The opinion of the court was delivered by: SIMMONS
In this four count indictment, both of the Defendants Cathy Lynn Roderick and Peggy Yatsko, are charged in Count One with unlawfully possessing a stolen United States Treasury check, in violation of 18 U.S.C. §§ 1708 and 2; Count Two of the indictment charges the Defendant Peggy Yatsko with the uttering and publishing of that check in violation of 18 U.S.C. § 495. Count Three of the indictment charges the Defendant Cathy Roderick with possessing a stolen United States Treasury check in violation of 18 U.S.C. § 1708; and Count 4 charges the Defendant Roderick with the uttering and publishing of that check in violation of 18 U.S.C. § 495.
The Defendant Cathy Roderick has filed a Motion to Suppress Identification Evidence and a Motion to Dismiss the Indictment, the Motion to Dismiss the Indictment was later amended by the Defendant Roderick on July 2, 1985. Defendant Peggy Yatsko has moved to suppress identification evidence. Hearing and argument on all of the pre trial motions was held before this Court on June 28, 1985 and August 2, 1985, the transcripts of those hearings have been filed, all of the parties have submitted briefs in support of their respective positions, and the motions are now ready for decision by this Court.
RODERICK'S MOTION TO DISMISS AND AMENDED MOTION TO DISMISS
The Motion to Dismiss and the amended Motion to Dismiss allege that the above-captioned indictment violates the double jeopardy clause of the United States Constitution, that it is a vindictive prosecution, and finally, that the present prosecution constitutes preindictment delay.
On March 13, 1984, the Defendant Cathy Roderick was charged in a six count indictment, filed in the United States District Court for the Western District of Pennsylvania at Criminal Number 84-47, with violations of 18 U.S.C. §§ 495 and 1708, which allegedly occurred in 1982. On July 12, 1984, that case proceeded to trial before the Honorable Judge Cohill, who on July 14, 1984, granted the Defendant's motion for mistrial. The mistrial was based on the finding by Judge Cohill that a prejudicial hearsay statement about the Defendant Roderick's prior criminal record was made by a government witness in the presence of the jury, and that a cautionary instruction to disregard that testimony would be ineffective. (Tr. of Jury Trial, July 12-16, Docket Number 27 of Criminal Number 84-47, at 163-173). Judge Cohill later found that there was no prosecutorial misconduct on the part of the Assistant United States Attorney. (Tr. October 10, 1984, at 25). A retrial of that case was scheduled for October, 1984, and prior to the retrial, Ryan Kennedy, the Assistant United States Attorney, approached the defense concerning a possible plea to an uncharged offense which is now the subject of the above-captioned case, in exchange for the dismissal of the counts at Criminal Number 84-47. With respect to the offense charged in Counts 3 and 4 of the above-captioned indictment, Kennedy testified at the suppression hearing held before this Court on June 28, 1985, that he received information from a Postal Inspector in October of 1984 that a check of approximately $1400 had been presented to a furniture store in Washington, Pennsylvania, and the operator of that store identified the Defendant Cathy Roderick as being the person who presented the check without the authorization of the payee. (Tr. 17-18).
Kennedy did not recall discussing any laboratory reports with the Postal Inspector prior to the time he approached the Defendant's attorney concerning this possible plea bargain. (Tr. 21). Kennedy suggested that if the Defendant plead guilty to that uncharged offense, a plea bargain could be worked out with respect to the counts which were then presently charged. However, the Defendant continued to maintain her innocence and declined to plea at that time.
A plea bargain was later reached with respect to the charges filed at Criminal Number 84-47, and the Defendant Roderick entered a guilty plea to Counts 1 and 5 of that indictment in November, 1984. Kennedy informed defense counsel that the investigation of the $1400 check involved with the Weber Furniture Company would continue. (Tr. 25).
The Defendant Roderick was sentenced November 8, 1984 on Counts 1 and 5 of the indictment at Criminal Number 84-47, for a period of six months, to run concurrently with a state sentence that the Defendant was then serving, and Counts 2, 3, 4 and 6 of that indictment were thereafter dismissed. Defendant Roderick finished serving the federal sentence on April 7, 1985.
The Defendant contends that the government's conduct in delaying prosecution on Counts 3 and 4 of the present indictment, and in bringing the additional charge contained in Count 1 of the indictment, constitutes vindictive prosecution which requires the dismissal of the present indictment. Defendant cites United States v. Krezdorn, 718 F.2d 1360 (5th Cir. 1983), cert. denied, 465 U.S. 1066, 104 S. Ct. 1416, 79 L. Ed. 2d 742, in support of this motion. In Krezdorn, the Defendant was convicted on four of five counts of forging signatures on border crossing applications, but the Fifth Circuit reversed that conviction, holding that it was reversible error for the trial court to have admitted evidence of forged border crossing applications which were not charged in the indictment. Upon remand, the Defendant was reindicted on the four counts upon which he had previously been convicted, and Krezdorn was also indicted for conspiracy to forge immigration documents. The forgeries in the substantive counts were charged to be overt acts in furtherance of the conspiracy. The new conspiracy charge increased the potential penalties under the four original counts by five years of imprisonment and $10,000 in fines. The Krezdorn Court held that there was no prosecutorial vindictiveness involved, and set forth the following standard:
If the defendant challenges as vindictive a prosecutorial decision to increase the number or severity of charges following a successful appeal, the court must examine the prosecutor's actions in the context of the entire proceedings. If any objective event or combination of events in those proceedings should indicate to a reasonable minded defendant that the prosecutor's decision to increase the severity of charges was motivated by some purpose other than a vindictive desire to deter or punish appeals, no presumption of vindictiveness is created. In trying the issue of vindictiveness, the prosecutor may offer proof of the sort suggested in Hardwick that as a matter of fact his actions were not vindictive. The burden of proof (by a preponderance of the evidence) remains on the defendant who raised the affirmative defense. If, on the other hand, the course of events provides no objective indication that would allay a reasonable apprehension by the defendant that the more serious charge was vindictive, i.e., inspired by a determination to "punish a pesky defendant for exercising his legal rights," a presumption of vindictiveness applies which cannot be overcome unless the government proves by a preponderance of the evidence that events occurring since the time of the original charge decision altered that initial exercise of the prosecutor's discretion.
The Krezdorn Court ultimately concluded that the prosecutor's actions were taken to pursue a course indicated by the appellate opinion rather than to penalize the defendant for exercising his right of appeal, and that the additional charge would not result in Defendant ...