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
___________________
whom Sheldon Whitehouse, United
___________________
Leavey,
______
appellee.

Assistant

United

States Attorney,

States Attorney,

were

Attorney, with

and James H.
_________
on

brief for

____________________

March 2, 1998
____________________

____________________

Of the Eleventh Circuit, sitting by designation.

GODBOLD, Senior Circuit Judge.

GODBOLD, Senior Circuit Judge.
____________________

Lawrence Lanoue appeals

from a

conviction of the unlawful

possession of a firearm

by a

person previously convicted of a crime punishable by imprisonment

for

term

922(g)(1).

exceeding

one

violation

of

18

U.S.C.

He was convicted in the U.S. District Court for the

District

of

multiple

issues including

Rhode Island

3)collateral estoppel,

choosing,

year, in

after

trial

by jury.

1)improper venue,

4)the right to

and 5)vindictive prosecution.

He

raises

2)double jeopardy,

have the attorney

We have

of his

reviewed each

assertion and affirm his conviction.

I.
I.

Factual Background and Procedural History

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.

1994 trial demonstrated

Evidence presented at Lanoue's

the following facts.

On

the morning of

December 23, 1993, Lanoue left his residence in Rhode Island

traveled

to

Bellingham,

rendezvoused with Albert

Massachusetts.

On

Cole, and they proceeded

in a car that had been reported stolen.

three dozen

State Police.

center

FBI agents

Lanoue was

parking lot

as he

and members

-2-

he

to Bellingham

that included at

of the

arrested in Bellingham in

approached

way

These movements were the

subject of a large scale surveillance operation

least

the

and

an unmarked

Rhode Island

a shopping

armored car.

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

by a

grand jury sitting

three were charged

offenses,

18

in the District

a seven-count indictment

of Rhode Island.

in Count I with conspiracy

U.S.C.

371;

in

interfere with commerce by robbery,

Count

All

to commit federal

II with

conspiracy

Hobbs Act, 18 U.S.C.

to

1951;

in Count III with attempt

Hobbs Act,

carrying

18 U.S.C.

a firearm

conspiracy to

charged

1951;

during

Lanoue

Meade

affecting

and

with

and

18 U.S.C.

Cole with

with using

to

an attempt

924(c)(1).

interstate

U.S.C.

possessing

Count IV

in relation

transportation

and

ammunition

or

of a

Lanoue

in

been previously convicted

imprisonment for a term

and

Count V

2312; Count VI charged

firearms

commerce, each having

crime punishable by

18 U.S.C.

and in

commit robbery,

stolen motor vehicle, 18

and

to interfere with commerce by robbery,

and

of a

exceeding one year,

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).

explicitly

charged the defendants

Counts

III,

IV

with aiding and

and

also

abetting. 18

U.S.C.

2.

Count

VI was dismissed

defendants had been

Island

by the government

because the

arrested in Massachusetts rather

and prosecutors

anticipated

problems

with

than Rhode

venue.

-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

acquitted him of the robbery-related

of Counts I,

V and

VI and

charges of Counts II,

III,

Meade were acquitted of

all

and IV.

His codefendants Cole and

charges.

The court sentenced Lanoue to 175 months in prison.

Lanoue

appealed to

convictions on Counts I and

had failed to disclose a

key

witness, James

16(a)(1)(A)

and the

this court,

and

it reversed

his

VI after finding that the government

taped conversation between Lanoue and a

Carron, in

pre-trial

violation

of Fed.

discovery order.

R. Crim.

P.

See U.S.
___ ____

v.

Lanoue, 71 F.3d 966 (1st Cir. 1995).

______

Following this reversal

parties failed,

and the government

plea negotiations between the

decided not to

retry Lanoue

for the same

grand

jury

crimes.

returned

charging

him

firearm

charge

indictment.

Instead, another District

of Rhode Island

against

one-count

with the

that

Conviction

indictment

922(g)(1)

had

been

under

Lanoue

unlawful possession

dismissed

from

922(g)(1) carries

the

of

original

a minimum 15-

year mandatory sentence.

At Lanoue's second trial the jury returned a verdict of

guilty on the

sole count.

Lanoue

month prison term.

II.
II.

Discussion
Discussion

A.

Venue

-4-

was then sentenced to

a 235-

Lanoue moved to dismiss

for lack of venue and for

improper venue.

charge

a judgment of acquittal on grounds

The district

court denied both motions.

admits that the evidence proved

Massachusetts but

the firearm possession

of

Lanoue

that he possessed the firearm in

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

U.S. 273,

2, cl. 3 and

to trial in the state

v. Uribe, 890
_____

Crim.

F.2d 554, 558

323

constitutional provisions,

the Sixth Amendment both

provide a

where the crime is committed); U.S.

____

(1st Cir. 1989);

see also Fed.

________

R.

P. 18 (codifying the constitutional guarantee by requiring

prosecution in

the district

where the

The government bears the burden of

Venue

See U.S. v. Johnson,

___ ____
_______

275 (1944)(noting that two

Article III,

right

a proper venue.

is not an

element of the

only by a preponderance of

in the

jury's

verdict

light most

to

committed).

proof on the issue of

offense, and it

the evidence.

988 F.2d 1289, 1293 (1st Cir. 1993).

proper

offense was

must be proven

U.S. v. Georgacarakos,
____
_____________

We review whether venue was

favorable to

determine whether

venue.

the government

the

prosecution

and the

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

the crime

to

determine the location of the crime for the purpose of venue.

If

the statute

must look

"does

to

the statute

not indicate

defining

method for

determining

the

location of the crime, . . . the location must be determined from

-5-

the nature

of the crimes alleged and the

acts constituting it."

quotation marks

continuing

be

offense

was

3237(a).

To

must

look

and citations

. .

commerce,

omitted).

"committed in

. prosecuted

begun,

continued,

to

the

for

key

verbs

district

a convicted

any firearm."

felon

to

18

such

U.S.C.

continuing crime we

statute

18 U.S.C.

Only where

firearm would venue be proper.

the

is a

one district,

in which

completed."

of

F.2d at 1293.

the crime

more than

in any

or

Where

determine the locations of the

Georgacarakos, 988
_____________

unlawful

Georgacarakos, 988 F.2d at 1293 (internal

_____________

crime and is

[it] may

location of the act or

in

question.

922(g) makes

"possess in

or

it

affecting

Lanoue actually possessed a

The

possessed

government offered

the firearm

offered the testimony

that the firearm,

indicates

where he

First,

government

a firearm on

was sufficient that a

to him, which

Second, the

of an FBI surveillance

at Lanoue's

admitting

Island to

pilot who observed

the day in

residence

included a gun cleaning kit used to clean a

This evidence

the government

home in Rhode

was arrested.

found

that Lanoue

his first trial

it from his

Rhode Island with

evidence

to show

a .38 caliber handgun, belonged

offered the testimony

Third,

Island.

of Lanoue from

that he carried

Massachusetts

Lanoue in

in Rhode

evidence

in

question.

Rhode Island

.38 caliber handgun.

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

922(g)(1) violated

double jeopardy.

his prosecution

the Fifth

We exercise de

under 18

Amendment's prohibition

novo review of

U.S.C.

against

constitutional

questions "such

dismiss

. . .

estoppel."

U.S.
____

as the

district court's denial

on the grounds of

of a

motion to

double jeopardy and collateral

v. Aguilar-Aranceta, 957 F.2d 18,

________________

21 (1st Cir.

1992).

For

double jeopardy

to attach

tried for

the same offense twice.

they each

"require[]

other does not."

proof of

defendant must

Offenses are not

[an additional]

Blockburger v. U.S., 284 U.S.

___________
____

be

the same if

fact which

the

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

imprisonment

previously convicted of a crime

term

in

excess

of

one

year

punishable by an

and (2)

possessed a firearm (3) in or affecting commerce.

40 F.3d

1325, 1342 (1st

contention is

922(k)

for

that his

Cir. 1994).

The

a weapon

with

U.S. v. Lewis,
____
_____

essence of

earlier prosecution

transporting

knowingly

an

under

Lanoue's

18 U.S.C.

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

same

elements as

922(g)(1) but that

two

offenses

conjunction

jeopardy.

in

Lanoue asserts

either

conspiracy

proving

obliterated

Lanoue

the same

The

basis

for

double

prosecution offered

922(g)(1) during his first

serial number charge,

prosecuting him under

separately.

the

the

that because the

of

in

his prosecution for these

created

evidence of each element

proof of the

charge or

in

it should be

trial,

proving

the

barred from now

922(g)(1).

ignores that

each offense

must be

offense of obliterating a serial

as possession of

a firearm by a

considered

number is not

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

previous

conviction

punishable by imprisonment for more than

although

the conspiracy charge

overt act of

for

one year.

Furthermore,

listed firearm possession

the conspiracy,1 a conspiracy to

crime

as an

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

presented the same evidence at the

where he was

matter

that

the prosecutors

first trial and at the second

being tried for separate offenses.

His contention

____________________

Count I of the original indictment

conspiracy to commit

charged the defendants with

six different underlying

federal offenses.

One of

these was

felons.

The

transporting firearms

jury

defendants guilty of

was

instructed

possessed by

that

the charge alleged in

it

could

Count I if

convicted
find

the

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),

688,

but later rejected

in U.S. v. Dixon,
____
_____

509 U.S.

712 (1994) (overruling Grady and readopting the Blockburger

_____
___________

"same elements" test

F.3d

at

479-480

completes the

same

("[P]erformance

judicial task

Consequently, the

(citation

for double jeopardy).

in a

of

See also Morris, 99

_________ ______

Blockburger
___________

successive prosecution

appellants' 'same evidence'

omitted).

analysis

Because the charged

case.

argument fails.")

offenses are

not the

under the Blockburger test, Lanoue's Fifth Amendment double

___________

jeopardy rights were not violated.

C.

Collateral Estoppel

As

an alternative

Lanoue contends

his double

assertion

estopped

from prosecuting him for the firearm possession charge.

Although

of collateral

government

jeopardy

was collaterally

the doctrine

that the

to

estoppel "is embodied

in the

Fifth

Amendment guarantee

397

U.S. 436,

445 (1970), a

Double Jeopardy

estoppel

against double

Clause may

jeopardy," Ashe
____

v. Swenson,
_______

prosecution permissible

be proscribed

under the

under the

collateral

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,

issue of ultimate

collateral

fact has

estoppel

been determined

requires

in the

favor in a prior prosecution between the same parties.

397

U.S. at

443; U.S. v.
____

Dray, 901
____

-9-

F.2d 1132, 1136

that

an

defendant's

See Ashe
___ ____

(1st Cir.

1990).

"Where

particular

it

is

impossible

The

determine

whether

the

issue was previously resolved in a defendant's favor,

preclusive effect must be denied."

23.

to

burden of

Aguilar-Aranceta, 957 F.2d at

________________

demonstrating that

the issue

was actually

decided in the first prosecution rests upon the defendant.

The doctrine

necessarily requires

was acquitted

of at least

some charge in the

before we can

find that an issue

that the

Id.
__

defendant

first prosecution

was decided in his

favor that

might preclude the current prosecution.

three charges

others.2

has

in his

first prosecution

Of the charges on

any

relation

prosecution.

to

Count

the

issues

relation to an

commit robbery.

The

jury could have

charge for several reasons.

he

presented

in

IV charged Lanoue with using

and in

found that

and convicted

did not

of

of three

which Lanoue was acquitted only one

firearm during

it

Lanoue was acquitted

the

present

and carrying a

attempt or

conspiracy to

acquitted Lanoue

of this

Only if it acquitted Lanoue because

use

or carry

acquittal operate to collaterally estop

firearm would

the

the present prosecution.

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

Count IV

robbery

because it found

rather than

conviction

on

Count

that there was

because he

VI,

which

carried no

charged

no attempt to

firearm.

him

with

commit

Lanoue's

interstate

____________________

Lanoue's convictions on
this court.

Counts I and VI were

later vacated by

U.S. v. Lanoue, 71 F.3d 966 (1st Cir. 1995).

____
______

The

reversal stemmed from the government's violation of its discovery

obligations.
Lanoue

The

convictions were vacated with the

would be retried.

previous decision is

Id. at 984.
__

intent that

Therefore, this court's

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

issue of fact was determined in his

that

any ultimate

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.

because

Disqualification of Lanoue's counsel

Lanoue contends that his

conviction should be reversed

he was denied the counsel

of his choice in violation of

his Sixth Amendment rights.

includes the

right to

The Sixth Amendment right to counsel

have an attorney

however, this right is not absolute.

of one's

own choosing;

See U.S. v. Wheat, 486 U.S.

___ ____
_____

153,

159 (1988).

The

attorney, Thomas Briody,

hearing on

the issue.

that Briody had

the first

trial.

court

The reason for the

represented Lanoue's

Cole

to

testify on

Lanoue's

was

codefendant, Cole,

acquitted

of all

any

charges.

court that it might call

whether

Lanoue possessed

to cross-examine Cole.

after a

disqualification was

December 23, 1993 and that a conflict of interest

Briody had

original

on the government's motion and

government told the district

witness

disqualified

Both Cole and

during

The

Cole as a

firearm on

could arise if

Briody waived

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

-11-

concerning whether

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

government offered

Cole

might

no reason,

have known

of

other than

the firearm,

the possibility

for

calling him

The

that

as a

witness.

conflict

We

review

of

interest

decisions

for abuse

Cunningham, 827 F.2d 825,

__________

to

disqualify

of

an attorney

discretion.

828 (1st Cir. 1987).

Fiandaca
________

for

v.

A district court

can

disqualify a

defendant's

objection where it

potential

attorney

over

that

finds either an actual conflict

conflict.

defendant's

or a serious

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

as a witness

creates a serious potential for

of these cases

this case.

Court was

representation of a client who

presented a greater

See Wheat, 486

___ _____

U.S. at

confronted not simply

represent two coequal

rather,

conspirators

of varying

conflict, but many

potential for conflict

163-64 ("Here the

with an attorney who

defendants in

prosecution;

may be called

Iredale

stature in

District

wished to

a straightforward

proposed

to

than

defend

criminal

three

a complex drug distribution

scheme");

U.S.
____

(disqualification

v. Voight,
______

affirmed,

several codefendants

one of

Ct. 623

1996)

89

F.3d

but

1050,

the attorney

who continued to

whom refused to waive

1078-79

had

be involved in

(3d

represented

the case,

her rights), cert. denied,

____________

(1996); U.S. v. McCutcheon, 86

____
__________

(disqualification affirmed

-12-

where

Cir.)

117 S.

F.3d 187, 189 (11th Cir.

codefendant refused

to

waive any

1994)

rights); U.S. v. Ross,

____
____

(earlier

Locascio, 6
________

client

F.3d 924,

did

33 F.3d 1507,

not

932 (2d

waive

any

1523 (11th Cir.

rights);

U.S.
____

Cir. 1993) (possibility

v.

existed

that attorneys were accomplices in the crime, would themselves be

called as

entire

witnesses, and that

Gambino

crime

they had been inside

family,

of

which

the

counsel for

defendants

were

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

26 (disqualification reversed

the

where both the present

client and

past client waived any right to conflict-free representation

and court found no direct link between clients).

Although

outer

the facts

of

this case

may well

reach the

limits of "potential conflict," the potential for conflict

is

a matter

that is

uniquely

dilemma for trial courts.

and the

to

presents a

special

If the attorney is allowed to continue

conflict does arise

the representation

factual and

then the defendant may

which he

is

not receive

entitled, resulting

in

an

ineffective assistance of counsel appeal.

The Supreme Court has

recognized the

"willingness of

Appeals to

ineffective[]

assistance

specifically waived the

486 U.S.

at 162.

This

Courts of

claims

from

defendants

entertain

who

right to conflict-free counsel."

dilemma creates

courts to carefully consider the

the need

have

Wheat
_____

for district

facts when deciding whether

to

disqualify.

The

district

court

in this

decision to disqualify summarily.

case

did

not make

the

It held a hearing and allowed

each

side

to

present

its

arguments

for

and

against

-13-

disqualification.

opposite

Other district courts might have reached . . .

conclusions with equal justification, but that does not

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

The

evaluation of

standard must be

the facts

. .

of each

left primarily to the informed

case

under this

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

on the

part of

Leavey has

922(g)(1) resulted from a

Assistant United

prosecuted

before this trial.3

the

six

counts

Lanoue on

States Attorney James

at least

had

withheld

two other

Leavey.

occasions

The first resulted in an acquittal.

prosecuted

in

the

second

acquitted of three and convicted of three.

reversed two of

vindictive motive

trial

violated his

Lanoue

was

On appeal this court

Lanoue's convictions after it

evidence and

Out of

found that Leavey

discovery obligations.

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

___ ______

those charges, instead prosecuting him on the

which he had previously decided to dismiss

conviction under

Lanoue is

922(g)(1) charge,

for lack of venue.

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

already serving a 19-year state sentence for violation

of probation and a

five-year federal sentence for

his remaining

____________________

Leavey conceded that

fourth

prosecution

of

actually he may have been

Lanoue when

he

was

connected to a

Assistant Attorney

General for the State of Rhode Island in the late 1970s.

-14-

conviction

in the

second prosecution.

suffers from angina pectoris.

in his second

sentence he

years old and

The 235-month sentence he received

trial is substantially

received in his

He is 75

longer than the

first trial, which was

175-month

reversed on

appeal.

vindictive

defendant's Fifth

prosecution,

Amendment right to

Goodwin, 457 U.S. 368, 372 (1982).

_______

that is

show

an

the result of

actual

vindictiveness to

if

proved,

due process.

We

violates

See
___

warrant such a

U.S. v.
____

will reverse a conviction

a vindictive prosecution where

vindictiveness or

sufficient

presumption.

the facts

likelihood of

See id.
___ __

at 373;

U.S. v. Marrapese,
____
_________

826 F.2d 145,

defendant

creates a

presumption

shifts to

the government to

for the prosecution.

common

where

of vindictiveness

show that legitimate

assertions

defendant

constitutional

right and

Blackledge
__________

Perry,
_____

v.

1987).

If

the

the

burden

reasons exist

See Goodwin, 457 U.S. at 376 n.8.

___ _______

Successful

most

147 (1st Cir.

is then

417

U.S.

of vindictive

advances

some

punished for

21,

28-9

prosecution

procedural

doing so.

(1974)

are

or

See
___

(Prosecutor

impermissibly obtained a felony indictment resulting in a five to

seven-year

sentence after the defendant had received a six-month

sentence for

appeal and to

an assault and

had exercised an absolute

trial de novo allowed under

right of

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

in the first

refused to plead guilty to

the counts reversed

appeal even though the prosecutor

warned that this

refusal might result in a reinstatement of the

that had

been

dismissed from

the

922(g)(1) charge

original indictment.4

prosecutor sought an indictment for

the

The

922(g)(1) charge based

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

This one additional

that

was larger

charge carried a mandatory

than

the original

minimum sentence

sentence he

received after

being convicted of three separate offenses in the first trial.

We

hold

vindictiveness, or a

that

Lanoue

did

not

show

prosecutorial

likelihood of vindictiveness

sufficient to

create a presumption and shift the burden to the government.

fact that

during

the government

followed through on

a threat

The

it made

plea bargain negotiations does not, by itself, constitute

prosecutorial

Furthermore,

misconduct.

even

if

See
___

Bordenkircher, 434 U.S.

_____________

Lanoue

had

raised

at 365.

presumption

of

____________________

During plea negotiations the government offered Lanoue a chance

to

plead

guilty

promising him
with

to

a maximum

charges

serving

with the 19-year

five-year

court

to run

reversed,

concurrently

presently serving.
federal sentence

unless his state sentence

years.

Lanoue that if

prosecute
charge.

for the

him
Lanoue

on

concurrently

reversed

15-year

rejected

prosecutor followed through on his threat.

-16-

their

him to no

insisting on a
charges.

he did not accept

the

Because

was shortened to

Lanoue rejected this offer

concurrent sentence

might

this

state sentence, this offer subjected

government warned

possession

he is

the five-year

additional jail time

less than ten

that

ten-year sentence

the five-year sentence

Lanoue is

they

the

their offer

minimum,
offer

The

firearm
and

the

vindictiveness,

presumption

belated

the

government

by presenting

adequately

sufficient reasons

rebutted

this

for bringing

the

922(g)(1) charge.

We

recognize

that generally

where

defendant can

point to specific facts that raise a likelihood of vindictiveness

a district court must grant

See U.S. v.
___ ____

Adams, 870
_____

criminal defendant

defendant is

an evidentiary hearing on the issue.

F.2d 1140, 1146

presents evidence of

entitled to

(6th Cir. 1989)

(where

vindictive prosecution,

evidentiary hearing

and discovery

to

permit her

to develop

1329 (7th

defense); U.S. v.
____

Cir. 1987)("to obtain

defendant must make a prima

to

raise a

reasonable doubt

Napue, 834
_____

F.2d 1311,

an evidentiary hearing .

. . a

facie case based on facts sufficient

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.

heard

Lanoue's

counsel

on

the

government to proceed by proffer.5

was incorporated

into the record

issue,

and

it

allowed

It

the

The memorandum of each party

of the case.

After reviewing

these memoranda, we find that they contain sufficient information

that allowed the

its memorandum the

court to properly dismiss Lanoue's

government candidly explained the

prosecuted Lanoue under the firearm possession charge.

motion.

In

reasons it

____________________

The

district court allowed

incorporated
explaining his

the prosecutor's memorandum

to be

as a "substantive document of his actual testimony"

reasons for

counsel indicated

that this

the instant

prosecution.

arrangement was

Lanoue's

satisfactory as

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

35 F.3d

997, 1008

indictment

the

(4th Cir.

is prompted 'by

imposition of

vindictiveness

F.2d

originally dismissed it.

See
___

1994) ("Where

the

U.S. v. Fiel,
____
____

change in

the

newly discovered evidence supporting

additional

counts

. .

a presumption

of

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

____
______

1283, 1287 (5th

originally dismissed

Cir. 1985)).

only because

The

922(g)(1) charge was

the government

was concerned

about venue.

Lanoue's testimony at

his first trial, in which he

admitted

owning

made

to

immaterial.

the

the

firearm,

the

issue

of

venue

The government initially did not prosecute Lanoue on

922(g)(1) after it had

been sentenced to

sentence for the

the new evidence because Lanoue had

14 years, which

crimes.

it found to

be a

sufficient

It was not until that 14-year sentence

was

reduced on appeal that the government considered going forth

with its new evidence.

922(g)(1) charge was

of retrying

Second, the government explained that the

easy to prosecute.

the two charges

more factually

complex and

trying Lanoue for

Faced with the choice

reversed by this court,

would require

which were

extensive proof,6

or

the relatively simple to prove firearm charge,

____________________

The convictions

reversed by this court were

commit various federal offenses

a

stolen motor vehicle.

for conspiracy to

and interstate transportation of

Both of

these crimes require the proof

of several elements whereas

922(g)(1)

only requires proof that

Lanoue had

convicted

of a

previously

conceded, and

that he

government was concerned

been

possessed a firearm.
that it would be

from presenting some of the proof

felony,

which

Additionally,

the

collaterally estopped

it offered in the first

trial

because Lanoue was aquitted of three of the original charges.

-18-

he

it

chose the

latter.

Third,

option to

avoid prosecution

mandatory

sentence it requires.

he

turned

down

agreement, knowing

the

the government

under

and the

the

15-year

Lanoue refused this offer when

government's

that

922(g)(1)

gave Lanoue

attempt

a prosecution

to

under

reach

922(g)(1)

plea

might

ensue.

These reasons were

the government's

presented to the district

memorandum and

were made

part of

court in

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.
III.

Conclusion
Conclusion

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

AFFIRM

922(g)(1).

-19-