U.S. v. Groves, 77-1116
Citation | 571 F.2d 450 |
Decision Date | 15 February 1978 |
Docket Number | No. 77-1116,77-1116 |
Parties | UNITED STATES of America, Appellee, v. Paul A. GROVES, Jr., Appellant. |
Court | United States Courts of Appeals. United States Court of Appeals (9th Circuit) |
Thomas W. Hillier, II (argued), Seattle, Wash., for appellant.
Jack Meyerson, Asst. U. S. Atty. (argued), Seattle, Wash., for the United States.
Appeal from the United States District Court for the Western District of Washington.
Before BROWNING, KILKENNY and TRASK, Circuit Judges.
Appellant was convicted in a court trial of violating 21 U.S.C. § 846 ( ), 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B) ( ), and 18 U.S.C. § 2 (aiding and abetting). We reverse.
Briefly stated, the record and stipulated facts reveal an ongoing investigation of marihuana trafficking between California and Canada by agents of the Drug Enforcement Administration (DEA) from November of 1975 to January of 1976. On January 2, 1976, one of the DEA agents received a phone message from a reliable informant stating that a Chevrolet Pickup bearing a California license and a Ford Pickup bearing a British Columbia license were at a certain Bellingham, Washington, residence, a suspected location for unlawful traffic in narcotic drugs. The agent was advised that the occupants of the vehicles, a male and possibly two females, were moving boxes about in the vicinity of the pickups. Some time thereafter, a Washington State Patrol unit observed the Ford Pickup moving northbound on Interstate 5 approximately five miles south of the Canadian Border. After a stop of the vehicle by the state patrol, two special agents of the DEA proceeded to the location of the vehicle and found a substantial quantity of marihuana.
On the same afternoon, based on substantial information received from the driver of the Ford Pickup and others, a search by special agents was made of motel parking lots in Bellingham for the Chevrolet Pickup bearing the California license. The vehicle was located at approximately 9:30 that evening in front of a bungalow at a Bellingham motel. Appellant was in the bungalow and when asked for identification by the agents, he voluntarily handed over his wallet. When one of the agents looked inside for identification, he recognized a bindle of the type which is routinely used to carry contraband drugs. When a small quantity of cocaine was found therein, the appellant was placed under arrest and advised of his constitutional rights.
Later, on January 5, 1976, an agent drove the appellant to the place of his preliminary hearing before a Magistrate. When asked by the agent to cooperate with the government, the appellant indicated his willingness and agreed to discuss the matter with the agent after the hearing. At this hearing, the appellant was informed that a complaint had been filed (in fact the complaint was not filed until January 5th) charging him with possession of cocaine in violation of 21 U.S.C. § 844(a). After also being advised of his rights by the Magistrate, the appellant's bail was set, as was the arraignment date. After this occurred, the appellant was then taken to the Blaine District Office where he was further interviewed in connection with his involvement in the marihuana smuggling. He then confessed his overall participation in the marihuana scheme, and the agent solicited his cooperation in making a case against one Padilla, the ringleader of the gang in California who supplied the marihuana. The appellant understood that he would not be charged with the marihuana offense and The following day, January 6, 1976, the appellant advised the San Diego agent that, through fear of his life, he would not testify against his source of supply before either a Federal Grand Jury or in a trial, although he would furnish his supplier's name and address (which he did). On the same day, the appellant made a trip with the officers and identified the residence of the ringleader. On January 13th, the appellant refused to identify another individual whom he knew was involved in the smuggling scheme. On January 21st, following the arraignment on the cocaine charge, there were other discussions with reference to participation, but the appellant gave no additional information.
that his cooperation would result in the dismissal of the cocaine charge. On the representation of the appellant that he could identify the source of the marihuana supply, the agent contacted Special Agent Alexander in San Diego and informed him of this fact. Appellant was then released from custody and returned to California.
From a review of the records and files, we are unable to discover any significant occurrence during the time period from the day of the preliminary hearing on January 5, 1976, through October 4, 1976. On the latter date, counsel for appellant asked an Assistant United States Attorney for a dismissal of the cocaine complaint pursuant to the provisions of the Speedy Trial Act, 18 U.S.C. § 3161(b). On October 6th, the United States Attorney advised appellant's counsel that the cocaine charge would not be pressed. Then, on October 12, 1976, the felony indictment mentioned in the opening paragraph was returned against the appellant. Appellant sought formal dismissal of the cocaine charge on October 20th on the ground that the Speedy Trial Act was applicable. Thereafter, on October 27, 1976, the government moved and secured an order of dismissal of the cocaine complaint pursuant to the provisions of Rule 48, FRCrimP.
On December 27, 1976, after a hearing, the district court denied the appellant's motion to dismiss the marihuana indictment on the ground that it was based on a vindictive prosecution; the court found that it was not a vindictive prosecution, but the result of the appellant's failure to cooperate. Ruling was reserved on the appellant's motion to suppress the statements he had made to the DEA agent. Later, on December 29th, the court continued the hearing on the motion to suppress. During the course of that hearing, the United States Attorney and the appellant and his attorney concluded to try the cause before the court and entered into a purported stipulated agreement of facts. The appellant was convicted.
The only reason for the filing of the indictment is contained in an affidavit of Assistant United States Attorney Meyerson:
These statements make it perfectly clear that the appellant's assertion of a statutory right to dismissal of the cocaine charge triggered the discussion between Meyerson and Agent Alexander, which in turn resulted in the marihuana indictment.
Appellant's principal contention is that the district court failed to recognize the In analyzing Blackledge and Pearce, we held in United States v. Ruesga-Martinez, 534 F.2d 1367 (CA9 1976), that when the prosecution has occasion to reindict an accused because the accused has exercised some procedural right (such as appellant's right to move for dismissal on the cocaine charge under the Speedy Trial Act), the prosecution bears a heavy burden of proving that any increase in the severity of the alleged charges was not motivated by a vindictive purpose. Id. at 1369.
obvious due process violation occasioned by the action of the United States Attorney when he obtained the marihuana indictment. Specifically, he claims that this is the kind of (prosecutorial) vindictiveness proscribed in Blackledge v. Perry, 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974), and North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969).
Here, the undisputed record shows that on January 5, 1976, the appellant made a complete confession of his complicity in the marihuana trafficking from California to Bellingham and other areas. At that time, there was an agreement under which the appellant made a promise to cooperate (the details of which are disputed). The following day, on January 6th, the appellant was interviewed by Agent Alexander to whom he revealed the name (Padilla) and address of the California source. He told the agent at this time that he would not testify before a grand jury, nor during the course of a trial. This refusal was apparently reiterated on January 21st, the date of his arraignment on the cocaine charge. These statements, plus the appellant's negative action on January 13, 1976, make his intent unmistakable.
Moreover, we have discovered nothing in the months after January of 1976 which would allow for any contrary belief by the government. They knew in January of 1976 that appellant would cooperate only to the extent of giving the name and address of the person who was the principal source of supply. Now, however, the government relies upon this "failure to cooperate" to justify the filing of the felony indictment in October of 1976 (eight days after appellant's counsel raised the Speedy Trial Act issue). The fact that the information supplied by appellant did...
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