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United States v. Lanoue

Court: Court of Appeals for the First Circuit
Date filed: 1998-03-06
Citations: 137 F.3d 656
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43 Citing Cases
Combined 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.

                               -2-


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

                               -3-


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

                               -4-


          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

                               -5-


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

                               -6-


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

                               -7-


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. 

                               -8-


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.
                                          

                               -9-


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.

                               -10-


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

                               -11-


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

                               -12-


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

                               -13-


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.

                               -14-


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

                               -15-


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.

                               -16-


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.

                               -17-


          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.  

                               -18-


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).

                               -19-