U.S. v. Andersen, No. 90-4044

CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)
Writing for the CourtBefore LOGAN and BRORBY, Circuit Judges, and BRIMMER; LOGAN
Citation940 F.2d 593
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Evan Mitchell ANDERSEN, Defendant-Appellant.
Docket NumberNo. 90-4044
Decision Date29 July 1991

Page 593

940 F.2d 593
UNITED STATES of America, Plaintiff-Appellee,
v.
Evan Mitchell ANDERSEN, Defendant-Appellant.
No. 90-4044.
United States Court of Appeals,
Tenth Circuit.
July 29, 1991.

Page 594

Suzanne K. Cavanaugh, Bountiful, Utah, for defendant-appellant.

David J. Schwendiman, Asst. U.S. Atty. (Dee Benson, U.S. Atty., with him on the

Page 595

brief), Salt Lake City, Utah, for plaintiff-appellee.

Before LOGAN and BRORBY, Circuit Judges, and BRIMMER, Chief District Judge. *

LOGAN, Circuit Judge.

A jury convicted defendant Evan Mitchell Andersen of manufacturing methamphetamine in violation of 21 U.S.C. Sec. 841(a)(1), knowingly possessing quantities of listed chemicals, L-ephedrine and hydriodic acid, with intent to manufacture methamphetamine in violation of 21 U.S.C. Sec. 841(d) and 18 U.S.C. Sec. 2, knowingly possessing two three-neck, round-bottom flasks with intent to manufacture methamphetamine in violation of 21 U.S.C. Sec. 843(a)(6), and manufacturing methamphetamine within one thousand feet of a public school in violation of 21 U.S.C. Secs. 841(a)(1) and 845a. The district court sentenced defendant to 220 months imprisonment after finding that he manufactured approximately 29 kilograms of methamphetamine.

Defendant appeals, arguing (1) that his due process rights were violated when state charges were dropped and he was referred to federal authorities who prosecuted him for a federal crime; and (2) that the court erred in determining the drug quantity relevant to sentencing.

I

On February 17, 1989, defendant was arrested and charged with possessing a controlled substance in violation of Utah law. The arresting officer, Shane Minor, was an Ogden City Police officer and a member of the Weber/Morgan Narcotics Strike Force (Strike Force), "an intergovernmental law enforcement group involving funds and personnel from Morgan and Weber counties, municipalities within Weber and Morgan counties, and various agencies of the State of Utah and of the United States government, including the federal Drug Enforcement Administration." United States v. Williams, 746 F.Supp. 1076, 1078 (D.Utah 1990). 1

After making the arrest, Minor discussed the Strike Force's ongoing investigation of defendant with the Weber County Attorney's office, the United States Attorney's office, and co-Strike Force member and Drug Enforcement Administration agent Charles Hobbs. Thereafter, the Weber County Attorney's office decided to dismiss the state charges and release defendant.

On August 31, 1989, defendant again was arrested based on the Strike Force's investigation. This time, however, defendant was charged with violating federal law. Defendant ultimately was convicted on the six counts of violating the Comprehensive Drug Abuse Prevention and Control Act of 1970, Pub.L. No. 91-513, 84 Stat. 1236, that are the subject of the instant appeal.

Defendant contends that his due process rights were violated when he was tried, convicted, and sentenced in federal rather than state court. He concedes that the prosecutors acted within the scope of their discretion in deciding whether to prosecute him and what charges to bring. But he relies on United States v. Williams, 746 F.Supp. 1076 (D.Utah 1990), to argue that due process was violated when members of the Strike Force referred his case for federal prosecution "without the benefit of any articulated policy or written guidelines" addressing referral decisions. Reply Brief of Appellant at 3. 2 Had this allegedly

Page 596

unconstitutional behavior not occurred, defendant argues that under Utah law the state court could have sentenced him to no more than five years imprisonment, in contrast to the more than eighteen years he received on the federal convictions.

As defendant correctly concedes, the discretion afforded prosecutors in cases like that before us does not violate due process. Although a prosecutor obviously cannot base charging decisions on a defendant's race, sex, religion, or exercise of a statutory or constitutional right, see Wayte v. United States, 470 U.S. 598, 608, 105 S.Ct. 1524, 1531, 84 L.Ed.2d 547 (1985), "so long as the prosecutor has probable cause to believe that the accused committed an offense defined by statute, the decision whether or not to prosecute, and what charge to file ... generally rests entirely in his discretion." Bordenkircher v. Hayes, 434 U.S. 357, 364, 98 S.Ct. 663, 668, 54 L.Ed.2d 604 (1978) (footnote omitted).

When the evidence supports prosecution under different statutes, "[t]he prosecutor may be influenced by the penalties available upon conviction, but this fact, standing alone, does not give rise to a violation of the Equal Protection or Due Process Clause." United States v. Batchelder, 442 U.S. 114, 125, 99 S.Ct. 2198, 2205, 60 L.Ed.2d 755 (1979). See also United States v. Thomas, 884 F.2d 540, 544 (10th Cir.1989). Indeed, a defendant may be indicted, prosecuted, and convicted in federal court for illegal conduct punishable under a federal statute even after a state court has convicted defendant under a state statute for the same conduct. Abbate v. United States, 359 U.S. 187, 194-95, 79 S.Ct. 666, 670-71, 3 L.Ed.2d 729 (1959).

Applying these principles, we have rejected the argument that a prosecutor's control over charging decisions and plea bargaining practices violates due process. See United States v. Hatch, 925 F.2d 362, 363 (10th Cir.1991); Thomas, 884 F.2d at 544. Other courts have rejected due process challenges similar to that before us now, holding that a prosecutor's decision to transfer a case from state to federal court, thereby subjecting the defendant to a much harsher potential penalty, does not violate the Constitution. See United States v. Frankel, 739 F.Supp. 629, 630 (D.D.C.1990); United States v. Smith, 727 F.Supp. 1023, 1024-25 (W.D.Va.1990). 3 See also United States v. Raymer, 941 F.2d 1031, 1042 (10th Cir.1991) (without raising presumption of vindictiveness, state prosecutor may notify defendant who declines to plead guilty that his case will be transferred to federal authorities).

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59 practice notes
  • State v. Coria, No. 58522-9
    • United States
    • United States State Supreme Court of Washington
    • November 12, 1992
    ...States v. Haynes, 881 F.2d 586, 590 (8th Cir.1989); United States v. Pitts, 908 F.2d 458, 461 (9th Cir.1990); United States v. Andersen, 940 F.2d 593 (10th Cir.1991). But cf. United States v. Coates, 739 F.Supp. 146 (S.D.N.Y.1990) (section 845a held inapplicable where drug dealers were arre......
  • U.S. v. Pearson, No. 97-3268
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • February 22, 2000
    ...in the integrity of the proceedings to the extent that reversal of the conviction would be warranted. Cf. United States v. Andersen, 940 F.2d 593, 596 (10th Cir. 1991) (holding that a defendant's due process rights are not violated by the federal government's decision to prosecute under a f......
  • U.S. v. Morehead, Nos. 91-7003
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • March 4, 1992
    ...or equal protection notwithstanding the lack of any articulated guidelines for the exercise of such discretion. United States v. Andersen, 940 F.2d 593, 596-97 (10th Cir.1991) (lack of "any articulated policy or written guidelines" in deciding to prosecute in federal rather than s......
  • U.S. v. Harden, No. 92-4512
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • November 3, 1994
    ...motivated; thus, a sentence outside of the statutory and Guidelines sentencing scheme was not justified. See United States v. Andersen, 940 F.2d 593, 595-97 (10th Cir.1991) (rejecting the Williams district court decision specifically as well as the proposition that due process requires writ......
  • Request a trial to view additional results
59 cases
  • State v. Coria, No. 58522-9
    • United States
    • United States State Supreme Court of Washington
    • November 12, 1992
    ...States v. Haynes, 881 F.2d 586, 590 (8th Cir.1989); United States v. Pitts, 908 F.2d 458, 461 (9th Cir.1990); United States v. Andersen, 940 F.2d 593 (10th Cir.1991). But cf. United States v. Coates, 739 F.Supp. 146 (S.D.N.Y.1990) (section 845a held inapplicable where drug dealers were arre......
  • U.S. v. Pearson, No. 97-3268
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • February 22, 2000
    ...in the integrity of the proceedings to the extent that reversal of the conviction would be warranted. Cf. United States v. Andersen, 940 F.2d 593, 596 (10th Cir. 1991) (holding that a defendant's due process rights are not violated by the federal government's decision to prosecute under a f......
  • U.S. v. Morehead, Nos. 91-7003
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • March 4, 1992
    ...or equal protection notwithstanding the lack of any articulated guidelines for the exercise of such discretion. United States v. Andersen, 940 F.2d 593, 596-97 (10th Cir.1991) (lack of "any articulated policy or written guidelines" in deciding to prosecute in federal rather than state court......
  • U.S. v. Harden, No. 92-4512
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • November 3, 1994
    ...motivated; thus, a sentence outside of the statutory and Guidelines sentencing scheme was not justified. See United States v. Andersen, 940 F.2d 593, 595-97 (10th Cir.1991) (rejecting the Williams district court decision specifically as well as the proposition that due process requires writ......
  • Request a trial to view additional results

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