                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 01-1239
                                   ___________

United States of America,               *
                                        *
             Appellee,                  *
                                        * Appeal from the United States
      v.                                * District Court for the
                                        * Northern District of Iowa
Robert Lee Kriens,                      *
                                        *
             Appellant.                 *
                                   ___________

                             Submitted: September 11, 2001

                                  Filed: November 5, 2001
                                   ___________

Before BOWMAN, HEANEY, and BYE, Circuit Judges.
                         ___________

BYE, Circuit Judge.

       Robert Kriens appeals the judgment and sentence of the district court1
following his plea of guilty to one count of possession of a firearm by a felon in
violation of 18 U.S.C. § 922(g)(1). The district court sentenced Kriens to 180 months
imprisonment. Kriens argues the district court erred by (1) denying his motion to
dismiss based upon violations of his Fifth and Sixth Amendment rights, (2) denying
his motion to suppress based upon Miranda v. Arizona, 384 U.S. 436 (1966), (3)

      1
        The Honorable Mark W. Bennett, Chief Judge, United States District Court
for the Northern District of Iowa.
refusing to allow him the opportunity to make an offer of proof and to question
federal prosecutors, and (4) finding his conviction for second-degree attempted
burglary was a violent felony. We affirm the judgment and sentence.

                                           I

       On February 23, 1998 a deputy sheriff went to Kriens' house to talk to him
about his son. While in the home the deputy saw three firearms in plain view. The
deputy checked Kriens' criminal background and discovered he was a convicted
felon. On February 28, 1998 officers obtained a search warrant for Kriens' home and
recovered four firearms. Kriens was arrested at 3:00 p.m. that afternoon as officers
searched his home. Officers immediately advised Kriens of his rights under Miranda,
and he signed a waiver-of-rights form dated 2/28/98 at 1500 hours. After signing the
form, Kriens was transported approximately ten miles to the Hampton Police
Department where, in a videotaped interview, he admitted owning one of the
firearms.

       Following Kriens' arrest, County Attorney Brent Symens charged Kriens in
state court with being a felon in possession of a firearm. Symens had been elected
Franklin County Attorney in November 1994 and took office January 1, 1995. While
in private practice Symens represented Kriens in connection with two felony drug
offenses that occurred in 1993. After charging Kriens, Symens met with him and his
attorney and offered a plea agreement. He advised Kriens and his attorney that if the
offer was rejected he would refer the matter to federal authorities for prosecution.
Kriens rejected the offer of five years in state prison, and Symens referred the case
to the United States Attorney.

      Federal authorities contacted Kriens' attorney asking if Kriens would cooperate
by providing information about drug dealing in the Mason City, Iowa area. Kriens
did not respond to the offer and federal authorities indicted him on one count of being

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a felon in possession of a firearm. Kriens filed a motion to dismiss the indictment
alleging a violation of his Fifth Amendment rights arising out of Symen's referral of
the prosecution to federal authorities. Kriens also alleged a violation of his Sixth
Amendment rights arising out of Symen's prior representation of him. In addition,
Kriens moved to suppress his incriminating statements arguing they were obtained
in violation of Miranda.

        At the evidentiary hearing on Kriens' motion to dismiss the indictment, Symens
testified that he provided no confidential attorney-client information to federal
prosecutors. Affidavits were presented from the Assistant United States Attorneys
involved in the prosecution denying that any confidential information had been
provided by Symens. The magistrate judge found that Kriens' allegations had no
basis in fact. The magistrate judge determined that, even assuming Symens had told
federal authorities Kriens had information about drug dealings in Mason City, the
information was unrelated to the federal prosecution and the proper remedy would be
exclusion of the information, not dismissal of the indictment. The district court, after
reviewing the magistrate judge's report and recommendations de novo, agreed and
denied Kriens' motion for dismissal.

       In support of his motion to suppress the incriminating statements, Kriens
contended that police dispatch logs showed police arrived at his residence with the
warrant at 1317 hours, transported him to the police station at 1440 hours, and began
the videotaped interview at 1504 hours. Kriens argued that the dispatch logs prove
he could not have been given his Miranda warnings while at his home, because the
waiver form was signed only four minutes before the interview began at the police
department. Instead, Kriens contended he was given his Miranda warnings and
signed the waiver at the police department after making the incriminating statements.

      At an evidentiary hearing held on Kriens' motion to suppress the incriminating
statements, Captain Fred Meeder, Chief Deputy of the Wright County Sheriff's

                                          -3-
Department, testified that he placed Kriens under arrest in Kriens' living room and
read him the Miranda warnings. Meeder then watched Kriens sign the Miranda
waiver. Lyon Anderson, Chief of Police for the City of Dows, testified he heard
Meeder give the Miranda warnings to Kriens and saw him sign the form while at
Kriens' home. Following the evidentiary hearing, the district court denied Kriens'
motion to suppress.

      Kriens subsequently entered into a plea agreement and pleaded guilty. At
sentencing, he was allowed to modify his guilty plea to reserve the right to appeal the
denial of his motions to dismiss and to suppress. Kriens also reserved the right to
appeal the district court's determination that Kriens' prior conviction for attempted
second-degree burglary constituted a violent felony under 18 U.S.C. § 924(e)(2)(B).

                                           II

       Kriens first argues that the federal prosecution was initiated in violation of the
Fifth and Sixth Amendments. He claims that Symens used information obtained
during his earlier representation of Kriens to file the state charge. Symens then
threatened to transfer the prosecution to the federal government in an attempt to
coerce a guilty plea. When Kriens refused to plead guilty, Symens transferred the
prosecution to federal authorities to punish him, and then aided their prosecution by
disclosing confidential attorney-client information. Kriens claims Symens told
federal authorities that he had information about drug-related activities in the Mason
City area, and that federal prosecutors used the information unfairly during plea
negotiations. Finally, Kriens argues that because Symens had represented him
previously on unrelated drug charges, the state prosecution was improper from its
inception, and by accepting transfer of the prosecution federal authorities joined in
the original wrongdoing.




                                          -4-
       We review de novo a district court's order denying a motion to dismiss the
indictment. United States v. Hill, 210 F.3d 881, 883 (8th Cir. 2000). Absent an
actual or substantial threat of prejudice dismissal is inappropriate for Fifth or Sixth
Amendment violations. United States v. Morrison, 449 U.S. 361, 364-66 (1981).
Prosecutors have broad discretion when making charging decisions. United States
v. Beede, 974 F.2d 948, 952 (8th Cir. 1992). The decision by a state prosecutor to
proceed with charges against a defendant does not preclude a later decision by a
federal prosecutor to prosecute in federal court. Id. Similarly, if a defendant can be
prosecuted in either state or federal court, the deferral of a prosecution to the federal
system after a defendant elects to proceed to trial in state court is permissible. Id.
"The fact that the federal government prosecutes a federal crime in a federal court that
could or has been prosecuted as a state crime in state court does not itself violate due
process." United States v. Turpin, 920 F.2d 1377, 1388 (8th Cir. 1990).

       Prosecutors may not, however, base a decision to prosecute on "impermissible
factors such as race, religion, or other arbitrary and unjustifiable classifications."
United States v. Jacobs, 4 F.3d 603, 605 (8th Cir. 1993) (per curiam). Similarly, a
prosecutor may not pursue a prosecution out of vindictiveness or in response to a
defendant's exercise of a legal right. Beede, 974 F.2d at 951. The burden is on the
defendant to prove through objective evidence that the decision to prosecute or
transfer prosecution was borne of a desire to punish him for the exercise of a legal
right. Id. (citing United States v. Goody, 457 U.S. 368, 384 n.19 (1982)).

       Kriens has failed to produce any objective evidence that the prosecution was
based upon impermissible factors, or that it was intended to punish him for exercising
a legal right. Although a defendant may, in rare instances, rely upon a presumption
of vindictiveness, see Beede, 974 F.2d at 951, Kriens does not benefit from such a
presumption in this case simply because the federal government prosecuted him after
he refused to plead guilty in state court, see id. at 952. Accordingly, Kriens' claim
that the prosecution violated the Fifth Amendment fails.

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        Similarly, Kriens has failed to demonstrate that the prosecution violated the
Sixth Amendment. It would be improper to prosecute a defendant on the basis of
facts wholly or partially acquired by the prosecutor from the accused's private
attorney. Cf. Gajewski v. United States, 321 F.2d 261, 267 (8th Cir. 1963) (holding
that it would be improper for a United States district attorney to prosecute a defendant
using information the prosecutor had obtained while acting as the accused's private
attorney). The burden, however, is on the defendant to show that the representation
or the proceedings leading to his conviction were adversely affected by virtue of a
Sixth Amendment violation in order to obtain a dismissal of the indictment. United
States v. Solomon, 679 F.2d 1246, 1250 (8th Cir. 1982).

       Kriens has failed to make such a showing. Kriens argues that federal
authorities obtained information about his knowledge of drug-related activities in
Mason City from Symens. The district court specifically rejected that claim, finding
there were any number of ways federal prosecutors could have obtained the
information. That finding is not clearly erroneous. Further, any such information was
irrelevant to the prosecution. It was unnecessary for federal authorities to prove
Kriens was knowledgeable about drug activities in Mason City to succeed in the
firearms prosecution. Thus, even assuming Symens disclosed confidential
communications, the proper remedy would be suppression of the information. Cf.
Solomon, 679 F.2d 1251-52 (holding that when government agents obtained
information by means of a constitutional intrusion the proper remedy, absent a
showing of prejudice, is exclusion of the information not dismissal of the indictment).
Accordingly, Kriens' claim that the prosecution violated the Sixth Amendment fails.

      Kriens next argues the federal prosecution violated the government's Petite
policy, by which the United States Department of Justice refrains from prosecuting
persons in federal court if their crimes were part of a previous state prosecution,
unless specifically authorized in advance. See Petite v. United States, 361 U.S. 529,
531 (1960); Thompson v. United States, 444 U.S. 248 (1980) (per curiam) (under the

                                          -6-
policy a United States attorney may not prosecute a person in federal court if the
alleged criminality was an ingredient of a previous state prosecution against that
person unless the federal prosecution is specifically authorized in advance by the
Department of Justice itself upon a finding that the prosecution will serve compelling
interests of federal law enforcement). The Petite policy does not transfer any
substantive rights to an accused and cannot form the basis for a claim that the
prosecution was improper, United States v. Basile, 109 F.3d 1304, 1308 (8th Cir.
1997), thus, Kriens' argument is rejected.

       Kriens next argues that the district court erred when it refused to suppress the
incriminating statements he made during the videotaped interview. Kriens contends
the statements were made before he was given his Miranda warnings and should have
been suppressed. Miranda provides that law enforcement officers must inform a
suspect in their custody of his right not to incriminate himself and his right to an
attorney. 384 U.S. at 444. Failure to do so renders a suspect's statements
inadmissible. Id. We review the factual findings supporting the district court's denial
of a motion to suppress evidence for clear error and the legal conclusions based upon
those facts de novo. See United States v. Beatty, 170 F.3d 811, 813 (8th Cir. 1999).
The district court found that despite inconsistencies in the police dispatch log, there
existed sufficient evidence to establish Kriens was provided his Miranda warnings
prior to his interrogation and prior to making the incriminating statements. Our
review of the record supports that finding. We therefore reject Kriens' claim that the
district court erred by not suppressing his incriminating statements.

      Kriens next contends he was improperly refused the opportunity at the
evidentiary hearing to make an offer of proof and to question federal prosecutors.
Kriens argues that the offer of proof and questioning of the prosecutors was necessary
to determine what if any confidential information was disclosed by Symens. We
review a district court's decision to exclude evidence for an abuse of discretion. See
Excel Corp. v. Bosley, 165 F.3d 635, 640 (8th Cir. 1999). The district court

                                         -7-
considered and rejected Kriens' claim that Symens disclosed privileged information.
The district court also concluded that, even assuming the truth of Kriens' allegations,
any such information was unrelated to the present prosecution. Consequently, we
find no abuse of discretion.

       Finally, Kriens claims the district court erred when it found that his prior
conviction in Iowa for second-degree attempted burglary was a crime of violence.
Kriens argues the conviction should not have been used to enhance his sentence
under 18 U.S.C. § 924(e)(2)(B). The district court's determination that a prior offense
constitutes a crime of violence is reviewed de novo. United States v. Sumlin, 147
F.3d 763, 765 (8th Cir. 1998).

       On March 25, 1985 Kriens was convicted of attempted burglary in the second
degree. In his plea agreement in the present case Kriens stipulated that he had been
convicted of attempted burglary in the second degree in connection with his attempt
to break into a commercial building. Under § 924(e) a defendant convicted of being
a felon in possession of a firearm faces a minimum term of fifteen years imprisonment
if he has three prior convictions for serious drug offenses or violent felonies.
"Burglary" is included in the definition of "violent felony." See 18 U.S.C. §
924(e)(2)(B)(ii). For purposes of § 924(e), the Supreme Court has defined "burglary"
generically as "any crime . . . having the basic elements of unlawful or unprivileged
entry into, or remaining in, a building or structure, with intent to commit a crime."
Taylor v. United States, 495 U.S. 575, 599 (1990). We have previously held that
commercial burglary constitutes a crime of violence. United States v. Stevens, 149
F.3d 747, 749 (8th Cir. 1998). The burglary of a commercial building poses a
potential for violence so substantial as to be a crime of violence. United States v.
Hascall, 76 F.3d 902, 905 (8th Cir. 1996). We have also held that attempted burglary
can be a crime of violence. United States v. Solomon, 998 F.2d 587, 589 (8th Cir.
1993).



                                         -8-
        Kriens nonetheless argues that the then-existing Iowa burglary statute
contained language not included in the generic burglary definition relied upon by the
Supreme Court in Taylor. For example, "occupied structure" included railroad cars,
automobiles, and water crafts. Iowa Code § 702.12 (1984). Further, a defendant
could commit an attempted burglary without engaging in conduct that presented a
serious potential risk of physical injury to another. Id. Kriens argues that because the
state burglary statute covered a broader scope of conduct than our generic definition
of burglary, the district court should have looked to the charging paper to determine
if his offense conduct fell within the generic definition. He contends the government
did not present the charging paper, and therefore the proof was insufficient. In
support of his argument he cites United States v. Payton, 918 F.2d 54, 55 (8th Cir.
1990). In Payton the district court looked to a police report to determine if a burglary
conviction could be used to enhance the sentence. On appeal, we held that a police
report, or similar outside evidence, is not sufficiently reliable and cannot be used in
place of the charging papers. Id. We did not hold that a criminal defendant's
admission that he committed the crime of attempted burglary of a commercial
building was insufficient to support a determination that the defendant had a
qualifying burglary conviction. Once the government presented evidence that Kriens
had been convicted of a crime of violence, the burden shifted to him to prove, by a
preponderance of the evidence, that the attempted second-degree burglary conviction
was not a crime of violence, i.e., it did not meet the criteria outlined in our generic
definition. United States v. Redding, 16 F.3d 298, 302 (8th Cir. 1994). It is not
enough that under Iowa law a defendant could have been convicted under a burglary
statute for conduct falling outside of our generic definition of burglary. Kriens was
obliged to show that he was convicted of conduct falling outside the definition. He
has failed to do so, and we therefore affirm the district court's finding.

                                          III

      The judgment and sentence of the district court is affirmed.

                                          -9-
A true copy.

      Attest:

         CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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