The opinion of the court was delivered by: Dalzell, J.
Defendant Jonathan Berberena petitions us to order the Government to offer him a plea agreement. Berberena does so on the theory that the Government's decision to withdraw an earlier agreement -- after his successful motion to dismiss the charges against him -- was presumptively vindictive and thus violated his due process rights.
On October 21, 2002, Berberena pled guilty to an Information alleging conspiracy and drug distribution charges. On May 1, 2003, he was sentenced to 384 months' incarceration.
On August 1, 2005, Berberena filed a pro se petition pursuant to 28 U.S.C. § 2255 claiming that his attorney was ineffective because of a conflict of interest. On August 16, 2007, Judge Baylson granted Berberena's petition, vacated his sentence, and permitted Berberena to withdraw his guilty plea. United States v. Berberena, 2007 WL 2345282, at *10 (E.D. Pa. Aug. 16, 2007). After Judge Baylson's ruling, the Speedy Trial Act obliged the Government to indict and try Berberena by October 25, 2007. 18 U.S.C. § 3161(c)(1), (d)(1).
From October 17, 2007 until December 20, 2007, the Government and Berberena discussed a possible guilty plea, and it seemed as if they had reached an agreement. The Government had offered Berberena a fifteen year jail term to run concurrently with a state sentence he was serving in exchange for his plea of guilty. But the Government never sent a copy of the agreement to defense counsel, and after December 20, 2007 the Government had no more contact with Berberena's lawyer.
On April 17, 2008 -- 176 days after the Speedy Trial Act deadline had passed -- Berberena filed a motion to dismiss the charges with prejudice. On August 28, 2008, Judge Baylson granted the motion without prejudice because he found that the relevant factors weighed against dismissal with prejudice. United States v. Berberena, 2008 WL 4083198, at *3-6 (E.D. Pa. Aug. 28, 2008).
On February 18, 2009, a Grand Jury indicted Berberena on the same charges alleged in the 2002 Information. After his indictment, Berberena asked the Government whether the earlier offer of fifteen years' incarceration was still available. The Government said no.
On May 11, 2009, Berberena moved to dismiss the new Indictment. We denied most of his motion in our June 18, 2009 Order.
In his motion, Berberena petitioned us to order the Government to honor the original plea agreement that offered fifteen years' incarceration that was to run concurrently with his state sentence. As the Government did not specifically respond to this petition, we ordered it to do so, and permitted Berberena to reply. We now resolve the remainder of Berberena's May 11, 2009 motion.
II. Analysis Berberena argues that we ought to hold the Government to its earlier plea agreement because it withdrew the agreement after Berberena's successful motion to dismiss, and this "raised a presumption of vindictive prosecution...because the prosecutor has never offered a legitimate, objective reason for withdrawing the 'C' plea," i.e., a plea agreement pursuant Fed. R. Crim. P. 11(c)(1)(C). Def.'s Mem. in Supp. of C Plea at 2.
Vindictive prosecutions violate due process. Blackledge v. Perry, 417 U.S. 21, 27 (1974). "[F]or an agent of the State to pursue a course of action whose objective is to penalize a person's reliance on his legal rights is patently unconstitutional." Bordenkircher v. Hayes, 434 U.S. 357, 363 (1978) (internal quotations omitted).
"[I]n certain cases in which action detrimental to the defendant has been taken after the exercise of a legal right, the Court has found it necessary to 'presume' an improper vindictive motive." United States v. Goodwin, 457 U.S. 368, 373 (1982). The presumption's purpose is to prevent the sovereign from "retaliating against the accused for lawfully attacking his conviction." Bordenkircher, 434 U.S. at 363. But "[s]ince a presumption may produce harsh results for which society ultimately bears the burden, courts must be cautious in adopting it." United States v. Esposito, 968 F.2d 300, 303 (3d Cir. 1992) (citing Alabama v. Smith, 490 U.S. 794, 797-801 (1989)). Because the presumption, once applied, applies broadly, we limit it to cases where there is "a realistic likelihood of vindictiveness." Blackledge, 417 U.S. at 27 (internal quotations omitted).
When prosecutors increase the severity of charges after the defendant exercised "a procedural right that caused a complete retrial after he had been once tried and convicted," the presumption comes into play. Goodwin, 457 U.S. at 376. The presumption applies in such circumstances to protect the defendant from the "institutional bias inherent ...