UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                   No. 97-5025

TAWAN ANTONIO CAMPBELL,
Defendant-Appellant.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Frederic N. Smalkin, District Judge.
(CR-96-65-S)

Submitted: July 31, 1998

Decided: August 25, 1998

Before WIDENER and LUTTIG, Circuit Judges, and
HALL, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Geoffrey R. Garinther, Corie W. Godine, VENABLE, BAETJER &
HOWARD, L.L.P., Towson, Maryland, for Appellant. Lynne A. Bat-
taglia, United States Attorney, James G. Warwick, Assistant United
States Attorney, Baltimore, Maryland, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

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OPINION

PER CURIAM:

Police officers stopped Tawan Antonio Campbell for committing
a traffic violation.1 The officers discovered that Campbell was driving
without a license, so they arrested him and conducted a search of
Campbell's clothing and the vehicle. The officers found a loaded .38
caliber revolver in Campbell's coat pocket, a .38 caliber pistol
between the driver's seat and the door, and a third gun in the back of
the automobile.

The Government indicted Campbell on a charge of being a felon
in possession of a firearm in violation of 18 U.S.C.§ 922(g)(1)
(1994), based on the .38 caliber revolver in his coat pocket. Campbell
pled guilty, but moved to withdraw his guilty plea when he appeared
for sentencing. The district court granted the motion, and Campbell
proceeded to a trial by jury. Prior to trial Campbell's attorney filed a
motion in limine to prevent the Government from introducing evi-
dence of the other two firearms retrieved from Campbell's vehicle.
The district court granted the motion even though the Government
argued that the evidence would be necessary at trial if Campbell
placed at issue his knowledge or intent with regard to the firearm
found in his coat pocket.

At trial, Campbell based his defense on the fact that he did not
know the weapon was in his coat pocket. Campbell contended that he
borrowed the coat from another person just prior to the traffic stop,
and counsel argued that if Campbell had known the weapon was in
his pocket, he would have removed it and tried to hide it under the
seat of the vehicle. The jury was unable to reach an unanimous ver-
dict, so the district court declared a mistrial.
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1 Campbell was driving the vehicle, and there were four other passen-
gers who were released by the officers.

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After the mistrial, the Government sought to strengthen its case and
to counter Campbell's lack of knowledge or intent defense. Accord-
ingly, the Government obtained a superseding indictment charging
Campbell with two counts of being a felon in possession of a firearm
for carrying the firearm in his coat pocket and for carrying the firearm
between the driver's seat and the door of the vehicle. Campbell
moved to dismiss the second count or, in the alternative, to have sepa-
rate trials on each count. The district court denied the motion. After
the second jury trial, Campbell was convicted of the count relating to
the firearm in his coat pocket and acquitted of the count involving the
firearm found beside his seat in the vehicle. The district court sen-
tenced Campbell as an armed career criminal to 190 months' impris-
onment. Campbell timely noted an appeal from the district court's
order.

On appeal, Campbell contends that the district court erred when it
denied his motion to dismiss or sever the two counts in the supersed-
ing indictment. He contends that the Government's decision to add
the additional charge after the judge declared a mistrial raises a pre-
sumption of prosecutorial vindictiveness. He also alleges that the dis-
trict court prematurely gave the jury an Allen 2 charge, and that the
premature charge, combined with the denial of the motion to dismiss
or sever, resulted in a compromise verdict. Finally, Campbell chal-
lenges whether the Government should have been permitted to use the
superseding indictment to introduce the evidence of the other two
guns, which the district court had ruled inadmissible before the first
trial. Finding no error, we affirm.

Campbell moved to dismiss or sever the counts in the superseding
indictment on the basis that the Government engaged in prosecutorial
vindictiveness by adding the additional charge after the district judge
declared a mistrial. We review the district court's findings of fact
regarding prosecutorial vindictiveness for an abuse of discretion. See
United States v. Fiel, 35 F.3d 997, 1007 (4th Cir. 1994).

Prosecutorial vindictiveness deprives an accused of his right to due
process by retaliating against him for the exercise of a constitutional
or statutory right. See United States v. Goodwin , 457 U.S. 368, 378
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2 Allen v. United States, 164 U.S. 492 (1896).

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(1982). A presumption of prosecutorial vindictiveness arises in "cer-
tain cases where detrimental action was taken against the defendant
by the government immediately following [his] exercise of a right."
See Fiel, 35 F.3d at 1007 (citing Goodwin , 457 U.S. at 373). To show
that he was the victim of prosecutorial vindictiveness, Campbell
would have to show a "reasonable likelihood" that the Government
had a vindictive motive; if he cannot make such a showing, the bur-
den remains on him to establish "actual" vindictiveness by the prose-
cutor. See United States v. Mabry, 953 F.2d 127, 133 (4th Cir. 1991).

When a jury is deadlocked and both parties agree that a mistrial is
necessary, courts have found that there is no realistic likelihood of
vindictiveness based on the mere fact of reindictment. See Fiel, 35
F.3d at 1007-08 (citing United States v. Whaley , 830 F.2d 1469, 1477
(7th Cir. 1987)); United States v. Doran, 882 F.2d 1511, 1520 (10th
Cir. 1989) (noting that "where the mistrial occurs for neutral reasons,
such as a hung jury, and without objection from the prosecution, there
is no reason why the prosecutor would consider the defendant respon-
sible for the need for a new trial"). The jury in Campbell's first case
was unable to reach an unanimous verdict, so the district judge
declared a mistrial. After the mistrial, the Government reindicted
Campbell and added the additional charge. However, because the
mistrial occurred for a neutral reason, there is no reason to presume
that the prosecutor blamed Campbell for the need for a new trial. See
id. Thus, we find that the district court did not abuse its discretion in
concluding that there was no realistic likelihood of vindictiveness
arising from the change in the indictment. See Fiel, 35 F.3d at 1007.
Moreover, because Campbell failed to establish that the reindictment
was motivated by prosecutorial vindictiveness, we find that the dis-
trict court properly denied the motion to dismiss or sever the counts
in the superseding indictment.3
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3 We find that the district court did not abuse its discretion in denying
the severance portion of the motion in light of the fact that Campbell
failed to establish that he was denied a fair trial or that he was prejudiced
from the denial of severance. See United States v. Clark, 928 F.2d 639,
644-45 (4th Cir. 1991); United States v. Chorman , 910 F.2d 102, 114
(4th Cir. 1990).

                     4
Next, Campbell contends that the district court prematurely gave an
Allen charge to the jury, and that the premature instruction, combined
with the denial of the request to dismiss or sever, resulted in a com-
promise verdict. After almost three and one half hours of deliberation,
the jury notified the court that it could not reach a verdict. The district
judge gave the Allen charge and encouraged the jurors to continue
deliberating. The jurors deliberated for about another half hour and
then went home for the day. The jurors continued deliberations the
next morning for approximately two hours and twenty minutes before
finally reaching a verdict.

This court reviews the giving of an Allen charge for an abuse of
discretion. See United States v. Russell, 971 F.2d 1098, 1107 (4th Cir.
1992). When determining whether an Allen charge had an impermis-
sibly coercive effect on jury deliberations, we consider the content of
the instruction as well as the context. See Jenkins v. United States,
380 U.S. 445, 446 (1965); United States v. Webb , 816 F.2d 1263,
1266 (8th Cir. 1987) (look to content, length of deliberations follow-
ing instruction, total time of deliberations, and indicia of coercion).
Campbell does not challenge the content of the instruction, and the
fact that the jury deliberated for almost three and one half hours
before the charge and three additional hours after receiving the charge
suggests that the jurors were not unduly influenced. See Russell, 971
F.2d at 1108 (finding three hours of deliberations after charge evi-
dence that jury not coerced). Because Campbell points to no other
indicia of coercion, we find no abuse of discretion in the trial court's
action. See id. at 1107. Furthermore, Campbell provides no evidence
that the verdict was a compromise. He asserts that the verdict was
inconsistent because he was found guilty on one charge and acquitted
on the other; however, inconsistent verdicts provide no basis for
vacating a verdict or ordering a new trial. See United States v. Powell,
469 U.S. 57, 64-65 (1984).

Finally, Campbell challenges whether the Government should have
been permitted to use the superseding indictment to introduce the evi-
dence of the other two guns, which the district court had ruled inad-
missible in the first trial. Because Campbell based his defense on lack
of knowledge of the firearm and lack of intent to possess it, we find
that it was proper for the Government to reindict Campbell, adding
the additional charge, and to introduce evidence of the other firearms

                     5
found in the vehicle. See Bordenkircher v. Hayes , 434 U.S. 357, 364
(1978) (when acting on probable cause, government generally has
unfettered discretion in decision to prosecute); United States v.
Hadaway, 681 F.2d 214, 218 (4th Cir. 1982); see also Fed. R. Evid.
404(b).

We affirm the district court's denial of Campbell's motion to dis-
miss or sever, and we affirm Campbell's conviction and sentence. We
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the court and argu-
ment would not aid the decisional process.

AFFIRMED

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