Share on Facebook
Share on X
Share on LinkedIn

USA v. Gerald Pittman, 10-2132.

Gerald Pittman was arrested and indicted on numerous charges of distributing crack cocaine and one charge of unlawful possession of a firearm by a felon. After Pittman pleaded guilty to one of the drug charges and received a sentence that was significantly below that recommended by the Sentencing Guidelines, the government decided to prosecute Pittman on the remaining charges of the indictment.

Pittman ended up pleading guilty to these charges as well, but argued that it would be inappropriate for the district court to increase his sentence because the government’s decision to seek conviction on the remaining counts constituted vindictive prosecution. The district court rejected his argument and sentenced him to a significantly longer term of imprisonment. We affirm.


Pittman’s sole argument on appeal asserts that the district court committed a reversible error when it rejected his vindictive prosecution claim. When consid- ering whether a district court erred in this regard, we review the district court’s factual findings for clear error and its legal conclusions de novo. United States v. Jarrett, 447 F.3d 520, 524 (7th Cir. 2006).

In general, this court has considered a defendant’s prosecution to be vindictive only if the defendant can show that the prosecution was pursued in retaliation for the defendant’s exercise of a legal right. United States v. Cooper, 461 F.3d 850, 856 (7th Cir. 2006). A prosecution is vindictive, for example, when a defendant faces enhanced charges on retrial and the prosecutor’s decision to enhance the charges is based on the prosecutor’s resentment that the defendant successfully appealed his or her original conviction. United States v. Segal, 495 F.3d 826, 832-33 (7th Cir. 2007). Vindictive prosecution may also exist when it can be shown that the govern-ment’s actions were motivated by the prosecutor’s “personal stake in the outcome of a case” or his desire to “seek self-vindication” for prior errors that he may have committed in a case. Jarrett, 447 F.3d at 525.

We have previously noted that a “pretrial claim of vindictive prosecution is extraordinarily difficult to prove,” Segal, 495 F.3d at 833, since it requires a defendant to “affirmatively show through objective evidence that the prosecutorial conduct at issue was motivated by some form of prosecutorial animus,” United States v. Falcon, 347 F.3d 1000, 1004 (7th Cir. 2003). A defendant asserting a claim like Pittman’s must convince the court that he would not have been prosecuted but-for the government’s animus. Jarrett, 447 F.3d at 525. If a defendant is able to make this evidentiary showing, then the burden shifts to the government, which must prove that the motivation behind the prosecutorial decision was proper. United States v. Bullis, 77 F.3d 1553, 1559 (7th Cir. 1996).

Pittman argues that the district court’s dismissal of his vindictive prosecution claim was improper, asserting that the timing of the government’s decision to prosecute him on the additional counts and the government’s statements before the district court constituted sufficient proof of animus.

Because Pittman’s argument strongly resembles one that this court considered in United States v. Cooper, 461 F.3d 850 (7th Cir. 2006), our holding in that caseinforms our resolution of the current appeal. We rejected Cooper’s argument, concluding that he had failed to submit evidence sufficient to support his claim. Id. at 856. Not only did we find that there was nothing particularly suspicious about the timing of the government’s prosecutorial actions, but we held that “even if there were . . . evidence of suspicious timing alone does not indicate prosecutorial animus.” Id.

Absent evidence to the contrary, we assume that the government’s motivation for punishing criminals is grounded in its pursuit of a number of legitimate state interests: the interest in protecting society from known law-breakers, the interest in deterring other individuals from committing similar crimes, the interest in expressing societal condemnation for those who violate the law, etc. Because of the impersonal nature of these considerations, prosecutorial decisions that are based on them are too principled to be vindictive.

While criminal defendants would undoubtedly prefer that we find that the mere potential for prosecutorial discontent is sufficient to undermine the presumptive legitimacy of a prosecutor’s decisions, doing so would fundamentally change the burden of proof we have imposed for malicious prosecution claims. Defendants must present evidence establishing that a pretrial prosecutorial decision was based on animus. Where, as here, they fail to meet this burden, it is proper for district courts to dismiss their vindictive prosecution claims.

For these reasons, the sentence imposed by the district court is AFFIRMED

For the full opinions visit the 7th Circuit Court of Appeals Web Site

For more about Chicago Federal Criminal Defense Attorney Michael J. Petro, visit