U.S. v. Johnson, 95-50709

• Decision Date: 31 July 1996
• Docket Number: No. 95-50709,95-50709
• Citation: 91 F.3d 695
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Alan Wade JOHNSON, Defendant-Appellant. Summary Calendar. Fifth Circuit
• Court: U.S. Court of Appeals — Fifth Circuit

Page 695

91 F.3d 695

UNITED STATES of America, Plaintiff-Appellee, v. Alan Wade JOHNSON, Defendant-Appellant.

No. 95-50709

Summary Calendar.

United States Court of Appeals,Fifth Circuit.

July 31, 1996.

Richard L. Durbin, Jr., Asst. U.S. Attorney, Office of the United States Attorney, San Antonio, TX, Margaret Feuille Leachman, US Attorney's Office, El Paso, TX, for plaintiff-appellee.

Richard Louis Jewkes, El Paso, TX, for defendant-appellant.

Appeal from the United States District Court for the Western District of Texas.

Before GARWOOD, EMILIO M. GARZA and PARKER, Circuit Judges.

ROBERT M. PARKER, Circuit Judge:

FACTS

In October 1990, special agents of the Bureau of Alcohol, Tobacco and Firearms ("ATF") were informed that a destructive device consisting of dynamite and a detonation cord had been found at a place of business in El Paso, Texas called Sharkey's Billiards. An employee of Sharkey's suggested the name of the defendant, Alan Wade Johnson ("Johnson"), as a possible suspect. The investigation led to the discovery that Johnson, a convicted felon, had purchased a .45 caliber pistol and a nine millimeter pistol at Benny's Pawn Shop in El Paso. In addition to being a felon in possession, it appeared that Johnson had executed treasury form 4473 to acquire these firearms and had denied his prior felony conviction. The case against Johnson was presented to an Assistant

United States Attorney ("AUSA") in June, 1991. In the meantime, however, the State of Texas had charged Johnson with aggravated robbery and capital murder. The firearms which were central to the ATF investigation were also apparently evidence in the state criminal prosecution. The AUSA in charge of the case decided to defer to the state and to decline federal prosecution for the firearms violations at that time. The ATF investigation then lay dormant until Johnson's state trial on the charge of capital murder. Johnson was found "not guilty" by the jury. The ATF then revived its investigation, and the original indictment in the instant case was returned in December 1993. A superseding indictment was returned in July 1994.

PROCEEDINGS BELOW

The superseding indictment charged Johnson with six counts of possession of a firearm by a felon, two counts of making a false statement on an ATF form, and one count of possession of a silencer that had not been registered to him. The Government also gave notice of its intent to seek an enhanced penalty under 18 U.S.C. § 924(e)(1) based on Johnson's six prior felony convictions for crimes of violence. Johnson filed a motion to dismiss the case for vindictive prosecution. After hearing the testimony of the state and federal prosecutors detailing the decision-making process which preceded the federal indictment, the district court determined that Johnson had not shown prosecutorial vindictiveness and denied this motion.

On July 25, 1995, following a jury trial that began the previous day, Johnson was found guilty as charged in Counts One through Four and Counts Six through Nine of the indictment. ¹ Johnson timely filed a notice of appeal, contending that the district court erred in refusing to dismiss the superseding indictment due to prosecutorial vindictiveness.

DISCUSSION

Johnson contends that we may find prosecutorial vindictiveness if we agree with his assertion that the State of Texas used the federal prosecution as a tool for subjecting Johnson to successive prosecutions. He bases this argument upon an exception to the dual sovereignty doctrine. In order to understand his argument we must first examine that doctrine.

Under the dual sovereignty doctrine, successive prosecutions by separate sovereigns for crimes arising out of the same acts are not barred by the Double Jeopardy Clause. United States v. Lanza, 260 U.S. 377, 382, 43 S.Ct. 141, 142-43, 67 L.Ed. 314 (1922). However, "[t]he Supreme Court has suggested that an exception to the dual sovereign doctrine exists when prosecution by one sovereign is used as a tool for successive prosecution by another sovereign." Id. (citing Bartkus v. Illinois, 359 U.S. 121, 123-24, 79 S.Ct. 676, 678, 3 L.Ed.2d 684 (1959)). It is this exception, referred to as the Bartkus exception, that Johnson urges us to consider.

Johnson requests this court to apply the Bartkus exception, not in the context of an exception to the dual sovereignty doctrine, but rather as an exception to the general rule that successive prosecutions by different sovereigns tend to negate a finding of prosecutorial vindictiveness. See, e.g., United States v. Heidecke, 900 F.2d 1155, 1159 (7th Cir.1990) ("[w]here there are successive prosecutions by two sovereigns ... it is improbable that a realistic likelihood of vindictiveness exists"); United States v. Schoolcraft, 879 F.2d 64 (3d Cir.), cert. denied, 493 U.S. 995, 110 S.Ct. 546, 107 L.Ed.2d 543 (1989) ("the role of a separate sovereign in bringing charges against a defendant minimizes the likelihood of prosecutorial abuse"); United States v. Ng, 699 F.2d 63, 68 (2d Cir.1983) ("the fact that the prosecutions of the defendants are by two different sovereigns, each acting independently under its own laws and in its own interest without any control of or by the other, renders inapplicable the concept of prosecutorial vindictiveness"). Assuming 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. See, e.g., United States v. Bullis, 77 F.3d 1553, 1558 (7th Cir.1996); United States v. Wall, 37 F.3d 1443, 1448 (10th Cir.1994); United States v. Schoolcraft, 879 F.2d 64, 67 (3d Cir.), cert. denied, 493 U.S. 995, 110 S.Ct. 546, 107 L.Ed.2d 543 (1989). But see, United States v. Noushfar, 78 F.3d 1442, 1446 (9th Cir.1996) (noting that the proper standard of review for vindictive prosecution is unsettled in the Ninth Circuit). The inquiry into prosecutorial conduct in a pretrial context may be distinguished from conduct occurring thereafter. United States v. Goodwin, 457 U.S. 368, 379-82, 102 S.Ct. 2485, 2492-93, 73 L.Ed.2d 74 (1982). A prosecutor has broad discretion during pretrial proceedings "to determine the extent of the societal interest in prosecution." Id. at 382, 102 S.Ct. at 2493. Absent a presumption of vindictiveness in this context, the defendant must prove that the prosecutor's conduct was actually vindictive. United States v. Molina-Iguado, 894 F.2d 1452, 1455 (5th Cir.), cert. denied, 498 U.S. 831, 111 S.Ct. 95, 112 L.Ed.2d 66 (1990). This court examines the prosecutor's conduct in light of the entire proceedings to determine whether it...