Punishment for exercise of constitutional or statutory rights can result in a violation of due process. Jenkins was stopped at the border on two occasions in October 2004, and found to be smuggling aliens. When questioned, she stated that Pablo paid her to bring them in. Despite the strong evidence against her, the government elected to file no charges. Then in January 2005, she was again stopped but this time was found to be transporting marijuana. At her trial she testified that she did not know there was marijuana in her car as she believed she was transporting aliens. The evening of her testimony, the assistant U.S. attorney filed alien smuggling charges from the earlier stop. Jenkins motion to dismiss for vindictive prosecution was granted as a “prophyactic” measure to prevent the chilling of a defendant’s ability to take the stand. Because of the failure to initially file alien smuggling charges supported by strong evidence, combined with the subsequent timing of the filing of the charges, there was a presumption of prosecutorial vindictiveness.