U.S. v. Lanoue

• Court: U.S. Court of Appeals — First Circuit
• Writing for the Court: Before STAHL; GODBOLD
• Citation: U.S. v. Lanoue, 137 F.3d 656 (1st Cir. 1997)
• Decision Date: 07 October 1997
• Docket Number: No. 97-1368,97-1368
• Parties: UNITED STATES, Appellee, v. Lawrence M. LANOUE, Defendant--Appellant. . Heard

Page 656

137 F.3d 656

UNITED STATES, Appellee, v. Lawrence M. LANOUE, Defendant--Appellant.

No. 97-1368.

United States Court of Appeals First Circuit.

Heard Oct. 7, 1997.

Decided March 4, 1998.

Scott A. Lutes, Providence, RI, by appointment of the Court, for appellant.

Margaret E. Curran, Assistant United States Attorney, Providence, RI, with whom Sheldon Whitehouse, United States Attorney, and James H. Leavey, Assistant United States Attorney, Providence, RI, were on brief for appellee.

Before STAHL, Circuit Judge, GODBOLD ^* and CYR, Senior Circuit Judges.

GODBOLD, Senior Circuit Judge.

Lawrence Lanoue appeals from a conviction of the unlawful possession of a firearm by a person previously convicted of a crime punishable by imprisonment for a term exceeding one year, in violation of 18 U.S.C. § 922(g)(1). He was convicted in the U.S. District Court for the District of Rhode Island after a trial by jury. He raises multiple issues including 1)improper venue, 2)double jeopardy, 3)collateral estoppel, 4)the right to have the attorney of his choosing, and 5)vindictive prosecution. We have reviewed each assertion and affirm his conviction.

I. Factual Background and Procedural History

A. Lanoue's 1994 prosecution

Lanoue was prosecuted in the District of Rhode Island in 1994 for various crimes arising from the events that also gave rise to the present prosecution. Evidence presented at Lanoue's 1994 trial demonstrated the following facts. On the morning of December 23, 1993, Lanoue left his residence in Rhode Island and traveled to Bellingham, Massachusetts. On the way he rendezvoused with Albert Cole, and they proceeded to Bellingham in a car that had been reported stolen. These movements were the subject of a large scale surveillance operation that included at least three dozen FBI agents and members of the Rhode Island State Police. Lanoue was arrested in Bellingham in a shopping center parking lot as he approached an unmarked armored car. During the arrest Lanoue admitted to the arresting agents that he was carrying a .38 caliber handgun on his person.

As a result of that arrest Lanoue and two codefendants, Cole and Patrick Meade, were charged in a seven-count indictment by a grand jury sitting in the District of Rhode Island. All three were charged in Count I with conspiracy to commit federal offenses, 18 U.S.C. § 371; in Count II with conspiracy to interfere with commerce by robbery, Hobbs Act, 18 U.S.C. § 1951; in Count III with attempt to interfere with commerce by robbery, Hobbs Act, 18 U.S.C. § 1951; and in Count IV with using and carrying a firearm during and in relation to an attempt or conspiracy to commit robbery, 18 U.S.C. § 924(c)(1). Count V charged Lanoue and Cole with interstate transportation of a stolen motor vehicle, 18 U.S.C. § 2312; Count VI charged Lanoue and Meade with possessing firearms and ammunition in and affecting commerce, each having been previously convicted of a crime punishable by imprisonment for a term exceeding one year, 18 U.S.C. § 922(g)(1)(2); and Count VII charged Lanoue alone with interstate transportation of a firearm with an obliterated serial number, 18 U.S.C. § 922(k). Counts III, IV and V also explicitly charged the defendants with aiding and abetting. 18 U.S.C. § 2.

Count VI was dismissed by the government because the defendants had been arrested in Massachusetts rather than Rhode Island and prosecutors anticipated problems with venue. A redacted indictment was filed with leave of court on August 17, 1994 that designated the original Count VII as Count VI.

The jury convicted Lanoue of Counts I, V and VI and acquitted him of the robbery-related charges of Counts II, III, and IV. His codefendants Cole and Meade were acquitted of all charges. The court sentenced Lanoue to 175 months in prison.

Lanoue appealed to this court, and it reversed his convictions on Counts I and VI after finding that the government had failed to disclose a taped conversation between Lanoue and a key witness, James Carron, in violation of Fed.R.Crim.P. 16(a)(1)(A) and the pre-trial discovery order. See U.S. v. Lanoue, 71 F.3d 966 (1st Cir.1995).

Following this reversal plea negotiations between the parties failed, and the government decided not to retry Lanoue for the same crimes. Instead, another District of Rhode Island grand jury returned a one-count indictment against Lanoue charging him with the § 922(g)(1) unlawful possession of a firearm charge that had been dismissed from the original indictment. Conviction under § 922(g)(1) carries a minimum 15-year mandatory sentence.

At Lanoue's second trial the jury returned a verdict of guilty on the sole count. Lanoue was then sentenced to a 235-month prison term.

II. Discussion

A. Venue

Lanoue moved to dismiss the firearm possession charge for lack of venue and for a judgment of acquittal on grounds of improper venue. The district court denied both motions. Lanoue admits that the evidence proved that he possessed the firearm in Massachusetts but denies that the crime also occurred in Rhode Island where he was tried.

A defendant in a criminal case has a constitutional right to be tried in a proper venue. See U.S. v. Johnson, 323 U.S. 273, 275, 65 S.Ct. 249, 250, 89 L.Ed. 236 (1944)(noting that two constitutional provisions, Article III, § 2, cl. 3 and the Sixth Amendment both provide a right to trial in the state where the crime is committed); U.S. v. Uribe, 890 F.2d 554, 558 (1st Cir.1989); see also Fed.R.Crim.P. 18 (codifying the constitutional guarantee by requiring prosecution in the district where the offense was committed). The government bears the burden of proof on the issue of venue. Venue is not an element of the offense, and it must be proven only by a preponderance of the evidence. U.S. v. Georgacarakos, 988 F.2d 1289, 1293 (1st Cir.1993). We review whether venue was proper in the light most favorable to the government and the jury's verdict to determine whether the prosecution met its burden. U.S. v. Josleyn, 99 F.3d 1182, 1190 (1st Cir.1996), cert. denied, Billmyer v. U.S., --- U.S. ----, 117 S.Ct. 959, 136 L.Ed.2d 845 (1997).

We must look to the statute defining the crime to determine the location of the crime for the purpose of venue. If the statute "does not indicate a method for determining the location of the crime, ... the location must be determined from the nature of the crimes alleged and the location of the act or acts constituting it." Georgacarakos, 988 F.2d at 1293 (internal quotation marks and citations omitted). Where the crime is a continuing crime and is "committed in more than one district, [it] may be ... prosecuted in any district in which such offense was begun, continued, or completed." 18 U.S.C. § 3237(a). To determine the locations of the continuing crime we must look to the key verbs of the statute in question. Georgacarakos, 988 F.2d at 1293. 18 U.S.C. § 922(g) makes it unlawful for a convicted felon to "possess in or affecting commerce, any firearm." Only where Lanoue actually possessed a firearm would venue be proper.

The government offered evidence to show that Lanoue possessed the firearm in Rhode Island. First, the government offered the testimony of Lanoue from his first trial admitting that the firearm, a .38 caliber handgun, belonged to him, which indicates that he carried it from his home in Rhode Island to Massachusetts where he was arrested. Second, the government offered the testimony of an FBI surveillance pilot who observed Lanoue in Rhode Island with a firearm on the day in question. Third, evidence found at Lanoue's residence in Rhode Island included a gun cleaning kit used to clean a .38 caliber handgun. This evidence was sufficient that a jury could have found by a preponderance of the evidence that Lanoue did knowingly possess a firearm in Rhode Island. Venue was appropriate in Rhode Island under 18 U.S.C. § 922(g)(1), and the district court did not err in denying Lanoue's venue motions.

B. Double Jeopardy

Lanoue contends that his prosecution under 18 U.S.C. § 922(g)(1) violated the Fifth Amendment's prohibition against double jeopardy. We exercise de novo review of constitutional questions "such as the district court's denial of a motion to dismiss ... on the grounds of double jeopardy and collateral estoppel." U.S. v. Aguilar-Aranceta, 957 F.2d 18, 21 (1st Cir.1992).

For double jeopardy to attach a defendant must be tried for the same offense twice. Offenses are not the same if they each "require[ ] proof of [an additional] fact which the other does not." Blockburger v. U.S., 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932). The Blockburger test looks to the elements of each offense rather than to the evidence used to prove these elements. See U.S. v. Morris, 99 F.3d 476, 479 (1st Cir.1996).

Section 922(g)(1) requires the government to prove that Lanoue (1) was previously convicted of a crime punishable by an imprisonment term in excess of one year and (2) knowingly possessed a firearm (3) in or affecting commerce. U.S. v. Lewis, 40 F.3d 1325, 1342 (1st Cir.1994). The essence of Lanoue's contention is that his earlier prosecution under 18 U.S.C. § 922(k) for transporting a weapon with an obliterated serial number and under 18 U.S.C. § 371 for conspiracy made the current prosecution under 18 U.S.C. § 922(g)(1) duplicative. He does not claim that either of these offenses alone requires proof of the same elements as § 922(g)(1) but that his prosecution for these two offenses in conjunction created the basis for double jeopardy. Lanoue asserts that because the prosecution offered evidence of each element of § 922(g)(1) during his first trial, either in proving the conspiracy charge or in proving the obliterated serial number charge, it should be barred from now prosecuting him under § 922(g)(1).

Lanoue ignores that each offense must be considered separately. The offense of obliterating a serial number is not the same as possession of a firearm by a...