US v. Belcher, Cr. No. 89-00156-B.
| Decision Date | 13 March 1991 |
| Docket Number | Cr. No. 89-00156-B. |
| Court | U.S. District Court — Western District of Virginia |
| Parties | UNITED STATES of America, Plaintiff, v. Marshall Edward BELCHER and Patrick Lee Belcher, Defendants. |
COPYRIGHT MATERIAL OMITTED
Julie Campbell, Asst. U.S. Atty., Abingdon, Va. Timothy J. McAfee, Commonwealth's Atty. Wise County, Va., for plaintiff.
Fred Rowlett, Abingdon, Va., for Marshall Belcher.
Gregory D. Edwards, Jonesville, Va., for Patrick Belcher.
Tim McAfee ("McAfee") is the Commonwealth's Attorney for Wise County, Virginia. He is also a Special Assistant United States Attorney for the Western District of Virginia. During 1988 and 1989, McAfee, as Commonwealth's Attorney, unsuccessfully prosecuted the brothers Belcher, Marshall Edward ("Eddie") and Patrick Lee ("Patrick"), in the Circuit Court of Wise County, Virginia.
The State prosecutions proceeded as follows: McAfee secured separate, identical, two-count indictments against Eddie and Patrick for manufacturing marijuana and using a firearm in the commission of a felony (i.e., manufacturing marijuana). McAfee proceeded against the brothers separately. For some reason, State officials destroyed the alleged marijuana the brothers were accused of manufacturing. The State officials performed no tests of any sort on the alleged marijuana prior to destroying it.
Seizing on the fact of the alleged marijuana's destruction, Patrick moved to have his indictment dismissed based, inter alia, on a State law that prohibits the destruction of evidence "until all rights of appeal have been exhausted." Va.Code Ann. § 18.2-253 (Supp.1990). The State court held a hearing where both Patrick and McAfee were heard. Following the hearing, the Honorable J. Robert Stump, Circuit Court Judge of Wise County, Virginia, issued an opinion and order dismissing the indictment against Patrick. Judge Stump's order stated that McAfee sought to appeal the State court's dismissal of the indictment, but his appeal was not timely and the dismissal stood.
Eddie waited until the beginning of his trial to raise the issue of the destroyed plants, but the State court ruled that his motion was untimely. For reasons not material here, McAfee nolle prossed the second (firearms) count in the indictment, and Eddie was convicted of the first count of manufacturing marijuana. Eddie moved the State court for a new trial and the motion was granted on grounds unrelated to the destroyed plants. McAfee nolle prossed the indictment against Eddie, then secured another indictment against him charging him with manufacturing marijuana and conspiring to manufacture marijuana. Eddie, relying on the fact of the alleged marijuana's destruction, then sought the dismissal of the second indictment. However, the State court delayed ruling on Eddie's motion until it could conduct an evidentiary hearing.
While Eddie's motion was pending, McAfee, in his federal guise, drafted a three-count indictment against both Eddie and Patrick. In separate letters to Assistant United States Attorney Jerry Kilgore and to former United States Attorney John Perry Alderman, McAfee sought their support for this indictment. In his letter to Kilgore, McAfee indicated that he expected the State court to dismiss the indictment against Eddie. In both letters, McAfee indicated his willingness to handle the prosecution of the Belchers. After learning that the United States Attorney's office would submit his indictment to the federal grand jury, McAfee moved to nolle pross the indictment pending against Eddie in State court. Over Eddie's objection, the State court granted McAfee's motion on December 5, 1989.
A federal grand jury returned the indictment McAfee prepared as a true bill on December 15, 1989. This is the indictment now pending before the court. It charges that the Belchers conspired to manufacture and possess marijuana with the intent to distribute the marijuana, that the Belchers manufactured marijuana, and that the Belchers used or carried a firearm in relation to a drug-trafficking crime.
Eddie argues here that the federal indictment should be dismissed because of vindictive and selective prosecution, and because of double jeopardy, all in violation of his fifth amendment rights. Patrick joins his brother's motion.
At the outset, it is necessary to clear away several of the arguments the brothers make. It is clear that double jeopardy in its most stringent sense is simply not an issue here. (The collateral estoppel component of the Double Jeopardy clause is discussed below in Part IV.) A defendant is not placed in jeopardy until a jury is empaneled and sworn, Crist v. Bretz, 437 U.S. 28, 38, 98 S.Ct. 2156, 2162, 57 L.Ed.2d 24 (1978), or, if there is a bench trial, until the first witness is sworn, id. at 37, n. 15, 98 S.Ct. at 2162, n. 15. Thus Patrick, who achieved a dismissal of his indictment long before trial, was never in jeopardy, and has no former jeopardy argument to make here. Even though Eddie was convicted, he also has no former jeopardy argument, for his own appeal nullified his conviction. "The general rule is that the Double Jeopardy Clause does not bar reprosecution of a defendant whose conviction is overturned on appeal." Justices of Boston Mun. Court v. Lydon, 466 U.S. 294, 308, 104 S.Ct. 1805, 1813, 80 L.Ed.2d 311 (1984).
It is also clear that the brothers' selective prosecution argument has no merit. Prosecutors have a "`broad discretion' as to whom to prosecute." Wayte v. United States, 470 U.S. 598, 607, 105 S.Ct. 1524, 1530, 84 L.Ed.2d 547 (1985). "In order to establish selective prosecution a defendant must show that the government was motivated by a discriminatory purpose with a resulting discriminatory effect." United States v. Richardson, 856 F.2d 644, 647 (4th Cir.1988) (citing United States v. Greenwood, 796 F.2d 49, 52 (4th Cir.1986)). Prosecutions based on "`race, religion, or other arbitrary classification'" or those based on "the exercise of protected statutory and constitutional rights" are most likely to be deemed selective prosecutions. See Wayte, 470 U.S. at 608, 105 S.Ct. at 1531. It is true that the brothers used their constitutional and statutory rights in successfully fighting the State indictments. And, it appears that they are among the first that McAfee has attempted to prosecute using his recently-acquired powers as a Special Assistant United States Attorney. However, the mere fact that McAfee continues to prosecute them, albeit in a different forum, does not mean that the prosecution is selective. Instead, it appears that McAfee is simply attempting to use a weapon only recently added to his prosecutorial armory. Were he to be successful, it is likely that he would use this weapon against any subsequent similarly-situated defendants. There is no selective prosecution here.
In Eddie's case, the claim of vindictive prosecution has merit. Eddie was tried and convicted of a single count of manufacturing marijuana. Now, after successfully appealing that conviction, he faces a federal indictment charging him with conspiracy, manufacturing marijuana, and using a firearm in the pursuit of his alleged criminal deeds. Once a defendant has successfully appealed a conviction, a prosecutor who retries that defendant may not in the subsequent trial increase the severity of the charge against the defendant. United States v. Johnson, 537 F.2d 1170, 1173 (4th Cir.1976). Since the preeminent prosecutor here (McAfee) is the same one as in the first prosecution, the court sees no reason for the Johnson rule not to apply even though the first prosecution was in State court. Thus, McAfee cannot try Eddie for anything more than a single count of manufacturing marijuana. The claim of vindictive prosecution does Patrick no good, however, for vindictive prosecution turns on a convicted defendant's exercise of the right of appeal. See Blackledge v. Perry, 417 U.S. 21, 27-29, 94 S.Ct. 2098, 2102-03, 40 L.Ed.2d 628 (1974); Johnson.
It is crucial to note that the "collateral estoppel aspect of the Double Jeopardy clause is implicated by the pretrial disposition of a prior case if an ultimate issue in the second prosecution was conclusively litigated and necessarily determined as part of the judgment entered in the first case." United States v. Blackwell, 900 F.2d 742, 745 (4th Cir.1990) (emphasis added). As the facts set out earlier show, such a "pretrial disposition of a prior case" has occurred in Patrick's case. That is, the court feels that the issues arising from the destruction of the alleged marijuana were "conclusively litigated and necessarily determined" by, respectively, Judge Stump's hearing and order. Moreover, the legal ramifications flowing from the State officials' destruction of the alleged marijuana are obviously "ultimate issues" in the present prosecution. Therefore, the court finds that, were this case pending before a Virginia court, it would have to be dismissed on collateral estoppel grounds.
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