Full opinion text
HEEBE, Chief Judge: This cause came on for hearing on the defendant’s motion to dismiss the bill of information filed against him by the United States Attorney for the Eastern District of Louisiana. The defendant urges two grounds in support of his motion: (1) the government’s evidence at trial will necessarily vary from the allegations set out in the information and this variance requires dismissal of the information; and (2) the government’s filing of this bill of information, which followed its refusal to permit the federal grand jury for this district to vote whether to return an indictment on the same evidence that the government will introduce at trial under this information, constitutes prosecutorial vindictiveness or misconduct in violation of the Due Process Clause. Because this Court finds no merit to either of the defendant’s arguments, his motion to dismiss is denied. I The parties vigorously dispute the factual basis surrounding this controversy as well as what facts, their relevance and weight, are before this Court or that this Court can recognize for the purposes of this motion. Therefore, in order fully to understand the dispute involved in this motion, it is necessary to set out the factual dispute between the parties. The defendant avers that this entire controversy grew out of an Internal Revenue Service investigation conducted by IRS Special Agent William Kostrzewski, Jr., into the conduct of one of the defendant’s patients. Kostrzewski visited the defendant’s office in order to enlist the defendant’s cooperation in the investigation by permitting Kostrzewski to examine one of the defendant’s patient’s files. During the conversation between Kostrzewski and the defendant, Kostrzewski placed some of his own papers on the defendant’s desk, which also contained the patient files on the person under investigation by Kostrzewski. After the defendant refused Kostrzewski’s request for assistance, Kostrzewski gathered his own papers from the defendant’s desk along with the patient files and began to exit the defendant’s office. Fearful that his patient’s files were in jeopardy of being taken, the defendant then forcibly retook the patient files from Kostrzewski. Shortly thereafter, Kostrzewski left without the patient’s files. Kostrzewski' later filed a complaint against the defendant, accusing him of committing a forcible assault upon a federal employee engaged in the performance of his duties in violation of 18 U.S.C. § 111 (1976). The defense counsel then informally discussed the possibility of disposing of this matter without a trial on the merits with an Assistant United States Attorney who stated he would agree to a deferred prosecution plan. The defendant rejected this proposal because he believed he had not violated any law. Consequently, the Assistant United States Attorney submitted the matter to the federal grand jury for this district for its consideration. During the course of the grand jury’s investigation, the defendant voluntarily testified before the grand jury. According to the defendant, after he offered his testimony, a “clamor” arose within the grand jury room from which “[b]ecause of the volume of the voices [within], it was evident that the grand jurors were putting [the Assistant United States Attorney] to task for accusing Dr. Walker of some wrongdoing.” The Assistant United States Attorney then later informed the defense counsel that he was not going to ask the grand jury to vote on an indictment notwithstanding the fact that the grand jury had before it all of the relevant evidence concerning the matter in controversy. Instead, the government filed a bill of information against the defendant, charging him with the use of a threat of force to impede an agent of the Internal Revenue Service in the performance of his duties, a misdemeanor violation of 26 U.S.C. § 7212(a) (1976). After the government filed its bill of information, the defendant filed suit in federal court to require the government to submit the evidence before the grand jury to a vote. The defendant’s motion was denied, and he has filed an appeal of that decision, rendered by a different court of this district, to the Fifth Circuit Court of Appeals. The government contends most of the facts set out by the defendant are wholly irrelevant to the issues presented by this motion and responds to the factual contentions made by the defendant only for the purpose of setting the record straight. According to the government, agent Kostrzewski went to the defendant’s office already possessing certain documents previously furnished to Kostrzewski by one of the defendant’s employees. These documents pertained to the bills that had been paid to the defendant by one of his patients who was then under investigation by the IRS, and the documents did not contain any medical information relating to that, or any other, patient of the defendant’s. The defendant’s employee had provided Kostrzewski with the documents but declined to sign an affidavit concerning these bills prepared by Kostrzewski without the defendant’s permission. The employee orally informed Kostrzewski, however, that the information found in the affidavit was accurate. Kostrzewski met with the defendant at the request of the defendant’s employee who had previously provided Kostrzewski with the material he already possessed. Kostrzewski did not request any additional documentation from the defendant during this meeting and, particularly, did not request to obtain or see any of the defendant’s patient’s medical files. When he was preparing to leave the defendant’s office, Kostrzewski gathered only his own papers that he had brought with him to the defendant’s office and took none of the medical files or records of any of the defendant’s patients. The defendant then took from Kostrzewski the documents that had been provided to Kostrzewski by the defendant’s employee as well as the affidavit Kostrzewski had prepared in his own handwriting. The government also disputes several of the defendant’s contentions regarding the events that occurred after Kostrzewski left the defendant’s office. The government denies that Kostrzewski himself filed the complaint against the defendant. Moreover, the government states that the grand jury began its investigation into this matter, and the first witness testified before that grand jury, before the Assistant United States Attorney and defense counsel began any negotiations or discussions as to whether this matter could or should be resolved informally, and prior to the entry into this case of the present defense counsel. The government also disputes the defendant’s contention that there is no additional evidence to support the charge set out in the bill of information and also states that while the government did at one time represent to the defendant that the grand jury had all the relevant evidence before it, the government no longer holds that position. Finally, the government argues that the defendant’s conclusions regarding the subject matter and substance of the “clam- or” that arose within the grand jury’s chambers are sheer speculation, as is the defendant’s opinion that the failure of the grand jury to return a true bill after voting on the question would have disposed of this case. II The defendant’s first argument proceeds in four basic steps. First, the use of force to impede the efforts of an Internal Revenue Service officer in the discharge of his duties constitutes a felony violation of 26 U.S.C. § 7212(a) but the obstruction of an IRS agent by only the threat of force constitutes only a misdemeanor violation. Second, proof that the defendant used force to impede Kostrzewski, irrespective of whether the defendant also employed the threat of force to impede Kostrzewski, by itself prevents the government from obtaining a conviction under the misdemeanor provisions of § 7212(a) because, as a matter of statutory interpretation, the phrase in § 7212(a) “only by threats of force” automatically elevates a defendant’s crime from a misdemeanor to a felony whenever any proof of the use of force is established and thereby erases any misdemeanor conviction otherwise obtainable through proof of the threat of force alone. Third, the evidence is indisputable that the defendant actually used force against Kostrzewski. Therefore, this difference between what the government can and must demonstrate at trial to obtain a misdemeanor conviction and what the evidence at trial will invariably establish constitutes a “variance” requiring dismissal of the outstanding bill of information. This argument is flawed in several respects. A The defendant argues that the outstanding bill of information must be dismissed because “the probata cannot possibly support the allegata if this case is brought to trial.” Defendant’s Motion to Dismiss Information at 6. This variance requires dismissal because the proof at trial will necessarily establish that the defendant committed a felony which cannot be charged by bill of information. This Court must deny the defendant’s motion on this ground because it is not ripe for consideration at this time. Rule 12(b) of the Federal Rules of Criminal Procedure permits a defendant to raise by a pretrial motion “[a]ny defense, objection, or request which is capable of determination without the trial of the general issue.” Under Rule 12(b), “[a] defense is thus ‘capable of determination’ if trial of the facts surrounding the commission of the alleged offense would be of no assistance in determining the validity of the defense.” United States v. Covington, 395 U.S. 57, 60, 89 S.Ct. 1559, 1560, 23 L.Ed.2d 94 (1969) (footnote omitted); 8 J. Moore, Moore’s Federal Practice ¶ 12.04, at 12-25 (2d ed. 1980 & Cum.Supp.1980). See also United States v. Sisson, 399 U.S. 267, 301 & n.55, 90 S.Ct. 2117, 2135 n.55, 26 L.Ed.2d 608 (1970). Using this test, this Court cannot consider the merits of the defendant’s variance argument at this time because, by definition, a variance cannot arise prior to the close of proof in a criminal trial. “A variance arises when the evidence adduced at trial establishes facts different from those alleged in an indictment.” Dunn v. United States, 442 U.S. 100, 105, 99 S.Ct. 2190, 2193, 60 L.Ed.2d 743 (1979). See Stirone v. United States, 361 U.S. 212, 217, 80 S.Ct. 270, 273, 4 L.Ed.2d 252 (1960) (a variance is “a variation between pleading and proof”). Because there has been no evidence introduced at any trial in this matter, it is impossible for the upcoming trial to be of no assistance in determining the validity of this defense. This Court also cannot credit the defense counsel’s representations as to what the evidence at trial will demonstrate because this Court is neither endowed with the psychic powers to predict what the evidence at trial will establish nor empowered with the authority to make any determination along these lines, see Serfass v. United States, 420 U.S. 377, 389, 95 S.Ct. 1055, 1063, 43 L.Ed.2d 265 (1975); United States v. Knox, 396 U.S. 77, 83 & n.7, 90 S.Ct. 363, 367 & n.7, 24 L.Ed.2d 275 (1969); United States v. King, 581 F.2d 800, 802 (10th Cir. 1978), but must accept as true the allegations in the pleadings without considering any evidence outside the pleadings proffered by any party. United States v. King, supra, 581 F.2d at 802; 1 C. Wright, Federal Practice and Procedure § 194, at 412-13 (1969 & Supp. 1980). Cf. United States v. Mann, 517 F.2d 259, 266-67 (5th Cir. 1975), cert. denied, 423 U.S. 1087, 96 S.Ct. 878, 47 L.Ed.2d 97 (1976) (no evidence outside the indictment can be considered on a Rule 12(b) challenge to the sufficiency of the indictment). Therefore, the defendant’s variance argument must be rejected because it is not ripe for decision at this time. B The defendant’s argument is even more deeply flawed, however, because his interpretation of § 7212(a) is erroneous. At the heart of his argument is his proposition that the phrase in § 7212(a) “only by threats of force” not only establishes a necessary condition for proving a misdemeanor violation but also establishes a limiting condition, /. e., where either party demonstrates the use of force in addition to the threat of force, the defendant’s conduct is automatically elevated from a misdemeanor to a felony, eliminating any possible misdemeanor conviction despite the existence of only a misdemeanor charge against the accused. His argument, then, calls for an interpretation of § 7212(a), particularly the phrase “only by threats of force.” The starting point for this analysis is, as always, the language of the statute itself, and “[ajbsent a clearly expressed legislative intention to the contrary, that language must ordinarily be regarded as conclusive.” Consumers Product Safety Commission v. GTE Sylvania, Inc., 447 U.S. 102, 108, 100 S.Ct. 2051, 2056, 64 L.Ed.2d 766 (1980); Albernaz v. United States, - U.S. -, -, 101 S.Ct. 1137, 1141, 67 L.Ed.2d 275 (1981). Where the language of the statute is unclear, the legislative history and policies motivating the act should be consulted to discern the meaning of the act. Bifulco v. United States, 447 U.S. 381, 391-99, 100 S.Ct. 2247, 2254, 65 L.Ed.2d 205 (1980). In this case, all three factors lead to the conclusion that the interpretation of § 7212(a) offered by the defendant must be rejected. 1. Language and structure of the act Section 7212(a) reads as follows: Whoever corruptly or by force or threats of force (including any threatening letter or communication) endeavors to intimidaté or impede any officer or employee of the United States acting in an official capacity under this title, or in any other way corruptly or by force or threats of force (including any threatening letter or communication) obstructs or impedes, or endeavors to obstruct or impede, the due administration of this title, shall, upon conviction thereof, be fined not more than $5,000, or imprisoned not more than 3 years, or both, except that if the offense is committed only by threats of force, the person convicted thereof shall be fined not more than $3,000, or imprisoned not more than 1 year, or both. The term “threats of force”, as used in this subsection, means threats of bodily harm to the officer or employee of the United States or to a member of his family. The language of this statute can be parsed in, at least, two different ways. This section can be interpreted to encompass two different types of impediments to the effective operation of the internal revenue laws, interference with officers or employees of the Internal Revenue Service who are acting in an official capacity and interference “in any other way” with “the due administration” of the internal revenue laws, a much broader range of prohibited behavior, with different penalties creating different classes of offenses depending on whether the defendant acted through corrupt solicitation or with force, on the one hand, or merely through the use of the threat of force, on the other hand. Alternatively, § 7212(a) can be parsed by focusing on the different classes of offenses created by the statute rather than the different interests it protects. Viewed in this fashion, § 7212(a) creates two different classes of offenses, a felony and a misdemeanor, depending upon whether the defendant corruptly solicits or forcefully impedes a covered employee, either of which could establish a felony, or merely uses the threat of force to impede the effective operation of the internal revenue laws, which is a necessary condition for a misdemeanor violation. In either case, this section of the Internal Revenue Code is designed to protect the Internal Revenue Service, and its officers and employees, from three different types of harms: (1) corrupt solicitation; (2) forceful interference with the operation of the internal revenue laws: and (3) the threat of forceful interference with the operation of those laws. Each of these harms affect's separate and distinct interests that the federal government would wish to protect, with the first two types of proscribed conduct receiving greater sanctions than the third by virtue of being treated as felonies rather than misdemeanors. Under this reading of § 7212(a), the felony and misdemeanor provisions are separable with neither provision cancelling out the other. In short, nothing in the language of the statute gives any indication that Congress sought to permit a defendant to escape liability for violating one provision of the statute, thereby violating one interest § 7212(a) seeks to protect, by additionally violating another provision of the statute, and so harming another interest. The plain language of the entire statute does not support the argument advanced by the defendant. The phrase “only by, threats of force” cannot be plucked from the language of the sentence in which it is found but must be read in light of the entire passage of which it is a part. Read in this fashion, this phrase does not refer solely to the misdemeanor provisions of the statute and create a redhibitory defect in the proof essential for a misdemeanor conviction but, instead, refers to the entire statute and serves as the dividing line between felony and misdemeanor violations. Proof that the defendant employed the threat of force is an essential element of the misdemeanor provisions of this section. Coupling proof of the use of force to proof of the threat of force does not eliminate a valid conviction obtainable merely upon proof of the latter element alone but merely demonstrates that the defendant has also violated another part of the same act. Hence, the language of the act does not support the defendant’s interpretation. 2. Legislative history The legislative history of § 7212(a) also does not support the defendant’s interpretation of the act. Section 7212(a) traces its lineage to § 38 of the Internal Revenue Service Act of 1864, ch. 173, 13 Stat. 238. As originally enacted, this section provided: That if any person shall forcibly obstruct or hinder any assessor or assistant assessor, or any collector or deputy collector, revenue agent or inspector, in the execution of this act, or of any power and authority hereby vested in him, or shall forcibly rescue, or cause to be rescued, any property, articles, or objects, after the same shall have been seized by him, or shall attempt or endeavor to do so, the person so offending shall, upon conviction thereof, for every such offence, forfeit and pay the sum of five hundred dollars, or double the value of the property so rescued or be imprisoned for a term not exceeding two years, at the discretion of the court: .... In the 1939 Internal Revenue Code, the acts prohibited by this section were split into two separate subsections, Int.Rev. Code of 1939, ch. 34, §§ 3601(c)(1) and (2), 53 Stat. 436, with the penalty for both the forceful interference with an Internal Revenue Service employee and the forceful rescue of seized property set out in subsection (2). According to § 3601(c): If any person shall ... (1) ... [f]orcibly obstruct or hinder any collector, deputy collector, internal revenue agent, or inspector, in the execution of any power and authority vested in him by law, or ... (2) ... [f]orcibly rescue or cause to be rescued any property, articles, or objects after the same shall have been seized by him, or shall attempt or endeav- or to do so, the person so offending, excepting in cases otherwise provided for, shall, for every such offense, forfeit any pay the sum of $500, or double the value of the property so rescued, or be imprisoned for a term not exceeding two years, at the discretion of the court. The current version of § 7212(a) was enacted as part of the Internal Revenue Code-of 1954. As proposed by the House of Representatives, the new section would be “similar” to 18 U.S.C. § 111, which prohibited the forceful assault of a federal employee engaged in the performance of his duties, but “amplified” the protection afforded Internal Revenue Service employees by “covering] all cases where the officer is intimidated or injured; that is, where corruptly, by force or threat of force, directly or by communication, an attempt is made to impede the administration of the internal-revenue laws.” H.R.Rep.No.1337, 83d Cong.2d Sess., reprinted in [1954] U.S.Code Cong. & Ad.News 4017, 4136. The House version of the new section would have set the same penalty for all such attempts to interfere with the administration of the internal-revenue laws, a maximum of 5 years imprisonment or a $10,000 fine or both, which would have made the interference with the operation of the internal revenue laws by threat of force a felony. The Senate version of this section was also “broader” than 18 U.S.C. § 111 “in that it covered threats of force (including any threatening letter or communication) or corrupt solicitation,” S.Rep. 83d Cong., 2d Sess., reprinted in [1954] U.S.Code Cong. & Ad.News at 5254. The Senate version, however, classified this offense as only a misdemeanor, punishable only by a maximum term of imprisonment at 1 year and a maximum fine of $3,000. S.Rep. 83d Cong., 2d Sess., reprinted in [1954] U.S.Code Cong. & Ad. News at 4782. After a conference on the differences between the House and Senate versions of the proposed Internal Revenue Code, the Conference Committee accepted the Senate version of this provision. H.R. Rep.No.2543, 83d Cong., 2d Sess., reprinted in [1954] U.S.Code Cong. & Ad.News at 5344. The version adopted by the Conference Committee is the current version of § 7212(a). The legislative history of § 7212(a), therefore, also does not support the construction of the statute that the defendant would force upon it. This statute began as a provision forbidding only the forceful interference with an employee of the Internal Revenue Service engaged in the performance of his duties. The prohibition of interference by the threat of force entered the statute in the House version of the 1954 Internal Revenue Code in an attempt to expand the protection of the criminal provisions of the Code. The House act adopted an expanded version of the already existing federal assault statute, prohibiting the forceful assault of a federal employee, by prohibiting both the forceful assault of Internal Revenue Service employees and the intimidation by threat of force of Internal Revenue Service employees. The Senate version included the provision regarding the forceful intimidation of such federal employees proposed by the House but classified this provision as a misdemeanor rather than a felony. The Conference Committee resolved this difference by adopting the Senate version of the act. Hence, the legislative history of the current version of the statute demonstrates quite clearly that the phrase “only by threats of force” was not inserted to defeat a misdemeanor conviction through proof that the defendant had also used force against an IRS employee but was inserted to classify such intimidation as a misdemeanor in accordance with the Senate version of the Code. 3. Motivating policies behind the act The interpretation offered by the defendant also suffers from the fact that it is inconsistent with the purposes behind Congress’ enactment of the current version of § 7212(a). According to the legislative history, prior to the adoption of the current version of § 7212(a), neither the criminal provisions of the Internal Revenue Code nor the provisions of the federal penal code, Title 18, protected IRS employees from intimidation by means of threats of force. Section 7212(a) rectified this omission by including such intimidation within the scope of conduct made criminal by the act even though such conduct was made only a misdemeanor offense. Hence, the purpose of the misdemeanor provisions of § 7212(a) was to add intimidation achieved through the threat of force to the list of criminal offenses which already included forcible assault upon an IRS employee in both the felony provisions of § 7212(a) and 18 U.S.C. § 111. The addition of the misdemeanor provisions of § 7212(a) indicates that Congress intended this part of the statute to protect interests not encompassed either by the other parts of this statute or by § 111 of Title 18. The defendant’s interpretation of § 7212(a) runs afoul of this Congressional purpose for two reasons. First, adopting the defendant’s interpretation of § 7212(a) would condition the government’s use of the misdemeanor provisions of the act to those cases in which a defendant acted by threat of force alone, eliminating use of the misdemeanor provisions whenever the defendant may also have violated the felony provisions. Even where the misdemeanor and felony violations arose out of the same incident, the defendant’s theory would impose an all or nothing condition on the use of the misdemeanor sanction in the absence of any express or implied Congressional purpose to bind the government in this fashion and in the face of an express Congressional purpose to protect different interests through the different parts of § 7212(a). This Court cannot impose such a condition on the government’s use of the misdemeanor sanction in this statute. “ ‘We are not at liberty to imply a condition which is opposed to the explicit terms of the statute .... To [so] hold ... is not to construe the Act but to amend it.’ ” Fedorenko v. United States, - U.S. -, -, 101 S.Ct. 737, 751, 66 L.Ed.2d 737 (1981) (quoting Detroit Trust Co. v. The Barlum, 293 U.S. 21, 38, 55 S.Ct. 31, 35, 79 L.Ed. 176 (1934)). The felony and misdemeanor provisions of this statute protect separate and distinct interests and constitute separate and distinct offenses with proof of either standing apart from proof of the other. Congress was entitled to protect these different interests through different criminal sanctions. Where the defendant’s conduct violates more than one criminal statute covering the same conduct, the government may elect to prosecute him under any of the applicable statutes, United States v. Batchelder, 442 U.S. 114, 99 S.Ct. 2198, 60 L.Ed.2d 755 (1979), and the combination of several offenses into one statute is entirely irrelevant to the question of what conduct violates any one provision of that compound statute. Therefore, there is certainly no justification for reading into a criminal statute concerned with the substantive definition of criminal conduct, and not with the regulation of a prosecutor’s charging discretion, a negative covenant prohibiting the government from prosecuting a defendant under any applicable provision, particularly one carrying the lesser of two possible penalties, simply because the defendant has also violated another provision of the same statute, one which carries a greater penalty than he now faces under the present charge. There is no “double or nothing” principle lurking in the federal criminal law, and it is difficult to believe that Congress could have intended one for § 7212(a). Second, if the misdemeanor provisions of § 7212(a) were eliminated whenever a defendant also violated the felony provisions of the act, even if in the same course of conduct, a defendant could effectively exculpate himself from liability under one penal statute by also violating another part of the penal code. To be sure, it is unlikely that a person would rationally decide to trade at most one year in prison and a $3,000 fine for three years in prison and a $5,000 fine. But the defendant’s argument would also apply in cases in which the defendant has not engaged in such a cost-benefit analysis and would permit him to violate one interest with impunity merely because he has also violated another interest Congress sought to protect. Section 7212(a) does not permit two wrongs to make a right. There is also no principle of statutory construction that will save the defendant’s interpretation of the act. While “ambiguities in criminal statutes must be resolved in favor of lenity,” United States v. Batchelder, supra, 442 U.S. at 121, 99 S.Ct. at 2202 “the ‘touchstone’ of the rule of lenity is ‘statutory ambiguity.’” Bifulco v. United States, supra, 447 U.S. at 387, 100 S.Ct. at 2252 (quoting Lewis v. United States, 445 U.S. 55, 65, 100 S.Ct. 915, 921, 63 L.Ed.2d 198 (1980)). “The rule comes into operation ‘at the end of the process of construing what Congress has expressed, not at the beginning as an overriding consideration of being lenient to wrongdoers.’ ” Albernaz v. United States, supra, - U.S. at -, 101 S.Ct. at 1144 (quoting Callanan v. United States, 364 U.S. 587, 596, 81 S.Ct. 321, 326, 5 L.Ed.2d 312 (1961)). Considered in light of the statutory language of § 7212(a), its legislative history, and the Congressional purpose behind the act, § 7212(a) is not ambiguous and “[w]here Congress has manifested its intention, we may not manufacture ambiguity in order to defeat that intent.” Bifulco v. United States, supra, 447 U.S. at 387, 100 S.Ct. at 2252. The phrase “only by threats of force” cannot be interpreted implicitly to repeal or condition the misdemeanor provisions of the act, see United States v. Batchelder, supra, 442 U.S. at 122, 99 S.Ct. at 2203, without impermissibly amending the act, see Fedorenko v. United States, supra, - U.S. at - , 101 S.Ct. at 751. Nor can this Court rely on the “spirit” of the act even if it is contrary to the “letter of the statute,” United Steelworkers of America v. Weber, 443 U.S. 193, 201, 99 S.Ct. 2721, 2727, 61 L.Ed.2d 480 (1979), when the “spirit” and “letter” of the statute are congruent and both contradict the defendant’s argument. There is simply no basis for interpreting the phrase “only by threats of force” in the fashion suggested by the defendant. C The defendant has based his argument solely upon the language of the statute itself. But the thrust of his argument— that the felony provisions of § 7212(a) absorb the misdemeanor provisions whenever both are shown — essentially puts forward the common law merger doctrine as the proper interpretation of the statute. In light of the similarity between these arguments and the courts’ “long tradition of reading criminal statutes enacted by Congress ‘in the light of the common law,’” Whalen v. United States, 445 U.S. 684, 713, 100 S.Ct. 1432, 1442, 63 L.Ed.2d 715 (1980) (Rehnquist, J., dissenting) (quoting United States v. Carll, 105 U.S. 611, 612, 26 L.Ed. 1135 (1882)), this Court will examine the question of whether Congress intended to adopt the common law merger rule despite the absence of any reflection of that rule in the language of the statute itself. After a rather unusual historical development, the rule emerged at common law that if an act resulted in both a misdemeanor and a felony, the misdemeanor was said to merge into the felony, leaving the latter as the only chargeable offense. See W. La Fave & A. Scott, Handbook of Criminal Law § 60, at 452 (1972); 1 C. Torcia, Wharton’s Criminal Law § 24, at 111 (1978 & Supp.1981). Several justifications have been advanced in support of the rule. According to one theory, the rule developed because of and reflected the procedural differences between misdemeanor and felony trials at common law. In a misdemeanor trial, the accused was entitled to a copy of the charges against him, to be granted bail, to compulsory process to obtain witnesses in his favor, to examine his witnesses under oath, to a special jury, and to be assisted by counsel, none of which were available to him in a felony prosecution. 1 C. Torcia, supra, § 24, at 111; Glazerbrook, The Merging of Misdemeanors, 78 L.Q.Rev. 560, 572-73 (1962). See also Powell v. Alabama, 287 U.S. 45, 60-61, 53 S.Ct. 55, 60-61, 77 L.Ed. 158 (1932) (discussing common law right to counsel). Another theory argued that the rule was intended to prevent harassment of a defendant by reprosecution for the same conduct. Glazerbrook, supra, 78 L.Q.Rev. at 567, 570; 1962 Cambridge L.J. 8, 8. Finally, the merger rule has also been defended on the ground that the division of the defendant’s conduct is irrational because his mens rea and the social harm occasioned by his conduct are the same regardless of how his conduct is divided. 1962 Cambridge L.J., supra, at 9-10. None of these arguments are persuasive, however. The question of whether Congress intended to adopt this doctrine is entirely a question of legislative intent, see Standefer v. United States, 447 U.S. 10, 15-18, 100 S.Ct. 1999, 2003-2005, 64 L.Ed.2d 689 (1980); Perrin v. United States, 444 U.S. 37, 42-45, 100 S.Ct. 311, 314-315, 62 L.Ed.2d 199 (1979), and there is no reason to believe that Congress intended to incorporate the merger doctrine into § 7212(a). None of the Congressional reports indicate any intention to limit the availability of the misdemeanor provisions of this statute to those cases where the threat of force alone was an issue. Rather, the legislative history of the statute demonstrates that Congress intended to create a separate statutory provision for dealing with the use of threats of force against IRS agents. Because the Congressional intent to separate the misdemeanor and felony provisions of § 7212(a) is incompatible with a corresponding intent to merge the two provisions, Congress could not have intended to adopt the merger doctrine. In addition, the English common law abandoned the merger rule in 1851, see note 5, supra, and American courts have generally repudiated the doctrine as well. W. La Fave & A. Scott, supra, § 60, at 452 & n.144; 1 C. Torcia, supra, § 24, at 112 & n.47. Therefore, it is unlikely that Congress intended to adopt a moribund doctrine. Cf. Standefer v. United States, supra, 447 U.S. at 19, 100 S.Ct. 2006. Felony defendants now enjoy the same, if not greater, rights as do misdemeanor defendants, 1 C. Torcia, supra, § 24, at 112; compare, e. g., Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963) (right to counsel in felony trials) with Scott v. Illinois, 440 U.S. 367, 99 S.Ct. 1158, 59 L.Ed.2d 383 (1979) (right to counsel in misdemeanor trials), and had attained this position in federal court long before 1954 when the current version of § 7212(a) was adopted. See Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938) (right to counsel in federal criminal prosecutions). Insofar as the merger doctrine has been justified as a means of preventing the harassment of a defendant brought about by successive prosecutions for the same conduct, the Double Jeopardy Clause would protect a defendant from the harassment otherwise covered by the merger rule. See, e. g., Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977) (Double Jeopardy Clause bars reprosecution for same conduct after conviction of a lesser included offense); Arizona v. Washington, 434 U.S. 497, 98 S.Ct. 824, 54 L.Ed.2d 717 (1978) (Double Jeopardy Clause bars reprosecution for same conduct after government has obtained a mistrial for the purpose of harassment). Finally, whether it is rational or irrational for Congress to have divided certain criminal conduct into several discrete offenses is not a matter that is fit for judicial scrutiny. “ ‘Our individual appraisal of the wisdom or unwisdom of a particular course consciously selected by the Congress is to be put aside in the process of interpreting a statute.’” Rubin v. United States, - U.S. -, - n.8, 101 S.Ct. 698, 702 n.8, 66 L.Ed.2d 633 (1981) (quoting TVA v. Hill, 437 U.S. 153, 194, 98 S.Ct. 2279, 2301, 57 L.Ed.2d 117 (1978)). Absent a contention, not present here, that the statute charged against an accused is unconstitutional, ascertaining Congress’ intent in enacting the statute is the beginning and the end of judicial inquiry. D In conclusion, the defendant’s interpretation of § 7212(a) is untenable. “Proof” at the trial in this case that the defendant exercised force against Kostrzewski will not erase an otherwise valid conviction based upon proof that the defendant employed a threat of force. The government’s case does not disappear off the edge of the earth if the government goes further than it has to in establishing its proof. III The defendant also argues that the government has acted “vindictively” by prosecuting this misdemeanor by a bill of information after declining to submit the evidence before the grand jury to a vote on the-question of whether it would return an indictment against the defendant for the same conduct alleged in the bill of information. Because the government has violated the constitutional ban on prosecutorial vindictiveness, according to the defendant, the bill of information must be dismissed. A As an initial matter, it is clear that the government plainly possesses the authority to prosecute this case by a bill of information. The government has charged the defendant with a misdemeanor, and the government may proceed under a bill of information rather than an indictment on a misdemeanor charge. F.R.Crim.P. 7(a); Duke v. United States, 301 U.S. 492, 57 S.Ct. 835, 81 L.Ed. 1243 (1937); 1 C. Wright, supra, § 121, at 212. Rule 7(a) of the Federal Rules of Criminal Procedure states without qualification that the government may pursue a misdemeanor conviction under a bill of information and does not impose any requirements or conditions upon the exercise of that charging instrument for prosecuting a misdemeanor offense. The government’s failure to receive an indictment from the grand jury, for whatever reason, does not disable the government’s current efforts under this bill of information. The government may prosecute under a new indictment returned by a second grand jury despite the first grand jury’s refusal to return an indictment on those charges when presented with the same evidence. United States v. Thompson, 251 U.S. 407, 40 S.Ct. 289, 64 L.Ed. 333 (1920); United States v. Barone, 584 F.2d 118, 123 (6th Cir. 1978); United States v. Cox, 342 F.2d 167, 192 (5th Cir.) (en banc) (Wisdom, J., concurring specially), cert. de nied, 381 U.S. 935, 85 S.Ct. 1767, 14 L.Ed.2d 700 (1965); Robinson v. United States, 284 F.2d 775, 776 (5th Cir. 1960). Accord Ex parte United States, 287 U.S. 241, 250-51, 53 S.Ct. 129, 132, 77 L.Ed. 283 (1932). The government may also prosecute by an indictment where a prior complaint (or information) had been dismissed at a preliminary hearing. F.R.Crim.P. 5.1(b); United States ex ret. Rutz v. Levy, 268 U.S. 390, 45 S.Ct. 516, 69 L.Ed. 1010 (1925); Morse v. United States, 267 U.S. 80, 82-86, 45 S.Ct. 209, 211, 69 L.Ed. 522 (1925); United States v. Dobbs, 506 F.2d 445, 447 (5th Cir. 1975); United States v. Kysar, 459 F.2d 422, 423-24 (10th Cir. 1972); United States v. Grimes, 426 F.2d 706, 708 (5th Cir. 1970) (per curiam). Similarly, the government may file a second bill of information after an initial bill has been dismissed. F.R. Crim.P. 5.1(b). In each of these situations, the government is allowed a second chance at bat because of “the absolute right of the United States to prosecute,” United States v. Thompson, supra, 251 U.S. at 412, 40 S.Ct. at 291, id. at 415, 40 S.Ct. at 292, and because the pretrial dismissal of an indictment or information in one action does not give rise to a res judicata or Double Jeopardy defense in another action involving a prosecution for the same offense. See Robinson v. United States, supra, 284 F.2d at 776. Accord Morse v. United States, supra, 267 U.S. at 85, 45 S.Ct. at 210 (“a judgment in a preliminary examination discharging an accused person for want of probable cause is not conclusive upon the question of his guilt or innocence and constitutes no bar to a subsequent trial in the court to which the indictment is returned.”) These principles are applicable where the government prosecutes a misdemeanor by a bill of information after failing to obtain an indictment from a grand jury. The “absolute right of the United States to prosecute” is no less absolute merely because the government elects to prosecute a misdemeanor rather than a felony; the failure to obtain an indictment from the grand jury is no more a “dismissal” because the grand jury rather than a magistrate failed to return a charge against the defendant; and the government’s decision to institute its second attempt to prosecute the defendant by information rather than by indictment is as irrelevant to the course of the past proceedings as would be a governmental decision to begin the second round with an indictment. In none of the four possible situations is the government disabled from reinstituting criminal charges against a defendant, whether felony or misdemeanor charges and whether under an indictment or an information, because of its failure to obtain a charging instrument during the prior proceedings. An additional factor present in this case is the difference between the charge presented to the grand jury and the charge listed in the bill of information. The government presented evidence to the grand jury for its consideration in determining whether to charge the defendant with a violation of 18 U.S.C. § 111 but the charge listed in the bill of information is a misdemeanor violation of 26 U.S.C. § 7212(a). While the factual basis for these two charges may be the same, each statute requires proof of an element different from the other. Therefore, it cannot be said with any degree of assurance that the government’s failure to obtain an indictment from the grand jury is at all relevant to its authority to initiate this prosecution. Because the government possesses the authority to bring this misdemeanor prosecution under a bill of information, the only remaining question is whether the government is barred from exercising this authority in the circumstances of this case. B This question implicates two intersecting and fundamentally important interests that the Constitution seeks to protect, both of which were articulated by the Supreme Court three terms ago in Bordenkircher v. Hayes, 434 U.S. 357, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978). On the one hand, “[i]n our system, 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 364, 98 S.Ct. at 668 (footnote omitted). But, on the other hand, “[t]o punish a person because he has done what the law plainly allows him to do is a due process violation of the most basic sort.” Id. at 363, 98 S.Ct. at 667. Therefore, while the government’s decisions regarding the prosecution of individuals for crime is normally not subject to judicial oversight, the Due Process Clause imposes a restriction on that charging discretion prohibiting the executive branch from exercising its authority in a “vindictive” fashion for the sole purpose of punishing a person because of his exercise of his legal rights. “Vindictiveness,” in this sense, is not defined in terms of society’s desires or actions to punish the guilty, in terms of the harm inflicted upon a defendant’s chances for success in the case against him, or in terms of a prosecutor’s personal spite or ill will toward an otherwise validly chargeable defendant. Vindictiveness could hardly be defined so broadly in a legal system that recognizes the legitimacy of retribution as a justification for punishment, Gregg v. Georgia, 428 U.S. 153, 183-84, 96 S.Ct. 2909, 2930, 49 L.Ed.2d 859 (1976) (opinion of Stewart, Powell, & Stevens, JJ.); id. at 226, 96 S.Ct. at 2949 (White, J., concurring in the judgment) (incorporating by reference Roberts v. Louisiana, 428 U.S. 325, 350-56, 96 S.Ct. 3001, 3016, 49 L.Ed.2d 974 (1976) (White, J., dissenting)), that strives to ensure that “guilt shall not escape,” Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 79 L.Ed. 1314 (1935), and that permits and encourages the government to “prosecute with earnestness and vigor,” to “use every legitimate means to bring about a just [conviction],” and to “strike hard blows” to obtain one. Id. The “vindictiveness” prohibited by the constitution is the imposition of punishment, as that term has historically been understood in the criminal law, against a defendant for the purpose of retaliating against him because he has exercised his legal rights rather than for the purpose of imposing a sanction upon him for the crimes he has committed. See Bordenkircher v. Hayes, supra, 434 U.S. at 363, 98 S.Ct. at 667, see post at 316-319. Both the United States Supreme Court and the Fifth Circuit Court of Appeals have stressed the importance of protecting the government’s right to strike “hard blows” while ferretting out and quashing its authority to strike “foul ones,” Berger v. United States, supra, 295 U.S. at 88, 55 S.Ct. at 633, and, beginning with North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), have developed a set of principles designed to accommodate both interests. To decide the question raised by the defendant, it is necessary to examine these cases. 1. North Carolina v. Pearce and Blackledge v. Perry. The Supreme Court first articulated the principle that the Due Process Clause bars vindictiveness in North Carolina v. Pearce. In Pearce, one of the defendants had received a greater sentence upon retrial after his original conviction and sentence were reversed on appeal. The Supreme Court held that, although the double jeopardy and equal protection clauses did not impose an absolute bar to setting a more severe sentence upon reconviction, the due process clause did impose a limit on such resentencing by barring the imposition of a greater sentence upon a defendant who overturned his original conviction as a punishment for having been successful. Specifically, the Pearce court held that a judge who had originally sentenced a defendant could not impose a more severe punishment upon re-sentencing the defendant then he had originally imposed unless the new sentence were based upon “objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding” affirmatively appearing in the record. Id. at 726, 89 S.Ct. at 2081. This holding was designed to accommodate the state’s interest in following “the ‘prevalent modern philosophy of penology that the punishment should fit the offender and not merely the crime,’” id. at 723, 89 S.Ct. at 2079 (quoting Williams v. New York, 337 U.S. 241, 247, 69 S.Ct. 1079, 1083, 93 L.Ed. 1337 (1949)), by permitting state judges to impose “a new sentence, whether greater or less than the original sentence, in the light of events subsequent to the first trial that may have thrown new light upon the defendant’s ‘life, health, habits, conduct, and mental and moral propensities,’ ” id. (quoting Williams v. New York, supra, 337 U.S. at 245, 69 S.Ct. at 1082), while also safeguarding a defendant’s interest in avoiding “a heavier sentence .. . [received] for the explicit purpose of punishing [him] for his having succeeded in getting his original conviction set aside.” Id. at 723-24, 89 S.Ct. at 2079-2080. To protect defendants from the in terrorem effect of the sub rosa continuation of this practice, the' Pearce court adopted a prophylactic rule prohibiting the imposition of more severe sentences unless done in accordance with the requirements set out in the Pearce opinion. In Blackledge v. Perry, 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974), the Supreme Court was faced with a similar problem but this time the focus shifted to the filing by the prosecutor of a more serious charge against a defendant after he had sought to overturn his original conviction and sentence. After the defendant had been convicted of a misdemeanor assault charge in a state court of limited jurisdiction, he exercised his statutory right to a trial de novo before a different judge in a state court of general jurisdiction. The prosecutor responded to the defendant’s appeal by filing a more serious felony assault charge covering the identical conduct against the accused. Applying Pearce, the court held that the Due Process Clause also barred the prosecutor from retaliating against a defendant by filing more serious charges covering the same conduct after the defendant has sought to overturn his conviction. Id. at 27-29, 94 S.Ct. at 2102-2103. In addition, because a prosecutor had both the opportunity and a strong incentive to “up the ante” in such cases in order to deter such appeals, the court concluded that the likelihood of such a practice was at least as great as the similar practice condemned in Pearce. Therefore, the court imposed a prophylactic rule similar to the one adopted in the Pearce case. Id. at 29 & n.7, 94 S.Ct. at 2103 & n.7. Pearce and Blackledge established the rule that the due process clause forbids the imposition of a criminal punishment upon a defendant because of his exercise of a legal right. The punishment forbidden in Pearce was the imposition of a more severe sentence upon reconviction while the punishment forbidden in Blackledge was the filing of more severe charges which, by definition, carried a more severe penalty upon conviction. Both cases also recognized, however, that the state had competing interests that could arise in situations similar to those in Pearce and Blackledge. See North Carolina v. Pearce, supra, 395 U.S. at 723, 89 S.Ct. at 2079 (recognizing trial court’s interest in tailoring the punishment to fit the offender based upon intervening events); Blackledge v. Perry, supra, 417 U.S. at 29 n.7, 94 S.Ct. at 2103, n.7 (recognizing prosecutor’s interest in charging defendant for crimes arising between first and second trials). But in neither case was the court presented with a situation in which it had to balance the competing interests because the situations present in both cases were stark depictions of the state’s imposition of a criminal punishment as the response to and for the sole purpose of punishing a defendant’s exercise of his rights. Pearce and Blackledge hardly exhaust the variety of different situations that could arise, however. Because of the variety of situations in which a trial judge or a prosecutor would legitimately wish to sentence or prosecute a defendant for crimes proven or alleged, despite the intervening act of a defendant’s exercise of a procedural right available to him, a simple post hoc ergo propter hoc rule would not take into consideration the legitimate interests at stake on the state’s side of the balance. Neither Pearce nor Blackledge established such a rule and left the balance of competing interests to other cases in which such balancing was necessary. In a series of cases following Pearce and Blackledge, the Fifth Circuit has adopted a procedure for reviewing the government’s exercise of its charging discretion to determine whether the government has legitimately exercised its authority in a constitutionally forbidden manner. Because this test was designed to cover the multitude of situations of which Pearce and Blackledge were only two particular instances, it is necessary to examine this rule. 2. The Fifth Circuit Rule The rule in this circuit to assess the validity of the government’s exercise of its charging authority has developed over a series of cases attempting to accommodate the state’s constitutionally protected authority to prosecute defendants for crime and the defendant’s constitutional right as set forth in the Blackledge case. See Hardwick v. Doolittle, 558 F.2d 292 (5th Cir.), on petition for rehearing and rehearing en banc, 561 F.2d 630 (1977) (per curiam), cert. denied, 434 U.S. 1049, 98 S.Ct. 897, 54 L.Ed.2d 801 (1978); Jackson v. Walker, 585 F.2d 139 (5th Cir. 1978); Miracle v. Estelle, 592 F.2d 1269 (5th Cir. 1979); United States v. Thomas, 593 F.2d 615 (5th Cir.), modified on rehearing, 604 F.2d 450 (1979) (per curiam), appeal after remand, 614 F.2d 436 (1980); United States v. Shaw, 615 F.2d 251 (5th Cir. 1980) (per curiam). This test sets forth both the elements of proof of and defense to a claim of prosecutorial vindictiveness as well as the allocation of burdens and order of proof on this claim. The defendant bears the burden of establishing a prima facie case of prosecutorial vindictiveness. This burden is not onerous, however, and the defendant may satisfy this burden by demonstrating that, after he has successfully challenged his first conviction or sentence, the government instituted new charges which increased the severity of the original charge either by escalating the original charge, for example, from robbery to armed robbery, or by increasing the number of offenses against the accused, for example, by adding a second robbery charge. The defendant’s establishment of a prima facie case of vindictiveness, in effect, creates a presumption that the government did act vindictively in bringing the second prosecution. The nature of this presumption varies according to the balance struck between the government’s interests in enforcing the law and allocating wide discretion to individual prosecutor’s to make charging decisions, and the defendant’s interests in being free from both actual vindictiveness and the apprehension of vindictiveness as the consequence of challenging his original conviction. Where the defendant’s interests outweigh the government’s interests, the presumption created by the defendant’s establishment of a prima facie case is irrebuttable, and the defendant is entitled to prevail based entirely upon his initial showing. This occurs where the government baldly escalates the original charge as in Blackledge. But where the balance weighs in favor of the government, as occurs where the escalation of the second charge was possible only because of events occurring between the first and second prosecutions or where the second charge accuses the defendant of “different and distinct” offenses from the first charge, even despite a common origin in the same “spree of activity,” the government is entitled to rebut the presumption of vindictiveness by going forward to demonstrate legitimate, nonvindictive reasons for the second charge. In these situations, if the government fails to come forward with any such reasons or fails adequately to rebut the presumption of vindictiveness, the defendant is entitled to a judgment in his favor based upon the presumption created by his establishment of a prima facie case. But if the government successfully carries its burden of rebutting the presumption, the defendant must then demonstrate actual vindictive motivation by the government to prevail on his claim. Alternatively, where the government institutes a second prosecution against a defendant who has had his first conviction set aside but who cannot establish a prima facie case because the second charge carries a less severe penalty than the first, the defendant may still challenge the second prosecution as vindictive but must demonstrate actual vindictive motivation by the government. This test was premised upon an interpretation of Blackledge and, by implication, Pearce that focused upon the in terrorem effect on a defendant’s exercise of his rights to challenge his conviction which would result from permitting the government unbridled discretion to reprosecute a defendant for any alleged criminal activity after the defendant has had that first conviction set aside. See Jackson v. Walker, supra, 585 F.2d at 144-45. That interpretation of Pearce and Blackledge proved erroneous, however, because the Supreme Court stated in the Bordenkircher ease that “the due process violation in cases such as Pearce and Perry lay not in the possibility that a defendant might be deterred from the exercise of a legal right ... but rather in the danger that the State might be retaliating against the accused for lawfully attacking his conviction.” Bordenkircher v. Hayes, supra, 434 U.S. at 363, 98 S.Ct. at 667. The Fifth Circuit has noted that the Supreme Court’s decision in Bordenkircher may have “undermined” the balancing test posited in its earlier cases, see United States v. Thomas, supra, 617 F.2d at 438 n.1, and, therefore, this Court must also consider the applicability of Bordenkircher to this case. 3. Bordenkircher v. Hayes In Bordenkircher, the Supreme Court affirmed a state conviction under an indictment charging the defendant as a habitual criminal even though the prosecutor had added the recidivist count only after the defendant refused to plead guilty to a simple felony charge and, instead, stood upon his right to trial on the simple felony charge. Interpreting Pearce and Black-ledge to forbid the state from punishing a defendant for having his conviction set aside, the Supreme Court held that both cases were inapplicable to the plea bargaining context because “in the ‘give-and-take’ of plea bargaining, there is no such element of punishment or retaliation so long as the accused is free to accept or reject the prosecution’s offer." Bordenkircher v. Hayes, supra, 434 U.S. at 363, 98 S.Ct. at 667. Because the state was entitled to prosecute Hayes on the recidivist charge and was not required to plea bargain, he could not have complained had the state decided to proceed in that manner. The state did not act unconstitutionally by proceeding in the manner it chose to, however, because “by tolerating and encouraging the negotiation of pleas, this Court has necessarily accepted as constitutionally legitimate the simple reality that the prosecutor’s interest at the bargaining table is to persuade the defendant to forego his right to plead not guilty.” Id. at 363, 98 S.Ct. at 667. Consequently, any pressure exerted by the government upon an accused resulting from the government’s “threat” to prosecute the defendant for crimes he allegedly committed should any plea negotiations terminate inconclusively was recognized as an inevitable byproduct of the constitutionally legitimate plea bargaining process. The order the prosecution lodged these validly chargeable offenses against the accused was also irrelevant because the desire to induce the defendant to plead guilty was not an “unjustifiable” or “arbitrary” factor upon which a prosecutor could base his charging decisions since the establishment of the constitutional legitimacy of plea bargaining also legitimized this exercise of the government’s charging discretion. In short, the defendant’s refusal to accept a benefit from the state in the form of a lesser charge than could have been lodged against him in return for his entry of a plea of guilty did not transform the government’s decision to prosecute him for offenses for which he was otherwise legitimately subject to prosecution into a punishment for his exercise of his rights. “[T]he course of conduct engaged in by the prosecutor ... no more than openly presented the defendant with the unpleasant alternatives of foregoing trial or facing charges on which he was plainly subject to prosecution . . .. ” Id. at 365, 98 S.Ct. 669. Because the actions by the government to bring about either result were not unconstitutional, the actions by the government forcing the defendant to make the choice between these alternatives did not amount to a penalty upon the choice he elected. Bordenkircher refines the Due Process principle identified in Pearce and Blackledge, and the Fifth Circuit cases following those decisions, both substantively and methodologically in several important respects. To begin with, Bordenkircher focuses that principle upon the danger that a defendant has been punished in retaliation for doing what the law allows him to do. Bordenkircher makes clear that the harm that the Constitution seeks to avert is the imposition of punishment upon a defendant in retaliation for his exercise of his legal rights rather than the deterrent effect upon a defendant’s decision whether to exercise those rights