Appeal from the United States District Court for the Middle District of Pennsylvania, D.C. Crim. No. 88-00024.
Hutchinson, Scirica and Nygaard, Circuit Judges.
This is an appeal from a judgment of conviction and imposition of sentence for violation of 18 U.S.C. § 922(a)(6) (Supp. IV 1986) and 18 U.S.C. § 922(g)(1) (Supp. IV 1986). In particular, David D. Schoolcraft appeals his conviction and enhanced sentence under the Armed Career Criminal Act, 18 U.S.C. § 924(e)(1) (Supp. IV 1986). We hold that Schoolcraft need not have been convicted of one predicate offense before committing the crime underlying a subsequent predicate offense to receive an enhanced sentence under the Armed Career Criminal Act. Because we reject Schoolcraft's other contentions, we will affirm the judgment of conviction and judgment of sentence.
On February 10, 1988, a federal grand jury returned a two count indictment against Schoolcraft. Count one charged a violation of 18 U.S.C. § 922(a)(6), making a false statement in the acquisition of a firearm, and count two charged a violation of 18 U.S.C. § 922(g)(1), unlawful possession of a firearm by a previously convicted person. The Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(1), provides enhanced sentences when a defendant is convicted of § 922(g) and has at least three prior convictions. In this case, the government filed a document entitled "Information Charging Prior Offenses," and alleged in connection with count two that Schoolcraft's prior convictions for six offenses supported enhanced sentencing under the ACCA. The government alleged one prior conviction for burglary, one prior conviction for escape, one prior conviction for robbery, and three prior convictions for armed robbery. The three armed robbery convictions resulted from three robberies which occurred within a two hour period on the same night.
Before trial, Schoolcraft filed numerous motions, including a motion to dismiss the indictment based on vindictive or selective prosecution. He alleged that the district attorney of Adams County, who had referred the case to the federal authorities for prosecution under the ACCA, was motivated by bad faith and vindictiveness. Schoolcraft requested that the indictment be dismissed with prejudice. The district court denied the motion without a hearing. At the jury trial, Schoolcraft was convicted on both counts of the indictment.
Schoolcraft filed a post-verdict notice of intent to challenge enhanced sentencing, claiming that he lacked the three prior convictions necessary to impose an enhanced sentence under the ACCA. He did not contest the burglary and the robbery offenses as predicate offenses for the purposes of sentencing enhancement, but contended that the prior conviction for escape could not be counted as a predicate conviction under the ACCA since it was neither a violent felony nor a serious drug offense under 18 U.S.C. § 924(e)(2). He also argued that the three armed robbery convictions could not be counted as predicate offenses since the offenses took place before he was convicted of the robbery offense.
At the sentencing hearing, the district court declined to count the escape conviction as a predicate conviction under the ACCA. In conformity with the panel opinion in United States v. Balascsak, No. 88-5089, slip op. (3d Cir. September 6, 1988), in which this court held that convictions arising from criminal episodes "distinct in time" subjected a defendant to enhanced sentencing under the ACCA, the district court included the three armed robberies as predicate convictions. Based on (1) the burglary, (2) the robbery, and (3) the three armed robberies, the district court found prior convictions sufficient to support enhanced sentencing under the ACCA. Schoolcraft was sentenced to five years imprisonment on count one and fifteen years on count two, both to run concurrently. Fifteen years is the minimum sentence under the ACCA. 18 U.S.C. § 924(e)(1).
After the imposition of sentence, our court of appeals vacated the Balascsak panel opinion that was followed by the district court in this case. United States v. Balascsak, No. 88-5089 (3d Cir. September 29, 1988) (vacating opinion and judgment and granting rehearing in banc). Schoolcraft filed a timely notice of appeal from the judgment of conviction and imposition of sentence. He asserts that: (1) the district erred in denying without a hearing, his motion to dismiss the indictment on the basis of vindictive or selective prosecution; (2) the government failed to present sufficient evidence that he had been convicted of a crime punishable by imprisonment for a term exceeding one year; and (3) the government failed to establish predicate convictions sufficient to support enhanced sentencing under the ACCA. We have jurisdiction under 28 U.S.C. § 1291.
Schoolcraft contends that when the Adams County district attorney referred the firearms offenses to the United States attorney for prosecution under the ACCA, the referral was tainted by bad faith and vindictiveness. Schoolcraft makes two principal allegations. First, he claims that the district attorney initially brought state charges against him for rape, carrying a firearm without a license, and ownership of a firearm by a former convict. According to Schoolcraft, the district attorney then referred the firearms counts to the federal authorities knowing that he would be subject to stiffer penalties under the ACCA. In the state prosecution, Schoolcraft says he was convicted of rape, but was granted a new trial.
Second, Schoolcraft alleges that the district attorney, as private counsel, represented private parties opposing Schoolcraft in a contract dispute. According to Schoolcraft, the dispute ended in a settlement favorable to him, and the district attorney told him that if he ever came before him, the district attorney would "nail him to the wall." Schoolcraft claims that these facts demonstrate that the district attorney's referral of the firearms counts to the federal authorities was motivated by bad faith. He argues that the actions of the district attorney constituted both vindictive and selective prosecution and that he was deprived of his right to due process and equal protection of the law.
In both vindictive and selective prosecution claims, we review the district court's determinations of fact under the clearly erroneous standard. United States v. Meyer, 258 U.S. App. D.C. 263, 810 F.2d 1242, 1244 (D.C.Cir. 1987), cert. denied, 485 U.S. 940, 108 S. Ct. 1121, 99 L. Ed. 2d 281 (1988); United States v. Wilson, 639 F.2d 500, 503 n. 2 (9th Cir. 1981); United States v. Ojala, 544 F.2d 940, 944 (8th Cir. 1976). The district court's application of legal precepts in these claims are given plenary review. See Universal Minerals Inc. v. C.A. Hughes & Co., 669 F.2d 98, 103 (3d Cir. 1981).
Prosecutorial vindictiveness may occur when the government penalizes a defendant for invoking legally protected rights. United States v. Goodwin, 457 U.S. 368, 372, 73 L. Ed. 2d 74, 102 S. Ct. 2485(1982); Bordenkircher v. Hayes, 434 U.S. 357, 363, 54 L. Ed. 2d 604, 98 S. Ct. 663(1978); Blackledge v. Perry, 417 U.S. 21, 28, 40 L. Ed. 2d 628, 94 S. Ct. 2098(1974). There is no prosecutorial vindictiveness, however, where the prosecutor's decision to prosecute is based on the usual determinative factors. United States v. Oliver, 787 F.2d 124, 126 (3d Cir. 1986) (citing United States v. DeMichael, 692 F.2d 1059 (7th Cir. 1982); United States v. Ballester, 763 F.2d 368 (9th Cir.), cert. denied, 474 U.S. 842, 106 S. Ct. 126, 88 L. Ed. 2d 103 (1985); United States v. Robison, 644 F.2d 1270, 1272 (9th Cir. 1981)).
In this kind of case, our focus is not on the district attorney's actions, but rather on the actions of the United States attorney who prosecuted this case. We note that the role of a separate sovereign in bringing charges against a defendant minimizes the likelihood of prosecutorial abuse. Ballestar, 763 F.2d at 370. Indeed, the involvement of a separate sovereign tends to negate a vindictive prosecution claim. Robison, 644 F.2d at 1273. See also United States v. McGriff, 678 F. Supp. 1010, 1012 (E.D.N.Y. 1988) ("the doctrine of prosecutorial vindictiveness does not apply to ...