                           In the
 United States Court of Appeals
              For the Seventh Circuit
                        ____________

Nos. 02-3905 & 02-3906
UNITED STATES OF AMERICA,
                                            Plaintiff-Appellee,

                              v.


RUFINO FALCON,
                                        Defendant-Appellant.
                        ____________
           Appeals from the United States District Court
     for the Northern District of Indiana, Hammond Division.
    Nos. 2:01-CR-115 & 2:02-CR-38—James T. Moody, Judge.
                        ____________
    ARGUED MAY 12, 2003—DECIDED OCTOBER 29, 2003
                    ____________

  Before BAUER, KANNE, and WILLIAMS, Circuit Judges.
  PER CURIAM. Rufino Falcon entered the country illegally
and has previously been deported twice. In May 2002, he
was convicted by a jury of drug crimes and his sentence
included an enhancement for his leadership role in the en-
terprise. In July 2002, he pled guilty to an illegal reentry
charge brought in a separate complaint, after the district
court denied his motion to dismiss for vindictive prosecution
without conducting an evidentiary hearing. In these
consolidated appeals, Falcon challenges the sentencing en-
hancement and the district court’s failure to conduct a
hearing on his vindictive prosecution allegation. We affirm
the district court’s decisions.
2                                   Nos. 02-3905 & 02-3906

                    I. BACKGROUND
  In July 2002, Special Agent Scott Smith of the Drug
Enforcement Agency participated in a narcotics inves-
tigation of Jesus Albarado and Miseal Quinones. When
Agent Smith sought to purchase drugs from Albarado and
Quinones, Albarado telephoned Herbierto Valdovinas for
assistance in obtaining the cocaine. Valdovinas introduced
Albarado to Falcon as someone who could supply the co-
caine, and Falcon provided Albarado with a sample of
cocaine so that he might test the quality. Albarado later
telephoned Valdovinas and informed him that he needed
the kilogram of cocaine for a drug transaction with Agent
Smith later that afternoon. Valdovinas then contacted
Falcon, who instructed Valdovinas to pick him up so they
could go to Falcon’s home to get the cocaine. Falcon and
Valdovinas hid the cocaine in a secret compartment in a car
provided by Falcon, and Valdovinas then drove Falcon in
that car to a parking lot in Hammond, Indiana, where the
deal was to take place. Agent Smith did not show, and
Valdovinas drove them back to Chicago. After several failed
attempts to consummate the transaction in this fashion,
Falcon, Valdovinas, Albarado, and Quinones were arrested
when they arrived in Hammond to complete the deal.
  On July 18, 2001, Falcon and the others were indicted
on counts of conspiracy to possess with intent to distribute
500 grams of cocaine, in violation of 21 U.S.C. § 846, and
possession with intent to distribute 500 grams of cocaine, in
violation of 21 U.S.C. § 841(a)(1). On February 21, 2002, the
government obtained a superseding indictment that
charged only Falcon with two counts of obstructing justice
regarding the drug charges, by means of bribing a co-de-
fendant, in violation of 18 U.S.C. § 1510. On March 29,
Nos. 02-3905 & 02-3906                                               3

Falcon filed a motion for a bill of particulars,1 seeking to
learn more information about the factual and legal bases for
the obstruction charges, and a motion to dismiss both
obstruction counts. On April 18, Falcon filed a motion for an
order compelling the government to provide the bill of
particulars, which the court granted on April 23. In re-
sponse, the government tendered to the court under seal
grand jury transcripts relating to the superseding indict-
ment. On April 30, the district court granted Falcon’s mo-
tion to dismiss in part, dismissing one of the two obstruc-
tion charges.
  On May 6, with trial only a week away, Falcon filed a
motion in limine requesting that the government be pro-
hibited from using expert witness testimony because it had
failed to disclose the testimony as required by Federal Rule
of Criminal Procedure 16. Falcon also filed a motion for
sanctions against the prosecuting attorney for failing to
comply with the court’s order compelling a bill of particu-
lars. On May 9, the court scheduled a May 10 hearing for
Falcon’s motion for sanctions. The government never filed
a response to Falcon’s motion for sanctions, but on May 9 it
swore out before the magistrate judge a separate complaint
against Falcon, charging him with illegal reentry after de-
portation in violation of 8 U.S.C. § 1326(a) and (b). On the



1
    Federal Rule of Criminal Procedure 7(f) provides: “The court may
direct the government to file a bill of particulars. The defendant
may move for a bill of particulars before or within 10 days after ar-
raignment or at a later time if the court permits. The government
may amend a bill of particulars subject to such conditions as justice
requires.” A request for a bill of particulars should be granted if the
“ ‘indictment [fails to] set[] forth the elements of the offense
charged and sufficiently apprise[] the defendant of the charges to
enable him to prepare for trial.’ ” United States v. Fassnacht, 332
F.3d 440, 447 (7th Cir. 2003) (quoting United States v. Kendall, 665
F.2d 126, 134 (7th Cir. 1981)).
4                                        Nos. 02-3905 & 02-3906

morning of May 10, the district court denied Falcon’s
motion for sanctions in the drug case, but strongly admon-
ished the prosecutor for not fully complying with the court’s
orders.2 The complaint alleging illegal reentry was also filed
with the court on May 10.
  On May 13, Falcon was tried on the drug and obstruc-
tion charges. Valdovinas’s trial testimony established that
Falcon engaged Valdovinas to serve as a messenger for
Falcon, and that Falcon instructed Valdovinas several times
to accompany Falcon on trips to sell drugs. Testimony
further established that Falcon provided a car with a secret
compartment to transport the cocaine and that he was the
supplier of the drugs being sold when he was arrested. On
May 14, a jury convicted Falcon on the drug charges but ac-
quitted him on the remaining obstruction of justice charge.
   On May 16, the prosecutor in Falcon’s drug trial obtained
an indictment against Falcon on the separately filed illegal
reentry charge. On June 6, Falcon filed a motion to dismiss
the illegal reentry charge for vindictive prosecution, as-
serting that the charge was filed in retaliation for Falcon’s
May 6 motion for sanctions. The government responded to
the motion to dismiss by asserting that it had brought the
illegal reentry charge in order to punish Falcon fully for all
of his illegal conduct in light of his purported attempt to
bribe a co-defendant and obstruct justice. On July 3, the


2
   While Judge Moody was questioning the prosecutor about his
lack of compliance with the court’s orders, Judge Moody responded
to the prosecutor’s interruption by saying, “Obviously you know
I’m pretty upset. I was upset yesterday. Really upset. If you didn’t
get the hint, you should by now.” Sanctions Transcript at 11. In
denying the motion for sanctions, Judge Moody admonished the
prosecutor, “You know, timeframes that are set up by this Court
either by myself or the Magistrate Judge are extremely important
to this Court’s effectively operating its business. In the future, Mr.
Butler, meet them all. Understood?” Id. at 13.
Nos. 02-3905 & 02-3906                                     5

district court denied Falcon’s motion to dismiss the illegal
reentry charge for vindictive prosecution without permitting
discovery or conducting an evidentiary hearing on the issue.
On July 8, Falcon pled guilty to the illegal reentry charge,
but preserved his right to appeal the denial of his motion to
dismiss.
   On October 24, at sentencing for both cases, Falcon was
sentenced to 151 months’ imprisonment on the drug charges
and an eight-month concurrent term for his illegal reentry
conviction. Falcon appeals his sentence in the drug case and
his conviction in the illegal reentry case. First, he claims
that the district court erred in granting a two-level en-
hancement for his leadership role in the drug crimes.
Second, he claims that the district court erred in denying
his motion to dismiss for vindictive prosecution without
first conducting an evidentiary hearing on the issue. We
address these issues in turn.


                      II. ANALYSIS
A. Leadership Role Enhancement
  Falcon argues the district court erred in enhancing his
sentence for being an organizer, leader, manager, or super-
visor of the drug conspiracy. We will reverse a district
court’s decision to enhance a sentence only if it was clearly
erroneous. United States v. Matthews, 222 F.3d 305, 307
(7th Cir. 2000). The Sentencing Guidelines provide that a
defendant’s sentence may be enhanced two levels if he or
she was an “organizer, leader, manager, or supervisor” of
the criminal activity. U.S.S.G. § 3B1.1(c). Factors for the
court to consider when making this determination include
the defendant’s (1) exercise of decision-making authority;
(2) participation in committing the offense; (3) recruitment
of accomplices; (4) degree of participation in planning or
organizing the criminal activity; (5) degree of control or
authority exercised over others involved in the criminal ac-
6                                   Nos. 02-3905 & 02-3906

tivity; and (6) the nature and scope of the illegal activity.
Id. § 3B1.1, cmt. 4; United States v. Noble, 246 F.3d 946,
953 (7th Cir. 2001).
  Falcon argues that the enhancement was in error be-
cause he played no greater role in the enterprise than any
of his co-defendants. Falcon primarily disputes testimony
indicating that he directed Valdovinas’s actions and that
Valdovinas was not on equal footing with Falcon. Testimony
by Valdovinas and Agent Smith, however, indicated that
Valdovinas served as a messenger for Falcon, and that
Falcon instructed Valdovinas to accompany Falcon on trips
to sell drugs. That testimony also established that Falcon
provided the cocaine to be sold illegally and provided a car
with a secret compartment in which to hide the drugs. On
the whole, the district court found the trial testimony suffi-
cient to establish Falcon’s role as an organizer of a criminal
activity and these facts do not leave us with “the definite
and firm conviction that a mistake has been committed.”
United States v. Carrera, 259 F.3d 818, 826 (7th Cir. 2001);
see Noble, 246 F.3d at 954; United States v. Sierra, 188 F.3d
798, 803-04 (7th Cir. 1999); United States v. Mustread, 42
F.3d 1097, 1103-04 (7th Cir. 1994). Therefore, we affirm the
district court’s decision to enhance Falcon’s drug sentence
for his leadership role in the enterprise.


B. Vindictive Prosecution Hearing
  Falcon argues that the district court should have granted
a hearing on his claim of prosecutorial vindictiveness be-
cause the government brought the separate illegal reentry
charge only after he filed motions to exclude the govern-
ment’s expert witness testimony and to sanction the pros-
ecuting attorney. Falcon also contends the government
failed to provide a sufficient explanation for the timing of
the complaint. We review the district court’s legal conclu-
sions de novo and its findings of fact for clear error. United
Nos. 02-3905 & 02-3906                                      7

States v. Bullis, 77 F.3d 1553, 1558 (7th Cir. 1996).
  A vindictive prosecution claim arises when the govern-
ment pursues prosecution in retaliation for the exercise of
a protected statutory or constitutional right. United States
v. Monsoor, 77 F.3d 1031, 1034 (7th Cir. 1996); see also
Bullis, 77 F.3d at 1558 (“A prosecution is vindictive and a
violation of due process if undertaken to punish a person
because he has done what the law plainly allowed him to
do.”) (quotations omitted). To obtain the evidentiary hearing
Falcon seeks, he must offer sufficient evidence to raise a
reasonable doubt that the government acted properly in
bringing the illegal reentry charge. Monsoor, 77 F.3d at
1034.
   To raise a reasonable doubt as to the propriety of charges
added before trial, a defendant “must affirmatively show
through objective evidence that the prosecutorial conduct at
issue was motivated by some form of prosecutorial animus,
such as a personal stake in the outcome of the case or an
attempt to seek self-vindication.” Bullis, 77 F.3d at 1559.
The affirmative showing is necessary because a prosecutor’s
pretrial decisions, including the choice to seek increased or
additional charges, are presumed valid. United States v.
Spears, 159 F.3d 1081, 1086 (7th Cir. 1998); Bullis, 77 F.3d
at 1559; see also United States v. Goodwin, 457 U.S. 368,
384 (1982). Such pretrial decisions are presumed valid be-
cause “[a] prosecutor should remain free before trial to
exercise the broad discretion entrusted to him to determine
the extent of the societal interest in prosecution.” Goodwin,
457 U.S. at 382. Although there are limited circumstances
where a defendant is entitled to a presumption of vindic-
tiveness, those cases ordinarily arise after trial, following
the defendant’s exercise of his right to de novo review. Id.
at 376-377; see, e.g., Blackledge v. Perry, 417 U.S. 21 (1974)
(finding a presumption of prosecutorial vindictiveness
where the prosecutor pursued enhanced charges after the
defendant exercised his right to a trial de novo); North
8                                   Nos. 02-3905 & 02-3906

Carolina v. Pearce, 395 U.S. 711 (1969) (finding a presump-
tion of vindictiveness where a judge imposed a more severe
sentence after a new trial).
  When the government brings additional charges before
trial, but after the defendant exercises a procedural right,
evidence of suspicious timing alone does not indicate pros-
ecutorial animus. See Bullis, 77 F.3d at 1559. As observed
in Goodwin:
    [A] defendant before trial is expected to invoke proce-
    dural rights that inevitably impose some “burden” on
    the prosecutor. Defense counsel routinely file pretrial
    motions to suppress evidence; to challenge the suffi-
    ciency and form of an indictment; to plead an affirma-
    tive defense; to request psychiatric services; to obtain
    access to government files; to be tried by jury. It is
    unrealistic to assume that a prosecutor’s probable re-
    sponse to such motions is to seek to penalize and to
    deter.
457 U.S. at 381. Only if a defendant can present evidence
other than or in addition to timing will the burden shift to
the government to come forward with proof that the
motivation behind the charge was proper. Bullis, 77 F.3d at
1559.
  Falcon’s sole support for his vindictive prosecution claim
is the allegedly suspicious timing of the illegal reentry
complaint. The charge arrived on the heels of the following
circumstances: (1) Falcon’s motion in limine to exclude the
government’s expert witness testimony; (2) Falcon’s motion
for sanctions, which arose out of the government’s failure to
adequately respond to Falcon’s request for a bill of par-
ticulars; and (3) the hearing on the motion for sanctions
where the district court judge strongly admonished the
prosecuting attorney for failing to abide by court-set dead-
lines. Based on this chain of events, Falcon posits that the
prosecuting attorney filed the illegal reentry charge to
Nos. 02-3905 & 02-3906                                      9

retaliate against Falcon for pursing his rights through pre-
trial motions. Here, the motion in limine and the motion for
sanctions are procedural in nature. Without additional
evidence that the prosecuting attorney harbored ill will
against Falcon, the timing of the illegal reentry charge is
not enough to shift the burden to the government or require
a hearing.
  The government responded to Falcon’s vindictive prose-
cution claim by explaining that the illegal reentry charge
was legitimate and pursued to fully punish Falcon for his
aborted bribery attempt. Although the district court did not
have to reach the government’s reasons for filing the com-
plaint since Falcon did not meet his evidentiary burden, it
did not clearly err in crediting the government’s explana-
tion. It is undisputed that the charge had merit; the defend-
ant had been previously deported twice. Further, Falcon
offered no explanation other than timing for the govern-
ment’s action, failing to cast doubt on the government’s
justification.


                    III. CONCLUSION
   For the foregoing reasons, we AFFIRM the district court’s
decisions to enhance Falcon’s drug sentence and to deny,
without an evidentiary hearing, his motion to dismiss the
illegal reentry indictment for vindictive prosecution.




  WILLIAMS, Circuit Judge, dissenting. I agree that Fal-
con’s drug sentence was properly enhanced for his leader-
ship role in the enterprise. I respectfully disagree, however,
with my colleagues’ conclusion that Falcon was not entitled
to a vindictive prosecution hearing regarding the illegal re-
10                                   Nos. 02-3905 & 02-3906

entry indictment.
  Falcon has raised a “reasonable doubt that the govern-
ment acted properly” in seeking the illegal reentry indict-
ment sufficient to merit a hearing on his charge of vindic-
tive prosecution. See United States v. Monsoor, 77 F.3d
1031, 1034 (7th Cir. 1996) (citations omitted); United States
v. Heideke, 900 F.2d 1155, 1158 (7th Cir. 1990).1 The illegal
reentry complaint was sworn to on May 9, only three days
after Falcon filed a non-frivolous sanctions motion in his
drug case against the same prosecuting attorney who then
pursued the illegal reentry charge. I disagree with the
majority’s assertion that a sanctions motion is merely
“procedural in nature.” In this case, the motion personally
accused the prosecuting attorney of failing to comply with
a court order to provide Falcon with a bill of particulars on
the obstruction charge, conduct for which the district court
verbally reprimanded the prosecutor in the sanctions hear-
ing. See majority opinion at note 2. The timing of the com-
plaint seems even more suspicious given that it was filed on
May 10, the day of the sanctions hearing, but not until five
hours after the district court verbally reprimanded the
prosecutor.
  The government argues, as it did before the district court,
that it filed the illegal reentry complaint because it had a
factual basis for the indictment and because, having dis-
covered that Falcon may have attempted to bribe a co-de-
fendant in his drug case, it “determined Falcon was a
serious criminal offender that should be held responsible for
his past immigration violations as well.” Not only does this
argument fail to reconcile the suspicious timing that we
outlined above, but on this record it also strains credibility.


1
  To obtain discovery into a vindictive prosecution allegation a
defendant need only present a “colorable basis” for the claim.
Heideke, 900 F.2d at 1159.
Nos. 02-3905 & 02-3906                                           11

First, the government did not discover Falcon’s prior
illegally reentry and deportation history just before it filed
the illegal reentry charge or just after Falcon filed his mo-
tion for sanctions. See United States v. Napue, 834 F.2d
1311, 1330 (1987) (“[T]he extent to which the government
had obtained its evidence prior to the defendant’s assertion
of some right ‘is one of the key indicia scrutinized by courts
when confronted with a claim of vindictive prosecution.’ ”)
(citations omitted); United States v. Dickerson, 975 F.2d
1245, 1251 (7th Cir. 1992). Indeed, even if the government
did not know about the factual basis for bringing the illegal
reentry charge at the time it originally charged Falcon with
his drug crimes, it knew about his deportation history at
the time it filed the superseding indictment charging him
with obstruction of justice.2 Moreover, the government ac-
tually brought the obstruction of justice charge, and surely
it could have at that time also added the illegal reentry
charge to the superseding indictment,3 especially when the
facts underlying the obstruction charge were the govern-
ment’s sole basis for “later” concluding that Falcon was
“a serious criminal offender that should be held responsible


2
   The illegal reentry indictment was filed separate from, and ten
months after, Falcon was initially charged in the drug case, and
it was filed almost three months after the same prosecuting at-
torney obtained a superseding indictment in Falcon’s drug case,
charging him with obstruction of justice for alleged bribery of a co-
defendant.
3
  We have rejected claims of prosecutorial vindictiveness when a
superseding indictment included a more severe charge, or resulted
in a more severe sentence, following a change in circumstances,
the exercise of a statutory right, or the discovery of new evidence.
See, e.g., United States v. O’Hara, 301 F.3d 563, 571 (7th Cir.
2002); Bullis, 77 F.3d at 1559; United States v. Yarbough, 55 F.3d
280, 282-83 (7th Cir. 1995); Schiselman v. United States Parole
Comm’n, 858 F.2d 1232, 1240 (7th Cir. 1988).
12                                   Nos. 02-3905 & 02-3906

for his past immigration violations as well.”
  In finding this to be one of those rare occasions when
this court should conclude that an evidentiary hearing into
vindictive prosecution should have been provided, I do not
conclude that prosecutorial animus or vindictiveness actu-
ally existed in this case, nor do I explicitly find any wrong-
doing on the part of the prosecutor. I merely believe that
the timing of the illegal reentry complaint, immediately fol-
lowing Falcon’s sanctions motion that personally attacked
the prosecutor, gives rise to reasonable doubt of prosecuto-
rial vindictiveness sufficient to trigger a hearing into the
indictment’s propriety. Monsoor, 77 F.3d at 1034; Heideke,
900 F.2d at 1158 (“For a presumption of vindictiveness to
arise, the facts of a case must implicate . . . a personal stake
of the prosecutor; in other words, there must be a realistic
likelihood of vindictiveness.”) (citing United States v.
Goodwin, 457 U.S. 368, 376 (1982)). I recognize the poten-
tial for abuse of prosecutorial vindictiveness allegations,
and “we must guard against allowing claims of vindictive
prosecution to mask abusive discovery tactics by defen-
dants.” Heidecke, 900 F.2d at 1159. Yet, when considering
that “the defense[] of . . . vindictive prosecution require[s]
the defendant to probe the mental state of the prosecutors,”
I feel such a risk is justified in this situation. Id.; cf.
Dickerson, 975 F.2d at 1251. The district court might rea-
sonably conclude there was a “realistic likelihood of vin-
dictiveness” in this case, Goodwin, 457 U.S. at 376, and
under such circumstances an evidentiary hearing should
have occurred to avoid “prematurely stif[ling] a legitimate
defense of vindictive prosecution for lack of evidence.”
Heidecke, 900 F.2d at 1159.
  For the foregoing reasons, I respectfully dissent from the
majority’s conclusion that Falcon was not entitled to a vin-
dictive prosecution hearing.
Nos. 02-3905 & 02-3906                                13

A true Copy:
      Teste:

                      ________________________________
                      Clerk of the United States Court of
                        Appeals for the Seventh Circuit




                 USCA-02-C-0072—10-29-03
