U.S. v. Johnson, Docket No. 98-1716

• Decision Date: 24 March 1999
• Docket Number: Docket No. 98-1716
• Citation: 171 F.3d 139
• Parties: UNITED STATES of America, Appellant, v. Kenneth JOHNSON, Defendant-Appellee.
• Court: U.S. Court of Appeals — Second Circuit

Page 139

171 F.3d 139

UNITED STATES of America, Appellant, v. Kenneth JOHNSON, Defendant-Appellee.

Docket No. 98-1716.

United States Court of Appeals Second Circuit.

Argued March 18, 1999.

Decided March 24, 1999.

Marc L. Mukasey, Assistant United States Attorney for the Southern District of New York (Mary Jo White, United States Attorney, and Christine H. Chung, Assistant United States Attorney, of counsel), for Appellant.

Daniel Nobel, New York, NY, for Defendant-Appellee.

Before: CABRANES and STRAUB, Circuit Judges, and TSOUCALAS, ^* Judge.

Per Curiam:

We consider here an order of the United States District Court for the Southern District of New York (Whitman Knapp, Judge ) dismissing a three-count indictment, charging defendant-appellee Kenneth Johnson with various weapons violations, based upon the district court's finding of vindictive prosecution. The district court relied upon a sequence of events in which the Government did not initiate the weapons prosecution--despite the presumptive availability of the underlying evidence and an ongoing state prosecution based on the same facts--until after defendant had exercised his right to a jury trial and had been acquitted on separate RICO charges. We conclude that these circumstances fail to raise a presumption of vindictive prosecution, much less establish actual vindictiveness. Accordingly, we reverse the determination that the federal weapons prosecution was vindictive, and we remand for reinstatement of the indictment.

I.

In September 1997, Johnson was arrested by officers of the New York City Police Department for possession of a loaded handgun, and indicted by a state grand jury on two weapons possession charges. While the state weapons prosecution was pending, a federal grand jury indicted Johnson on substantive RICO and RICO conspiracy charges. On June 12, 1998, after a jury trial in the United States District Court for the Southern District of New York before Judge Shira A. Scheindlin, Johnson was acquitted of all outstanding RICO charges. Precisely two months later, a federal grand jury indicted Johnson for possession of a firearm and ammunition by a felon, in violation of 18 U.S.C. § 922(g), and obliteration or alteration of a firearm's serial number, in violation of 18 U.S.C. § 922(k). Shortly thereafter, the state weapons charges were dismissed.

Johnson subsequently filed a pre-trial motion seeking, inter alia, dismissal of the indictment due to vindictive prosecution by the Government. After a hearing, Judge Knapp--to whom the weapons case had been assigned--granted Johnson's request for dismissal, reasoning primarily that

[t]here is not a whisper of a suggestion of anything that may have occurred between December 1st, 1997 and August 12th, 1998 which would have prompted the government to submit the instant charges to the grand jury EXCEPT that [Johnson] had been acquitted of the RICO charges after having demanded a jury trial on those charges.

This timely appeal followed.

II.

"Actual vindictiveness must play no part in a prosecutorial or sentencing decision and, since the fear of such vindictiveness may unconstitutionally deter a defendant's exercise of his rights, the appearance of vindictiveness must also be avoided." United States v. King, 126 F.3d 394, 397 (2d Cir.1997) (internal quotation marks and brackets omitted). Accordingly, an indictment will be dismissed if there is a finding of "actual" vindictiveness, or if there is a presumption of vindictiveness that has not been rebutted by objective evidence justifying the prosecutor's action. See id. (internal quotation marks omitted). "A district court's factual findings on prosecutorial vindictiveness are reviewed for clear error and the legal principles which guide the district court are reviewed de novo." United States v. Johnson, 91 F.3d 695, 698 (5th Cir.1996).

A finding of actual vindictiveness requires "direct" evidence, such as evidence of a statement by the prosecutor, which is available "only in a rare case." United States v. Goodwin, 457 U.S. 368, 380-81 & nn. 12-13, 384 & n. 19, 102 S.Ct. 2485, 73 L.Ed.2d 74 (1982); King, 126 F.3d at 397. Here, the district court did not hold an evidentiary hearing, receive affidavits, or otherwise rely on any direct evidence of prosecutorial vindictiveness. Instead, the court concluded that the undisputed sequence of events outlined above established a "prima facie case" of vindictiveness. Notably, however, the court did not purport to make an ultimate factual finding on the issue. Accordingly, it is clear that the court dismissed the case based on a conclusion that the chronology raised an unrebutted presumption of vindictiveness.

A presumption of vindictiveness arises when the circumstances of the case create a "realistic likelihood" of prosecutorial vindictiveness. King, 126 F.3d at 397 (internal quotation marks omitted). Because the Government did not assert any reason why the prosecution of Johnson on federal weapons charges could not, as a practical matter, have been initiated at an earlier time, the district court assumed (appropriately, in our view) that the new charges were attributable to the acquittal on the RICO charges, which followed Johnson's exercise of his right to a jury trial. In these circumstances, it is conceivable that the weapons charges were brought in retaliation for Johnson's exercise of his rights. However, the Government also might have decided from the outset that it was unnecessary for Johnson to be convicted and sentenced for both sets of charges; under this line of thinking, the weapons prosecution was superfluous unless the RICO prosecution proved unsuccessful. This rationale does not eliminate the "but for" causal connection between Johnson's exercise of his right to a jury trial and the weapons prosecution, but it nevertheless is entirely legitimate, and certainly cannot be considered vindictive. See Paradise v. CCI Warden, 136 F.3d 331, 336 (2d Cir.) (rejecting argument that initial choice to withhold certain charges itself "somehow ... amounts to a constitutional violation"), cert. denied, --- U.S. ----, 119 S.Ct. 94, 142 L.Ed.2d 74 (1998). The relevant question, therefore, is whether there is a "realistic likelihood" that the Government acted out of a vindictive motivation, rather than a legitimate one such as that described above.

To the extent that we have not previously addressed this issue directly, cf. id. (declining to presume vindictiveness in prosecution of new charges following dismissal on statute of limitations grounds); United States v. Khan, 787 F.2d 28, 32-33 (2d Cir.1986) (declining to presume vindictiveness in prosecution of additional charges following mistrial, in part because it is "unrealistic to assume that the government's probable response to a defendant's choice to exercise his fundamental right to a trial would be to seek to penalize and deter"), we join the other courts of appeals that have held that a new federal prosecution following an acquittal on separate federal charges does not, without more, give rise to a presumption of vindictiveness. See United States v. Wall, 37 F.3d 1443, 1449 (10th Cir.1994); United...