United States v. Horton ( 2003 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 02-4131
JOHN D. HORTON,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
Malcolm J. Howard, District Judge.
(CR-02-4-H)
Submitted: July 25, 2003
Decided: August 14, 2003
Before WILKINSON and TRAXLER, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
Vacated and remanded by unpublished per curiam opinion.
COUNSEL
John D. Horton, Appellant Pro Se. Anne Margaret Hayes, Assistant
United States Attorney, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. HORTON
OPINION
PER CURIAM:
John D. Horton appeals the district court order affirming the magis-
trate judge’s judgment finding Horton guilty of destruction of govern-
ment property, in violation of 18 U.S.C. § 1361 (2000), and resisting,
delaying, or obstructing a police officer, in violation of 18 U.S.C.
§ 13 (2000) (assimilating N.C. Gen. Stat. § 14-223 (2003)). Horton,
who proceeds pro se on appeal, raises numerous challenges to his
conviction. We conclude his convictions must be vacated and
remanded for the following reasons.
A magistrate judge may not try a case unless the defendant con-
sents, either in writing or on the record, to disposition by the magis-
trate judge. 18 U.S.C. § 3401 (2000). There is no record Horton ever
gave his consent in any form, and the Government concedes Horton
is entitled to a new trial for this reason. We agree and vacate Horton’s
convictions and remand for further proceedings.
Horton raises four arguments that, if meritorious, could require the
dismissal of one or both counts. Horton asserts the information was
insufficient; that he was the victim of prosecutorial vindictiveness;
that the resisting an officer count was not properly assimilated under
the Assimilative Crimes Act; and the Air Force initiated the stop of
his vehicle without probable cause. Horton failed to assert these
issues before trial. Therefore, we review for plain error. United States
v. Olano, 507 U.S. 725, 732 (1993).
First, Horton argues the information was insufficient as to the
resisting an officer count. We have reviewed the information and find
no error. See United States v. Bolden, 325 F.3d 471, 490 (4th Cir.
2003).
Second, Horton argues he was the victim of a vindictive prosecu-
tion. To establish prosecutorial vindictiveness, Horton must show
through objective evidence that the prosecutor acted with genuine ani-
mus toward him and, but for the animus, he would not have been
prosecuted. See United States v. Wilson, 262 F.3d 305, 314 (4th Cir.
UNITED STATES v. HORTON 3
2001), cert. denied, 535 U.S. 1053 (2002). Horton conclusorily
asserts the Air Force’s actions were attributable to his EEO and Merit
Systems Protection Board complaints against the Air Force. We find
Horton has not demonstrated plain error in this respect.
Horton argues the district court did not have jurisdiction over the
charge of resisting a police officer because the offense was not prop-
erly assimilated under the Assimilative Crimes Act. Horton argues his
conduct was encompassed in the federal obstruction statutes. We have
reviewed those statutes and find no plain error in this regard.
Horton also argues the Air Force did not have probable cause to
stop him because he was never charged with a crime for the circum-
stances that led to the initial stop. We find Horton has not established
plain error as to this claim. See United States v. Jenkins, 986 F.2d 76(4th Cir. 1993); United States v. Hassan El, 5 F.3d 726 (4th Cir.
1993).
We deny Horton’s motion for an independent counsel, for class
action status, and for an injunction. Because we vacate Horton’s con-
victions and remand for further proceedings for the reasons stated
above, we decline to address the remainder of his claims. We dis-
pense with oral argument because the facts and legal contentions are
adequately presented in the materials before the court and argument
would not aid the decisional process.
VACATED AND REMANDED