Before Steadman, Ruiz, and Glickman, Associate Judges.
The opinion of the court was delivered by: Ruiz, Associate Judge
Appeal from the Superior Court of the District of Columbia (Hon. Hiram Puig-Lugo, Trial Judge)
The United States brings this appeal from a grant of appellee's Motion to Dismiss for Vindictive Prosecution, arising out of charges of possession of cocaine and simple assault. The trial court granted in part and denied in part appellee's motion, dismissing the simple assault charge and allowing the possession of cocaine charge to go forward. The government appeals this ruling, alleging that the trial court erred in applying the law on prosecutorial vindictiveness. We agree that because the evidence established that there was no actual vindictiveness on the part of the prosecution, dismissal was not warranted, and reverse.
On July 16, 1998, appellee, Musa Mahdi, was arrested for assault on a police officer and possession with intent to distribute cocaine. The following day, Mahdi was charged by information with one count of simple possession of cocaine, in violation of D.C. Code § 33-541 (d). The case was called for trial on September 23, 1998, but was dismissed for want of prosecution. On October 8, 1998, Mahdi filed a civil lawsuit against the District of Columbia and Metropolitan Police Department (MPD) officers which was based in part on incidents that occurred on the date of his arrest in the instant case. *fn1 On November 13, 1998, the government re-brought the case against Mahdi by filing a new information, charging possession of cocaine as well as simple assault.
1. Motions and Hearing on Vindictive Prosecution
On May 11, 1999, Mahdi filed a Motion to Dismiss for Vindictive Prosecution, alleging that the government was prosecuting him in retaliation for the civil lawsuit he filed against the District of Columbia. In support of his motion, appellee asserted that, "On October 8, 1998, a multi-million dollar lawsuit . . . was filed against numerous D.C. Metropolitan Police Officers; [i]n November 1998 at a hearing on the civil case, the Corporation Counsel's office indicated that charges were going to be re-brought against Musa Mahdi; . . . [and] in late December 1998, the old cocaine charge was re-brought along with a new assault charge." The motion also alleged that, "[i]t was intimated that if Mr. Mahdi continued to pursue his claims against the Fourth District Police, then he would continue to be prosecuted."
The government opposed, contending that appellee's motion should be denied without a hearing because it failed to raise a colorable claim of vindictive prosecution. According to the government, 1) the omission of the simple assault charge from the original information and the dismissal of the case on the first trial date were due to administrative errors within the District of Columbia United States Attorney's office, not "some legal defect in the case or other substantive problem with the case"; 2) the initial decisions to charge simple assault and to reinstate the case were made before appellee filed his civil suit; and 3) although final supervisory approval of the decision to reinstate the case was given after the civil suit was filed, and after Assistant United States Attorney ("AUSA") Edward Parks (the government attorney responsible for the case) spoke with Assistant Corporation Counsel ("ACC") Michael Stern (who was defending the civil lawsuit), final approval to reinstate the government's case and add the simple assault charge was not influenced by the existence of the civil suit. In support of its opposition, the government proffered that soon after the case was dismissed for want of prosecution (and before the civil suit was initiated), AUSAs Haines and Parks had noted on the jacket that the case should be "rebrought" and the assault charge should be added. Subsequently, after the civil suit was filed on October 8, 1998, ACC Stern contacted AUSA Parks about the instant case and another case that was relevant to defendant's lawsuit and Parks informed Stern that he intended to "rebring" the instant case. The Government also admitted in its motion that AUSA Parks had informed his supervisor, AUSA Cowgill, that the phone call from ACC Stern gave Parks the impetus to act on his earlier decision, but that the pending civil lawsuit had no effect on AUSA Cowgill's final supervisory decision.
At the hearing, appellee presented three witnesses in support of his allegations of prosecutorial vindictiveness: ACC Michael Stern, AUSA Edward Parks, and Abdur Mahdi, appellee's brother. ACC Stern testified that on October 13, 1998, in his capacity as an attorney in the Office of Corporation Counsel for the District of Columbia, he received the civil complaint filed by appellee and his brothers against numerous MPD officers. After learning that an "assault charge" had been "no papered" and the remaining cocaine charge against appellee had been dismissed, ACC Stern telephoned the U.S. Attorney's Office to learn the details of the disposition of the instant case. AUSA Parks informed ACC Stern that the case was initially dismissed for want of prosecution because of an administrative error in the witness room, that the decision to rebring the case had already been made, and that both the cocaine and assault charges would be re-brought, pending supervisory approval. AUSA Parks indicated that the case file was sitting in his "rebring stack." The phone call was brief, lasting only about five minutes, and ACC Stern did not recall ever speaking to AUSA Parks again.
AUSA Parks testified regarding his role in the case, and described the process by which misdemeanor cases are rebrought. Parks testified that the reason the charges were dropped for want of prosecution on September 23, 1998, was because the government attorney had been notified that the officers in the case were not available in the witness room, so the government was not ready. A decision to rebring the case was made immediately when the case file was returned from court on September 23, and was put in the "rebring stack," pending supervisory approval. Parks stated that on October 13, 1998, after he had already decided to rebring the case, but before he had obtained supervisory approval, he was contacted by ACC Stern and discussed the posture of the case with Stern. Parks's decision to rebring the criminal charges against appellee was not affected by his conversation with Stern. He conceded, however, that the conversation instigated him to "speed up" the process and request supervisory approval. Thus, after the call from ACC Stern, AUSA Parks spoke with his supervisor, Kenneth Cowgill, who authorized Parks to rebring the case and include the assault charge that should have been included in the original information.
AUSA Parks also explained that the assault charge was omitted from the original information "not because of a decision by [the USAO] not to bring it . . . [but] because someone didn't type up the information and stick it in the jacket" due to an oversight by the papering AUSA in filling out the information forms. He stated that on September 23, 1998, the AUSA who handled the case when it was first called to trial realized that the simple assault charge was inadvertently left out, and noted on the jacket that when the case was rebrought, the simple assault charge should be included. That AUSA also informed Parks of this fact when she gave him the file after returning from court.
Abdur Mahdi testified that he had a conversation with MPD Officer Calligro about the case. He testified that Officer Calligro said that he pressured the ...