It's pretty rare that you see an indictment dismissed on the grounds of prosecutorial vindictiveness. But, in an alien smuggling case arising down here in San Diego, District Judge Benitez did precisely that. And, in this 2-1 decision, written by Judge Canby (with Judge Conlon, a senior district court judge from Illinois, sitting by designation and dissenting), the Ninth Circuit affirms the dismissal.
It's a fairly unusual case, which perhaps explains the unusual result. Sharon Ann Jenkins is caught dead to rights -- twice, on two subsequent days (!) -- smuggling some undocumented aliens into the United States in the trunk of a car she was driving. Jenkins basically admits both times that she's guilty, but for some totally inexplicable reason (at least to me; I do, in fact, understand why it happens), the U.S. doesn't prosecute her for either offense, notwithstanding the fact that the cases are open-and-shut.
Then, two months later, Jenkins gets busted (again!) when the car she's in pulls into San Ysidro from Mexico full of hidden marijuana. This time, they charge her. And her defense at trial is -- surprise! -- "I didn't know there was pot in the car; I thought there were just illegal aliens, like all those other times."
So, at the end of all of the testimony, the jury goes out to deliberate. They don't arrive at a verdict on the first day; but, at 4:46 p.m. that same day, while the jury is deliberating, the U.S. files an indictment against Jenkins for -- surprise again! -- two counts of alien smuggling! The offenses for which they originally didn't charge her, but for which now they feel like busting her.
Judge Benitez says: "I think not. You're just retaliating against her for testifying and going to trial in the drug case. Indictment dismissed." The U.S. responds: "Not really. Our case was a lot stronger once she admitted in the drug trial that she had previously smuggled aliens." At which point Judge Canby says: "That might be a good argument if she hadn't already confessed. But she had. You already had her dead to rights. This looks to much like vindictive prosecution. Affirmed."
So Jenkins avoids the alien smuggling charges. Now, mind you, this only helps Jenkins a little bit. Since, as it turns out, although the first jury deadlocked on the drug charges, the second jury -- at the retrial -- didn't. So she's now serving a five year-plus prison sentence.
Still, she wins a vindictive prosecution claim. Which is pretty rare. So she's got that going for her. Which is nice.
