USCA1 Opinion
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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