U.S. v. Johnson

• Decision Date: 31 March 1976
• Docket Number: No. 75-1374,75-1374
• Citation: 537 F.2d 1170
• Parties: UNITED STATES of America, Appellee, v. Henry James JOHNSON, Jr., Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 1170

537 F.2d 1170

UNITED STATES of America, Appellee, v. Henry James JOHNSON, Jr., Appellant.

No. 75-1374.

United States Court of Appeals Fourth Circuit.

Argued January 5, 1976.

Decided March 31, 1976.

Joseph R. Goodwin, Charleston, W. Va. (court-appointed), (Michael I. Spiker and Goodwin, Goodwin, Bryan & Lobert, Charleston, W. Va., on brief), for appellant.

John A. Field, III, U. S. Atty., S. D. West Virginia, Charleston, W. Va. (Wayne A. Rich, Jr., Asst. U. S. Atty., Charleston, W. Va. and Michael F. Pezzulli, Third-Year Law Student, on brief), for appellee.

Before WINTER, CRAVEN and BUTZNER, Circuit Judges.

BUTZNER, Circuit Judge:

This appeal presents the question whether, after a guilty plea has been vacated on appeal, a defendant may be prosecuted for charges more serious than those in his original indictment when the prosecutor was aware of the new charges at the time of the plea. We hold that trial on the new charges denies the defendant due process of law.

I

Henry James Johnson, Jr., was indicted on November 3, 1972. He was charged in count one with conspiracy to distribute heroin from June 1, 1970, to the date of indictment. Counts two and three charged Johnson with substantive violations of the Travel Act, and count four charged that the acts alleged in count one were part of a continuing criminal enterprise. ¹ Johnson pleaded not guilty, and his trial was set for January 3, 1973. On that date, however, he pleaded guilty to counts one and four of the indictment, and the government dismissed counts two and three. He was sentenced on count one to 15 years' imprisonment with a three-year special parole term pursuant to 21 U.S.C. § 841(b)(1)(A) and fined $25,000. On count four he was given an 18-year concurrent sentence without parole and fined $100,000. Eighteen months later, we vacated this judgment for lack of compliance with Rule 11 and remanded the case for rearraignment. Johnson v. United States, No. 73-2458 (4th Cir., Sept. 3, 1974).

Rather than proceed to trial on the original charges, the United States obtained a superseding indictment charging Johnson with forty-one counts of violating federal narcotics laws. Counts one, two, and three were identical to the first three counts of the 1972 indictment, and count forty-one was the same as count four of the first indictment. The remaining thirty-seven counts charged Johnson with distributing heroin and violating the Travel Act. Johnson moved to dismiss the indictment on the ground that the addition of the new counts violated due process and placed him in double jeopardy. The court denied his motion. The government then elected to try him on eight counts. Of these, only count one was identical to a count in the original indictment. A jury found Johnson guilty on seven counts. On count one, the court imposed the same punishment Johnson had received when he pleaded guilty, again sentencing him to 15 years in prison with a three-year special parole term and fining him $25,000. The punishment on the remaining six counts together with that on count one totaled 45 years' imprisonment with a 24-year special parole term and a $200,000 fine. We affirm his conviction under count one, reverse the remaining convictions, and remand for trial on counts two, three, and four of the original indictment.

II

In North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), the Supreme Court held that the due process clause protects a defendant from both actual vindictiveness and the fear of retaliation for exercising his right to appeal. To implement this protection, the Court sharply restricted trial judges from imposing more severe sentences on retrial after a defendant's successful appeal. The Pearce principle was extended to the prosecutor in Blackledge v. Perry, 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974). There, after Perry requested a de novo trial in a court of record following a misdemeanor conviction in a magistrate's court, the prosecutor obtained a felony indictment against him based on the same conduct that was the subject of the misdemeanor charge. Noting that prosecutors have a strong interest in discouraging new trials, the Court observed that "if the prosecutor has the means readily at hand to discourage such appeals by 'upping the ante' . . . the State can insure that only the most hardy defendants will brave the hazards of a de novo trial." It therefore held "that it was not constitutionally permissible for the State to respond to Perry's invocation of his statutory right to appeal by bringing a more serious charge against him prior to the trial de novo." 417 U.S. at 27-29, 94 S.Ct. at 2103.

Blackledge has been applied to facts that differ only superficially from those in the case before us. In United States v. Jamison, 164 U.S.App.D.C. 300, 505 F.2d 407 (1974), the court held that, after a mistrial on an indictment charging second degree murder, reindictment of the accused for first degree murder violated the due process clause, absent any justification for the second indictment. Even closer to the situation before us is Sefcheck v. Brewer, 301 F.Supp. 793 (S.D.Iowa 1969). There, applying Pearce, the court reversed a conviction on a more serious charge that was filed after the defendant had successfully challenged his guilty plea to the original charge, for which he had received less punishment.

The government argues that Blackledge and Jamison are distinguishable because in each the prosecutor knew of the offense charged in the second indictment at the time the original charge was made. Here, in contrast, the United States Attorney avers that he did not know of the crimes charged in the second indictment when the first indictment was returned. The government relies on statements in Blackledge ² and Jamison ³ which indicate there would have been no denial of due process if the government had shown it was unaware of the facts essential to the second indictments when the first ones were returned.

We believe, however, that Blackledge does not limit the application of the due process clause to the narrow bounds suggested by the government. The reference to the return of the indictment as the time for assessing the prosecutor's knowledge does not imply that some other date might not be equally critical, and the opinion does not attempt to catalog all tactics that may engender apprehension of prosecutorial vindictiveness. Rather, Blackledge unequivocally assures a prisoner of his right to appeal without fear that the prosecutor will retaliate with a more serious charge if the original conviction is reversed. Therefore, instead of simply assessing the prosecutor's knowledge at the time the original indictment was returned, as the government suggests, we must examine all circumstances of Johnson's situation.

Presumably, the government was ready to go to trial on the original indictment as scheduled on January 3, for there is nothing in the record to indicate that it sought a continuance or was entitled to one. The prosecutor concedes that he knew all of the facts essential for the new indictment before Johnson changed his plea. Moreover, he stated that he did not then seek a superseding indictment because "(he) felt that the ends of justice had been met and no further prosecution was warranted based on the plea bargain." Only after Johnson successfully challenged the legality of the proceeding in which he pleaded guilty did the government seek a second indictment containing thirty-seven more charges. During the year and a half that elapsed between the entry of Johnson's plea and the new indictment following reversal of his conviction, the government discovered no new evidence to justify the additional charges.

The record, nevertheless, does not support a conclusion that the prosecutor maliciously sought the second indictment, and we accept his explanation that he obtained it simply to create a stronger case for the government. Blackledge points out, however, that the accused need not prove he was an actual victim of retaliation. Quoting from Pearce, the Court reiterated that " 'since the fear of such vindictiveness may unconstitutionally deter a defendant's exercise of the right to appeal or collaterally attack his first conviction, due process also requires that a defendant be freed of apprehension of such a retaliatory motivation . . .' " on the part of the prosecutor. 417 U.S. at 28, 94 S.Ct. at 2102. We conclude, therefore, that Johnson's case falls within the rationale of Pearce and Blackledge. After he successfully challenged his conviction on the first indictment, his prosecution on the increased charges of the superseding indictment denied him due process of law.

Accordingly, except for count one, the judgment is vacated and the case is remanded. Johnson's conviction on count one of the second indictment is affirmed because it is identical to count one of the first indictment and the court imposed the same punishment. ⁴

III

The next question is whether on remand Johnson may be tried only on the fourth count, to which he previously pleaded guilty, or whether he may also be tried on the second and third counts, which the government dismissed after his plea. This issue involves consideration of two constitutional concepts: double jeopardy and due process.

The hallmarks of jeopardy are not present. A jury was not impaneled to try Johnson on counts two and three, nor did the court receive evidence concerning his guilt on these counts. Cf. Serfass v. United States, 420 U.S. 377, 388, 95 S.Ct. 1055, 43 L.Ed.2d 265 (1975). A different conclusion is not required by Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957). There, the Court held that the double jeopardy clause precludes a prisoner's retrial for a greater offense after reversal of his conviction of a lesser included offense. The jury's verdict, the Court ruled, implicitly acquitted him of the greater offense. Green 's bar...