United States v. Thomas William Ballester, United States of Am. v. Richard Thomas McGiffen United States of Am. v. Daniel Elton Hayes, 763 F.2d 368 (9th Cir. 1985). · Go Syfert
Search
United States v. Thomas William Ballester, United States of Am. v. Richard Thomas McGiffen United States of Am. v. Daniel Elton Hayes, 763 F.2d 368 (9th Cir. 1985). Cases Citing This Book View Copy Cite
19 citation events across 5 distinct courts.
Strongest positive: People v Ryan (mich, 1996-03-22)
Top citers, strongest first. 9 distinct citers. How cited ↗
cited Cited as authority (rule) People v Ryan
Mich. · 1996 · confidence medium
United States v. Schoolcraft, 879 F.2d 64, 68 (C.A.3, 1989), citing United States v. Ballester, 763 F.2d 368, 370 (C.A.9, 1985).
discussed Cited as authority (rule) United States v. John Theodore Sheeder, United States of America v. Jeffrey Lee Barnett, United States of America v. Joseph Carl Hackler
9th Cir. · 1993 · confidence medium
"The role of a separate sovereign in bringing the increased charges minimizes the likelihood of prosecutorial abuse." United States v. Ballester, 763 F.2d 368, 370 (9th Cir.), cert. denied, 474 U.S. 842 (1985); accord United States v. Robison, 644 F.2d 1270, 1273 (9th Cir.1981) ("the involvement of separate sovereigns tends to negate a vindictive prosecution claim.") 16 In the present case, there is no direct evidence of expressed hostility or threat, and Appellants fail to show an appearance of vindictiveness.
cited Cited as authority (rule) United States v. Randy Ray Miller, United States of America v. Kevin Lee Cody, United States of America v. Tony Leo Patterson
9th Cir. · 1992 · confidence medium
E.g., United States v. Ballester, 763 F.2d 368, 370 (9th Cir.), cert. denied, 474 U.S. 842 , 106 S.Ct. 126 , 88 L.Ed.2d 103 (1985).
cited Cited as authority (rule) United States v. Billy Joe Ashe
9th Cir. · 1991 · confidence medium
United States v. Ballester, 763 F.2d 368, 369 (9th Cir.), cert. denied, 474 U.S. 842 (1985).
discussed Cited as authority (rule) United States v. Samuel Scott Raymer (2×) also: Cited "see"
10th Cir. · 1991 · confidence medium
See, e.g., Schoolcraft, 879 F.2d at 68 (prosecution by a different sovereign tends to negate a vindictive prosecution claim); United States v. Fulford, 825 F.2d 3, 9 (3rd Cir.1987); United States v. Oliver, 787 F.2d 124, 127 (3rd Cir.1986); United States v. Ballester, 763 F.2d 368, 369-70 (9th Cir.), cert. denied, 474 U.S. 842 , 106 S.Ct. 126 , 88 L.Ed.2d 103 (1985); Russotti, 717 F.2d at 31-32 ; United States v. Ng, 699 F.2d 63, 68-70 (2d Cir.1983); United States v. DeMichael, 692 F.2d 1059, 1062 (7th Cir.), cert. denied, 461 U.S. 907 , 103 S.Ct. 1878 , 76 L.Ed.2d 809 (1982); United States v.…
discussed Cited as authority (rule) John Harvey Adamson v. James G. Ricketts, Director, Arizona Department of Corrections (2×)
9th Cir. · 1988 · signal: cf. · confidence medium
Cf. United States v. Ballester, 763 F.2d 368, 370 (9th Cir.), cert. denied, 474 U.S. 842 , 106 S.Ct. 126 , 88 L.Ed.2d 103 (1985) (likelihood of prosecutorial abuse is diminished when a separate sovereign brings the increased charges); Robison, 644 F.2d at 1272 (vindictive prosecution claim weakened when different facts and different sovereigns involved).
cited Cited "see, e.g." United States v. Ahmed Young
4th Cir. · 1999 · signal: see also · confidence low
See also United States v. Ballester, 763 F.2d 368 (9th Cir. 1985).
discussed Cited "see, e.g." United States v. Johnny Keith Walker, Sr., United States of America v. Floyd Lloyd Wells
9th Cir. · 1996 · signal: see also · confidence medium
We have previously held that "the involvement of separate sovereigns tends to negate a vindictive prosecution claim." United States v. Robison, 644 F.2d 1270, 1273 (9th Cir.1981); see also United States v. Ballester, 763 F.2d 368, 370 (9th Cir.) (per curiam), cert. denied, 474 U.S. 842 (1985). 5 Here, neither Walker nor Wells has presented evidence sufficient to establish a prima facie case of prosecutorial vindictiveness.
discussed Cited "see, e.g." United States v. Barbara Eunice Carrasco, United States of America v. Barbara Eunice Carrasco and German Rivera-Jiminez
9th Cir. · 1986 · signal: see also · confidence medium
See 28 U.S.C. § 1291 ; United States v. Duardi, 514 F.2d 545 (8th Cir.1975); see also United States v. Ballester, 763 F.2d 368, 369 (9th Cir.), cert. denied, — U.S. —, —, 106 S.Ct. 126 , 128, 88 L.Ed.2d 103, 105 (1985). 3 .
Retrieving the full opinion text from the archive…
UNITED STATES of America, Plaintiff/Appellee,
v.
Thomas William BALLESTER, Defendant/Appellant; UNITED STATES of America, Plaintiff/Appellee, v. Richard Thomas McGIFFEN, Defendant/Appellant; UNITED STATES of America, Plaintiff/Appellee, v. Daniel Elton HAYES, Defendant/Appellant
84-1066 to 84-1068.
Court of Appeals for the Ninth Circuit.
Jan 28, 1985.
763 F.2d 368
Donald B. Ayer, Sacramento, Cal., for plaintiff-appellee., Michael Ward, Modesto, Cal., for defendant-appellant Thomas Ballester., James R. Homola, Fresno, Cal., for defendant-appellant Richard McGiffen., Stephen Mensel, Fresno, Cal., for defendant-appellant Daniel Hayes.
Merrill, Goodwin, Alarcon.
Cited by 15 opinions  |  Published
PER CURIAM.

The denial of appellants’ motion to dismiss on the ground of vindictive prosecution was not error.

I

While, generally, claims of prosecutorial vindictiveness are not reviewable on appeal because they constitute an interlocutory appeal under 28 U.S.C. § 1291, United States v. Hollywood Motor Car Co., 458 U.S. 263, 102 S.Ct. 3081, 73 L.Ed.2d 754 (1982), this appeal is not interlocutory. Appellants have entered conditional guilty pleas and have been sentenced. This court, therefore, possesses appellate jurisdiction.

II

The Government may not either threaten to increase charges in order to discourage a defendant from exercising a statutory or constitutional right or follow through on such a threat. United States v. DeMarco, 550 F.2d 1224, 1227-28 (9th Cir.), cert. denied, 434 U.S. 827, 98 S.Ct. 105, 54 L.Ed.2d 85 (1977). The district attorney’s statement that he would refer the matter to federal authorities if appellants persisted in their efforts to gain dismissal of the state indictment did not, however, constitute a threat or an expression[*370] of hostility. Instead, the district attorney was simply demonstrating that state dismissal would not terminate the effort to bring appellants to justice for the crimes with which they had been charged. Even though state law precluded the procurement of additional indictments, the defendants could still be prosecuted under federal law. *

This legitimate prosecutorial aim was not converted into a threat or expression of hostility by the district attorney’s reference to the penalty carried by the federal charge of possession of a controlled substance with intent to distribute, which was more severe than that carried by the parallel state charge. The prosecutor was not indicating that he would choose between two penalties and select the more severe; rather, a more severe penalty would be the unavoidable consequence of his proper effort to gain a federal sale and possession conviction in lieu of a state conviction for the same offense.

Ill

In the absence of a threat or evidence of hostility, no vindictive prosecution occurred in this case, despite the ultimate inclusion in the federal indictment of new charges of conspiracy and aiding and abetting interstate travel to promote illegal activity.

The role of a separate sovereign in bringing the increased charges minimizes the likelihood of prosecutorial abuse. Cf. United States v. Robison, 644 F.2d 1270, 1272 (9th Cir.1981) (“the involvement of separate sovereigns tends to negate a vindictive prosecution claim.”). Since prosecutorial abuse is unlikely and direct evidence of expressed hostility or threat is absent, the appellants were initially required to establish an “appearance of vindictiveness” by showing that the federal travel and conspiracy charges were added because of the attempt to dismiss the state indictment. See United States v. Gallegos-Curiel, 681 F.2d 1164, 1168-69 (9th Cir.1982). The district court, 578 F.Supp. 899, found that, “the evidence establishes conclusively that the independent judgment of two separate prosecutorial agencies are involved.” We see no basis on which this finding can be disturbed.

JUDGMENT AFFIRMED.