United States Court of Appeals Fifth Circuit F I L E D UNITED STATES COURT OF APPEALS July 31, 1996
FOR THE FIFTH CIRCUIT Charles R. Fulbruge III Clerk
No. 95-50709 Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
ALAN WADE JOHNSON,
Defendant-Appellant.
Appeal from the United States District Court for the Western District of Texas
Before WIENER, E. GARZA, and PARKER, Circuit Judges.
ROBERT M. PARKER, Circuit Judge:
FACTS
In October 1990, special agents of the Bureau of Alcohol,
Tobacco and Firearms (“ATF”) were informed that a destructive
device consisting of dynamite and a detonation cord had been found
at a place of business in El Paso, Texas called Sharkey’s
Billiards. An employee of Sharkey’s suggested the name of the defendant, Alan Wade Johnson (“Johnson”), as a possible suspect.
The investigation led to the discovery that Johnson, a convicted
felon, had purchased a .45 caliber pistol and a nine millimeter
pistol at Benny’s Pawn Shop in El Paso. In addition to being a
felon in possession, it appeared that Johnson had executed treasury
form 4473 to acquire these firearms and had denied his prior felony
conviction. The case against Johnson was presented to an Assistant
United States Attorney (“AUSA”) in June, 1991. In the meantime,
however, the State of Texas had charged Johnson with aggravated
robbery and capital murder. The firearms which were central to the
ATF investigation were also apparently evidence in the state
criminal prosecution. The AUSA in charge of the case decided to
defer to the state and to decline federal prosecution for the
firearms violations at that time. The ATF investigation then lay
dormant until Johnson’s state trial on the charge of capital
murder. Johnson was found “not guilty” by the jury. The ATF then
revived its investigation, and the original indictment in the
instant case was returned in December 1993. A superseding
indictment was returned in July 1994.
PROCEEDINGS BELOW
The superseding indictment charged Johnson with six counts of
possession of a firearm by a felon, two counts of making a false
statement on an ATF form, and one count of possession of a silencer
that had not been registered to him. The Government also gave
notice of its intent to seek an enhanced penalty under 18 U.S.C. §
2 924(e)(1) based on Johnson's six prior felony convictions for
crimes of violence. Johnson filed a motion to dismiss the case for
vindictive prosecution. After hearing the testimony of the state
and federal prosecutors detailing the decision-making process which
preceded the federal indictment, the district court determined that
Johnson had not shown prosecutorial vindictiveness and denied this
motion.
On July 25, 1995, following a jury trial that began the
previous day, Johnson was found guilty as charged in Counts One
through Four and Counts Six through Nine of the indictment.1
Johnson timely filed a notice of appeal, contending that the
district court erred in refusing to dismiss the superseding
indictment due to prosecutorial vindictiveness.
DISCUSSION
Johnson contends that we may find prosecutorial vindictiveness
if we agree with his assertion that the State of Texas used the
federal prosecution as a tool for subjecting Johnson to successive
prosecutions. He bases this argument upon an exception to the dual
sovereignty doctrine. In order to understand his argument we must
first examine that doctrine.
1 The district court granted Johnson's motion to require the Government to elect between counts five and eight because these counts were multiplicitous. The Government elected to proceed to trial on count eight and dismissed count five.
3 Under the dual sovereignty doctrine, successive prosecutions
by separate sovereigns for crimes arising out of the same acts are
not barred by the Double Jeopardy Clause. United States v. Lanza,
260 U.S. 377, 382, 43 S. Ct. 141, 142-43, 67 L. Ed. 314 (1922).
However, "[t]he Supreme Court has suggested that an exception to
the dual sovereign doctrine exists when prosecution by one
sovereign is used as a tool for successive prosecution by another
sovereign." Id. (citing Bartkus v. Illinois, 359 U.S. 121, 123-24,
79 S. Ct. 676, 678, 3 L. Ed. 2d 684 (1959)). It is this exception,
referred to as the Bartkus exception, that Johnson urges us to
consider.
Johnson requests this court to apply the Bartkus exception,
not in the context of an exception to the dual sovereignty
doctrine, but rather as an exception to the general rule that
successive prosecutions by different sovereigns tend to negate a
finding of prosecutorial vindictiveness. See, e.g., United States
v. Heidecke, 900 F.2d 1155, 1159 (7th Cir. 1990)(“[w]here there are
successive prosecutions by two sovereigns . . . it is improbable
that a realistic likelihood of vindictiveness exists”); United
States v. Schoolcraft, 879 F.2d 64 (3d Cir.), cert. denied, 493
U.S. 995 (1989)(“the role of a separate sovereign in bringing
charges against a defendant minimizes the likelihood of
prosecutorial abuse”); United States v. Ng, 699 F.2d 63, 68 (2d
Cir. 1983) (“the fact that the prosecutions of the defendants are
4 by two different sovereigns, each acting independently under its
own laws and in its own interest without any control of or by the
other, renders inapplicable the concept of prosecutorial
vindictiveness”). Assuming, arguendo, that the Bartkus exception
is applicable to the general rule that successive prosecutions by
different sovereigns negate a finding of prosecutorial
vindictiveness, we will review the findings of the trial court.
A district court's factual findings on prosecutorial
vindictiveness are reviewed for clear error and the legal
principles which guide the district court are reviewed de novo.
See, e.g., United States v. Bullis, 77 F.3d 1553, 1558 (7th Cir.
1996); United States v. Wall, 37 F.3d 1443, 1448 (10th Cir. 1994);
United States v. Schoolcraft, 879 F.2d 64, 67 (3d Cir.), cert.
denied, 493 U.S. 995, 110 S. Ct. 546, 107 L. Ed. 2d 543 (1989).
But see, United States v. Noushfar, 78 F.3d 1442, 1446 (9th Cir.
1996) (noting that the proper standard of review for vindictive
prosecution is unsettled in the Ninth Circuit). The inquiry into
prosecutorial conduct in a pretrial context may be distinguished
from conduct occurring thereafter. United States v. Goodwin, 457
U.S. 368, 379-82, 102 S. Ct. 2485, 2492-93, 73 L. Ed. 2d 74 (1982).
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United States Court of Appeals Fifth Circuit F I L E D UNITED STATES COURT OF APPEALS July 31, 1996
FOR THE FIFTH CIRCUIT Charles R. Fulbruge III Clerk
No. 95-50709 Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
ALAN WADE JOHNSON,
Defendant-Appellant.
Appeal from the United States District Court for the Western District of Texas
Before WIENER, E. GARZA, and PARKER, Circuit Judges.
ROBERT M. PARKER, Circuit Judge:
FACTS
In October 1990, special agents of the Bureau of Alcohol,
Tobacco and Firearms (“ATF”) were informed that a destructive
device consisting of dynamite and a detonation cord had been found
at a place of business in El Paso, Texas called Sharkey’s
Billiards. An employee of Sharkey’s suggested the name of the defendant, Alan Wade Johnson (“Johnson”), as a possible suspect.
The investigation led to the discovery that Johnson, a convicted
felon, had purchased a .45 caliber pistol and a nine millimeter
pistol at Benny’s Pawn Shop in El Paso. In addition to being a
felon in possession, it appeared that Johnson had executed treasury
form 4473 to acquire these firearms and had denied his prior felony
conviction. The case against Johnson was presented to an Assistant
United States Attorney (“AUSA”) in June, 1991. In the meantime,
however, the State of Texas had charged Johnson with aggravated
robbery and capital murder. The firearms which were central to the
ATF investigation were also apparently evidence in the state
criminal prosecution. The AUSA in charge of the case decided to
defer to the state and to decline federal prosecution for the
firearms violations at that time. The ATF investigation then lay
dormant until Johnson’s state trial on the charge of capital
murder. Johnson was found “not guilty” by the jury. The ATF then
revived its investigation, and the original indictment in the
instant case was returned in December 1993. A superseding
indictment was returned in July 1994.
PROCEEDINGS BELOW
The superseding indictment charged Johnson with six counts of
possession of a firearm by a felon, two counts of making a false
statement on an ATF form, and one count of possession of a silencer
that had not been registered to him. The Government also gave
notice of its intent to seek an enhanced penalty under 18 U.S.C. §
2 924(e)(1) based on Johnson's six prior felony convictions for
crimes of violence. Johnson filed a motion to dismiss the case for
vindictive prosecution. After hearing the testimony of the state
and federal prosecutors detailing the decision-making process which
preceded the federal indictment, the district court determined that
Johnson had not shown prosecutorial vindictiveness and denied this
motion.
On July 25, 1995, following a jury trial that began the
previous day, Johnson was found guilty as charged in Counts One
through Four and Counts Six through Nine of the indictment.1
Johnson timely filed a notice of appeal, contending that the
district court erred in refusing to dismiss the superseding
indictment due to prosecutorial vindictiveness.
DISCUSSION
Johnson contends that we may find prosecutorial vindictiveness
if we agree with his assertion that the State of Texas used the
federal prosecution as a tool for subjecting Johnson to successive
prosecutions. He bases this argument upon an exception to the dual
sovereignty doctrine. In order to understand his argument we must
first examine that doctrine.
1 The district court granted Johnson's motion to require the Government to elect between counts five and eight because these counts were multiplicitous. The Government elected to proceed to trial on count eight and dismissed count five.
3 Under the dual sovereignty doctrine, successive prosecutions
by separate sovereigns for crimes arising out of the same acts are
not barred by the Double Jeopardy Clause. United States v. Lanza,
260 U.S. 377, 382, 43 S. Ct. 141, 142-43, 67 L. Ed. 314 (1922).
However, "[t]he Supreme Court has suggested that an exception to
the dual sovereign doctrine exists when prosecution by one
sovereign is used as a tool for successive prosecution by another
sovereign." Id. (citing Bartkus v. Illinois, 359 U.S. 121, 123-24,
79 S. Ct. 676, 678, 3 L. Ed. 2d 684 (1959)). It is this exception,
referred to as the Bartkus exception, that Johnson urges us to
consider.
Johnson requests this court to apply the Bartkus exception,
not in the context of an exception to the dual sovereignty
doctrine, but rather as an exception to the general rule that
successive prosecutions by different sovereigns tend to negate a
finding of prosecutorial vindictiveness. See, e.g., United States
v. Heidecke, 900 F.2d 1155, 1159 (7th Cir. 1990)(“[w]here there are
successive prosecutions by two sovereigns . . . it is improbable
that a realistic likelihood of vindictiveness exists”); United
States v. Schoolcraft, 879 F.2d 64 (3d Cir.), cert. denied, 493
U.S. 995 (1989)(“the role of a separate sovereign in bringing
charges against a defendant minimizes the likelihood of
prosecutorial abuse”); United States v. Ng, 699 F.2d 63, 68 (2d
Cir. 1983) (“the fact that the prosecutions of the defendants are
4 by two different sovereigns, each acting independently under its
own laws and in its own interest without any control of or by the
other, renders inapplicable the concept of prosecutorial
vindictiveness”). Assuming, arguendo, that the Bartkus exception
is applicable to the general rule that successive prosecutions by
different sovereigns negate a finding of prosecutorial
vindictiveness, we will review the findings of the trial court.
A district court's factual findings on prosecutorial
vindictiveness are reviewed for clear error and the legal
principles which guide the district court are reviewed de novo.
See, e.g., United States v. Bullis, 77 F.3d 1553, 1558 (7th Cir.
1996); United States v. Wall, 37 F.3d 1443, 1448 (10th Cir. 1994);
United States v. Schoolcraft, 879 F.2d 64, 67 (3d Cir.), cert.
denied, 493 U.S. 995, 110 S. Ct. 546, 107 L. Ed. 2d 543 (1989).
But see, United States v. Noushfar, 78 F.3d 1442, 1446 (9th Cir.
1996) (noting that the proper standard of review for vindictive
prosecution is unsettled in the Ninth Circuit). The inquiry into
prosecutorial conduct in a pretrial context may be distinguished
from conduct occurring thereafter. United States v. Goodwin, 457
U.S. 368, 379-82, 102 S. Ct. 2485, 2492-93, 73 L. Ed. 2d 74 (1982).
A prosecutor has broad discretion during pretrial proceedings "to
determine the extent of the societal interest in prosecution." Id.
at 382, 102 S. Ct. at 2493. Absent a presumption of vindictiveness
in this context, the defendant must prove that the prosecutor's
5 conduct was actually vindictive. United States v. Molina-Iguado,
894 F.2d 1452, 1455 (5th Cir.), cert. denied, 498 U.S. 831, 111 S.
Ct. 2485, 112 L. Ed. 2d 66 (1990). This court examines the
prosecutor's conduct in light of the entire proceedings to
determine whether it gives rise to a presumption of vindictiveness.
Id. at 1454. In determining if a presumption of vindictiveness is
warranted,
the appropriate inquiry is whether . . . for example, where, after the defendant's prior exercise of a procedural or substantive legal right, or his having succeeded in reversing a conviction on appeal, the prosecution acts arguably to punish the exercise of such rights, by increasing the measure of jeopardy by bringing additional or more severe charges[.]
United States v. Ward, 757 F.2d 616, 619-20 (5th Cir. 1985).
The following relevant evidence was adduced at the hearing on
the motion to dismiss. During the latter part of 1990 and the
early part of 1991, agents of the ATF became aware that Johnson was
a convicted felon who had purchased two firearms between June and
December 1990. A case report was presented to the United States
Attorney's Office in June 1991 for possession of a firearm by a
felon and falsifying ATF records in order to obtain a firearm.
David Nichols (“Nichols”), the AUSA who was reviewing the case,
declined prosecution at that time because Johnson was facing
charges in Texas state court, and because a firearm central to the
ATF investigation was needed as evidence in the state criminal
prosecution. Nichols testified that he decided to postpone
6 prosecution until "the state ran its course, whatever it was, or
would be."
The State of Texas tried Johnson for capital murder beginning
on October 16, 1993, and he was acquitted on December 1, 1993.
During or shortly after the capital-murder trial, Johnson filed a
grievance with the State Bar of Texas (the Bar) against two
assistant district attorneys on the ground that they had withheld
exculpatory evidence during the course of the trial. In March
1994, the Bar's grievance committee made a finding of misconduct.
Shortly after the verdict, an assistant district attorney met
with prosecutors from the United States Attorney's Office to
discuss prosecuting Johnson on federal charges and obtaining the
state's evidence. Government prosecutors learned that the state
still had pending robbery charges against Johnson. However, a
decision was made to proceed with the federal prosecution to avoid
the appearance that the federal government was "coming in and
sweeping up after the state." On December 15, 1993, a federal
grand jury returned a two-count indictment, and the nine-count
superseding indictment was returned on July 6, 1994.
Johnson has failed to demonstrate that circumstances
warranting a presumption of vindictiveness exist in this case.
Johnson has shown no more than that the Government brought charges
for firearms violations after he was acquitted of capital murder in
state court. The district court found that Johnson's federal
investigation "was ‘put on hold’ not only because the state charges
7 were more serious, but also because some of the evidence essential
to the federal prosecution was in the hands of the state." The
district court further found that “the federal prosecutors had no
knowledge of the grievance or the reprimand prior to the return of
the superseding indictment." Those findings are not clearly
erroneous. Absent any presumption of vindictiveness and absent any
evidence of such, Johnson cannot prove that the Government's
prosecution was used as a tool of the state. Consequently, the
district court did not err in refusing to dismiss Johnson’s
superseding indictment.
CONCLUSION
For the foregoing reasons, the judgment of the district court
is AFFIRMED.