1

The Honorable Henry E. Autrey, United States District Judge for the Eastern

District of Missouri, sitting by designation.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 02-2715

___________

United States of America, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the

* Western District of Missouri.

Charles Carl Graham, *

*

Appellant. *

___________

Submitted: January 15, 2003

Filed: March 12, 2003

___________

Before WOLLMAN and MURPHY, Circuit Judges, and AUTREY,1

 District Judge.

___________

WOLLMAN, Circuit Judge.

Charles Carl Graham was convicted in Missouri state court of second degree

murder and attempt to manufacture methamphetamine. After Graham successfully

appealed the attempt conviction, the Assistant United States Attorney (AUSA) who

had served as a special prosecutor in Graham’s state case sought a four-count federal

indictment against Graham for drug-related activity. Graham was convicted of all

four federal counts and sentenced to life in prison. Graham contends on appeal that
2

The Honorable Howard F. Sachs, United States District Judge for the Western

District of Missouri, denied Graham’s motion. The case was then transferred to the

Honorable Dean Whipple, United States District Judge for the Western District of

Missouri.

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the district court2

 erred by denying his motion to dismiss the indictment for vindictive

prosecution and by sentencing him in accordance with the guidelines for murder

rather than the guidelines for drug offenses. He also challenges the sufficiency of the

evidence supporting his convictions. We affirm. 

I. Background

Trial testimony indicated that Graham had been involved in the manufacture

and distribution of methamphetamine since 1995. In September 1996, Graham

entered into a lease agreement for property located in rural Missouri near Blairstown

in Henry County. He also purchased a mobile home that was located on the property.

On September 16, 1996, an explosion and fire destroyed a wooden outbuilding

located approximately twenty yards behind the mobile home. Michael Duncan and

David Alexander were burned in the fire. Alexander died as a result of the injuries

he sustained. 

Deputy Sheriff Jerry Mosley arrived on the scene shortly after the explosion.

He observed a hot plate, microwave oven, Pyrex bowls, beakers, and plastic bottles

in the debris of the burned out building. Deputy Mosley spoke with Graham, who

indicated that he was not present when the fire started but that he believed a gasoline

engine on a weed eater or lawn mower had caused the fire. Deputy Mosley’s

subsequent investigation, however, led him to conclude that the fire had been caused

by a working methamphetamine lab. A search of the property revealed various items

that tended to support such a conclusion, including a bottle of mannitol, Vision Ware

and Pyrex brand cookware, round bottom and flat bottom flasks, six cans of Coleman

fuel, a gallon of acetone, several cans of acetone, twenty-four bottles of
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pseudoephedrine, funnels, plastic tubing, a pressure cooker containing a white

powder in a liquid solution, and three one-pound bottles of iodine pills, a pellet form

of black iodine. Officers also found a photocopy of the book Uncle Fester’s Secret

for Methamphetamine Manufacturing and a large amount of cash in the mobile home.

Graham was arrested at the scene. After his release, Graham met with Steve

McKee, one of Duncan’s associates. Graham suggested that McKee move his

methamphetamine lab to a building in North Kansas City. The lab was moved, and

in December 1996 Graham and McKee produced approximately one pound, five

ounces of methamphetamine. At trial, the lessee of the North Kansas City building

identified Graham as the tenant of the property from spring 1996 to spring 1997.

In November 1997, AUSA Mark Miller, as special prosecutor for Henry

County, Missouri, filed separate criminal complaints in state court charging Graham

and Duncan with second degree murder (felony murder) and attempted manufacture

of methamphetamine. On December 10, 1997, Miller filed a felony information

charging Graham with the same offenses. While in custody, Graham spoke with

Sergeant James Wingo. Graham told Sergeant Wingo that he had been at the rural

Blairstown property when the September 16, 1996, fire started. Graham explained

that while he was sleeping in the mobile home, Duncan and another individual arrived

and started cooking methamphetamine. According to Graham, he was awakened by

the commotion following the explosion and saw both Duncan and Alexander

“running around in the yard on fire.” Graham also indicated that he had learned how

to manufacture methamphetamine from Duncan and that he had been involved in

several large cooks with Duncan prior to the September 16 fire.

Miller prosecuted the state case against Graham. A jury convicted Graham of

both second degree murder and attempt to manufacture methamphetamine. Graham

was sentenced to thirty years in prison on the murder count and fifteen years on the

attempt count. He appealed, arguing, inter alia, that the trial court had erred in
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The Honorable Sarah W. Hays, United States Magistrate Judge for the

Western District of Missouri.

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instructing the jury on the attempt charge. The Missouri Court of Appeals affirmed

the murder conviction but reversed the attempt conviction and remanded for a new

trial on the attempt charge. See State v. Graham, 2 S.W.3d 859 (Mo. Ct. App. 1999).

The case was set for retrial on June 12, 2000, but was continued. In February 2001,

Henry County prosecutor John Kopp dismissed the remanded attempt charge.

On June 9, 2000, Miller filed a federal criminal complaint, alleging that

Graham had conspired to manufacture methamphetamine between August 1, 1996,

and September 16, 1996, in Henry County. On July 12, 2000, Miller filed a fourcount indictment against Graham, alleging that he had (1) conspired to manufacture

methamphetamine in the amount of one kilogram or more between January 1, 1995,

and January 1, 1997, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), 846; (2) aided

and abetted an attempt to manufacture methamphetamine in the amount of 100 grams

or more in violation of 18 U.S.C. § 2 and 21 U.S.C. §§ 841(a)(1), (b)(1)(B), 846; (3)

created a substantial risk of harm to human life while aiding and abetting an attempt

to manufacture a controlled substance in violation of 18 U.S.C. § 2 and 21 U.S.C. §

858; and (4) made a building available for the purpose of manufacturing

methamphetamine in violation of 21 U.S.C. § 856(a)(2), (b). The latter three charges

related to the events of September 16, 1996.

Graham moved to dismiss the indictment on the ground of vindictive

prosecution. He pointed out that the state criminal charges and the federal indictment

involved essentially the same criminal conduct, that the federal charges were not filed

until after he had successfully appealed his state attempt conviction, and that Miller

prosecuted both the state and federal cases. Thus, Graham concluded, the federal

prosecution was motivated by actual and presumed vindictiveness. The magistrate

judge3

 disagreed, concluding that even if Graham had made a prima facie showing of
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vindictive prosecution, the government had successfully rebutted any possible

inference of vindictiveness. The district court adopted the magistrate judge’s report

and recommendation and denied Graham’s motion. 

On December 14, 2001, Graham was convicted on all four counts in the

indictment. A presentence investigation report was ordered, and Graham objected to,

inter alia, the calculation of his base offense level. The district court overruled

Graham’s objection and sentenced Graham to life imprisonment, to be served

concurrently with the thirty-year sentence imposed by the Henry County Circuit

Court. 

II. Analysis

A. Vindictive Prosecution

In North Carolina v. Pearce, the Supreme Court explained that “[d]ue process

of law . . . requires that vindictiveness against a defendant for having successfully

attacked his first conviction must play no part in the sentence he receives after a new

trial.” 395 U.S. 711, 725 (1969), overruled in part by Alabama v. Smith, 490 U.S.

794 (1989). To assure the absence of retaliatory motivations, the Court concluded

that:

[W]henever a judge imposes a more severe sentence upon a defendant

after a new trial, the reasons for his doing so must affirmatively appear.

Those reasons must be based upon objective information concerning

identifiable conduct on the part of the defendant occurring after the time

of the original sentencing proceeding. And the factual data upon which

the increased sentence is based must be made part of the record . . . . 
4

In Alabama v. Smith, the Supreme Court overruled Simpson v. Rice, the

companion case to North Carolina v. Pearce. The Smith court concluded that no

presumption of vindictiveness arises when the first conviction was based on a guilty

plea, and the increased second sentence followed a trial. Smith, 490 U.S. at 795.

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Id. at 726.4

 In a later opinion, the Supreme Court summarized the rule of Pearce as

follows: “[T]he Court applied a presumption of vindictiveness, which may be

overcome only by objective information in the record justifying the increased

sentence.” United States v. Goodwin, 457 U.S. 368, 374 (1982). 

In Blackledge v. Perry, the Supreme Court extended the “prophylactic rule of

Pearce” to certain circumstances in which “the central figure is not the judge[,] . . .

but the prosecutor.” 417 U.S. 21, 26, 27 (1974). Perry had been convicted of assault

in a state district court with exclusive jurisdiction over misdemeanors and was

sentenced to six months in prison. Id. at 22. Under North Carolina law, Perry was

entitled to a trial de novo in the Superior Court. Id. After Perry filed his notice of

appeal, the prosecutor obtained an indictment charging Perry with a felony, assault

with a deadly weapon, based on the same conduct for which Perry had been tried in

the district court. Id. at 23. Perry pled guilty and was sentenced to a term of five to

seven years in prison. Id. Noting that in such circumstances “[a] prosecutor clearly

has a considerable stake in discouraging convicted misdemeanants from appealing,”

the Court concluded that “it was not constitutionally permissible for the State to

respond to Perry’s invocation of his statutory right to appeal by bringing a more

serious charge against him prior to the trial de novo.” Id. at 27, 28-29. Thus, “[a]s

in Pearce, the Court held that the likelihood of vindictiveness justified a presumption

that would free defendants of apprehension of . . . retaliatory motivation on the part

of the prosecutor.” Goodwin, 457 U.S. at 376.

We have stated that “[a] defendant may demonstrate prosecutorial

vindictiveness in two ways.” United States v. Beede, 974 F.2d 948, 951 (8th Cir.
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1992). “First, a defendant may prove through objective evidence that the prosecutor’s

decision was intended to punish him or her for the exercise of a legal right.” Id.

(citing Goodwin, 457 U.S. at 384 n.19). “Second, a defendant may in certain

circumstances rely on a presumption of vindictiveness.” Id. Graham does not rely

on any objective evidence of vindictiveness; instead, he argues that a presumption of

vindictiveness applies in the circumstances of his case. 

Graham contends that in bringing federal charges against him, Miller was

punishing him for appealing his state attempt conviction. Graham’s claim appears to

fit within the general framework of Perry: after he invoked his right to appeal the

state convictions, Miller prosecuted him in federal court on charges that exposed

Graham to greater punishment than that imposed by the state court. Graham’s case

is distinguishable in one important aspect: in Perry, the defendant was prosecuted

twice by the same sovereign, i.e., the state. The government reminds us that “[g]iven

a variety of fact patterns, federal courts repeatedly have rejected the idea that federal

prosecution, after state proceedings, constitutes vindictive prosecution.” United

States v. Raymer, 941 F.2d 1031, 1041 (10th Cir. 1991) (citations omitted); see also

Beede, 974 F.2d at 951-52 (finding that no presumption of vindictiveness arose when

the federal government prosecuted the defendant after he refused to plead guilty to

pending state charges). We agree with the magistrate judge, however, that this case

“is unique in that the same person, Mark Miller, acted both as a special prosecutor for

Henry County and then brought the indictment against defendant Graham in federal

court.” We also agree that Graham’s circumstances present us with a close question

as to whether he has made “a prima facie showing of vindictive prosecution.”

Nevertheless, we leave this issue for another day, because we agree with the

magistrate judge that the government has successfully rebutted any presumption of

vindictiveness that may have arisen on the facts of this case. 

As an initial matter, we reject Graham’s contention that the government can

rebut a presumption of vindictiveness only by showing that it was impossible to bring
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the federal charges at the time the state charges were initiated. To support his

assertion, Graham relies on the following footnote from Goodwin, which, in turn,

relied on a footnote from the Perry decision: “The presumption again could be

overcome by objective evidence justifying the prosecutor’s action. The [Perry] Court

noted: ‘This would clearly be a different case if the State had shown that it was

impossible to proceed on the more serious charge at the outset . . . .’” Goodwin, 457

U.S. at 376 n.8 (quoting Perry, 417 U.S. at 29 n.7). We agree with the government

that the language from Perry is merely an acknowledgment that the presumption of

vindictiveness can be rebutted by objective evidence justifying the prosecutor’s

action, rather than a bright-line rule limiting the means by which the presumption can

be rebutted. See Pearce, 395 U.S. at 726; see also United States v. Burt, 619 F.2d

831, 836 (9th Cir. 1980) (stating that the presumption of vindictiveness can be

rebutted where the prosecutor can show that his actions were “‘justified by

independent reasons or intervening circumstances which dispel the appearance of

vindictiveness’” (citation omitted)). In short, we do not read either the Goodwin or

Perry footnotes as narrowly as does Graham. Thus, we turn now to the record. 

 The government directs us to evidence indicating that the decision to prosecute

Graham in federal court was made long before he appealed his state court conviction.

This evidence contradicts Graham’s claim that the federal charges were brought to

punish him for exercising his right to appeal. See United States v. Punelli, 892 F.2d

1364, 1372 (8th Cir. 1990). The record also indicates that the decision to prosecute

Graham in both state and federal court was based, in part, on (1) the state prosecutor’s

admission that his office was not equipped to handle the complications of drug

conspiracy cases, and (2) Miller’s conclusion that he could not prosecute Graham for

felony murder under federal law. This evidence also undermines Graham’s assertion

that the federal charges were the result of “an impermissible response to noncriminal,

protected activity,” rather than “a legitimate response to perceived criminal conduct.”

Goodwin, 457 U.S. at 372-73. Finally, we note the circumstances that led to Miller’s

appointment as the special prosecutor in the state case. Before the September 16,
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1996, explosion, Miller learned that Graham had been implicated in a federal

investigation involving Duncan. After the explosion, Miller contacted Henry County

prosecutor John Kopp and advised him that federal charges were being pursued

against Duncan and Graham. According to Kopp, Miller’s prior knowledge regarding

Graham influenced his decision to suggest that Miller act as special prosecutor in the

state case. Kopp also cited his lack of experience with methamphetamine lab cases

and Miller’s experience with such cases as reasons for seeking Miller’s assistance.

Given these circumstances, we, like the magistrate judge, are persuaded that Miller’s

dual role was “justified by sufficiently independent reasons to dispel any possible

appearance of vindictiveness.”

For the reasons discussed above, we conclude that even if the circumstances

of this case had warranted a presumption of vindictiveness, the government has

successfully rebutted this presumption. Thus, the district court did not err in denying

Graham’s motion to dismiss the indictment. 

B. Sentencing Claim

Graham contends that the district court erred by calculating his base offense

level under U.S.S.G. § 2A1.1. “‘We review the application of the guidelines . . . de

novo and factual findings for clear error.’” United States v. Barrios-Perez, 317 F.3d

777, 780 (8th Cir. 2003) (quoting United States v. Gomez, 271 F.3d 779, 781 (8th

Cir. 2001)). 

In determining the appropriate base offense level, the district court looked to

U.S.S.G. § 2D1.1, which applies to certain drug offenses. Section 2D1.1(d)(1) directs

the application of § 2A1.1 (First Degree Murder) if “a victim was killed under

circumstances that would constitute murder under 18 U.S.C. § 1111 had such killing

taken place within the territorial or maritime jurisdiction of the United States.”

Section 1111 defines murder as “the unlawful killing of a human being with malice
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In doing so, the district court concluded that because Alexander’s death

occurred during the commission of a felony, § 2A1.1 applied. We agree that this

guideline applies, but for a different reason. See United States v. Oligmueller, 198

F.3d 669, 671 (8th Cir. 1999) (“We may affirm the district court on any basis

supported by the record.” (citation omitted)).

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aforethought.” 18 U.S.C. § 1111(a). First degree murder includes “[e]very murder

perpetrated by poison, lying in wait, or any other kind of willful, deliberate,

malicious, and premeditated killing,” as well as killings committed during the

perpetration of certain enumerated felonies. Id. “Any other murder is murder in the

second degree.” Id. Thus, malice is an element of murder in the second degree. 

During Graham’s sentencing hearing, the government argued that David

Alexander’s death in the September 16, 1996, fire fell within § 1111's definition of

murder in the second degree. The district court agreed that § 2A1.1 should be

applied in calculating Graham’s base offense level.5

 Graham contends that the

circumstances surrounding Alexander’s death do not support a finding of malice. We

disagree. 

In United States v. Black Elk, 579 F.2d 49, 51 (8th Cir. 1978), we explained

that “[m]alice does not require proof of a subjective intent to kill.” Instead, “[m]alice

may be established by evidence of conduct which is ‘reckless and wanton, and a gross

deviation from a reasonable standard of care, of such a nature that a jury is warranted

in inferring that defendant was aware of a serious risk of death or serious bodily

harm.’” 579 F.2d at 51 (quoting United States v. Cox, 509 F.2d 390, 392 (D.C. Cir.

1974)); see United States v. Bordeaux, 980 F.2d 534, 536 (8th Cir. 1992). Trial

testimony indicated that Graham had been manufacturing methamphetamine, and

soliciting others to join him in doing so, since 1995. Trial testimony also indicated

that the process of manufacturing methamphetamine involves flammable materials

and chemical reactions. We have recognized that “[t]he potential hazards of

methamphetamine manufacture are well documented.” United States v. Walsh, 299
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F.3d 729, 734 (8th Cir.) (citations omitted), cert. denied, 123 S. Ct. 617 (2002). As

Sergeant Wingo testified, one such hazard is explosions. Thus, it is entirely

reasonable to infer that, given his familiarity with the process of manufacturing

methamphetamine, Graham “was aware of a serious risk of death or serious bodily

harm” associated with the operation of a methamphetamine lab. Black Elk, 579 F.2d

at 51. The record therefore supports a finding that Graham’s conduct was “reckless

and wanton, and a gross deviation from a reasonable standard of care.” Id. 

Graham also contends that the government’s position at the sentencing hearing

was inconsistent with its position on his motion to dismiss the federal indictment.

During the hearing on Graham’s motion, the government argued that the decision to

prosecute Graham in both state and federal court was based, in part, on AUSA

Miller’s inability to charge Graham with felony murder under federal law. During the

sentencing hearing, the government argued that the circumstances surrounding

Alexander’s death supported a finding of malice. We see no inconsistency in these

positions. 

For the reasons discussed above, we conclude that the district court did not err

by relying on U.S.S.G. § 2A1.1 in calculating Graham’s base offense level. 

C. Sufficiency of the Evidence 

Although Graham challenges the sufficiency of the evidence supporting his

convictions, he does not direct us to any specific elements wherein the government’s

evidence was lacking. Our review of the record satisfies us that the evidence was

sufficient. Barrios-Perez, 317 F.3d at 778-79 (standard of review). 

The judgment is affirmed. 
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A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.