United States v. Frank Ponder ( 2018 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 17-3246
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UNITED STATES OF AMERICA
v.
FRANK PONDER,
Appellant
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On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. No. 4-16-cr-00056-001)
District Judge: Honorable Matthew W. Brann
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Submitted Under Third Circuit L.A.R. 34.1(a)
June 12, 2018
Before: AMBRO, JORDAN, and HARDIMAN, Circuit Judges.
(Opinion filed: June 21, 2018)
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OPINION*
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*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does
not constitute binding precedent.
HARDIMAN, Circuit Judge.
After pleading guilty to distributing heroin, Frank Ponder was sentenced to 10
years’ imprisonment. Ponder appeals his judgment of conviction and sentence on grounds
of prosecutorial vindictiveness. We will affirm.
I
Ponder and his co-defendant, Marvin Poland, were indicted in March 2016 for
conspiracy to distribute a controlled substance in violation of 21 U.S.C. § 846 and
distribution/possession with intent to distribute a controlled substance in violation of 21
U.S.C. § 841(a)(1). The Government offered Ponder and Poland plea agreements on the
condition that each plead guilty to the conspiracy charge. After Poland refused to do so,
the Government withdrew its offer and the District Court scheduled the case for trial.
On May 2, 2017, 48 days before the trial was to begin, the Government informed
Ponder and Poland that it intended to seek a superseding indictment expanding the scope
of the conspiracy charge. The Government also told them it would be filing an
information under 21 U.S.C. § 851 to establish their prior drug convictions, thereby
increasing the applicable mandatory minimum terms of imprisonment in the event of a
conviction. The Government filed the information six days later, and three days after that
a grand jury returned a superseding indictment that extended the time period covered by
the charged conspiracy and added a paragraph alleging that Ponder and Poland
distributed heroin to unnamed dealers in the Williamsport, Pennsylvania, area. During the
three days between the filing of the information and the superseding indictment, Ponder
attempted to plead guilty to the conspiracy charge, but the District Court rejected his plea,
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finding that “Ponder would not admit the factual basis underlying [the] plea,” namely an
agreement with Poland to distribute heroin. App. 94. Consequently, Ponder did not plead
guilty to the distribution charge, and the hearing was terminated. The day after the grand
jury returned the superseding indictment, Ponder requested a second change of plea
hearing, which the District Court denied because Ponder had not changed his position on
the facts necessary to support a guilty plea to the conspiracy charge.
Two weeks later, Ponder moved to dismiss the superseding indictment and § 851
information for prosecutorial vindictiveness. He claimed the Government filed them in
retaliation for Poland’s assertion of his constitutional right to a trial and for Ponder’s
refusal to admit to an agreement with Poland. The District Court denied Ponder’s motion,
and trial began as scheduled the following week. On the second day of trial, Ponder
entered an open guilty plea to the distribution charge of the superseding indictment,
which the District Court accepted. Ponder was acquitted of the conspiracy charge, and
Poland was acquitted of both charges. Ponder timely appealed the District Court’s
judgment of conviction and sentence on the distribution charge.
II1
“To punish a person because he has done what the law plainly allows him to do is
a due process violation ‘of the most basic sort.’” United States v. Goodwin, 457 U.S. 368,
1
The District Court had jurisdiction under 18 U.S.C. § 3231. Our jurisdiction lies
under 28 U.S.C. § 1291. We review the District Court’s factual determinations for clear
error and its application of legal standards de novo. United States v. Schoolcraft, 879 F.2d
64, 67 (3d Cir. 1989).
3
372 (1982) (quoting Bordenkircher v. Hayes, 434 U.S. 357, 363 (1978)). “But in the
‘give-and-take’ of plea bargaining, there is no such element of punishment or retaliation
so long as the accused is free to accept or reject the prosecution’s offer.” Bordenkircher
434 U.S. at 363. Unlike “a change in the charging decision made after an initial trial is
completed,” a pretrial decision to pursue enhanced charges does not automatically trigger
a presumption of vindictiveness. Goodwin, 457 U.S. at 381; see also United States v.
Esposito, 968 F.2d 300, 303 (3d Cir. 1992) (“We will adopt such a presumption only in
cases in which a reasonable likelihood of vindictiveness exists.”).
Ponder argues, as he did in the District Court, that the Government’s decision to
file a superseding indictment and § 851 information came “without warning and on the
eve of trial,” despite “the Government’s knowledge of the relevant facts for 10 months.”
Ponder Br. 10, 13. According to Ponder, this timeline “demonstrates the appearance of a
reasonable likelihood that the Government’s conduct” was motivated by “Ponder’s jury-
vindicated refusal to implicate . . . Poland, and Poland’s jury-vindicated refusal to plead
guilty.” Ponder Br. 17.
We agree with the District Court that this argument is meritless. As the Court
recognized, the record belies Ponder’s claim that the Government retaliated against him
for refusing to implicate Poland. It was only after Ponder learned that the Government
intended to file a superseding indictment and § 851 information that he requested the
change of plea hearing at which he failed to name Poland as his co-conspirator,
prompting the District Court to reject his plea.
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Nor are we persuaded that the Government’s conduct was reasonably likely to
have been motivated by Poland’s assertion of his trial rights. That the Government
conditioned its plea agreement offer to Ponder on his co-defendant’s acceptance does not
mean that Ponder was not free to accept or reject its offer. And “the mere fact that a
defendant refuses to plead guilty and forces the government to prove its case is
insufficient to warrant a presumption that subsequent changes in the charging decision
are unjustified.” Goodwin, 457 U.S. at 382–83. Ponder points only to timing to show
vindictiveness. But Poland’s assertion of his trial rights predated the Government’s
allegedly vindictive filings by more than nine months. And as the District Court
observed, 48 days’ notice can hardly be classified as “on the eve of trial.” App. 99. At
any rate, in the pretrial setting, where “the prosecutor’s assessment of the proper extent of
prosecution may not have crystallized,” timing alone cannot support a vindictive
prosecution claim. Goodwin, 457 U.S. at 381; see also id. at 380 (“An initial
indictment—from which the prosecutor embarks on a course of plea negotiation—does
not necessarily define the extent of the legitimate interest in prosecution.”).2
2
The cases Ponder cites are distinguishable. In United States v. Picou, the district
court dismissed a superseding indictment containing additional charges filed shortly after
the defendant’s motion to dismiss his case was denied. 2015 WL 6163423, at *2 (E.D.
Cal. Oct. 19, 2015). By contrast, the Government here sought no new charges—rather, it
expanded the scope of an existing charge and established the defendants’ prior
convictions. And as noted, a significant period of time elapsed between Poland’s
assertion of his trial rights and the challenged filings. United States v. LaDeau is similarly
inapposite. After the district court in that case granted the defendant’s suppression
motion, the prosecutor obtained a superseding indictment charging a more serious offense
that, unlike the offense originally charged, carried a mandatory minimum term of
imprisonment. 734 F.3d 561, 564–65 (6th Cir. 2013). The prosecutor in LaDeau also
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* * *
For the reasons stated, we will affirm the District Court’s judgment.
filed the superseding indictment just five days before trial. Neither an elevated charge nor
short notice is present here. Id. The last case Ponder cites, which predates the Supreme
Court’s decision in Goodwin, also involved a prosecutor seeking new charges. See United
States v. Richburg, 478 F. Supp. 535, 546–47 (M.D. Tenn. 1979).
6