United States v. Daniel McCoy

MEMORANDUM

Daniel Lawrence McCoy appeals his conviction and sentence for possession of cocaine base with intent to distribute and for felon in possession of a firearm. See 21 U.S.C. § 841 (a)(1), (b)(l)(B)(iii); 18 U.S.C. § 922 (g)(1). We affirm in part and vacate and remand in part.

(1) The district court did not err when, based on the evidence in the record, it was persuaded that the officer had probable cause to stop McCoy’s automobile for a brake light violation.

(2) The prosecutor sought and obtained a superseding indictment before trial, though after McCoy filed a motion to suppress evidence. The superseding indictment added the charge of possession with intent to distribute cocaine base on February 3, 2009, to the already charged offense relating to a February 28, 2009, incident. The mere adding of the new charge at that stage of the proceedings did not give rise to an appearance of vindictiveness. See United States v. Kent, 649 F.3d 906 , 912-13 (9th Cir.) cert. denied, — U.S. -, 132 S.Ct. 355 , 181 L.Ed.2d 224 (2011); United States v. Gamez-Orduno, 235 F.3d 453, 463 (9th Cir.2000); United States v. Noushfar, 78 F.3d 1442, 1446 (9th Cir. 1996). Nor was vindictiveness…