United States of America v. Bernardino Ribota

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.

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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 magis-
trate 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 indict-
ment 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 unconsti-
tutional because it was based solely on prosecutorial vindic-

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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 consider-
ation of myriad factors such as the enforcement priorities of the
office, the determination as to the strength of the case, the
prosecutorial resources available, and the prosecution’s general
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 proceed-
ing, 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.

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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 and punishment,
courts have recognized that institutional pressure may subcon-
sciously 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 pre-
sumption 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;

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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 alter that 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 will have made a reasoned determina-
tion as to the extent to which the defendant should be prose-
cuted. 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 evi-
dence; 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

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6 No. 14-3026
the appropriate charges that is inherent in the pretrial process,
and which properly falls within the discretion of the prosecu-
tor. 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 demon-
strate actual vindictiveness rather than relying on the pre-
sumption ... .”); 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 expecta-
tion 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,

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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 actual vindictive-
ness 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 re-
sources 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

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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.

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