619 F.2d 831 (9th Cir. 1980), 80-1235, United States v. Burt

Docket Nº:80-1235, 80-1236 and 80-1242.
Citation:619 F.2d 831
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Bradford BURT, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. William L. DENNIS, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Roy Dean SNARR and James F. Rounsavall, Defendants-Appellants.
Case Date:May 27, 1980
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 831

619 F.2d 831 (9th Cir. 1980)

UNITED STATES of America, Plaintiff-Appellee,

v.

Bradford BURT, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee,

v.

William L. DENNIS, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee,

v.

Roy Dean SNARR and James F. Rounsavall, Defendants-Appellants.

Nos. 80-1235, 80-1236 and 80-1242.

United States Court of Appeals, Ninth Circuit

May 27, 1980

Page 832

Victor Sherman, Nasatir, Sherman & Hirsch, Howard L. Weitzman, Los Angeles, Cal., Wallace B. Farrell, San Bernardino, Cal., Gregory E. Cabrera, Riverside, Cal., for defendants-appellants.

Andrea Sheridan Ordin, U.S. Atty., Kathleen P. March, Asst. U.S. Atty., Los Angeles, Cal., for plaintiff-appellee.

OPINION

Appeal from the United States District Court Central District of California.

Before WALLACE, ANDERSON and FLETCHER, Circuit Judges.

J. BLAINE ANDERSON, Circuit Judge:

The defendants (Bradford Burt, William L. Dennis, James F. Rounsavall, and Roy Dean Snarr) bring this pretrial appeal from the denial of their motion to dismiss based on vindictive prosecution grounds. In an order filed April 21, 1980, we summarily affirmed the denial of their motion so that the trial could proceed. This opinion explains our reasons for affirming.

I. BACKGROUND

In early 1979, various California state law enforcement agencies began the investigation which eventually led to the indictments in the present case. 1 The investigation was

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conducted exclusively by state officers through the use of state facilities and state search warrants. 2 The California Department of Justice Bureau of Narcotics Enforcement (BNE), supervised the investigation.

This investigation revealed evidence of a large-scale drug manufacturing and distributing operation. The defendants allegedly operated three different laboratories for manufacturing amphetamine. One was located in Corona, California, one was near Hinkley, California, and the other was in Palm Springs, California. The indictment alleges that approximately 26 pounds of amphetamine was manufactured at the Hinkley lab, and another 26 pounds at the Palm Springs site. In addition, during the time that Snarr and Rounsavall were allegedly operating the Corona lab, they also allegedly distributed approximately 40 pounds of amphetamine and 20,000 to 30,000 tablets of methaqualone (also known as quaaludes).

The state agents obtained approximately twenty-five search warrants which authorized their searches of the different lab sites, storage facilities, residences, and offices used by the defendants. 3 These searches resulted in the seizure of several pounds of amphetamine, large amounts of money, as well as equipment used in a drug manufacturing operation.

On March 16, 1979, a criminal complaint was filed against Burt, Dennis, Rounsavall, Snarr, and Michael J. Vaccarino 4 in San Bernardino County Municipal Court, alleging a single conspiracy in violation of Calif. (Health & Safety) Code § 11379, and four possession counts against the different defendants. We are told that with these charges, some of the defendants faced possible sentences of only two to four years.

In addition, Dennis, along with his wife, was charged with three counts of drug possession in the Riverside County Municipal Court. These possession charges resulted from a search of the Dennis residence which had been undertaken as part of the general investigation. Nevertheless, the drugs involved in the Riverside proceeding were not connected with the manufacturing and distributing conspiracy which formed the basis of the San Bernardino charges.

In April of 1979, the BNE agent who was in charge of the California investigation met with a federal Drug Enforcement Administration agent to discuss possible prosecution under the federal statutes. This was followed by another meeting in May which was attended by two Assistant United States Attorneys from the Central District of California (Perry and March). Perry explained that his office would be able to devote more time and resources to the investigation and prosecution of the defendants. He further explained that a federal trial could proceed much quicker than a state trial. And finally, Perry explained how Burt, the alleged leader, could be prosecuted under 21 U.S.C. § 848 (the continuing criminal enterprise statute) which carried much more severe penalties than any state law. 5 There was no discussion of attempting to avoid state law, the discussion focused on how § 848 fit the crime more closely than state law. It was decided

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that March would review the state search warrants to determine whether they were sufficient for a federal prosecution.

There was another meeting on June 13 which was attended by Perry, March, the state and federal agents, and a Deputy District Attorney from San Bernardino County. The San Bernardino Deputy agreed to halt the state case and defer to the federal prosecution, providing the state BNE agreed. The BNE agreed to submit the case to federal prosecution on June 20. And so, as of June 20, 1979, there was an agreement between the state and federal authorities that the defendants would be federally prosecuted.

Meanwhile, no one had conferred with the Riverside County prosecutor who was handling the possession case against the defendant Dennis and his wife. On July 20, 1979, the Riverside County Municipal Court granted a motion to suppress the evidence which had been seized at the Dennis residence based on faulty search warrants (San Bernardino warrants Nos. 3378D, 3378E). After the Riverside County prosecutor told the court that he would be unable to proceed without the suppressed evidence, the court then dismissed the possession charges against Dennis and his wife.

Not only was the Riverside County prosecutor not told about the agreement between the state and federal authorities, but the defendants also were not told that the state had agreed to discontinue its prosecution. Because of this, the defendants filed a lengthy motion to suppress in the San Bernardino proceeding and noticed a hearing for October 22, 1979. The San Bernardino prosecutor appeared on October 22 and moved to have the complaint against the defendants dismissed because the "prosecution was unable to proceed."

On January 17, 1980, the federal grand jury returned a twelve-count secret indictment against the defendants. 6 All of the defendants were charged with a conspiracy to manufacture, distribute, and possess amphetamine and methaqualone, as well as with possession of approximately 18 pounds of amphetamine. The other counts consisted of individual and joint charges against the different defendants, depending upon their degree of involvement in the manufacturing operation. And, Burt was charged with operating a continuing criminal enterprise (§ 848) in the last count.

The defendants were arraigned on March 3, 1980, and trial was set for April 8. On March 24, Burt and Dennis filed a motion to dismiss based on vindictive prosecution. Rounsavall and Snarr joined in this motion. The district court held hearings on all of the different motions which had been filed by the defendants on March 31, April 1, and April 2. The clerk's minutes indicate that the district judge denied the vindictive prosecution motion on April 2. On April 9, the defendants filed notices of appeal to

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this court from the denial of their vindictive prosecution claim. On April 10, the district judge informed the parties that he had not yet denied the vindictive prosecution claim. At that time the district judge set trial for April 15. The defendants then applied to this court for a stay of trial pending appeal. On April 14, this court granted defendants "motion for a stay (of trial) until such time as this court can consider (defendants') appeal from the district court's denial of their motion to dismiss for vindictive prosecution." On April 15, the district court denied the defendants' vindictive prosecution motion nunc pro tunc as of April 2, and set trial for April 22.

On April 17, the government made an emergency motion for summary affirmance of the district court so that the trial could proceed as scheduled on April 22. On April 21, this court entered an order summarily affirming the district court. 7

II. JURISDICTION

This court recently held that the denial of a motion to dismiss based on vindictive prosecution grounds was immediately appealable as a final decision under 28 U.S.C. § 1291. United States v. Griffin, 617 F.2d 1342, 1343-1346 (9th Cir. 1980). We found that the same considerations which led the Supreme Court to hold that the denial of a motion to dismiss on double jeopardy grounds was appealable before trial (Abney v. United States, 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977)), were "present in an order denying a motion to dismiss on vindictive prosecution grounds." Griffin, supra, at 1345. We therefore have jurisdiction to hear the defendants' appeal, prior to trial, from the denial of their motion to dismiss based on vindictive prosecution. However, this court does not have jurisdiction on a pretrial appeal, to consider any of the other grounds (see n.7, supra ) raised by the defendants in their motion to dismiss. See United States v. Solano, 605 F.2d 1141 (9th Cir. 1979), cert. denied, --- U.S. ----, 100 S.Ct. 677, 62 L.Ed.2d 652.

The defendants suggest that there is a jurisdictional problem presented by the procedural sequence of events in this case. We disagree. They contend that the district court did not have jurisdiction on April 15 to set the trial date for April 22. They reason that the filing of their notices of appeal on April 9 deprived the court of jurisdiction and that this...

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