation

was improper. That same dynamic is not present when the

challenged charge regards different criminal conduct. See

Williams, 481 F.3d at 502 (“when the prosecutorial conduct

involves other criminal conduct, the defendant must demonstrate actual vindictiveness rather than relying on the presumption ... .”); United States v. Ladeau, 734 F.3d 561, 570-71 (6th

Cir. 2013) (distinguishing between the substitution of more

serious charges based on the same conduct and either the

addition of other charges or a recalibration in response to a

materially altered evidentiary landscape). There is no expectation that a prosecutor simultaneously will bring all possible

criminal charges against a defendant involving diverse

criminal incidents. In fact, the effective use of the resources of

the office might caution against such an effort to pursue

disparate trials at the same time against the same defendant,
No. 14-3026 7

and it would not be in a defendant’s interest to create a rule in

which prosecutors must file all possible charges immediately

or risk a presumption of vindictiveness. See Goodwin, 457 U.S.

at 382 n.14 (“there are certain advantages in avoiding a rule

that would compel prosecutors to attempt to place every

conceivable charge against an individual on the public record

from the outset”). Accordingly, the district court properly

determined that Ribota was not entitled to a presumption of

prosecutorial vindictiveness.

Nor has Ribota presented any evidence of actualvindictiveness here. Ribota relies solely on the timing of the charge,

arguing that because the contempt charge was filed on the day

that the prosecutor agreed to the motion to suppress, he has

presented objective evidence of vindictive motivation.We have

repeatedly held, however, that evidence of suspicious timing

alone does not indicate prosecutorial animus, and Ribota does

not even argue that there is any evidence other than timing.

Pittman, 642 F.3d at 587; Falcon, 347 F.3d at 1005. Moreover, the

facts in this case are particularly unsuited to such an argument.

First, the prosecutor who brought the contempt charge did not

oppose the motion to suppress and expend significant resources in a losing battle, but rather agreed to the suppression

of the evidence. There is no evidence of animus inherent in that

scenario. Moreover, the personal stake in the matter was

further diminished here because that prosecutor had not even

brought the initial charge against Ribota. Finally, the timing of

the charge was unremarkable given the nature of the contempt

charge. Once the prosecutor agreed to the motion to suppress

and decided to move for dismissal of the drug and firearm

case, the prosecutor was faced with the prospect of a defendant
8 No. 14-3026

who would soon be released from custody. Given that the

contempt charge was based on the defendant’s decision to

abscond for nine years after the last criminal charge was filed,

the determination to immediately file the contempt charge

while the defendant was still in custody is not only reasonable

but readily anticipatable. Ribota has failed to present any

evidence of vindictiveness, and therefore the district court

properly denied the motion to dismiss the indictment. 

The decision of the district court is AFFIRMED.