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UNITED STATES v. JOHNSON

No. 75-1374.

537 F.2d 1170 (1976)

UNITED STATES of America, Appellee, v. Henry James JOHNSON, Jr., Appellant.

United States Court of Appeals, Fourth Circuit.

Decided March 31, 1976.

Attorney(s) appearing for the Case

Joseph R. Goodwin, Charleston, W. Va. (court-appointed), (Michael I. Spiker and Goodwin, Goodwin, Bryan & Lobert, Charleston, W. Va., on brief), for appellant.

John A. Field, III, U. S. Atty., S. D. West Virginia, Charleston, W. Va. (Wayne A. Rich, Jr., Asst. U. S. Atty., Charleston, W. Va. and Michael F. Pezzulli, Third-Year Law Student, on brief), for appellee.

Before WINTER, CRAVEN and BUTZNER, Circuit Judges.

BUTZNER, Circuit Judge:

This appeal presents the question whether, after a guilty plea has been vacated on appeal, a defendant may be prosecuted for charges more serious than those in his original indictment when the prosecutor was aware of the new charges at the time of the plea. We hold that trial on the new charges denies the defendant due process of law.

I

Henry James Johnson, Jr., was indicted on November 3, 1972. He was charged in count one...

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