U.S. v. Campbell

• Decision Date: 19 July 2005
• Docket Number: No. 04-1046.,04-1046.
• Citation: 410 F.3d 456
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Altedias Maurice CAMPBELL, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

410 F.3d 456

UNITED STATES of America, Plaintiff-Appellee, v. Altedias Maurice CAMPBELL, Defendant-Appellant.

No. 04-1046.

United States Court of Appeals, Eighth Circuit.

Submitted: June 18, 2004.

Filed: June 8, 2005.

Rehearing and Rehearing En Banc Denied July 19, 2005.

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Anne M. Laverty, argued, Cedar Rapids, IA, for appellant.

Stephanie M. Rose, argued, Asst. U.S. Atty., Cedar Rapids, IA, for appellee.

Before BYE, JOHN R. GIBSON, and BOWMAN, Circuit Judges.

JOHN R. GIBSON, Circuit Judge.

Altedias Campbell appeals his conviction of one count of possession with intent to distribute 1.66 grams of crack cocaine and one count of distribution of .34 grams of crack cocaine within 1,000 feet of a school and his sentence of 300 months' imprisonment. This appeal is from the second trial after Campbell had originally been indicted and convicted only on the count for possession with intent to distribute and sentenced to 104 months' imprisonment. Now, following the second trial, he argues that the district court¹ should have dismissed the distribution count of the superseding indictment, as it was the result of vindictive prosecution meant to punish him for his successful new trial motion following his first trial. Campbell also argues that the district court erred in refusing to either compel testimony by or grant immunity to a witness, failing to grant a judgment of acquittal or a new trial, sentencing him as a career offender, and finding that he obstructed justice. We affirm.

The original count charged Campbell with possession with intent to distribute crack cocaine. Police arrested Campbell for driving with a suspended license and for operating a vehicle while intoxicated. After the arrest, officers searched the vehicle and found thirteen rocks of crack cocaine under the driver's seat. Following his conviction of this count in the first trial, he filed a motion for judgment of acquittal and/or motion for new trial. The district court denied the motion and sentenced Campbell to 104 months. Campbell appealed. While the appeal was pending, Campbell filed another trial motion with the district court based upon newly discovered evidence and concomitantly filed in this Court a motion to remand. We entered an order staying the proceedings and directing the district court to consider the motion.

Following a hearing, the district court entered an order certifying to this Court that Campbell's new trial motion should be granted. We dismissed the appeal. Approximately three months after the court granted Campbell's new trial motion, the government filed a superseding indictment that added an additional count for distribution of crack cocaine within 1,000 feet of a school. Police testified that Sherard Allen approached them, unaware they were police officers, and attempted to sell them drugs. Allen himself had no drugs but, after driving around with the officers, he eventually located a seller, who was later identified as Campbell. Allen approached Campbell's vehicle, brought crack cocaine back to the officers, and returned to Campbell's vehicle with the officers' money.

The jury convicted Campbell on both counts. Once again, he filed motions for a judgment of acquittal and/or for new trial. The district court denied the motions and sentenced Campbell to 300 months. This appeal followed.

I.

Campbell argues that the district court should have granted his motion to dismiss the new count in the government's superseding indictment on the basis of prosecutorial vindictiveness. He claims the government added the new count in the superseding indictment to punish him for his successful new trial motion.

Although the government may take action to punish a defendant for committing a crime, punishing a defendant for exercising his valid legal rights is impermissible prosecutorial vindictiveness. United States v. Goodwin, 457 U.S. 368, 372, 102 S.Ct. 2485, 73 L.Ed.2d 74 (1982). A defendant can establish prosecutorial vindictiveness through objective evidence that the prosecutor's decision to seek a more severe sentence was intended to punish the defendant for the exercise of a legal right. United States v. Rodgers, 18 F.3d 1425, 1429 (8th Cir.1994). Alternatively, the defendant is entitled to a presumption of vindictiveness where there exists a reasonable likelihood of vindictiveness, which may arise when prosecutors increase the number or severity of charges. Id. at 1429-30 (quoting Goodwin, 457 U.S. at 373, 102 S.Ct. 2485); United States v. Punelli, 892 F.2d 1364, 1371 (8th Cir.1990). There is a split within the Eighth Circuit as to the correct standard of review to apply to a district court's decision on a motion to dismiss a charge for prosecutorial vindictiveness.² Campbell cannot succeed under any of these standards.

It is the defendant's burden to show that the prosecution was brought in order to punish the defendant for the exercise of a legal right. Leathers, 354 F.3d 955, 961 (8th Cir.), cert. denied, ___ U.S. ___, 125 S.Ct. 285, 160 L.Ed.2d 71 (2004). The burden is a heavy one, and we recognize the broad discretion given to prosecutors in enforcing criminal statutes. Id. Campbell is not able to meet this burden. The district court found no objective evidence of a vindictive motive or facts that created a presumption of vindictiveness. As objective evidence³ that the government attempted to punish him for seeking a new trial, Campbell points to the government's opposition to his new trial motion and its decision to indict him on an additional count after the new trial was granted. This evidence does not rise to the level of objective evidence of prosecutorial vindictiveness.

An example of objective evidence of a vindictive motive would be a prosecutor's statement that he or she is bringing a new charge in order to dissuade the defendant from exercising his or her legal rights. See, e.g., Goodwin, 457 U.S. at 381, 102 S.Ct. 2485. Campbell presents no such evidence here. Neither the prosecution's opposition to a new trial nor its delay in filing the superseding indictment objectively shows a vindictive motive to punish Campbell for seeking a new trial.

Campbell argues that, even if there is no objective evidence of vindictiveness, evidence exists sufficient to support a presumption of vindictiveness. The district court concluded that no presumption of vindictiveness was warranted. Only in "rare instances" does the presumption apply. United States v. Kriens, 270 F.3d 597, 602 (8th Cir.2001) (no presumption where federal government prosecuted defendant after he refused to plead guilty in state court). A presumption does not arise just because action detrimental to the defendant was taken after the exercise of the defendant's legal rights; the context must also present a reasonable likelihood of vindictiveness. Goodwin, 457 U.S. at 373, 375, 102 S.Ct. 2485.

There can be no prosecutorial vindictiveness if the prosecutor revised the charge because of newly discovered evidence or some objective reason other than to punish the defendant for exercising his legal rights. Rodgers, 18 F.3d at 1430 (citations omitted). We have not interpreted "newly discovered evidence" to literally require the evidence to surface after the first trial. This Court specifically rejected a vindictiveness claim where evidence supporting the additional count was discovered either shortly before or just after trial. Id. at 1431. Even if the circumstances in this case presented a reasonable likelihood of vindictiveness, the government's explanation rebuts the presumption.

The government learned of the evidence supporting the additional charge less than one week before the scheduled trial, too late to supersede the indictment before the first trial. Evidence of Campbell's distribution of crack cocaine was admitted over his objection in the first trial under Federal Rule of Evidence 404(b). The drug quantity from that incident was included in the Presentence Investigation Report as relevant conduct and the district court relied on that quantity to increase Campbell's base offense level. As a result, Campbell's sentence was increased due to the distribution evidence. The government's motive to "punish" Campbell by indicting him on the distribution of crack cocaine is dubious, because the district court had already used the evidence to increase Campbell's sentence after the first trial. Moreover, Campbell appealed the admission of the distribution evidence under Rule 404(b) in the first trial. By superseding the indictment instead of offering the distribution evidence again under Rule 404(b), the government avoided the risk that the evidence might be excluded either at trial or on appeal.

The record is devoid of objective evidence of prosecutorial vindictiveness and, if any presumption of vindictiveness arose, it was rebutted by the government. The district court did not err in denying Campbell's motion to dismiss based on prosecutorial vindictiveness.

II.

Campbell argues the district court erred by failing to grant immunity to or compel testimony by Sherard Allen. During the government's case in chief, a police sergeant testified that Allen acted as an intermediary in Campbell's sale of crack cocaine to government agents. He and another officer testified that through Allen they bought .34 grams of crack cocaine from Campbell. Campbell subpoenaed Allen to testify during the defense case, but he asserted his Fifth Amendment right and declined to testify. The government did not offer immunity to Allen. At the court's suggestion, the parties were able to agree on a two-sentence stipulation as to what Allen's testimony would have been, in part. When Allen refused to testify, Campbell was permitted to make an offer of proof. Counsel stated that she expected Allen to testify that he was not familiar with Campbell, would not recognize Campbell, and that the police had...