U.S. v. Peterson, 99-2294

• Citation: 233 F.3d 101
• Decision Date: 02 October 2000
• Docket Number: No. 99-2294,99-2294
• Parties: (1st Cir. 2000) UNITED STATES OF AMERICA, Plaintiff, Appellee, v. HENRY PETERSON, Defendant, Appellant. . Heard
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

Page 101

233 F.3d 101 (1st Cir. 2000)

UNITED STATES OF AMERICA, Plaintiff, Appellee, v. HENRY PETERSON, Defendant, Appellant.

No. 99-2294.

United States Court of Appeals, For the First Circuit.

Heard Oct. 2, 2000.

Decided December 5, 2000.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND.

Hon. Ronald R. Lagueux, U.S. District Judge.

[Copyrighted Material Omitted] James M. Fox, by appointment of the court, on brief for appellant.

Donald C. Lockhart, Assistant United States Attorney, with whom Margaret E. Curran, United States Attorney, and Terrence P. Donnelly, Assistant United States Attorney, were on brief, for appellee.

Before Torruella, Chief Judge, Lynch and Lipez, Circuit Judges.

LYNCH, Circuit Judge.

Henry Peterson was convicted of five federal narcotics and firearms offenses on August 27, 1999. Peterson challenges the federal prosecution as vindictive and a violation of equal protection under the Fourteenth Amendment because it was based on the same underlying criminal activities as a prior Rhode Island prosecution. Peterson also claims that the trial judge abused his discretion by not reopening the case to allow Peterson to testify on his own behalf.

In addition, Peterson challenges the district court's application of the Sentencing Guidelines, which based on his offense level, his criminal history, and the court's finding that three prior convictions qualified him as an "armed career criminal" under 18 U.S.C. 924(e), prescribed a sentence between 262 and 327 months. He argues that one of the predicate offenses used to determine his armed career criminal status should not count as a "violent felony" under 18 U.S.C. 924(e)(2)(B)(ii). Peterson further claims that the sentencing court incorrectly enhanced his sentence for the use of weapons "in connection with" his narcotics offenses.

We agree with Peterson that one of his offenses does not qualify as a "violent felony" for purposes of 924(e), but reject his remaining arguments. Accordingly, we affirm the conviction and remand for resentencing.

BACKGROUND

Henry Peterson was arrested in Cranston, Rhode Island on February 4, 1998, while in possession of five grams of crack cocaine. A consented-to search of his apartment revealed marijuana, drug paraphernalia, several firearms, and ammunition. A search of Peterson's girlfriend's apartment uncovered more marijuana and an additional firearm. The girlfriend, Tanya Baptiste (who had also been arrested), claimed that the drugs and gun found in her apartment both belonged to Peterson.

In state court, Peterson pled nolo contendere to possession with intent to distribute controlled substances, firearm possession after conviction for a crime of violence, and possession of stolen goods. He received a ten-year sentence, seven years of which were suspended.

Federal prosecutors, apparently dissatisfied with the length of the state sentence, then sought indictment under federal narcotics and firearms law. At trial, the defense rested without offering evidence. The court alerted the jury that closing statements were forthcoming, recessed, and then held a charging conference. At that belated point, Peterson's counsel informed the court that Peterson now wished to testify on his own behalf, despite having decided not to testify during his case-in-chief. The district judge refused to reopen the evidence to allow Peterson to testify.

Peterson was ultimately convicted on all five counts, including two counts of 18 U.S.C. 922(g), being a felon in possession of a firearm. Based on three prior state convictions for breaking and entering, he was sentenced as an armed career criminal under 18 U.S.C. 924(e)(1), which provides for a fifteen-year minimum sentence. The combination of his armed career criminal status and the finding that his weapon possession was "in connection with" a controlled substance offense resulted in an offense level of 34 under the Sentencing Guidelines. Peterson was sentenced accordingly.

DISCUSSION

We first dispose of Peterson's trial-related claims and then address his claims relating to sentencing.

I. Vindictive Prosecution Claim

Peterson admits that prosecution on both state and federal charges is constitutionally permissible under the dual sovereignty doctrine. See Heath v. Alabama, 474 U.S. 82, 88-89 (1985). He also acknowledges that the federal government's Petite policy¹ confers no substantive rights upon defendants. See United States v. McCoy, 977 F.2d 706, 712 (1st Cir. 1992).

Peterson thus premises his objection to his federal prosecution on either prosecutorial vindictiveness or an equal protection violation. Because Peterson failed to raise a claim of vindictive prosecution prior to trial, the claim is waived and we review for plain error. See United States v. Gary, 74 F.3d 304, 313 (1st Cir. 1996); United States v. Bradstreet, 135 F.3d 46, 50 (1st Cir.), cert. denied, 523 U.S. 1122 (1998). We presume that the prosecutor acted in good faith, and did not prosecute in a vindictive manner. See United States v. Bassford, 812 F.2d 16, 19 (1st Cir. 1987). To rebut this presumption and obtain an evidentiary hearing on the issue,² the defendant must allege facts (1) tending to show selective prosecution, and (2) raising a reasonable doubt about the propriety of the prosecution's motive. See Gary, 74 F.3d at 313.

Peterson fails to make either showing. First, to show selective prosecution, Peterson must show "that [he] was prosecuted while others similarly situated were not." Bassford, 812 F.2d at 20. Peterson argues that his girlfriend Tanya Baptiste was similarly situated, yet faced no federal prosecution. However, Baptiste was a small time pawn to Peterson's king: he directed the narcotics distribution operation, while she merely participated in it. Thus, she was not similarly situated to Peterson. Second, Peterson has not shown that the government's prosecution was in bad faith. He claims that the government acted with the sole motive of prolonging his sentence. But such motive is a legitimate one for successive prosecution. See United States v. Stokes, 124 F.3d 39, 45 (1st Cir. 1997); see also Bassford, 812 F.2d at 19 (impermissible conditions are those such as race, religion, or the desire to prevent the exercise of the defendant's constitutional rights); id. at 20 ("[T]he conduct of two independent sovereigns does not lend itself to the concept of vindictive prosecution.") (citations omitted). On these facts, we cannot find any error, much less the plain error required for us to act on a waived claim.

Alternatively, Peterson suggests that his federal prosecution violated the Equal Protection Clause. It is a violation of equal protection for the government to base prosecution on an unjustifiable standard or arbitrary classification. See Gary, 74 F.3d at 313. But there is no evidence of either here.

We therefore find no error in Peterson's prosecution.

II. Failure to Reopen the Evidence to Permit Peterson to Testify

At trial, after the defense rested, the court told the jury to expect closing arguments within the hour and went into recess; after recess, the court held a brief charging conference. At the end of the conference, counsel for Peterson told the court that Peterson now wished to testify on his own behalf. Counsel noted that, until now, Peterson had agreed with his attorney's decision not to put on any evidence in the case. Furthermore, counsel advised the court that for ethical reasons he could not examine Peterson if Peterson were allowed to testify. The district court refused to reopen the evidence in order to allow Peterson to testify. Peterson claims that the district court's refusal to do so violated his constitutional right to testify in his own defense.

It is true that a criminal defendant has a constitutional right to testify in his own defense. See Rock v. Arkansas, 483 U.S. 44, 49 (1987). However, the right to testify is not absolute; it must sometimes "bow to accommodate other legitimate interests in the criminal trial process." Id. at 55 (internal quotation marks and citation omitted). Hence, a defendant does not have an unrestricted right to testify at any point during trial. Generally, if he wishes to testify, he must do so before he rests his case; otherwise, he can move the trial court to reopen the evidence, but the choice whether to reopen is left to the court's sound discretion. See United States v. Santana, 175 F.3d 57, 64 (1st Cir. 1999). Such a rule serves to ensure that the trial proceeds in a fair and orderly manner, with the defendant's testimony occurring when the judge, jury, and prosecution reasonably expect it. See United States v. Jones, 880 F.2d 55, 59-60 (8th Cir. 1988).

Thus, in reviewing whether the district court properly exercised its discretion not to reopen the evidence, we look to whether the court properly weighed the defendant's right to testify against the need for order and fairness in the proceedings. See Rock, 483 U.S. at 56 ("In applying its evidentiary rules a [court] must evaluate whether the interests served by a rule justify the limitation imposed on the defendant's constitutional right to testify.") In conducting this inquiry, we find helpful the Fifth Circuit's decision in United States v. Walker, 772 F.2d 1172 (5th Cir. 1985), where the court enumerated the factors a district court must consider in deciding whether to reopen the evidence to allow a defendant to testify:

In exercising its discretion, the court must consider the timeliness of the motion, the character of the testimony, and the effect of the granting of the motion. The party moving to reopen should provide a reasonable explanation for failure to present the evidence in its case-in-chief. The evidence proffered should be relevant, admissible, technically adequate, and helpful to the jury in ascertaining the guilt or innocence of the accused. The belated receipt of such testimony should not imbue the evidence with...