Vindictive Persecution

o For purposes of claim of prosecutorial vindictiveness, once presumption of vindictiveness has arisen, burden shifts to prosecution to show that independent reasons or intervening circumstances dispel appearance of vindictiveness and justify its decisions. U.S. v. Montoya, 45 F.3d 1286, certiorari denied 116 S.Ct. 67, 516 U.S. 814, 133 L.Ed.2d 29.

o The standard of review in a vindictive prosecution case is unsettled in this circuit. United States v. Kinsey, 994 F.2d 699, 701, n.5 (9^th Cir. 1993); Guam v. Fergurgur, 800 F.2d 1470, 1472 (9^th Cir.), cert. denied, 480 U.S. 932 (1987). The court has variously applied “abuse of discretion” and “clearly erroneous” standards. See United States v. Gann, 732 F.2d 714, 724 (9^th Cir.), cert. denied, 469 U.S. 1034 (1984).

o A de novo standard was adopted in United States v. Martinez, 785 F.2d 663, 666 (9^th Cir. 1988). Subsequent cases appear to have considered the evidence de novo without stating what standard was being used. See, e.g., Kolek v. Engen, 869 F.2d 1281, 1287-88 (9^th Cir. 1989); Adamson v. Ricketts, 865 F.2d 1011, 1017-1020 (9^th Cir. 1988), cert. denied, 497 U.S. 1031 (1990); United States v. DeTar, 832 F.2d 1110, 1112 (9^th Cir. 1987).

o The cases can be reconciled by reference to standards established by United States v. McConney, 728 F.2d. 1195 (9^th Cir.) (en banc), cert. denied, 469 U.S. 824 (1984): Findings of historical facts and the actual motive for prosecuting are reviewed under the clearly erroneous standard. Once the motive is ascertained, the determination of whether it constitutes a basis for vindictive prosecution is reviewed de novo.

& Thus, there are three distinct steps in deciding a mixed fact-law question.

o The first step is the establishment of the “basic, primary, or historical facts: facts ‘in the sense of a recital of external events and the credibility of their narrators. . . ‘” Townsend v. Sain 372 U.S. 293, 309 n. 6, 83 S.Ct.745, 755 n.6, 9 L.Ed.2d 770 (1963) (quoting Brown v. Allen, 344 U.S. 443, 506, 73 S.Ct. 397, 446, 97 L.Ed. 469 (1953) (opinion of Frankfurter, J.)).

o The third step – and the most troublesome for standard of review purposes – is the application of the law to fact or, in other words, the determination “whether the rule of law as applied to the established facts is or is not violated.” Pullman-Standard v. Swint, 456 U.S. 273, 289 n. 19, 102 S.Ct. 1781, 1790 n. 19, 72 L.Ed.2d 66 (1982).

o [2] The district court’s resolution of each of these inquires is, of course, subject to appellate review. The appropriate standard of review for the first two of the district court’s determinations – its establishment of historical facts and its selection of the relevant legal principle – has long been settled. Questions of fact are reviewed under the deferential, clearly erroneous standard. See Fed.R.Civ.P. 52(a). Questions of law are reviewed under the non-deferential, de novo standard. See, e.g., U.S. v. One Twin Engine Been Airplane, 533 F.2d 1106, 1108 (9^th Cir.1976); Lundgren v. Freeman, 307 F2d 104, 115 (9^th Cir.1962). These established rules reflect the policy concerns that properly underlie standard of review jurisprudence generally.

o Thus, because the application of law to fact will generally require the consideration of legal principles, the concerns of judicial administration will usually favor the appellate court, and most mixed questions will be reviewed independently. This is particularly true when the mixed question involves constitutional rights.

o Accordingly, I would be content to rest the debate that has for so long engaged this court upon a statement made by the Supreme Court, to which we look for leadership in such matters:

o “While this Court does not sit as in nisi prius to appraise contradictory factual questions, it will, where necessary to the determination of constitutional rights, make an independent examination of the facts, the findings, and the record so that it can determine for itself whether in the decision as to reasonableness the fundamental – i.e., constitutional – criteria established by this Court have been respected. . .” Ker v. California, 374 U.S. at 34, 83 S.Ct. at 1630. [United States v. McConney, 728 F.2d. 1195 (9^th Cir.) (en banc), cert. denied, 469 U.S. 824 (1984).]

& A defendant alleging vindictive prosecution has the burden of showing an appearance of vindictiveness. The appearance[1] gives rise to a presumption of vindictiveness. Whether there is an appearance of vindictiveness is a question of fact reviewed for clear error. See United States v. Clay, 925 F.2d 299, 302 (9^th Cir. 1991). Once that fact is established, whether the presumption arises is a question of law reviewed de novo.

N.D. Ill. 1998. In order to show vindictive prosecution, defendant must show that he was prosecuted to punish him for exercising legally protected statutory or constitutional right. Gil v. U.S., 4 F.Supp.2d 760.

C.A.7 (Ind.) 1998. For a defendant to prove prosecutorial vindictiveness on the part of the government for its decision to seek an indictment, he must present objective evidence showing genuine prosecutorial vindictiveness.

Defendant asserting claim of prosecutorial vindictiveness based on government’s decision to seek indictment can show requisite genuine prosecutorial vindictiveness by showing that the decision to prosecute was not based on the usual determinative factors. U.S. v. Spears, 159 F.3d 1081.

Mechanic’s lien is a statutory creature. A mechanic’s or miner’s lien is the creature of the statute, and attaches only by virtue of work being done or materials furnished under a contract, express or implied, with the owner of the property upon which the lien is claimed. Davidson v. Jennings, 27 Colo.187, 60 P.354 (1900)

Direct lien statute expressly authorizes lien arising out of contract, either express or implied. Home Pub. Market Co. v. Fallis, 72 Colo. 48, 209 P.641 (1922).

W.D.Tenn. 1993. To establish vindictive prosecution, defendant is not required to show that prosecution was actually vindictive, but, rather, realistic likelihood of vindictiveness.

Standard of realistic likelihood of vindictiveness with respect to claim of vindictive prosecution is objective standard. U.S. v. Adams, 832 F.Supp. 1138, affirmed 38 F.3d 1217.

W.D.Tenn. 1993. To establish vindictive prosecution, defendant is not required to show that prosecution was actually vindictive, but, rather, realistic likelihood of vindictiveness.

Standard of realistic likelihood of vindictiveness with respect to claim of vindictive prosecution is objective standard. U.S. v. Adams, 832 F.Supp. 1138, affirmed 38 F.3d 1217.

[1] C.A.11 (Ga.) 1985. Prosecutor’s charging decision does not impose improper “penalty” on defendant unless it results from defendant’s exercise of protected legal right, as opposed to prosecutor’s normal assessment of social interests to be vindicated by prosecution. U.S. v. Taylor, 749 F.2d 1511.

[1] C.A.6 (Ky.) 2000. To establish vindictive prosecution, defendant must show that prosecutor has some personal “stake” in deterring defendant’s exercise of his constitutional rights, and that prosecutor’s conduct was unreasonable U.S. v. Wells, 211 F.3d 988, 2000 Fed.App. 161P.

W.D.Tenn. 1993. To establish vindictive prosecution, defendant is not required to show that prosecution was actually vindictive, but, rather, realistic likelihood of vindictiveness.

Standard of realistic likelihood of vindictiveness with respect to claim of vindictive prosecution is objective standard. U.S. v. Adams, 832 F.Supp. 1138, affirmed 38 F.3d 1217.

C.A.9 (Cal.) 1997. “Vindictive prosecution” occurs when government penalizes a person merely because he has exercised a protected statutory or constitutional right. U.S. v. Paguio, 114 F.3d 928, appeal after remand 168 F.3d 503.

C.A.7 (Ill.) 1991. Fifth Amendment prohibits Government from prosecuting defendant because of some specific animus or ill will on prosecutor’s part or to punish defendant for exercising legally protected statutory or constitutional right. U.S.C.A. Const.Amend. 5. U.S. v. Benson, 941 F.2d 598, rehearing denied, mandate recalled and corrected 957 F.2d 301, appeal after remand 67 F.3d 641, opinion modified on denial of rehearing 74 F.3d. 152.

D.Conn. 2000. To establish actual vindictive motive to prosecute, defendant must show the (1) the prosecutor harbored genuine animus toward the defendant, or was prevailed upon to bring the charges by another with animus such that the prosecutor could be considered a stalking horse, and (2) defendant would not have been prosecuted but for the animus. U.S.C.A. Const.Amend. 14. U.S. v. Dean, 119 F.Supp.2d 81.

C.A.7 (Wis.) 1996. Claim of vindictive or selective prosecution requires showing that defendant (1) was singled out for prosecution while other violators similarly situated were not prosecuted; and (2) decision to prosecute was based on arbitrary classification such as race, religion, or exercise of protected rights. U.S. v. Monsoor, 77 F.3d 1031.

E.D.N.Y. 1988. Doctrine of prosecutorial vindictiveness does not apply to prosecutions brought by different sovereigns, absent showing that state prosecution was a stalking horse for a subsequent federal investigation. U.S. v. McGriff, 678 F.Supp 1010.

N.D.N.Y. 1997. In some circumstances, a presumption of unconstitutional prosecutorial vindictiveness arises when prosecutors employ practices that pose a realistic likelihood of vindictiveness. U.S. v. Cady, 955 F.Supp. 164.

C.A.9 (Cal.) 1999. “Vindictive prosecution” occurs when a prosecutor brings additional charges solely to punish the defendant for exercising a constitutional or statutory right, such as a defendant’s right to a jury trial. U.S.C.A. Const.Amend. 6 U.S. v. VanDoren, 182 F.3d 1077.

C.A.7 (Ill.) 1994. Prosecution is “”vindictive” and violates due process if it is undertaken to punish defendant because he has done something the law plainly allows him to do; thus, showing of actual vindictiveness require objective evidence of some kind of genuine prosecutorial malice. U.S.C.A. Const.Amend. 5. U.S. v. Porter, 23 F.3d 1274.

Why it all started:

Alan Karsh, Esquire told me that he would squash me like a bug if I continued to appeal the Legal Separation that his subordinate attorney, Antonio T. Ciccarelli, Esquire converted into a Divorce Action.

Warning! This is a very long and complex legal odyssey that encompasses many legal, religious and Constitutional issues that the average person may find difficult to understand. (refer to the TimeLine). Links will be provided to enable the uninformed to acquire an education that cannot be obtained within the public education system, most churches, or at law school. Don't be surprised to discover that nothing is as you have always believed. I, too, have been astounded at the Truth ~ it was nothing like what I was taught nor told.

~Discovery~

Vindictive Prosecution

Why it all started:

Colorado Supreme Court Grievance Exhibits:

Exhibit#1

Exhibit#2

Exhibit#3

Exhibit#4

Exhibit#5

Exhibit#6

Exhibit#7

Exhibit#8

Exhibit#9

More parts to the puzzle:

Key Dates