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

No. 05-2844
UNITED STATES OF AMERICA,
                                             Plaintiff-Appellant,
                                v.

JERRY JARRETT,
                                             Defendant-Appellee.
                         ____________
            Appeal from the United States District Court
     for the Northern District of Indiana, Fort Wayne Division.
              No. 03 CR 87—William C. Lee, Judge.
                         ____________
    ARGUED FEBRUARY 21, 2006—DECIDED MAY 9, 2006
                   ____________

 Before MANION, WOOD, and EVANS, Circuit Judges.
  EVANS, Circuit Judge. Jerry Jarrett is an aggressive
and successful criminal defense attorney from northern
Indiana. Jarrett, however, has not always limited his
services to representing accused clients. On at least two
occasions, according to a jury that found him guilty be-
yond a reasonable doubt, he helped drug dealers launder
money produced by their illegal enterprises. And for those
activities he came to the attention of federal prosecutors,
which eventually led to the jury that heard his case.
  After he was tried and convicted for money laundering
and illegally structuring financial transactions, Jarrett
moved to have his indictment tossed out, claiming he
was the victim of a vindictive prosecution. Jarrett argued
2                                                    No. 05-2844

that the government only came after him because he
succeeded in getting state murder charges dismissed
against a client who was the target of a highly publicized,
joint federal-state investigation. In a lengthy and detailed
opinion, the district court (the venerable Judge William C.
Lee presiding) found that Jarrett was vindictively prose-
cuted. Upon that finding, the court vacated the jury ver-
dict and dismissed the charges. The government, hoping
to revive the jury’s verdict, appeals.
  Jarrett, it is alleged, began cleaning up dirty money
in April 1999, when a drug dealer named Carlos Ripoll
brought him $67,000 in cash. Jarrett deposited the
money in a series of small transactions (to evade cur-
rency transaction reports) into the bank account of a
dormant small business he controlled.1 Jarrett then pre-
pared a backdated stock purchase agreement, representing
that Ripoll had “invested” $15,000 in Jarrett’s company,
and issued a series of checks to Ripoll totaling $54,452 for
“return on investment.” As compensation for his services,
Jarrett pocketed $12,000.
  Beginning in September 1999, Jarrett executed a sim-
ilar series of sham transactions with a cocaine dealer
named Gregory Goode, laundering $25,000 in drug money
and keeping a $7,000 profit.



1
   Jarrett incorporated this business, “Left-Filled, Inc.,” with his
son in 1997, a time when Jarrett was disbarred for what the
Indiana Supreme Court called “an alarming pattern of derelic-
tion of duty, abandonment of clients’ interests, often resulting
in irreparable damage, and a blatant disregard of professional
responsibilities.” In re Jarrett, 657 N.E.2d 106, 109 (Ind. 1995).
Left-Filled was supposed to market products for left-handed
people. However, it apparently sold only a few items and never
turned a profit. Jarrett regained his license to practice law
in September of 1999.
No. 05-2844                                                3

  Three months later, Ripoll was arrested and quickly
began talking to the government. Among other things, he
described his financial dealings with Jarrett, telling in-
vestigators that Jarrett was aware that he was handling
drug money. Ripoll also described his drug dealings
with Goode.
  A federal grand jury subpoenaed Jarrett to testify in
December 1999. Jarrett was designated as a fact witness,
not a target, and fully cooperated. He produced records
of his financial dealings with Ripoll and Goode but de-
nied any knowledge that the money he received had come
from drugs. (He said Ripoll and Goode told him that the
money came from gambling winnings, selling cars, and
rehabbing houses.)
  In late 2000, after Goode was arrested, he gave a
sworn proffer to the government in anticipation of plea
negotiations. Goode, who at the time was represented by an
attorney Jarrett told him to hire, said Jarrett cleaned up a
small amount of his money. However, he was equivocal
about whether Jarrett knew the money came from drug
dealing. In the proffer, Goode lied about his own drug-
dealing activities and, according to a statement given a
few years later, about the amount of money he gave Jarrett.
The plea negotiations fell apart, and nothing came of the
proffer. After he was tried and convicted of conspiracy to
distribute cocaine and money laundering, Goode fired the
lawyer who was recommended by Jarrett.
  Although it apparently had enough evidence to indict
him, the government let its investigation of Jarrett lay
dormant throughout 2001 and 2002. Prosecutors said
they were unwilling to go to trial with only the testimony of
one convicted criminal—Ripoll—to establish Jarrett’s
knowledge that the cash he deposited came from drug
proceeds.
4                                                No. 05-2844

  In January 2003, the U.S. Attorney’s office (USAO) for the
Northern District of Indiana again approached Goode, this
time through the new attorney who was representing him
on appeal. The attorney had been appointed by the court
and thus, unlike Goode’s trial counsel, had no ties
to Jarrett. This time the two sides struck a deal, and
2 months later Goode changed his story from his 2000
proffer and told a grand jury that Jarrett did indeed know
that the money they exchanged came from selling drugs.
The grand jury knew Goode was a convicted felon (he
testified in his prison jumpsuit) and thus could weigh
the consideration that his testimony might not be com-
pletely credible. However, the government did not tell the
grand jury that Goode was testifying as part of a deal that
would reduce his 15-1/2-year sentence. Ripoll’s earlier
statements about Jarrett were presented in hearsay
form. With Goode’s testimony in hand, the government
notified Jarrett in May 2003 that he was the target of
a grand jury investigation for money laundering.
  Meanwhile, Jarrett was busy with the headline-grabbing
case of Dr. Jong Hi Bek. In July 2002, authorities capped a
long-running, joint federal-state investigation by raiding the
Gary clinic where Bek was prescribing painkillers and other
controlled substances to drug addicts. Lake County (Indi-
ana) prosecutors charged Bek with felony murder for the
deaths of two of his clients. Federal prosecutors also
charged him with illegally distributing controlled sub-
stances; they later dismissed this complaint so the state
case could proceed, but about the same time filed a federal
civil forfeiture action.
  As Bek’s attorney, Jarrett moved in September 2002 to
compel disclosure of the state’s expert witnesses, who would
be needed to establish that Bek’s prescriptions actually
caused the two patients’ deaths. After some foot-dragging,
the state admitted in March 2003 that it lacked conclusive
toxicology evidence against Bek, and a month later it
No. 05-2844                                                5

voluntarily dismissed the murder charges. This was an
embarrassment for the Lake County prosecutors, given the
public attention the Bek investigation had generated.
  Four months later, federal prosecutors reindicted Bek
for illegal drug distribution and other charges. Since
Jarrett, who was still serving as Bek’s attorney, was the
target of a separate criminal investigation into the money-
laundering scheme, the government urged the district judge
in the Bek case to disqualify him, arguing that an attorney
facing his own legal problems with federal prosecutors
might have a conflict of interest that would keep him from
rendering effective assistance to his client. The court
determined that Bek understood the potential problem but
still wanted to keep Jarrett as his attorney.2
   In October 2003, IRS investigators recommended charges
against Jarrett. In December 2003, 4 years after Jarrett
first testified about his activities with Ripoll and Goode, a
grand jury indicted him on six counts of money launder-
ing and illegal structuring.
   With this factual background established, Jarrett’s
argument can be succinctly summarized: He had a legal
right and duty to provide a vigorous defense for his
client, Dr. Bek. Because he had succeeded in getting the
state’s felony-murder charges dismissed, he embarrassed
not only Lake County officials but also their federal part-
ners in the Bek investigation—namely, the U.S. Attorney’s
office. The feds now had to take over the Bek prosecution,
and—out of retaliation, or fear of Jarrett’s legal acumen, or
both—they wanted Jarrett sidelined by any means neces-
sary. So they revived a case that had gone cold—the 3-year-
old money laundering probe—and indicted him for the sole
purpose of getting him off the Bek case.


2
  Jarrett later withdrew from representing Bek for financial
reasons. Bek was eventually convicted on all federal counts.
6                                                No. 05-2844

  On a claim of vindictive prosecution, we review the
district court’s legal conclusions de novo and its findings
of fact for clear error. United States v. Falcon, 347 F.3d
1000, 1004 (7th Cir. 2003).
  The Constitution prohibits the government from under-
taking a prosecution based solely on a vindictive motive.
“[F]or an agent of the [United States] to pursue a course
of action whose objective is to penalize a person’s reli-
ance on his legal rights” is “a due process violation of the
most basic sort . . . .” Bordenkircher v. Hayes, 434 U.S. 357,
363 (1978). A claim of vindictive prosecution “is not
a defense on the merits to the criminal charge itself, but an
independent assertion that the prosecutor has brought the
charge for reasons forbidden by the Constitution.” United
States v. Armstrong, 517 U.S. 456, 463 (1996).
  At the same time, the Supreme Court’s decisions have
recognized that government prosecutors have a wide
discretion over whether, how, and when to bring a case. “In
the ordinary case, ‘so long as the prosecutor has probable
cause to believe that the accused committed an offense
defined by statute, the decision whether or not to prosecute,
and what charge to file or bring before a grand jury,
generally rests entirely in his discretion.’” Id. at
464 (quoting Bordenkircher, 434 U.S. at 364). Because
a claim of vindictive prosecution “asks a court to exercise
judicial power over a ‘special province’ of the Executive,”
courts must begin from a presumption that the government
has properly exercised its constitutional responsibilities to
enforce the nation’s laws. Id. (quoting Heckler v. Chaney,
470 U.S. 821, 832 (1985)). This “presumption of regularity”
in prosecutorial decision making can only be overcome by
“clear evidence to the contrary.” Id. The standard of proof
“is a demanding one.” Id. at 463.
  In order to succeed on a claim of prosecutorial vindictive-
ness, a defendant “must affirmatively show through
No. 05-2844                                                 7

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.” Falcon, 347 F.3d at 1004; United
States v. Bullis, 77 F.3d 1553, 1559 (7th Cir. 1996); see also
United States v. Johnson, 221 F.3d 83, 94 (2nd Cir. 2000) (A
finding of “actual vindictiveness requires ‘direct’ evidence,
such as evidence of a statement by the prosecutor . . . .”). A
defendant may do this by showing that the decision to
pursue an indictment was not based on the “usual determi-
native factors” a responsible prosecutor would consider
before bringing charges. United States v. Spears, 159 F.3d
1081, 1086 (7th Cir. 1998). Only after a defendant comes
forward with objective evidence of actual vindictiveness
does the burden shift to the government to show that the
motivation behind the charges was proper. Bullis, 77 F.3d
at 1559. A court must be persuaded that the defendant
would not have been prosecuted but for the government’s
animus or desire to penalize him. United States v. Monsoor,
77 F.3d 1031, 1034 (7th Cir. 1996); United States v.
Goodwin, 457 U.S. 368, 380 n.12 (1982).
  Although there are limited circumstances in which a
defendant is entitled to a burden-shifting presumption of
vindictiveness, cases where courts have found such circum-
stances have arisen exclusively in the post-trial context.
Falcon, 347 F.3d at 1005 (citing Goodwin, 457 U.S. at 382);
also see Blackledge v. Perry, 417 U.S. 21 (1974) (finding a
presumption of vindictiveness where the prosecutor pursued
enhanced charges after the defendant successfully chal-
lenged his conviction and was awarded a new trial).
  When a defendant is challenging his indictment, the
presumption of regularity in favor of the government’s
conduct, combined with the requirement of clear evidence to
the contrary and the “rigorous standard” by which such
evidence must be evaluated, Armstrong, 517 U.S. at 468,
means that a claim of vindictive prosecution is extremely
8                                                No. 05-2844

difficult to prove. Acknowledging that it could find no
reported appellate decisions in which such a claim was
upheld, the district court looked for guidance to United
States v. Wilson, 262 F.3d 305 (4th Cir. 2001). Although the
Fourth Circuit in Wilson reversed a district court’s finding
of vindictive prosecution, it suggested that there may be
times when a defendant who has been “unable to prove an
improper motive with direct evidence . . . may still present
evidence of circumstances from which an improper vindic-
tive motive may be presumed.” Id. at 314. Wilson did not
offer a framework for how a court might decide when a
presumption of vindictiveness in the government’s pretrial
behavior is called for, saying only that “the
circumstances . . . must be sufficiently suggestive of vindic-
tive prosecution that when similar circumstances are
presented in other factual contexts, the same conclusion
would be suggested.” Id. at 317-18 (citing Goodwin, 457
U.S. at 381). Applying the nebulous guidance of Wilson to
what it called the “compelling” circumstances of Jarrett’s
case, the district court concluded that a presumption of
vindictive prosecution was appropriate. Moreover, it found
that the presumption was “totally unrebutted by the govern-
ment.”
   No other appellate court appears to have joined the
Fourth Circuit in suggesting how a presumption of gov-
ernment vindictiveness may be created based on events
before trial. In Goodwin, the Supreme Court explained why
“[t]here is good reason to be cautious before adopting” such
a presumption:
    In the course of preparing a case for trial, the prosecu-
    tor may uncover additional information that suggests a
    basis for further prosecution or he simply may have
    come to realize that information possessed by the
    [government] has a broader significance. At this
    stage of the proceedings, the prosecutor’s assessment of
No. 05-2844                                                 9

    the proper extent of prosecution may not have crystal-
    lized.
            ....
    . . . A prosecutor should remain free before trial to
    exercise the broad discretion entrusted to him to
    determine the extent of the societal interest in prosecu-
    tion.
Goodwin, 457 U.S. at 381-82.
  Accordingly, our own precedents have not recognized
any circumstances in which a presumption of vindictiveness
may be applied to events that took place before trial. See
Spears, 159 F.3d at 1086 (noting that the Supreme Court in
Goodwin had “refused to extend” such a presumption and
that the only way for a defendant to prove vindictiveness is
through objective evidence); see also Wayne R. LaFave et
al., Criminal Procedure (3d ed. 2000) (noting that in light of
Goodwin, it is “unlikely” that a presumption of vindictive-
ness “has any application whatsoever in a pretrial setting”).
Against this landscape we conclude that the district court
committed legal error when it found such a presumption to
be warranted in the circumstances of Jarrett’s indictment.
  Without benefit of a presumption against the government,
Jarrett’s claim can only succeed if he has shown clear and
objective evidence of genuine prosecutorial vindictiveness
which the government has not successfully rebutted. Based
on our own examination of the record and the factors on
which the district court relied, we conclude that the evi-
dence is not legally sufficient to support a finding of
vindictiveness.
  First, it should be noted that at no point has Jarrett
produced any public or private statement by a pros-
ecutor manifesting animus toward him; any document
that might establish bad motives on the part of the govern-
ment; or any similar “smoking gun.” And so he builds his
10                                               No. 05-2844

case on examples of suspicious timing, speculation about
the government’s motives, and allegations that the U.S.
Attorney’s office failed to follow its internal procedures in
pursuing his indictment. Similarly, the district court based
its finding on the “cumulative weight” of the facts it consid-
ered, acknowledging that “any one of these facts might
appear suspicious but not indicative of vindictive prosecu-
tion.” But that reasoning—the whole amounts to more than
the sum of its parts—cannot take the place of clear and
objective evidence, especially when the standard for vindic-
tive prosecution is so rigorous.
  The core premise around which Jarrett builds his claim is
that his indictment resulted directly from his success in
getting Dr. Bek’s murder charges dismissed. But with no
direct evidence to point to, Jarrett must resort
to speculation about the USAO’s motives. He reasons
that because federal and state authorities worked to-
gether on the Bek case, the USAO had a “stake in the
outcome of Bek’s [state] trial.” When the state case against
Bek collapsed, Jarrett insists we must believe, the “taint of
the unsustainable murder charges was felt in both agen-
cies.” On this basis, and looking for legal support
from Falcon, see 347 F.3d at 1004, he believes that the
USAO “had a stake in the outcome of [his] case and a strong
motive for seeking self-vindication.”
  Jarrett does not convincingly explain how his indictment
in a completely different case “vindicated” the government’s
role in the Bek prosecution (he continued representing Bek
until the two parted ways after a dispute over attorney’s
fees) or erased whatever “taint” the USAO supposedly felt.
What Jarrett really seems to be saying is that the feds
orchestrated his indictment as payback, or because they
feared him as an adversary once it became their responsibil-
No. 05-2844                                                        11

ity to salvage something from the Bek investigation.3 The
district court appeared to credit both theories, at one point
expressing its view that the government had indicted
Jarrett “simply to remove a foe from a highly-publicized
case in which the prosecutors have suffered criticism,” and
observing at another point that although the government
could have indicted Jarrett for money laundering back in
1999, it “did not target Jarrett until he forced the Bek case
to federal court, where he stood as a formidable opponent.”
  Recall that the Bek case collapsed because the state’s
toxicologist could not establish that Bek’s prescriptions
actually caused two deaths. Jarrett’s primary role, pretrial,
was to lodge motions (and argue Bek’s innocence to the
news media). But with all due respect to Jarrett’s profes-
sional acumen, moving to compel disclosure of the state’s
expert evidence did not make him Perry Mason outwitting
a hapless Hamilton Burger. Indeed, in a felony murder case
against a doctor accused of illegally dispensing narcotics, it
would have been unusual, if not irresponsible, for the
defense not to probe the strength of the toxicology evidence
the state would present at trial.
   To be sure, the Lake County prosecutors must have
been embarrassed when they had to dismiss their case. But
it does not follow that this embarrassment must also be
imputed to the USAO. Jarrett offers no evidence, for
example, that the federal government itself was criticized
in any media accounts.4 And so we cannot simply presume


3
  At oral argument, Jarrett said he was not claiming that he was
the only attorney who could successfully have defended Bek, or
even that he would have won against the subsequent federal
prosecution, only that he believed the government knew he
would have put up “fierce opposition.”
4
    In its story of April 22, 2003, headlined “State drops two murder
                                                         (continued...)
12                                                   No. 05-2844

bad motives by the government. The Supreme Court has
admonished that courts should not “assume that a prosecu-
tor’s probable response to [pretrial] motions is to seek to
penalize and to deter.” Goodwin, 457 U.S. at 381. Moreover,
the likelihood of vindictive prosecution is reduced when
successive prosecutions are brought by different sovereigns.
United States v. Dickerson, 975 F.2d 1245, 1251 (7th Cir.
1992); United States v. Robison, 644 F.2d 1270, 1273 (9th
Cir. 1981). While it described him as an “aggressive and
highly successful defense attorney,” the district court did
not find that Jarrett had some unique ability to defend Bek
against the federal prosecution. And the fact that the
government gained an opportunity to reopen its investiga-
tion of Jarrett during the time he was representing Bek
cannot, by itself, serve as evidence of a vindictive motive.
“The timing of [a] federal prosecution, alone, cannot change
[a] legitimate exercise of normal prosecutorial discretion
into a vindictive prosecution.” Dickerson, 975 F.2d at 1252.
  Indeed, a closer look at the actual sequence of events does
not support the theory that the failure of the Bek murder
case caused the government to revive its money laundering
investigation against Jarrett. The USAO approached Goode
with its deal to testify against Jarrett in January 2003. A
Rule 35 motion (to reduce sentence) was filed in February,
and Goode appeared before the grand jury on March 6. It
was not until more than 2 weeks later—March 21—that the
state’s expert acknowledged he did not have the critical
evidence against Bek and a month after that—April
23—that the state murder charges were dismissed. The
district court’s opinion implied that trouble may have been


4
  (...continued)
charges against Bek,” the Gary Post-Tribune makes only passing
reference to the U.S. Attorney’s office as a participant in the Bek
investigation along with the Lake County prosecutor and Indiana
State Police.
No. 05-2844                                               13

brewing in the Bek case around the time the USAO sought
out Goode’s cooperation, noting that the state missed two
deadlines for producing its toxicology evidence. But if the
government began moving against Jarrett in January 2003
because it was concerned that the state’s Bek case might
unravel several months down the road, Jarrett has pro-
duced no evidence whatsoever, only his own speculation, to
support that crucial point. And speculation is not a suffi-
cient basis for determining that Jarrett would not have
been prosecuted but for the government’s animus or desire
to penalize him. See Monsoor, 77 F.3d at 1034; Goodwin,
457 U.S. at 380 n.12.
  Since the central premise of Jarrett’s argument does
not withstand scrutiny, one would have to squint hard at all
the circumstantial evidence surrounding it, and draw a
number of critical inferences in Jarrett’s favor, to conclude
that he would not have been prosecuted but for the vindic-
tive motivation of the government. The applicable legal
standard does not, however, permit giving Jarrett such
large benefits of the doubt. While the district court was
troubled by what it regarded as various suspicious circum-
stances surrounding Jarrett’s indictment, suspicion is not
proof, and we do not find in these events the clear and
objective evidence needed to establish vindictive prosecu-
tion.
  Perhaps the most tangible allegation Jarrett lodges
against the USAO—and the issue that seemed most
troubling to the district court—was its failure to disclose
certain information to the grand jury that indicted him. The
government did not inform the grand jury that Goode was
testifying in exchange for a sentence reduction; did not call
Jarrett so he could tell his side; did not correct Goode’s
perjurious statement that he never dealt in crack; and did
not disclose certain exculpatory evidence, particularly
Jarrett’s 1999 testimony in which he denied knowledge that
the cash he received from Ripoll and Goode came from drug
14                                              No. 05-2844

sales. The grand jury also did not know that Goode told a
somewhat different story about Jarrett in his December
2000 proffer. Jarrett maintains that all this violated the
spirit, if not the letter, of various provisions in the hand-
book for U.S. Attorneys. While the district court acknowl-
edged that none of the government’s behavior was sufficient
grounds to dismiss an otherwise valid indictment, it
accepted Jarrett’s argument that the government’s sup-
posed lack of fidelity to its own policies was objective
evidence that it did not base its pursuit of Jarrett on the
“usual determinative factors” in a prosecution. See Spears,
159 F.3d at 1086.
  We believe the district court misconstrued the meaning of
“usual determinative factors.” This term in its ordinary
meaning refers to the various considerations a responsible
prosecutor in the ordinary course of things would weigh in
deciding whether or not to bring a particular charge. See,
e.g., United States v. DeMichael, 692 F.2d 1059, 1062 (7th
Cir. 1982) (noting that “[t]here is no vindictiveness as long
as the prosecutor’s decision is based upon the normal
factors ordinarily considered in determining what course to
pursue”) (emphasis added). For example, we have explained
that “[t]he United States Attorney in one district may
properly take into consideration the results of prosecution
in another district in determining whether to proceed with
prosecution for the offenses committed within his baili-
wick.” Id.
  Failure to follow internal operating policy in prosecut-
ing is not, by itself, evidence of vindictive prosecution.
United States v. Benson, 941 F.2d 598, 612 (7th Cir. 1991);
United States v. Mitchell, 778 F.2d 1271, 1276 (7th Cir.
1985). And we do not see how “usual determinative factors”
could encompass the conduct of government attor-
neys before grand juries. Case law, not internal handbooks,
provides the guidance for whether a prosecutor has crossed
the line in pursuing an indictment. See United States v.
No. 05-2844                                               15

Gillespie, 974 F.2d 796, 800 (7th Cir. 1992) (explaining that
Bank of Nova Scotia v. United States, 487 U.S. 250 (1988),
and United States v. Williams, 504 U.S. 36 (1992), “articu-
late clear limits” on the authority of federal courts “to
exercise our supervisory powers as a means of imposing
preferred policies” in the grand jury context “in the absence
of any constitutional or congressional imperative”); see also
Williams, 504 U.S. at 36 (a court may not dismiss an
otherwise valid indictment because the government failed
to disclose substantial exculpatory evidence to the grand
jury); id. at 52 (while the government may call a target to
testify before the grand jury considering his indictment, it
is under no obligation to do so).
  Jarrett assumes that a nonvindictive prosecutor would
have afforded him a sort of mini-trial in front of the
grand jury. But the Supreme Court explained a half-century
ago that the Fifth Amendment’s grand jury guarantee does
not give defendants the right to a “preliminary trial to
determine the competency and adequacy of the evidence
before the grand jury.” Costello v. United States, 350 U.S.
359, 363 (1956). Since the indictment that issued was
legally valid, we cannot consider what was not presented to
the grand jury as clear and objective evidence of vindictive-
ness by the prosecution.
  While the district court found that the government had
the evidence it needed to indict Jarrett back in 1999, the
government’s assessment that it needed Goode’s testimony
to bolster its case and improve its chances of securing
a conviction is entitled to deference. There is no sound
reason to second-guess the government’s position that
Goode’s agreement to cooperate in early 2003 was the
“turning point” of its investigation because it gave prosecu-
tors a second, corroborating witness about Jarrett’s knowl-
edge that he was handling drug money. Waiting to build a
stronger case before pursuing an indictment is evidence of
responsible, rather than vindictive, government behavior.
16                                               No. 05-2844

Finally, although the government had Goode’s 2000 proffer,
it did not have Goode himself, for he did not agree to testify
until later. His proffer was hearsay, see United States v.
Maldonado, 38 F.3d 936, 942 (7th Cir. 1994), and would
have been inadmissible under the Confrontation Clause if
the case went to trial without his live testimony in 2000 or
2001. See cases cited in Crawford v. Washington, 541 U.S.
36 (2004).
  The district court speculated that Goode had a strong
motive to fabricate his testimony about Jarrett and that
Jarrett’s cross-examination exposed Goode as someone
who lied in the past and would “say whatever most benefits
him at the moment.” But a trial judge does not sit as a 13th
juror to evaluate the credibility of a witness, United States
v. Genova, 333 F.3d 750, 757 (7th Cir. 2003), and the jury
apparently found Goode’s testimony credible enough (or
that the evidence was sufficient even with less than persua-
sive testimony from Goode) to support Jarrett’s conviction.
Be that as it may, for purposes of establishing vindictive
prosecution, Jarrett has presented no objective evidence
that the government did not believe that Goode’s testimony
was essential to gaining a conviction.
  Finally, Jarrett sees evidence of vindictiveness in the
government’s effort to have him removed as Bek’s counsel
based on a potential conflict of interest. At the hearing
on that question, the government argued vigorously that
Jarrett should be removed because his indictment was
imminent. While this was a clear effort to get Jarrett off the
Bek case, we cannot say it was a misplaced or unusual one,
and we cannot simply infer that the government’s motive
was animus, retribution, or fear of Jarrett’s legal abilities.
After all, it would have been irresponsible of the govern-
ment not to notify the judge of a potential problem that
could affect Bek’s right to conflict-free counsel. See United
States v. Levy, 25 F.3d 146, 152 (2nd Cir. 1994). The
government also filed notices in the two other cases where
No. 05-2844                                               17

Jarrett was representing federal defendants. Although the
assistant U.S. attorney who made the argument at the Bek
hearing had previously worked in the Lake County prosecu-
tor’s office, the record shows she had not worked on the Bek
matter there and was not working on the Jarrett matter for
the USAO. The fact that there was some overlap between
the personnel in the state prosecutor’s office and the USAO
does not support a finding of prosecutorial vindictiveness.
United States v. Algee, 309 F.3d 1011, 1015 (7th Cir. 2002).
And, it should also be noted, the AUSA did not speak up at
the conflict hearing until the special standby counsel, who
was appointed to offer advice to Bek, voiced his concerns
over whether Bek was making a fully informed waiver of
conflict-free representation from Jarrett.
  For all these reasons, the judgment of the district court
dismissing the indictment is REVERSED, and the jury’s
verdict is ORDERED REINSTATED. Mr. Jarrett will have a full
opportunity to challenge any aspect of his trial, or proceed-
ings that occur after remand, by appropriate motion or
appeal. The case is thus REMANDED for further proceedings.

A true Copy:
      Teste:

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




                    USCA-02-C-0072—5-9-06
