
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.                                         -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-
