United States v. Lanoue

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 97-1368

UNITED STATES,

Appellee,

v.

LAWRENCE M. LANOUE,

Defendant - Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

[Hon. Mary M. Lisi, U.S. District Judge]

Before

Stahl, Circuit Judge,

Godbold* and Cyr, Senior Circuit Judges.

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

Margaret E. Curran, Assistant United States Attorney, with

whom Sheldon Whitehouse, United States Attorney, and James H.

Leavey, Assistant United States Attorney, were on brief for

appellee.

March 2, 1998

* Of the Eleventh Circuit, sitting by designation.

GODBOLD, Senior Circuit Judge. Lawrence Lanoue appeals
GODBOLD, Senior Circuit Judge.

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
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.

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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

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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
II. Discussion

A. Venue

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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 (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. Joselyn, 99 F.3d 1182, 1190 (1st Cir. 1996),

cert. denied, Billmyer v. U.S., 117 S. Ct. 959 (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

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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

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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 (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

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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 convicted felon; each

offense requires an element of proof that the other does not.

The former requires that the serial number of the gun be removed,

and the latter requires a previous conviction for a crime

punishable by imprisonment for more than one year. Furthermore,

although the conspiracy charge listed firearm possession as an

overt act of the conspiracy,1 a conspiracy to commit a crime is

not the same offense as the substantive crime for double jeopardy

purposes. See U.S. v. Felix, 503 U.S. 378, 390-91 (1992).

In short, it does not matter that the prosecutors

presented the same evidence at the first trial and at the second

where he was being tried for separate offenses. His contention

Count I of the original indictment charged the defendants with
conspiracy to commit six different underlying federal offenses.
One of these was transporting firearms possessed by convicted
felons. The jury was instructed that it could find the
defendants guilty of the charge alleged in Count I if it found
them guilty of any one of the underlying overt acts.

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comes very close to advocating the "same conduct" test that was

briefly adopted by the Supreme Court in Grady v. Corbin, 495 U.S.

508, 521 (1990), but later rejected in U.S. v. Dixon, 509 U.S.

688, 712 (1994) (overruling Grady and readopting the Blockburger

"same elements" test for double jeopardy). See also Morris, 99

F.3d at 479-480 ("[P]erformance of a Blockburger analysis

completes the judicial task in a successive prosecution case.

Consequently, the appellants' 'same evidence' argument fails.")

(citation omitted). Because the charged offenses are not the

same under the Blockburger test, Lanoue's Fifth Amendment double

jeopardy rights were not violated.

C. Collateral Estoppel

As an alternative to his double jeopardy assertion

Lanoue contends that the government was collaterally estopped

from prosecuting him for the firearm possession charge. Although

the doctrine of collateral estoppel "is embodied in the Fifth

Amendment guarantee against double jeopardy," Ashe v. Swenson,

397 U.S. 436, 445 (1970), a prosecution permissible under the

Double Jeopardy Clause may be proscribed under the collateral

estoppel doctrine where a previous acquittal bars the litigation

of facts essential to the government's case. See Dixon, 509 U.S.

at 710-11 n.15.

Specifically, collateral estoppel requires that an

issue of ultimate fact has been determined in the defendant's

favor in a prior prosecution between the same parties. See Ashe

397 U.S. at 443; U.S. v. Dray, 901 F.2d 1132, 1136 (1st Cir.

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1990). "Where it is impossible to determine whether the

particular issue was previously resolved in a defendant's favor,

preclusive effect must be denied." Aguilar-Aranceta, 957 F.2d at

23. The burden of demonstrating that the issue was actually

decided in the first prosecution rests upon the defendant. Id.

The doctrine necessarily requires that the defendant

was acquitted of at least some charge in the first prosecution

before we can find that an issue was decided in his favor that

might preclude the current prosecution. Lanoue was acquitted of

three charges in his first prosecution and convicted of three

others.2 Of the charges on which Lanoue was acquitted only one

has any relation to the issues presented in the present

prosecution. Count IV charged Lanoue with using and carrying a

firearm during and in relation to an attempt or conspiracy to

commit robbery. The jury could have acquitted Lanoue of this

charge for several reasons. Only if it acquitted Lanoue because

it found that he did not use or carry a firearm would the

acquittal operate to collaterally estop the present prosecution.

However, it is much more likely that the jury acquitted Lanoue of

Count IV because it found that there was no attempt to commit

robbery rather than because he carried no firearm. Lanoue's

conviction on Count VI, which charged him with interstate

Lanoue's convictions on Counts I and VI were later vacated by
this court. U.S. v. Lanoue, 71 F.3d 966 (1st Cir. 1995). The

reversal stemmed from the government's violation of its discovery
obligations. The convictions were vacated with the intent that
Lanoue would be retried. Id. at 984. Therefore, this court's

previous decision is not an acquittal and does not suggest that
any issue of fact was resolved in Lanoue's favor.

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transportation of a firearm with an obliterated serial number,

establishes that the jury found that Lanoue did in fact carry a

firearm.

Lanoue has failed to demonstrate that any ultimate

issue of fact was determined in his favor during his first trial

that would preclude the present prosecution. The district court

did not err in denying Lanoue's collateral estoppel motion.

D. Disqualification of Lanoue's counsel

Lanoue contends that his conviction should be reversed

because he was denied the counsel of his choice in violation of

his Sixth Amendment rights. The Sixth Amendment right to counsel

includes the right to have an attorney of one's own choosing;

however, this right is not absolute. See U.S. v. Wheat, 486 U.S.

153, 159 (1988). The court disqualified Lanoue's original

attorney, Thomas Briody, on the government's motion and after a

hearing on the issue. The reason for the disqualification was

that Briody had represented Lanoue's codefendant, Cole, during

the first trial. Cole was acquitted of all charges. The

government told the district court that it might call Cole as a

witness to testify on whether Lanoue possessed a firearm on

December 23, 1993 and that a conflict of interest could arise if

Briody had to cross-examine Cole. Both Cole and Briody waived

any right to conflict-free representation, and Cole submitted an

affidavit that he did not know that Lanoue possessed a firearm on

the day of his arrest and had no knowledge concerning whether

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Lanoue possessed a firearm at any time prior to his arrest. The

government offered no reason, other than the possibility that

Cole might have known of the firearm, for calling him as a

witness.

We review decisions to disqualify an attorney for

conflict of interest for abuse of discretion. Fiandaca v.

Cunningham, 827 F.2d 825, 828 (1st Cir. 1987). A district court

can disqualify a defendant's attorney over that defendant's

objection where it finds either an actual conflict or a serious

potential conflict. In Re: Grand Jury Proceedings, 859 F.2d

1021, 1023-24 (1st Cir. 1988).

The government cites numerous cases for the proposition

that an attorney's representation of a client who may be called

as a witness creates a serious potential for conflict, but many

of these cases presented a greater potential for conflict than

this case. See Wheat, 486 U.S. at 163-64 ("Here the District

Court was confronted not simply with an attorney who wished to

represent two coequal defendants in a straightforward criminal

prosecution; rather, Iredale proposed to defend three

conspirators of varying stature in a complex drug distribution

scheme"); U.S. v. Voight, 89 F.3d 1050, 1078-79 (3d Cir.)

(disqualification affirmed, but the attorney had represented

several codefendants who continued to be involved in the case,

one of whom refused to waive her rights), cert. denied, 117 S.

Ct. 623 (1996); U.S. v. McCutcheon, 86 F.3d 187, 189 (11th Cir.

1996) (disqualification affirmed where codefendant refused to

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waive any rights); U.S. v. Ross, 33 F.3d 1507, 1523 (11th Cir.

1994) (earlier client did not waive any rights); U.S. v.

Locascio, 6 F.3d 924, 932 (2d Cir. 1993) (possibility existed

that attorneys were accomplices in the crime, would themselves be

called as witnesses, and that they had been inside counsel for

entire Gambino crime family, of which the defendants were

members); but see In re Grand Jury Proceedings, 859 F.2d at 1024-

26 (disqualification reversed where both the present client and

the past client waived any right to conflict-free representation

and court found no direct link between clients).

Although the facts of this case may well reach the

outer limits of "potential conflict," the potential for conflict

is a matter that is uniquely factual and presents a special

dilemma for trial courts. If the attorney is allowed to continue

and the conflict does arise then the defendant may not receive

the representation to which he is entitled, resulting in an

ineffective assistance of counsel appeal. The Supreme Court has

recognized the "willingness of Courts of Appeals to entertain

ineffective[] assistance claims from defendants who have

specifically waived the right to conflict-free counsel." Wheat

486 U.S. at 162. This dilemma creates the need for district

courts to carefully consider the facts when deciding whether to

disqualify.

The district court in this case did not make the

decision to disqualify summarily. It held a hearing and allowed

each side to present its arguments for and against

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disqualification. Other district courts might have reached . . .

opposite conclusions with equal justification, but that does not

mean that one conclusion was 'right' and the other 'wrong . . . .

The evaluation of the facts . . . of each case under this

standard must be left primarily to the informed judgment of the

trial court." Id. at 164. The district court did not abuse its

considerable discretion in disqualifying Lanoue's attorney in the

face of a potential conflict of interest.

E. Vindictive Prosecution

Lanoue's most troubling assertion on appeal is that his

prosecution under 922(g)(1) resulted from a vindictive motive

on the part of Assistant United States Attorney James Leavey.

Leavey has prosecuted Lanoue on at least two other occasions

before this trial.3 The first resulted in an acquittal. Out of

the six counts prosecuted in the second trial Lanoue was

acquitted of three and convicted of three. On appeal this court

reversed two of Lanoue's convictions after it found that Leavey

had withheld evidence and violated his discovery obligations.

See Lanoue, 71 F.3d at 984. Leavey decided not to retry Lanoue on

those charges, instead prosecuting him on the 922(g)(1) charge,

which he had previously decided to dismiss for lack of venue. A

conviction under 922(g) carries a minimum sentence of 15 years.

Lanoue is already serving a 19-year state sentence for violation

of probation and a five-year federal sentence for his remaining

Leavey conceded that actually he may have been connected to a
fourth prosecution of Lanoue when he was Assistant Attorney
General for the State of Rhode Island in the late 1970s.

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conviction in the second prosecution. He is 75 years old and

suffers from angina pectoris. The 235-month sentence he received

in his second trial is substantially longer than the 175-month

sentence he received in his first trial, which was reversed on

appeal.

A vindictive prosecution, if proved, violates a

defendant's Fifth Amendment right to due process. See U.S. v.

Goodwin, 457 U.S. 368, 372 (1982). We will reverse a conviction

that is the result of a vindictive prosecution where the facts

show an actual vindictiveness or a sufficient likelihood of

vindictiveness to warrant such a presumption. See id. at 373;

U.S. v. Marrapese, 826 F.2d 145, 147 (1st Cir. 1987). If the

defendant creates a presumption of vindictiveness the burden

shifts to the government to show that legitimate reasons exist

for the prosecution. See Goodwin, 457 U.S. at 376 n.8.

Successful assertions of vindictive prosecution are

most common where a defendant advances some procedural or

constitutional right and is then punished for doing so. See

Blackledge v. Perry, 417 U.S. 21, 28-9 (1974) (Prosecutor

impermissibly obtained a felony indictment resulting in a five to

seven-year sentence after the defendant had received a six-month

sentence for an assault and had exercised an absolute right of

appeal and to trial de novo allowed under North Carolina law.);

but see Bordenkircher v. Hayes, 434 U.S. 357, 365 (1978) (no

finding of vindictive motive where prosecutor followed through on

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a pretrial threat to increase charges if defendant did not plead

guilty).

Lanoue successfully appealed his first conviction and

sentence, and he refused to plead guilty to the counts reversed

in the first appeal even though the prosecutor warned that this

refusal might result in a reinstatement of the 922(g)(1) charge

that had been dismissed from the original indictment.4 The

prosecutor sought an indictment for the 922(g)(1) charge based

upon the conduct that was the subject of the original indictment.

This one additional charge carried a mandatory minimum sentence

that was larger than the original sentence he received after

being convicted of three separate offenses in the first trial.

We hold that Lanoue did not show prosecutorial

vindictiveness, or a likelihood of vindictiveness sufficient to

create a presumption and shift the burden to the government. The

fact that the government followed through on a threat it made

during plea bargain negotiations does not, by itself, constitute

prosecutorial misconduct. See Bordenkircher, 434 U.S. at 365.

Furthermore, even if Lanoue had raised a presumption of

During plea negotiations the government offered Lanoue a chance
to plead guilty to the charges that this court reversed,
promising him a maximum ten-year sentence to run concurrently
with the five-year sentence he is presently serving. Because
Lanoue is serving the five-year federal sentence concurrently
with the 19-year state sentence, this offer subjected him to no
additional jail time unless his state sentence was shortened to
less than ten years. Lanoue rejected this offer insisting on a
five-year concurrent sentence for the reversed charges. The
government warned Lanoue that if he did not accept their offer
they might prosecute him on the 15-year minimum, firearm
possession charge. Lanoue rejected their offer and the
prosecutor followed through on his threat.

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vindictiveness, the government adequately rebutted this

presumption by presenting sufficient reasons for bringing the

belated 922(g)(1) charge.

We recognize that generally where a defendant can

point to specific facts that raise a likelihood of vindictiveness

a district court must grant an evidentiary hearing on the issue.

See U.S. v. Adams, 870 F.2d 1140, 1146 (6th Cir. 1989) (where

criminal defendant presents evidence of vindictive prosecution,

defendant is entitled to evidentiary hearing and discovery to

permit her to develop defense); U.S. v. Napue, 834 F.2d 1311,

1329 (7th Cir. 1987)("to obtain an evidentiary hearing . . . a

defendant must make a prima facie case based on facts sufficient

to raise a reasonable doubt about the prosecutor's purpose")

(internal quotations and citations omitted).

After reviewing the record, we are satisfied that the

district court held the equivalent of an evidentiary hearing. It

heard Lanoue's counsel on the issue, and it allowed the

government to proceed by proffer.5 The memorandum of each party

was incorporated into the record of the case. After reviewing

these memoranda, we find that they contain sufficient information

that allowed the court to properly dismiss Lanoue's motion. In

its memorandum the government candidly explained the reasons it

prosecuted Lanoue under the firearm possession charge.

The district court allowed the prosecutor's memorandum to be
incorporated as a "substantive document of his actual testimony"
explaining his reasons for the instant prosecution. Lanoue's
counsel indicated that this arrangement was satisfactory as a
means of establishing a factual record.

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The most important reason offered by the prosecutor was

that he had new evidence on the 922(g)(1) charge that was

unavailable when he originally dismissed it. See U.S. v. Fiel,

35 F.3d 997, 1008 (4th Cir. 1994) ("Where the change in the

indictment is prompted 'by newly discovered evidence supporting

the imposition of additional counts . . . a presumption of

vindictiveness is not warranted.'") (quoting U.S. v. Bryant, 770

F.2d 1283, 1287 (5th Cir. 1985)). The 922(g)(1) charge was

originally dismissed only because the government was concerned

about venue. Lanoue's testimony at his first trial, in which he

admitted to owning the firearm, made the issue of venue

immaterial. The government initially did not prosecute Lanoue on

the 922(g)(1) after it had the new evidence because Lanoue had

been sentenced to 14 years, which it found to be a sufficient

sentence for the crimes. It was not until that 14-year sentence

was reduced on appeal that the government considered going forth

with its new evidence. Second, the government explained that the

922(g)(1) charge was easy to prosecute. Faced with the choice

of retrying the two charges reversed by this court, which were

more factually complex and would require extensive proof,6 or

trying Lanoue for the relatively simple to prove firearm charge,

The convictions reversed by this court were for conspiracy to
commit various federal offenses and interstate transportation of
a stolen motor vehicle. Both of these crimes require the proof
of several elements whereas 922(g)(1) only requires proof that
Lanoue had previously been convicted of a felony, which he
conceded, and that he possessed a firearm. Additionally, the
government was concerned that it would be collaterally estopped
from presenting some of the proof it offered in the first trial
because Lanoue was aquitted of three of the original charges.

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it chose the latter. Third, the government gave Lanoue the

option to avoid prosecution under 922(g)(1) and the 15-year

mandatory sentence it requires. Lanoue refused this offer when

he turned down the government's attempt to reach a plea

agreement, knowing that a prosecution under 922(g)(1) might

ensue.

These reasons were presented to the district court in

the government's memorandum and were made part of the record.

They are sufficient to overcome Lanoue's evidence that tended to

show vindictiveness or a presumption thereof. The district court

did not err in refusing to dismiss the charge.

III. Conclusion
III. Conclusion

We AFFIRM Lanoue's conviction of violating 18 U.S.C.
AFFIRM

922(g)(1).

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