United States v. James Edward Currie , 682 F.2d 846 ( 1982 )

682 F.2d 846

UNITED STATES of America, Plaintiff-Appellant,
v.
James Edward CURRIE, Defendant-Appellee.

No. 80-1835.

United States Court of Appeals,
Ninth Circuit.

July 29, 1982.

Appeal from the United States District Court for the Central District of California; Robert J. Kelleher, Judge.

Richard B. Kendall, Asst. U. S. Atty., Los Angeles, Cal., argued, for plaintiff-appellant; Robert L. Brosio, Asst. U. S. Atty., Los Angeles, Cal., on brief.

Alan M. Zarky, Deputy Federal Public Defender, Los Angeles, Cal., for defendant-appellee.

Before NELSON and CANBY, Circuit Judges, and WILKINS,* District Judge.

PER CURIAM:

1

On September 19, 1980, a superseding indictment was returned in the United States District Court for the Central District of California, charging defendant James Edward Currie with the felony of unlawfully disposing of a United States Treasury check with a value in excess of $100, in violation of 18 U.S.C. § 641. The district court thereafter dismissed the felony indictment, finding that it had been vindictively brought after defendant invoked his right to be tried on a related misdemeanor charge that previously was filed against him.

2

On August 17, 1981, this court affirmed the judgment of the district court. The Government filed a timely petition for rehearing and suggestion for rehearing en banc. On February 5, 1982, this court issued an amended opinion, which is reported at 667 F.2d 1251 (9th Cir.). The Government's petition for rehearing was denied and the suggestion for en banc was rejected by order filed February 10, 1982.

3

The Government petitioned for writ of certiorari in the Supreme Court of the United States. On June 21, 1982, the Supreme Court granted the Government's petition for a writ of certiorari. The Court then vacated the judgment and remanded the case to the United States Court of Appeals for the Ninth Circuit for further consideration in light of United States v. Goodwin, 457 U.S. ----, 102 S.Ct. 2485, 72 L.Ed.2d ----, 42 CCH S.Ct.Bull. 3225 (June 18, 1982). United States v. Currie, 457 U.S. ----, 102 S.Ct. 2952, 72 L.Ed.2d ----, 42 CCH S.Ct.Bull. 3353 (1982).

4

Having reconsidered this case in light of United States v. Goodwin, supra, we hereby reverse and remand this case to the district court for reinstatement of the indictment. This, however, does not preclude the district court from taking further evidence on the question of actual vindictiveness.

5

REVERSED AND REMANDED.

*

Honorable Philip C. Wilkins, Chief Judge, United States District Court, Eastern District of California, sitting by designation