USA. v. Wilson

• Decision Date: 10 May 2001
• Docket Number: No. 00-4807,No. 00-4767,00-4767,00-4807
• Citation: 262 F.3d 305
• Parties: (4th Cir. 2001) UNITED STATES OF AMERICA, Plaintiff-Appellant, v. WILEY GENE WILSON, Defendant-Appellee. UNITED STATES OF AMERICA, Plaintiff-Appellee, v. WILEY GENE WILSON, Defendant-Appellant. Argued:
• Court: U.S. Court of Appeals — Fourth Circuit

Page 305

262 F.3d 305 (4th Cir. 2001)

UNITED STATES OF AMERICA, Plaintiff-Appellant, v. WILEY GENE WILSON, Defendant-Appellee.

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. WILEY GENE WILSON, Defendant-Appellant.

No. 00-4767 No. 00-4807

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

Argued: May 10, 2001

Decided: August 16, 2001

Appeals from the United States District Court for the Eastern District of North Carolina, at Raleigh. Malcolm J. Howard, District Judge.

(CR-00-70-H, CR-00-79-H)

[Copyrighted Material Omitted]

[Copyrighted Material Omitted] COUNSEL ARGUED: Anne Margaret Hayes, Assistant United States Attorney, Raleigh, North Carolina, for Appellant. Christopher G. Browning, Jr., HUNTON & WILLIAMS, Raleigh, North Carolina, for Appellee. ON BRIEF: Janice McKenzie Cole, United States Attorney, Raleigh, North Carolina, for Appellant. Carolyn A. Dubay, HUNTON & WILLIAMS, Raleigh, North Carolina, for Appellee.

Before NIEMEYER and GREGORY, Circuit Judges, and Arthur L. ALARCON, Senior Circuit Judge of the United States Court of Appeals for the Ninth Circuit, sitting by designation.

Affirmed in part, reversed in part, and remanded by published opinion. Judge Niemeyer wrote the opinion, in which Judge Gregory and Senior Judge Alarcon joined.

OPINION

NIEMEYER, Circuit Judge:

On the motion of Wiley Gene Wilson, the district court dismissed an indictment charging him with escape on the ground that the prosecution was motivated by vindictiveness. The court found that the U.S. Attorney for the Eastern District of North Carolina prosecuted Wilson on the request of the U.S. Attorney for the District of South Carolina solely in furtherance of personal animus against Wilson based on Wilson's successful appeal of an unrelated conviction obtained by the South Carolina U.S. Attorney. The court denied Wilson's motion to dismiss for lack of venue.

Because Wilson failed to satisfy the rigorous standard for overcoming the presumption of prosecutorial regularity, we reverse, reinstate the indictment, and remand for further proceedings. We affirm the district court's venue ruling.

I

In April 1997, Wiley Gene Wilson was arrested in Pageland, South Carolina, for possessing a firearm while being a felon, in violation of 18 U.S.C. S 922(g). At the time of his arrest, Wilson was in violation of the parole conditions of a 1983 conviction for kidnapping as a result of charges that had been filed against him in a Nevada state court for attempted theft. Based on this parole violation, Wilson was incarcerated at the federal prison in Butner, North Carolina, and began serving the remaining seven-plus years of his sentence for the kidnapping conviction. When Wilson was convicted on the firearmpossession charge, he was given a 210 month term of imprisonment to be served at Butner consecutive to the kidnapping sentence.

Shortly after Wilson's conviction for possessing a firearm, the Federal Bureau of Prisons transferred Wilson from Butner to Nevada under the Interstate Agreement on Detainers Act for the limited purpose of permitting him to respond to the state theft charges pending against him there. Prior to his transfer, Wilson signed an agreement in which he acknowledged that he was being temporarily transferred to state custody; that he was aware that state officials were not to release him into the community; that he would not receive credit for his federal sentence for any period of time he was in the community following an erroneous release by state officials; and that he would call the Bureau of Prisons immediately should he be released or transferred to anywhere other than to federal custody.

In December 1998, a month after Wilson was transferred from Butner to Nevada, the Nevada charges were resolved with the imposition of a sentence for time served. Instead of returning Wilson to the Bureau of Prisons, Nevada authorities released him into the community because of a mix-up in paperwork resulting from Nevada's prosecution of Wilson under an alias. Instead of notifying Nevada authorities of the mix-up or calling the Federal Bureau of Prisons, as he had agreed to do, Wilson fled to El Monte, California. He was found a few weeks later at his sister's home and was returned to Butner in January 1999 to serve the remainder of his sentences for the 1983 kidnapping conviction and for the 1998 firearm-possession conviction.

Upon Wilson's reincarceration, Deputy U.S. Marshal John Hardy of the Eastern District of North Carolina promptly opened a file in which he recommended that Wilson be prosecuted for escape. Hardy was, however, unsure in which district venue was proper for the alleged offense. After consulting an Assistant U.S. Attorney in the Eastern District of North Carolina, who advised him that venue lay in the District of Nevada, Deputy Marshal Hardy forwarded his report to the U.S. Attorney's Office in the District of Nevada. Wilson was never prosecuted in Nevada, however, because authorities in Nevada did not agree that venue was appropriate there.

During the same period and parallel to Hardy's efforts, Assistant U.S. Attorney William Day and Deputy U.S. Marshal James Batey, both of whom were from the District of South Carolina and had been involved with Wilson's firearm-possession prosecution, inquired about the status of a prosecution of Wilson for escape. Even after Batey was told that the prosecution had been transferred to the District of Nevada, he continued to direct inquiries about its status to North Carolina. Eventually Batey prepared a memorandum, dated January 25, 2000, describing the facts of escape and requesting that the matter be considered for prosecution in North Carolina. He sent the memorandum to Deputy Marshal Tex Lindsey in the Eastern District of North Carolina. The memorandum noted that Wilson had "threatened the original sentencing judge [in the firearm-possession case] and had filed numerous actions against jailers and U.S.M.S. personnel." As Batey later explained, the threat had been reported to the marshals and the judge by one of Wilson's fellow inmates.

In March 2000, a month and a half after Batey's memorandum was first sent, and more than a year after Wilson was returned to Butner, his conviction for firearm possession was vacated on appeal because the firearm was obtained pursuant to an unconstitutional automobile stop. See United States v. Wilson, 205 F.3d 720, 724 (4th Cir. 2000) (en banc). The day after the opinion was released, efforts to have Wilson prosecuted for escape were stepped up when Deputy Marshal Batey's January 25 memorandum was faxed to the U.S. Attorney in South Carolina. On March 14, 2000, a few days after receiving the memorandum, the U.S. Attorney for the District of South Carolina sent an e-mail message to the U.S. Attorney for the Eastern District of North Carolina, requesting that Wilson be prosecuted for escape.¹

This memorandum contained a handwritten notation that an indictment would have to be obtained soon because Wilson's release from Butner might be "imminent."² Based on this request and after a prosecutorial memorandum was prepared, the U.S. Attorney for the Eastern District of North Carolina obtained an indictment against Wilson on April 18, 2000, charging him with escape. After the factual basis for the charge was further investigated, a superseding indictment making corrections was obtained and filed on May 17, 2000.

Wilson filed a motion to dismiss the indictment charging him with escape on the ground that it was brought vindictively and selectively to punish him for successfully invoking his appeal rights in the firearm-possession case. He also contended that venue did not lie in the Eastern District of North Carolina.

In his motion to dismiss, based on "vindictive and selective prosecution," a motion which commenced a procedural thicket, Wilson requested that the indictment be dismissed or, alternatively, that he be afforded discovery on his claim. The motion relied on (1) Wilson's successful appeal of his firearm-possession conviction; (2) the timing of the escape prosecution, which commenced immediately after Wilson's success in the firearm-possession case; and (3) the alleged "manufacture" of an escape charge, based on the negligence of Nevada authorities, more than a year after Wilson was reincarcerated. On these facts, Wilson requested that the district court "presume vindictiveness" by the prosecutor in the Eastern District of North Carolina or, alternatively, order discovery. In its response, the government provided factual support for the charging decision, which included both the Batey memorandum of January 25, 2000, authored before the Fourth Circuit's ruling in the firearm-possession case, and the South Carolina U.S. Attorney's e-mail memorandum of March 14, 2000, to the U.S. Attorney in the Eastern District of North Carolina, authored after the Fourth Circuit's ruling in the firearm-possession case.

The district court rejected Wilson's venue challenge, but, because Deputy Marshal Batey's January 25 memorandum had been faxed to the U.S. Attorney for South Carolina immediately on the heels of Wilson's successful appeal and because the memorandum exaggerated Wilson's alleged threat against the sentencing judge, the court concluded that Wilson had shown enough to justify requiring the government to respond to discovery on Wilson's vindictiveness claim. The court stated, "the evidence presented does not raise a procedural presumption that the prosecutors acted selectively or vindictively. However, the court [does] find that the existing evidence [is] sufficient to warrant a full and adequate discovery period." The government objected to the court's ruling and sought a protective order based on 5 U.S.C. S 301 and 28 C.F.R. S 16.21 et seq., which regulate the disclosure of such prosecutorial information. Pending a ruling on its motion, the government refused to comply with subpoenas or turn over requested documents....