in the context of increases in the charged offense . . . the reasons for such increases, as well as their factual bases, must be made a part of the record at the time the higher indictment is filed with the court.
After the defendant in the instant case moved to dismiss the second indictment as vindictive, the government explained that it did not charge a conspiracy in the first indictment because it did not have the benefit of the original co-defendant's testimony. This testimony became available to the government during the original trial which ended in the jury's 11 to 1 vote for acquittal of the defendant. However, the government makes no showing that it made this explanation a part of the record at the time it filed the higher indictment with the court.
As Justice Jackson once said:
It is very well to say that those who deal with the government should turn square corners. But there is no reason why the square corners should constitute a one-way street.
Federal Crop Insurance Corp. v. Merrill, 332 U.S. 380, 387-88, 92 L. Ed. 10, 68 S. Ct. 1 (1947) (Jackson, J., dissenting). That salutary principle applies where where the government failed to make a timely record of its reasons for the enhanced second indictment.
Accordingly, an accompanying Order will grant the defendant's motion to dismiss.
Date: July 25, 1988
ORDER - July 25, 1988, Filed
For the reasons stated in the accompanying Memorandum, it is this 25th day of July, 1988, hereby
ORDERED: that defendant's motion to dismiss the second indictment should be, and is hereby, GRANTED.