U.S. v. Barner, 04-13384.

• Decision Date: 10 March 2006
• Docket Number: No. 04-13384.,04-13384.
• Citation: 441 F.3d 1310
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Javado BARNER, Defendant-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

441 F.3d 1310

UNITED STATES of America, Plaintiff-Appellant, v. Javado BARNER, Defendant-Appellee.

No. 04-13384.

United States Court of Appeals, Eleventh Circuit.

March 10, 2006.

COPYRIGHT MATERIAL OMITTED

Amy Levin Weil, Joseph A. Plummer, U.S. Atty., Yonette Sam-Buchanan, Atlanta, GA, for U.S.

L. Burton Finlayson (Court-Appointed), Atlanta, GA, for Barner.

Appeal from the United States District Court for the Northern District of Georgia.

Before ANDERSON, HULL and GIBSON^*, Circuit Judges.

JOHN R. GIBSON, Circuit Judge:

The United States appeals from the district court's dismissal of the Fifth Superseding Indictment in this case. The government contends that the district court erred in concluding that the facts of this case warranted a presumption that the Fifth Superseding Indictment resulted from prosecutorial vindictiveness. We hold that no such presumption of vindictiveness was proper, but we remand for the district court to make findings as to whether the Fifth Superseding Indictment was the result of actual vindictiveness.

Javado Barner was first indicted in this case on February 12, 2002. On May 13, 2002, Barner filed a motion to dismiss or redact the indictment. On May 16, 2002, Barner's trial counsel moved to withdraw from representing Barner. On May 31, 2002, the magistrate judge granted trial counsel's motion to withdraw. On that same day, substitute counsel was appointed.

A Fourth Superseding Indictment was returned against Barner on June 12, 2002. Count 1 of that indictment charged Barner and others with a conspiracy to possess cocaine, marijuana, and ecstasy with intent to distribute them and alleged that the defendants had obtained the narcotics by robbing people they thought were drug dealers. Barner was also charged with conspiracy to possess firearms in furtherance of a drug trafficking offense (Count 2); possession of 500 grams or more of cocaine with intent to distribute it (Count 3); possession of firearms in furtherance of the drug trafficking crimes alleged in Count 3 (Count 4); four counts of using and carrying firearms in furtherance of the particular drug trafficking conspiracy charged in Count 1 (Counts 5-8); and possession of 30,000 pills of ecstasy with intent to distribute them (Count 9).

On July 12, 2002, Barner pleaded guilty to Counts 1 and 6, in return for which the government agreed to seek dismissal of the remaining counts and to recommend a sentence of 144 months' imprisonment. All the other co-defendants also pleaded guilty and received sentences ranging from 57 months to 18 years, according to their respective culpability and cooperation, as assessed by the prosecutors.

However, rather than proceeding to sentencing under the plea agreement, Barner moved to withdraw his plea agreement on December 4, 2002, on the ground that he had received ineffective assistance of counsel,¹ and the court granted his motion on February 18, 2003.

On February 21, 2003, Barner's new counsel filed a motion for leave to file additional pre-trial motions. On March 5, 2003, the district court gave Barner's trial counsel ten days to file additional pre-trial motions.

On March 4, 2003, Barner's counsel filed several motions, including a motion to dismiss counts and to redact the indictment, a motion to suppress certain statements, and a motion to dismiss three of the four remaining gun counts (Counts 5-8) because they all related to the single conspiracy charged in Count 1 and were therefore multiplicitous.

On July 18, 2003, Barner's counsel filed a motion to dismiss the indictment based upon prosecutorial misconduct.² Barner alleged that the government had used perjured testimony before the grand jury. He requested a copy of the grand jury transcripts. In reply, the government emphasized that at the earlier suppression hearing, the government witness had admitted that he mistakenly testified before the grand jury about Barner's involvement in one of the counts.

On September 26, 2003, the government moved to dismiss Counts 3 and 4 because it became clear that Barner was not present during the crimes alleged. The district court granted the government's motion on the same day.

On October 17, 2003, the magistrate judge recommended granting Barner's motion to dismiss three of the four gun counts for multiplicity; the government did not object to the recommendation, and the district court adopted it and dismissed the counts.

On February 4, 2004, the district court denied Barner's motions to suppress and to dismiss the indictment based upon prosecutorial misconduct. As to the misconduct motion, the district court adopted the magistrate judge's report and recommendation, finding that: (1) while the witness had made a mistake in his grand jury testimony, there was no evidence the witness knowingly provided false testimony; (2) there was no evidence that the prosecutor knew the witness had made a misstatement before the grand jury; and (3) once the government discovered the mistake, it moved to dismiss Counts 3 and 4 of the indictment (as well as overt act six of Count 1).

At about this same time, the district court set the case for trial on March 8, 2004. On February 9, 2004, the government sought a two-week continuance until March 22, 2004, stating that it needed the time to secure the presence of out-of-state witnesses. The district court continued the trial to March 29, 2004, but stated that it would not entertain any further continuance motions.

On March 17, 2004, the government obtained a Fifth Superseding Indictment against Barner, the only remaining defendant. In addition to the old drug trafficking conspiracy and ecstasy counts (now Counts 1 and 10), the new indictment added four Hobbs Act robbery counts based on the same robberies alleged in the old conspiracy count (now Counts 2, 4, 6 and 8), and four counts of using firearms in connection with a crime of violence (now Counts 3, 5, 7, and 9). Each of the firearms counts was alleged in connection with one of the Hobbs Act counts.

Barner moved to dismiss the Fifth Superseding Indictment on the ground that it was the result of prosecutorial vindictiveness. On May 19, 2004, the magistrate judge recommended that Barner's motion be denied. The magistrate judge found there was no evidence of actual vindictiveness. The magistrate judge also concluded that the facts did not trigger a presumption of vindictiveness and that, even if the presumption applied, the government rebutted it by showing that the Fifth Superseding Indictment reflected a decision to correct a mistake in the preceding indictment.

After conducting a hearing, the district court made no finding of actual vindictiveness, but determined that there should be a presumption of vindictiveness for the following reasons. First, the threshold conditions for such a presumption existed: Barner had exercised legal rights to withdraw his guilty plea and to challenge several counts of the indictment for multiplicity, and the prosecutor had subsequently increased the charges and the punishment for which Barner stood in jeopardy. Second, after obtaining a continuance for the avowed purpose of securing witnesses for trial, the government in fact used the additional time to obtain the new indictment. Third, the increased charges were not made in the context of plea bargaining, since the government made no plea offer to Barner between the time the charges in the Fourth Indictment were dismissed and the return of the Fifth Superseding Indictment and did not inform Barner that he would be reindicted. Fourth, Barner's co-defendants, who pleaded guilty, received far lower sentences than the sentence Barner would receive were he convicted on all the charges of the Fifth Superseding Indictment. In particular, the district court remarked that the ringleader and most culpable defendant, Johnathan Dale, had pleaded guilty to various charges of the Fourth Superseding Indictment and had been sentenced to 18 years' imprisonment. In contrast, the court calculated Barner's potential sentence under the Fifth Superseding Indictment at 103 years. Fifth, the district court compared Barner's potential sentence under the new indictment to his potential sentence under the old indictment after the multiplicitous counts had been dismissed, which it calculated at 12 years, rather than comparing all the prison time that the Fourth Superseding Indictment had originally charged,³ which the parties stated at the hearing would have been either something in excess of 107 years (according to the prosecutor) or 87 years (according to Barner). Sixth, the court compared the potential sentence under the new indictment to what Barner would have received under the plea bargain he rejected, which was 12 years. Based on these factors, the court concluded that there was a realistic likelihood of vindictiveness in the case.⁴

The district court dismissed the Fifth Superseding Indictment and ordered that Barner stand trial on the Fourth Superseding Indictment, minus the multiplicitous counts.

The government appeals the dismissal of the Fifth Superseding Indictment, arguing that the law does not permit a presumption of vindictiveness in the circumstances of this case and that there was no evidence of actual vindictiveness.

I.

Although this Court has not explicitly determined the standard of review in prosecutorial vindictiveness cases, "[t]he dismissal of an indictment on the ground of prosecutorial misconduct is a discretionary call; we therefore review the court's action for an abuse of discretion." United States v. Jordan, 316 F.3d 1215, 1248-49 (11th Cir.2003) (internal footnote omitted); accord United States v. Clay, 376 F.3d 1296, 1300 (11th Cir.2004), cert. denied, 543 U.S. 1192, 125 S.Ct. 1427, 161 L.Ed.2d 199 (2005). "A district court abuses its discretion if, in making the decision at issue, it applies the incorrect legal standard or makes findings of fact that are clearly erroneous." Jordan, 316 F.3d at 1249...