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SAN FRANCISCO � The 9th U.S. Circuit Court of Appeals has refused to back off its expansive standard for finding vindictive prosecution by federal prosecutors, even though it may conflict with three other circuits and set a “dangerous precedent.” Over seven dissenting votes, the full circuit rejected reconsideration of a decision to dismiss alien smuggling charges against a woman who admitted the illegal conduct while testifying in her own defense in an unrelated marijuana smuggling case. U.S. v. Jenkins, 2008 WL 564980. Border agents caught Sharon Ann Jenkins twice in two days in 2004 smuggling aliens in cars she was paid to drive across the Mexican border near San Diego. She admitted the smuggling and was released without charges both times. But three months later, when she drove across the border with 260 pounds of marijuana hidden in the car, she was arrested and charged with drug smuggling. Jenkins maintained that she believed she was smuggling an alien, not drugs. She testified in her own defense at a 2005 trial, again saying she did not know drugs were in the car. While jurors deliberated, federal prosecutors charged her with alien smuggling. Retried and convicted Ultimately, jurors deadlocked in her drug case. She was retried on the marijuana charges a few weeks later, convicted and sentenced to five years in prison. The alien smuggling claims were dismissed by the trial judge, who said they didn’t “pass the smell test.” The majority in a three-judge panel decision last year held that she was entitled to a presumption of vindictive prosecution if she could show the alien smuggling charges were filed because she exercised her constitutional Fifth Amendment right to testify. So long as Jenkins demonstrated a “reasonable likelihood” that the government would not have brought the charges if she had elected not to testify in her own defense, she is entitled to a presumption of vindictiveness by the government, which prosecutors may then rebut. The government argued that, while it could have charged her earlier, she made the alien smuggling case stronger with her testimony. The trial judge rejected that and dismissed the case, which the 9th Circuit affirmed. In dissent from the denial of en banc reconsideration, Judge Diarmuid O’Scannlain wrote on March 4 that the decision sets a “dangerous precedent.” He said the majority “recklessly split” with three other circuits, the 8th in U.S. v. Peoples, 360 F.3d 892 (2004); the 4th in U.S. v. Perry, 335 F.3d 316 (2003); and the 10th in U.S. v. Miller, 948 F.2d 631 (1991).

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