U.S. v. Bucci

• Decision Date: 11 September 2009
• Docket Number: No. 07-2376.,07-2376.
• Citation: 582 F.3d 108
• Parties: UNITED STATES of America, Appellee, v. Sean BUCCI, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

582 F.3d 108

UNITED STATES of America, Appellee, v. Sean BUCCI, Defendant, Appellant.

No. 07-2376.

United States Court of Appeals, First Circuit.

Heard June 3, 2009.

Decided September 11, 2009.

Kimberly Homan, for appellant.

Sangita K. Rao, Attorney, Criminal Division, Appellate Section, United States Department of Justice, with whom Michael J. Sullivan, United States Attorney, and Peter K. Levitt, Assistant United States Attorney, were on brief for appellee.

Before HOWARD, SELYA, and EBEL,^* Circuit Judges.

EBEL, Circuit Judge.

In this direct criminal appeal, Sean Bucci challenges his sixteen convictions for drug trafficking, money laundering and tax evasion, his resulting 151-month prison sentence, and a forfeiture order. Having jurisdiction under 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291, we AFFIRM.

I. BACKGROUND

The evidence presented at trial established that Bucci's co-defendant Anthony Belmonte sold Bucci approximately 300 to 350 pounds of marijuana eight or nine times each year, over the course of three and one-half years. Following a nine-month investigation, the United States charged Bucci with sixteen counts of drug trafficking, money laundering and tax evasion. At trial, Bucci acknowledged that he was a marijuana dealer, but disputed the amount of marijuana with which he was charged. The jury found Bucci guilty on all sixteen charges and specifically found that the charged drug-trafficking conspiracy involved over 1,000 kilograms of marijuana. The jury also returned several special forfeiture verdicts against Bucci.¹ The district court then sentenced Bucci to 151 months in prison.

II. DISCUSSION

A. Challenges to the indictments

1. Vindictive prosecution

The United States initially indicted Bucci, along with Belmonte and another co-defendant, Darren Martin, on two drug-trafficking charges: 1) conspiring to possess at least 100 kilograms of marijuana with the intent to distribute, in violation of 21 U.S.C. § 846; and 2) possessing at least 100 kilograms of marijuana with the intent to distribute, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B)(vii). The indictment also charged that any of Bucci's property that represented proceeds from his drug-trafficking offenses was forfeitable under 21 U.S.C. § 853.

A year later, in August 2004, Bucci started a website, whosarat.com, where individuals could post information about government informants. Six months after Bucci started this website, the Government, on February 3, 2005, filed a superseding indictment which charged only Bucci and Martin with the same two drug-trafficking counts, but increased the amount of marijuana charged in the alleged conspiracy from 100 to at least 1000 kilograms. The increased amount of marijuana charged raised the statutory mandatory minimum sentence Bucci faced for the conspiracy offense, if convicted, from five to ten years. See 21 U.S.C. § 841(b)(1)(A)(vii).

A year after Bucci started whosarat.com, the Government, on July 28, 2005, filed a second superseding indictment charging Bucci with the same two drug-trafficking offenses, but adding fourteen additional counts involving money laundering, tax evasion, and unlawfully structuring financial transactions to avoid reporting requirements. The second superseding indictment also added Bucci's mother, Catherine Bucci, as a co-defendant.

Bucci claims that the Government's decision to file the two superseding indictments in his case-which increased the number of charges against him from two to sixteen and the amount of marijuana charged in the alleged drug-trafficking conspiracy from 100 to at least 1,000 kilograms-amounted to vindictive prosecution intended to punish him for exercising his First Amendment right to operate his website, whosarat.com.² Bucci sought to prove vindictive prosecution by demonstrating circumstances establishing a likelihood of vindictiveness sufficient to create a presumption that the prosecution was, in fact, acting vindictively. See United States v. Jenkins, 537 F.3d 1, 3 (1st Cir.2008), cert. denied, ___ U.S. ___, 129 S.Ct. 433, 172 L.Ed.2d 313 (2008). It is difficult to make such a showing pretrial, however, in light of the broad discretion afforded the prosecutor to determine who should be prosecuted and for what crime, and the presumption that the prosecutor has exercised that discretion in good faith.³ See United States v. Goodwin, 457 U.S. 368, 377, 380-81, 102 S.Ct. 2485, 73 L.Ed.2d 74 (1982); cf. United States v. Armstrong, 517 U.S. 456, 464-65, 116 S.Ct. 1480, 134 L.Ed.2d 687 (1996) (discussing presumption in context of selective-prosecution claim).

In our system, 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 or bring before a grand jury, generally rests entirely in [the prosecutor's] discretion. Within the limits set by the legislature's constitutionally valid definition of chargeable offenses, the conscious exercise of some selectivity in enforcement is not in itself a federal constitutional violation so long as the selection was not deliberately based upon an unjustifiable standard such as race, religion, or other arbitrary classification.

Bordenkircher v. Hayes, 434 U.S. 357, 364, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978) (quotation, citation, alteration, footnote omitted).

a. Denial of Bucci's discovery request

In the district court, Bucci sought discovery from the Government in order to support his vindictive-prosecution claim. The district court denied that request. We review that decision for an abuse of discretion. See United States v. Lewis, 517 F.3d 20, 23 (1st Cir.2008) (reviewing selective-prosecution claim).

i. Applicable standard

In light of the presumption that a prosecutor has acted in good faith in exercising his discretion to make charging decisions, courts require a defendant seeking discovery first to come forth with "some" objective evidence tending to show the existence of prosecutorial vindictiveness. See, e.g., United States v. Wilson, 262 F.3d 305, 315 (4th Cir.2001); United States v. Sanders, 211 F.3d 711, 717 (2d Cir.2000). These courts derive this standard from United States v. Armstrong, see 517 U.S. at 468, 116 S.Ct. 1480, in which the Supreme Court addressed discovery sought in support of a selective-prosecution claim. See Wilson, 262 F.3d at 315-16; Sanders, 211 F.3d at 717. This is the standard that the district court applied in Bucci's case, and we adopt it here.

ii. Whether Bucci made such a showing here

In order to obtain discovery, then, Bucci first had to advance some evidence tending to establish his vindictive-prosecution claim. He failed to do so.

In support of his discovery motion, Bucci relied on "the statements of law enforcement and government officers reporting whosarat.com contained in ... newspaper articles, documents, and security reports." While the reported statements of these officers expressed serious concern about the danger to informants posed by postings made on Bucci's website, Bucci set forth no evidence suggesting that this concern ever affected the prosecutors making the specific charging decisions in his case. To obtain discovery, Bucci must do more than simply "identify a potential motive for prosecutorial animus." Sanders, 211 F.3d at 718. He must connect any vindictive animus to those making the challenged charging decisions in his case. See United States v. Goulding, 26 F.3d 656, 662 (7th Cir.1994).

Bucci also relied on evidence regarding the Government's opposition to a pretrial motion Bucci's co-defendant, Catherine Bucci, filed in this case seeking early disclosure of statements made by Government witnesses. In opposing that request, the Government noted that, while it generally would not oppose early disclosure, in this case it would not agree to it because of the Government's concern that Bucci was trying to intimidate Government witnesses through whosarat.com. In opposing Catherine Bucci's motion, however, the Government was only asserting a legitimate litigation strategy. The fact that it was based in part on the effects the information posted on Bucci's website might have on this specific prosecution did not suggest that prosecutors filed the superseding indictments against Bucci to retaliate against him for operating the website. See United States v. Segal, 495 F.3d 826, 833 (7th Cir.2007) ("A prosecutor cannot be said to act vindictively by taking into account a defendant's perceived efforts to intimidate witnesses.").

In support of his discovery request, Bucci further relied on the general circumstances attendant to his prosecution, asserting that the prosecutor all along had enough evidence to charge him with the added offenses and increased amount of marijuana, but did not bring those charges until after Bucci started whosarat.com. Assuming that the Government had enough evidence to indict Bucci initially on the increased charges, this fact alone is insufficient to establish that the Government later filed the superseding indictments to punish Bucci for whosarat.com. See United States v. Roach, 502 F.3d 425, 444-45 (6th Cir.2007) (rejecting argument that the fact that the Government could have brought charges initially, but did not do so, indicated the prosecutor's vindictiveness), cert. denied, ___ U.S. ___, 128 S.Ct. 2051, 170 L.Ed.2d 797 (2008).

Moreover, "evidence of suspicious timing alone does not indicate prosecutorial animus." United States v. Cooper, 461 F.3d 850, 856 (7th Cir.2006) (quotations omitted). In any event, the district court noted that "the sequence of events in this case is not so remarkable as to justify discovery." We agree. Bucci began operating his website in August 2004. It was six months later that the Government filed the first superseding indictment, and another six months before the Government filed the second superseding indictment against Bucci. These superseding...