Can a defendant bring a vindictive prosecution claim and a selective prosecution claim?

1 Vindictive prosecution claims challenge an increase in charges by a prosecutor after the defendant has asserted some sort of procedural right, see, e.g., Blackledge v. Perry, 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974), whereas selective prosecution claims challenge the prosecution of one person in light of the failure to prosecute other similarly situated people.

2 The defendant in Thurnhuber brought a vindictive prosecution claim, but the appellate court refused to consider it since there was no link between the exercise of a procedural right and the "penalty." Thurnhuber, 572 F.2d at 1310. The court therefore concluded that the defendant's allegations "must rest on an improper motive other than retaliation," id. at 1311, and cited several selective prosecution cases, such as United States v. Scott, 521 F.2d 1188 (9th Cir.1975), cert. denied, 424 U.S. 955, 96 S.Ct. 1431, 47 L.Ed.2d 361 (1976). Thus, the court in Thurnhuber considered the defendant's vindictive prosecution claim as a selective prosecution claim and applied a clearly erroneous standard.