Unpublished Disposition, 855 F.2d 863 (9th Cir. 1987)

No. 88-1019.

United States Court of Appeals, Ninth Circuit.

Before WRIGHT and POOLE, Circuit Judges, and WILLIAMS,^*  Senior District Judge.

MEMORANDUM^** 

William Harvey Flynn was charged with possession of a firearm by a convicted felon. 18 U.S.C. app. Sec. 1202(a) (1). He challenges the denial of two motions to dismiss. One alleged an invalid prior conviction, and the other vindictive prosecution. Affirmed.

County deputies arrested Flynn after he had dragged his wife into a lake and was seen firing a gun into the water near her location. He was charged in state court with possession of a concealable firearm by a felon, and brandishing a firearm in the presence of a peace officer. Negotiations toward a plea arrangement failed.

Six days before the scheduled trial, Flynn was arrested by the FBI and charged under section 1202(a). The federal indictment alleged three prior convictions, one from 1966 when Flynn was an 18-year-old juvenile.

After pretrial motions were denied, Flynn entered a conditional plea of guilty. He was sentenced to 20 years imprisonment without possibility of parole.

One motion alleged that the 1966 conviction was void because Flynn was treated unconstitutionally as an adult. The district court rejected that argument and ruled in the alternative that Flynn had waived the right to challenge adult status. The record provides us with an adequate basis for affirming without reaching those issues. See Vernon v. Heckler, 811 F.2d 1274, 1277 (9th Cir. 1987) (court may affirm on any basis supported by the record).

The indictment was not required to list three prior convictions to state an offense under section 1202(a). Subsequent to the filing of Flynn's motion, we ruled that the Armed Career Criminal Act, 18 U.S.C.App. Sec. 1202(a), embodies two elements: the substantive offense prohibiting possession of a firearm by a convicted felon, and a sentence enhancement provision for persons possessing a firearm who have three prior robbery or burglary convictions. See United States v. West, 826 F.2d 909, 911 (9th Cir. 1987).

The Act provides:

Any person who ... has been convicted by a court of the United States or of a State or any political subdivision thereof of a felony, ... and who receives, possesses, or transports in commerce or affecting commerce, after the date of enactment of this Act, any firearm shall be fined not more than $10,000 or imprisoned for not more than two years, or both.

18 U.S.C.App. Sec. 1202(a) (emphasis added). To state an offense under the Act, the indictment need allege only one felony conviction.

The indictment here, in addition to the challenged 1966 conviction, alleged a 1969 armed robbery conviction and a 1973 burglary conviction. Neither of those were challenged. The unchallenged portion of the indictment alleged possession of a firearm by a person "convicted ... of a felony." The 1966 conviction is surplusage, and does not affect the validity of the indictment. See United States v. Miller, 471 U.S. 130, 136 (1985). The district court did not err by refusing to dismiss the indictment.

The thrust of the motion, and this appeal, is to challenge imposition of the sentence enhancement. We comment briefly on that issue.

The Act provides for a fine of not more than $25,000 and imprisonment of not less than 15 years for persons possessing firearms who have three prior convictions for robbery or burglary. 18 U.S.C.App. Sec. 1202(a). It is sufficient that the prior convictions appear in the presentence report, and it is not necessary that they be proven beyond a reasonable doubt. West, 826 F.2d at 911-912.

In addition to the 1966 conviction, the presentence report indicated a 1968 conviction for second degree burglary, a 1969 conviction for armed robbery, and a 1973 conviction for second degree burglary. Although given two opportunities to challenge the report, Flynn did not object to that portion detailing his prior criminal history. There was a substantial factual basis for the enhanced sentence.¹  See id.

Due process forbids prosecutions that vindictively punish a person for exercising constitutional, statutory, or procedural rights. See United States v. Goodwin, 457 U.S. 368, 372 (1982). Criminal defendants may demonstrate vindictiveness by showing that the circumstances warrant a presumption of vindictiveness, see United States v. Gallegos-Curiel, 681 F.2d 1164, 1167 (9th Cir. 1982), or by proving an actually vindictive motive, see Goodwin, 457 U.S. at 384.

In 1982 we ruled that questions of vindictive prosecution are reviewed for abuse of discretion. Gallegos-Curiel, 681 F.2d at 1171 n. 6. Four years later we applied de novo review. See U.S. v. Martinez, 785 F.2d 663, 666 (9th Cir. 1986); United States v. Osif, 789 F.2d 1404, 1405 n. 1 (9th Cir. 1986) (standard of review unsettled, but acknowledging Martinez) . Regardless of the standard applied, our conclusion would be the same.

A presumption of vindictiveness arises once the defendant establishes that the prosecutor's actions appear to be vindictive. Gallegos-Curiel, 681 F.2d at 1168.

[T]he appearance of vindictiveness results only where, as a practical matter, there is a realistic or reasonable likelihood of prosecutorial conduct that would not have occurred but for hostility or a punitive animus towards the defendant because he has exercised his specific legal rights.

Id. at 1169.

Flynn contends that the prosecutor's actions should be presumed vindictive because the United States Attorney decided to prosecute just six days before his state trial was scheduled to begin, and after state charges had been pending for almost a year. As we understand his argument, the federal prosecution was motivated by his exercise of the right to refuse a plea bargain.

We have made clear that a prosecutor's decision to bring more onerous charges after plea bargaining has failed, even if in retaliation for refusing to plead guilty, does not warrant a presumption of vindictiveness. See United States v. Stewart, 770 F.2d 825, 829 (9th Cir. 1985), cert. denied, 474 U.S. 1203 (1986); United States v. Heldt, 745 F.2d 1275, 1281 (9th Cir. 1984).

Flynn argues that the Supreme Court has suggested a different rule when "the prosecutor without notice [brings] an additional and more serious charge after plea negotiations." See Bordenkircher v. Hayes, 434 U.S. 357, 360 (1978). But he overlooks that the Court declined expressly to address that situation. Id. at n. 5. Bordenkircher was limited to holding that due process is not offended when a prosecutor carries out a threat, made during plea bargaining, after the defendant rejects the government's offer. Id. at 365. The county prosecutor here did not bring additional or more serious charges without notice to Flynn. He merely acquiesced in prosecution by the federal government. His failure to advise Flynn that the federal government might also decide to bring charges does not increase the likelihood of a hostile or punitive animus.

The county prosecutor did not instigate, and was not involved in, the federal prosecution. The record indicates that the federal indictment was based only on the request of a county detective and an agent of the Bureau of Alcohol, Tobacco, and Firearms (ATF). Federal authorities were not contacted about Flynn's case until March 11, 1987 when the detective told the agent that Flynn had surfaced as a suspect in several homicide cases. Six days later the ATF agent presented the case to the Assistant U.S. Attorney after clearing the decision with the county prosecutor. The federal indictment was returned three days later.

The detective and agent acknowledged their motive: to take advantage of the substantial mandatory sentence under federal law. Whether they had decided the increased sentence was warranted because of Flynn's criminal background or suspected connection with the homicides is irrelevant. See United States v. Hooten, 662 F.2d 628, 634 (9th Cir. 1981), cert. denied, 455 U.S. 1004 (1982). They had no charging authority.

The 10-month lapse between arrest on state charges and federal indictment does not aid Flynn's argument. The federal indictment was returned more than 90 days after Flynn pleaded not guilty in state court.²  A close temporal proximity between exercise of the right and prosecutorial action might make vindictiveness more likely, but not the significant span here. In addition, the decision to prosecute under federal law was made prior to the start of the state trial. Because procedural rights are asserted routinely before trial, it is " 'unrealistic to assume that a prosecutor's probable response' " to the exercise of such rights is vindictive. See Gallegos-Curiel, 681 F.2d at 1168 (quoting Goodwin) .

The prosecutions involved two sovereigns, the state of California and the federal government. We have recognized that subsequent prosecution by a separate sovereign tends to negate the presumption of vindictive prosecution, United States v. Robinson, 644 F.2d 1270, 1273 (9th Cir. 1981), although we declined to decide whether prosecution by different sovereigns bars a claim of vindictive prosecution, see United States v. Burt, 619 F.2d 831, 837 (9th Cir. 1980).

While also declining to decide "the correct rule when two independent prosecutors are involved," the Supreme Court has commented that "to the extent the presumption reflects 'institutional pressure that ... might ... subconsciously motivate a vindictive prosecutorial response to a defendant's exercise of his right [s], ... it does not hinge on continued involvement of a particular individual." Thigpen v. Roberts, 468 U.S. 27, 31 (1984). That concern is inapposite here. There is no evidence the federal prosecutor, while evaluating Flynn's case, knew that he had exercised any rights. Reporter's Transcript of Aug. 31, 1987, at 86.

Three days after first being presented with Flynn's case, and without contacting the county prosecutor, the federal prosecutor exercised his broad discretion in determining that societal interests warranted prosecution. See Goodwin, 457 U.S. at 382. Flynn's criminal record portrayed precisely the career offender that Congress sought to reach in adopting the Armed Career Criminal Act. The decision to prosecute reflects nothing more than the prosecutor's duty to make an independent and objective assessment of Flynn's case. See Gallegos-Curiel, 681 F.2d at 1169.

On these facts, there is no reasonable likelihood that the federal charges were brought because Flynn exercised a protected right.

There is no evidence to support a claim of actual vindictiveness because neither the county prosecutor nor federal prosecutor ever suggested that the federal prosecution was brought to influence Flynn's conduct. See Goodwin, 457 U.S. at 381 & 380 n. 12. Moreover, Flynn mischaracterizes the record when he states that the federal prosecutor admittedly would not have prosecuted had Flynn entered a guilty plea in state court. See Appellant's Opening Brief at 5. The prosecutor merely explained the Petite policy by stating that the Justice Department "will not prosecute someone after jeopardy has attached in the state system without permission from Washington, D.C., it does not say we will not do it." Transcript at 85. The court acted properly in denying Flynn's motion.

The judgment is AFFIRMED.