                                                                United States Court of Appeals
                                                                         Fifth Circuit
                                                                      F I L E D
                       UNITED STATES COURT OF APPEALS                   July 31, 1996

                           FOR THE FIFTH CIRCUIT                  Charles R. Fulbruge III
                                                                          Clerk


                                No. 95-50709
                              Summary Calendar


                         UNITED STATES OF AMERICA,

                                                         Plaintiff-Appellee,


                                       VERSUS


                             ALAN WADE JOHNSON,

                                                        Defendant-Appellant.




              Appeal from the United States District Court
                    for the Western District of Texas




Before WIENER, E. GARZA, and PARKER, Circuit Judges.

ROBERT M. PARKER, Circuit Judge:

                                       FACTS

         In October 1990, special agents of the Bureau of Alcohol,

Tobacco and Firearms (“ATF”) were informed that a destructive

device consisting of dynamite and a detonation cord had been found

at   a    place   of   business   in    El   Paso,   Texas   called   Sharkey’s

Billiards.        An employee of Sharkey’s suggested the name of the
defendant, Alan Wade Johnson (“Johnson”), as a possible suspect.

The investigation led to the discovery that Johnson, a convicted

felon, had purchased a .45 caliber pistol and a nine millimeter

pistol at Benny’s Pawn Shop in El Paso.           In addition to being a

felon in possession, it appeared that Johnson had executed treasury

form 4473 to acquire these firearms and had denied his prior felony

conviction. The case against Johnson was presented to an Assistant

United States Attorney (“AUSA”) in June, 1991.            In the meantime,

however, the State of Texas had charged Johnson with aggravated

robbery and capital murder. The firearms which were central to the

ATF investigation were also apparently evidence in the state

criminal prosecution.     The AUSA in charge of the case decided to

defer to the state and to decline federal prosecution for the

firearms violations at that time.          The ATF investigation then lay

dormant until Johnson’s state trial on the charge of capital

murder.   Johnson was found “not guilty” by the jury.           The ATF then

revived its investigation, and the original indictment in the

instant   case   was   returned   in   December   1993.     A   superseding

indictment was returned in July 1994.

                           PROCEEDINGS BELOW

     The superseding indictment charged Johnson with six counts of

possession of a firearm by a felon, two counts of making a false

statement on an ATF form, and one count of possession of a silencer

that had not been registered to him.            The Government also gave

notice of its intent to seek an enhanced penalty under 18 U.S.C. §

                                       2
924(e)(1) based on Johnson's six prior felony convictions for

crimes of violence.   Johnson filed a motion to dismiss the case for

vindictive prosecution.      After hearing the testimony of the state

and federal prosecutors detailing the decision-making process which

preceded the federal indictment, the district court determined that

Johnson had not shown prosecutorial vindictiveness and denied this

motion.

      On July 25, 1995, following a jury trial that began the

previous day, Johnson was found guilty as charged in Counts One

through Four and Counts Six through Nine of the indictment.1

Johnson timely filed a notice of appeal, contending that the

district   court   erred   in   refusing   to   dismiss   the   superseding

indictment due to prosecutorial vindictiveness.

                                DISCUSSION

      Johnson contends that we may find prosecutorial vindictiveness

if we agree with his assertion that the State of Texas used the

federal prosecution as a tool for subjecting Johnson to successive

prosecutions. He bases this argument upon an exception to the dual

sovereignty doctrine.      In order to understand his argument we must

first examine that doctrine.




  1
   The district court granted Johnson's motion to require the
Government to elect between counts five and eight because these
counts were multiplicitous. The Government elected to proceed to
trial on count eight and dismissed count five.

                                     3
      Under the dual sovereignty doctrine, successive prosecutions

by separate sovereigns for crimes arising out of the same acts are

not barred by the Double Jeopardy Clause.             United States v. Lanza,

260 U.S. 377, 382, 43 S. Ct. 141, 142-43, 67 L. Ed. 314 (1922).

However, "[t]he Supreme Court has suggested that an exception to

the   dual    sovereign    doctrine    exists    when    prosecution      by   one

sovereign is used as a tool for successive prosecution by another

sovereign." Id. (citing Bartkus v. Illinois, 359 U.S. 121, 123-24,

79 S. Ct. 676, 678, 3 L. Ed. 2d 684 (1959)).            It is this exception,

referred to as the Bartkus exception, that Johnson urges us to

consider.

      Johnson requests this court to apply the Bartkus exception,

not   in   the   context   of   an   exception   to     the    dual   sovereignty

doctrine, but rather as an exception to the general rule that

successive prosecutions by different sovereigns tend to negate a

finding of prosecutorial vindictiveness.          See, e.g., United States

v. Heidecke, 900 F.2d 1155, 1159 (7th Cir. 1990)(“[w]here there are

successive prosecutions by two sovereigns . . . it is improbable

that a realistic likelihood of vindictiveness exists”); United

States v. Schoolcraft, 879 F.2d 64 (3d Cir.), cert. denied, 493

U.S. 995 (1989)(“the role of a separate sovereign in bringing

charges      against   a   defendant       minimizes     the     likelihood    of

prosecutorial abuse”); United States v. Ng, 699 F.2d 63, 68 (2d

Cir. 1983) (“the fact that the prosecutions of the defendants are


                                       4
by two different sovereigns, each acting independently under its

own laws and in its own interest without any control of or by the

other,   renders     inapplicable     the       concept   of     prosecutorial

vindictiveness”).    Assuming, arguendo, that the Bartkus exception

is applicable to the general rule that successive prosecutions by

different   sovereigns      negate        a    finding    of     prosecutorial

vindictiveness, we will review the findings of the trial court.

     A   district    court's    factual        findings   on     prosecutorial

vindictiveness     are   reviewed    for      clear   error    and   the   legal

principles which guide the district court are reviewed de novo.

See, e.g., United States v. Bullis, 77 F.3d 1553, 1558 (7th Cir.

1996); United States v. Wall, 37 F.3d 1443, 1448 (10th Cir. 1994);

United States v. Schoolcraft, 879 F.2d 64, 67 (3d Cir.), cert.

denied, 493 U.S. 995, 110 S. Ct. 546, 107 L. Ed. 2d 543 (1989).

But see, United States v. Noushfar, 78 F.3d 1442, 1446 (9th Cir.

1996) (noting that the proper standard of review for vindictive

prosecution is unsettled in the Ninth Circuit).               The inquiry into

prosecutorial conduct in a pretrial context may be distinguished

from conduct occurring thereafter.            United States v. Goodwin, 457

U.S. 368, 379-82, 102 S. Ct. 2485, 2492-93, 73 L. Ed. 2d 74 (1982).

A prosecutor has broad discretion during pretrial proceedings "to

determine the extent of the societal interest in prosecution." Id.

at 382, 102 S. Ct. at 2493.    Absent a presumption of vindictiveness

in this context, the defendant must prove that the prosecutor's


                                      5
conduct was actually vindictive.            United States v. Molina-Iguado,

894 F.2d 1452, 1455 (5th Cir.), cert. denied, 498 U.S. 831, 111 S.

Ct. 2485, 112 L. Ed. 2d 66 (1990).                     This court examines the

prosecutor's   conduct    in    light       of   the    entire   proceedings    to

determine whether it gives rise to a presumption of vindictiveness.

Id. at 1454.   In determining if a presumption of vindictiveness is

warranted,

     the appropriate inquiry is whether . . . for example,
     where, after the defendant's prior exercise of a
     procedural or substantive legal right, or his having
     succeeded in reversing a conviction on appeal, the
     prosecution acts arguably to punish the exercise of such
     rights, by increasing the measure of jeopardy by bringing
     additional or more severe charges[.]

United States v. Ward, 757 F.2d 616, 619-20 (5th Cir. 1985).

     The following relevant evidence was adduced at the hearing on

the motion to dismiss.         During the latter part of 1990 and the

early part of 1991, agents of the ATF became aware that Johnson was

a convicted felon who had purchased two firearms between June and

December 1990. A case report was presented to the United States

Attorney's Office in June 1991 for possession of a firearm by a

felon and falsifying ATF records in order to obtain a firearm.

David Nichols (“Nichols”), the AUSA who was reviewing the case,

declined prosecution at that time because Johnson was facing

charges in Texas state court, and because a firearm central to the

ATF investigation was needed as evidence in the state criminal

prosecution.    Nichols    testified         that      he   decided   to   postpone


                                        6
prosecution until "the state ran its course, whatever it was, or

would be."

     The State of Texas tried Johnson for capital murder beginning

on October 16, 1993, and he was acquitted on December 1, 1993.

During or shortly after the capital-murder trial, Johnson filed a

grievance with the State Bar of Texas (the Bar) against two

assistant district attorneys on the ground that they had withheld

exculpatory evidence during the course of the trial.        In March

1994, the Bar's grievance committee made a finding of misconduct.

     Shortly after the verdict, an assistant district attorney met

with prosecutors from the United States Attorney's Office to

discuss prosecuting Johnson on federal charges and obtaining the

state's evidence.    Government prosecutors learned that the state

still had pending robbery charges against Johnson.        However, a

decision was made to proceed with the federal prosecution to avoid

the appearance that the federal government was "coming in and

sweeping up after the state."      On December 15, 1993, a federal

grand jury returned a two-count indictment, and the nine-count

superseding indictment was returned on July 6, 1994.

     Johnson   has   failed   to   demonstrate   that   circumstances

warranting a presumption of vindictiveness exist in this case.

Johnson has shown no more than that the Government brought charges

for firearms violations after he was acquitted of capital murder in

state court.   The district court found that Johnson's federal

investigation "was ‘put on hold’ not only because the state charges

                                   7
were more serious, but also because some of the evidence essential

to the federal prosecution was in the hands of the state."              The

district court further found that “the federal prosecutors had no

knowledge of the grievance or the reprimand prior to the return of

the superseding indictment."            Those findings are not clearly

erroneous. Absent any presumption of vindictiveness and absent any

evidence of such, Johnson cannot prove that the Government's

prosecution was used as a tool of the state.             Consequently, the

district court   did   not   err   in    refusing   to   dismiss   Johnson’s

superseding indictment.




                              CONCLUSION

     For the foregoing reasons, the judgment of the district court

is AFFIRMED.




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