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UNITED STATES v. LUNA

July 9, 1991

UNITED STATES OF AMERICA, Plaintiff,
v.
CLEMENTE LUNA, Defendant



The opinion of the court was delivered by: LYNCH

 EUGENE F. LYNCH, UNITED STATES DISTRICT JUDGE

 I. INTRODUCTION

 In this memorandum opinion the Court addresses the issue of who bears the burden of proof when a defendant convicted of an offense involving greater than five kilograms of cocaine and facing enhanced punishment pursuant to Title 21 U.S.C. section 841(b)(1)(A) on account of prior convictions challenges one of the prior convictions on grounds that he was convicted pursuant to a plea of guilty into which he did not knowingly and voluntarily enter. For the reasons set forth below, the Court concludes that such a defendant bears the burden of proving by a preponderance of evidence that such a prior conviction should not be utilized to enhance his punishment.

 II. BACKGROUND

 On July 18, 1990, defendant was charged by indictment with two counts of possession of cocaine with intent to distribute, 21 U.S.C. § 841(a)(1), one count of possession of heroin with intent to distribute, 21 U.S.C. § 841(a)(1), and one count of conspiracy to possess cocaine with intent to distribute, 21 U.S.C. § 846, 21 U.S.C. § 841(a)(1). On December 11, 1990, the government, in order to enhance defendant's punishment in the event of conviction, filed an information charging that defendant had previously been convicted of three cocaine-related federal felonies on January 19, 1977, *fn1" and had previously been convicted of a cocaine-related California felony on July 7, 1987. *fn2"

 On April 24, 1991, defendant filed papers in which he challenged his 1987 cocaine-related conviction. Defendant alleged that he was convicted pursuant to a plea of guilty, that he did not speak or understand the English language at the time, that he was not provided with an interpreter and that consequentially he did not knowingly and voluntarily enter into his plea of guilty as is required under the cases of Boykin v. Alabama, 395 U.S. 238, 23 L. Ed. 2d 274, 89 S. Ct. 1709 (1969) and In re Tahl, 1 Cal. 3d 122, 81 Cal. Rptr. 577, 460 P.2d 449 (1969).

 Defendant's claim triggers the provisions of Title 21 U.S.C. section 851 ("section 851") which sets forth the procedures under which one may challenge prior convictions that the government charges should be utilized to enhance punishment pursuant to Title 21 U.S.C. section 841(b)(1)(A). Unfortunately, section 851 is anything but a model of clarity. Title 21 U.S.C. section 851(c)(1) ("paragraph (1)") provides in pertinent part:

 
If the person denies any allegation of the information of prior conviction, or claims that any conviction alleged is invalid, he shall file a written response to the information. Except as otherwise provided in paragraph (2) of this subsection, the United States attorney shall have the burden of proof beyond a reasonable doubt on any issue of fact.

 21 U.S.C. § 851(c)(1) (emphasis added). Title 21 U.S.C. section 851(c)(2) ("paragraph (2)") provides in pertinent part:

 
A person claiming that a conviction alleged in the information was obtained in violation of the Constitution of the United States shall set forth his claim, and the factual basis therefore, with particularity in his response to the information. The person shall have the burden of proof by preponderance of the evidence on any issue of fact raised by the response. . . .

 The Court and the parties have located no published opinions addressing who bears the burden of proof under Title 21 U.S.C. section 851(c) ("section 851(c)"). Of course, defendant has argued that paragraph (1) applies and that the government accordingly bears the burden of proving beyond a reasonable doubt that defendant's 1987 conviction should be utilized to enhance defendant's punishment. Of course, the government, on the other hand, has argued that paragraph (2) applies and that defendant accordingly bears the burden of proving by a preponderance of the evidence that the 1987 conviction should not be utilized to enhance defendant's punishment. The parties have had a ...


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