No showing that second prosecution was vindictive

Where a man prosecuted for possession of a firearm by a convicted felon after his state conviction for murder argued the federal prosecution was brought because he obtained a favorable plea in connection with the killing of a Virginia state police special agent, he failed to overcome the presumption that the government’s decision to bring the present charge is anything but regular and proper.

Background

This action involves the federal prosecution of Travis Aaron Ball for possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1). This federal prosecution follows defendant’s capital murder conviction under Virginia state law in the Circuit Court of the City of Richmond. That case involved the killing of a Virginia state police special agent.

Presently before the court are defendant’s two motions to dismiss the underlying indictment and bar federal prosecution. Defendant primarily contends that his prosecution federally on a related firearm charge is precluded by the Due Process Clause of the Fifth Amendment to the United States Constitution, as impermissibly vindictive and time-barred.

Double jeopardy

Defendant’s double jeopardy argument is foreclosed by the United States Supreme Court’s recent decision in Gamble v. United States, 139 S. Ct. 1960 (2019). There, the court reaffirmed 170 years of precedent and held that “where there are two sovereigns, there are two laws, and two ‘offences.’” Thus, the federal government’s prosecution of an individual under a federal law after a state’s prosecution for the same conduct under a state law does not violate that individual’s Fifth Amendment rights.

Defendant argues Gamble is inapplicable because the prosecution in this case is based upon the government’s dissatisfaction with the sentence imposed by the state court. However, this court is bound by the United States Supreme Court and its mandates. Furthermore, the court in Gamble undoubtedly considered and rejected defendant’s argument when it recognized “that a crime against two sovereigns constitutes two offenses because each sovereign has an interest to vindicate.” This is further emphasized by the fact that defendant’s concern was raised in a dissent, yet was rejected by a majority of the court.

Vindictive prosecution

Defendant next contends that the government’s prosecution of defendant on the firearm charge constitutes vindictive prosecution in violation of the Due Process Clause of the Fifth Amendment. Defendant argues that the government is dissatisfied with the sentence defendant received in state court – a sentence he had a legal right to negotiate. However defendant relies on news articles showing state prosecutors and law enforcement officers, not federal, were disappointed with his state sentence. Moreover, this argument again belies the fact that two sovereigns may pursue separate prosecutions and vindicate their own interests.

Defendant also argues that the government’s refusal in plea discussions to recommend a concurrent prison sentence or limit what sentence it pursues within the statutory penalty range shows prosecutorial vindictiveness. However, these determinations rest within the province of the executive branch and the prosecutors who seek to vindicate society’s interests. This court cannot conclude that defendant’s alleged indicia of vindictiveness overcome the presumption that the government’s decision to bring the present charge is anything but regular and proper.

Undue delay

Defendant’s final argument is that the indictment should be dismissed for unnecessary delay pursuant to Fed. R. Crim. P. 48(b) because the government’s delay in initiating this federal prosecution was allegedly oppressive and purposeful. Defendant relies on alleged delays that occurred before his indictment and arrest on the present federal charge.

However, defendant does not allege any unlawful delay following his federal arrest. Furthermore, defense counsel appeared to concede the Rule 48(b) argument at the motions hearing based upon his further review of the case law. Accordingly, the court declines to exercise its discretion under Rule 48(b) to dismiss the indictment.

Defendant’s motions to dismiss denied.

United States v. Ball, Case No. 3:19-cr-128, Feb. 6, 2020. EDVA at Richmond (Hudson). VLW 020-3-594. 11 pp.