IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA
June 17, 2005
UNITED STATES OF AMERICA, PLAINTIFF,
ROBERT BARROCA, DEFENDANT.
The opinion of the court was delivered by: Vaughn R Walker United States District Chief Judge
Defendant has filed objections (Doc #690) to the government's information pursuant to 21 USC § 851 (Doc #678). The objections, if sustained, would affect the statutory maximum sentence to which defendant would be subject to by virtue of his guilty plea (Doc #679) to counts 1 and 3 of the superseding indictment (Doc #14). For the reasons that follow, defendant's objections are OVERRULED.
Defendant was charged in the twenty-two count superseding indictment (Doc #14) with a variety of drug and felon-in-possession offenses. The court granted defendant's motion pursuant to FRCrP 14 to sever for trial the felon-in-possession counts from the drug counts, and a jury trial was held in August and September 1996. Defendant was convicted, Doc ##296, 297, and sentenced to 120 months' custody, Doc ##466, 467. The remaining counts relevant to this order are count 1 (conspiracy to manufacture and distribute methamphetamine in violation of 21 USC § 846) and count 3 (possession of precursor chemicals with intent to manufacture methamphetamine in violation of 21 USC §§ 841(d)(1) and 841(d)(2)).
The government has also filed on May 11, 2004, a three-count second superseding indictment charging in count 1 conspiracy to manufacture and distribute one kilogram or more of a mixture containing a detectable amount of methamphetamine in violation of 21 USC § 846, and in count 3 possession of precursor chemicals with intent to manufacture methamphetamine in violation of 21 USC §§ 841(d)(1) and 841(d)(2).
Defendant has pled guilty to counts 1 and 3 of the superseding indictment, as reflected in the criminal pretrial minutes of defendant's November 30, 2004, guilty plea and the transcript of that hearing. The plea was to the superseding indictment notwithstanding that the most recently filed charging instrument was the second superseding indictment, filed May 11, 2004, half a year before defendant's guilty plea.
Immediately before defendant's guilty plea, the government filed in open court an information pursuant to 21 USC § 851, charging that defendant was convicted in 1987 of the felony sale or transportation of a non-narcotic controlled substance in violation of the California drug laws. Doc #678. Prior convictions for drug felonies can, under certain circumstances, increase the statutory maximum and minimum punishments prescribed under 21 USC § 841(b).
The court sentenced defendant to a term of 20 years in custody on June 14, 2005, with this written order to follow.
Title 21 USC § 851(c) provides that if the defendant "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." Defendant has done so. Doc #690. The substance of the "objections" defendant has filed does not appear to be that which § 851(c) contemplates -- that is, nowhere does defendant dispute the fact of his prior conviction. Rather, the objections run to the propriety of the § 851 filing and its effect on the statutory maximum sentence to which defendant is subject. Because it does not wish to elevate form over substance, the court will address each of the objections in turn, without regard to whether they are properly "objections" or simply contentions related to sentencing.
Defendant first asserts that the § 851 information was filed after trial commenced, in violation of 21 USC § 851(a), which requires the United States attorney to file a § 851 information "before trial, or before entry of a plea of guilty." Defendant bases this argument on the court's severance and separate trial of the felon-in-possession counts of the superseding indictment. There are two ways of looking at defendant's argument.
One way is to regard the case as being, as the government puts it, "in the midst of a single bifurcated trial." Pl Resp (Doc #701) at 4:21-22 (quotation marks omitted). On that view, the "trial" (for purposes of § 851(a)) began in August 1996, and the government's filing of a § 851 information in November 2004 came many years too late. But this reading does not square with the language of FRCrP 14, pursuant to which the court ordered that the felon-in-possession charges be tried separately. That rule provides that, to relieve prejudice from joinder, "the court may order separate trials of counts, sever the defendants' trials, or provide any other relief that justice requires." FRCrP 14(a) (emphasis added). The plain meaning of the adjective "separate" is "not shared with another" or "existing by itself." Webster's Third New International Dictionary 2069 (Merriam-Webster, unabridged ed 1981). Thus, contrary to defendant's contention, the court is not in the midst of trial; rather, there has been a trial of some offenses and, separately, a guilty plea to others.
This commonsense interpretation of Rule 14 and the procedural history of this case reveal why defendant's citation to United States v Barker, 1 F3d 957 (9th Cir 1993), is unavailing. In Barker, the court bifurcated the trial of a single offense (a felon-in-possession charge) by trying to the jury the defendant's possession of a firearm, while separately allowing defendant (if convicted) to stipulate to his felony status. The Ninth Circuit "h[e]ld that the district court may not bifurcate the single offense of being a felon in possession of a firearm into multiple proceedings." Id at 959 (emphasis added). Whatever Barker may have to say about bifurcated trials, it has no application to a case -- like this one -- where multiple offenses have been tried (or pled to) separately.
The second possible interpretation of defendant's argument that the § 851 information was untimely is a statutory interpretation argument. Section 851 provides that the United States attorney must "file an information" either "before trial, or before entry of a plea of guilty." The section does not contemplate Rule 14 severance, creating a latent ambiguity that this case has exposed: In a case with severed trials, to which "trial" does § 851 refer? In other words, defendant would insert "any" before "trial" and "entry" to have the statute provide that the information must be filed "before any trial, or before any entry of a plea of guilty." On that reading, the § 851 information would be untimely because it was not filed before the first trial (or plea) in this case (i e, the August 1996 trial on the felon-in-possession charges).
But such a construction of § 851(a) is wrong for several reasons. First, Congress did not (but certainly could have) inserted the word "any" in the statute. Second, reading "trial" as "any trial" and "entry of a plea" as "any entry of a plea" is incongruous with the disjunctive "or" in FRCrP 14(a) ("before [any] trial, or before [any] entry of a plea of guilty"). If the drafters' intent truly was as defendant seems to posit, it would be more natural to say that the information must be filed "before any trial and before any plea of guilty." Third, § 851 by its terms applies to a "person who stands convicted of an offense" (emphasis added); contextually, then, the statute must be read to apply offense-by-offense -- or in other words, claim-by-claim. Section 851 only requires that the information be filed before the "offense" for which enhancement is sought.
Moreover, these textual clues are consistent with the purpose of the statute, which the Ninth Circuit has explained "ensures proper notice so a defendant is able to challenge the information" and "allows a defendant to make an informed decision about whether or not to plead guilty." United States v Hamilton, 208 F3d 1165, 1168 (9th Cir 2000). But "[§] 851(a) should be interpreted in a manner 'so as to avoid elevating form over substance.'" Id (quoting United States v King, 127 F3d at 483, 487 (6th Cir 1997)). Defendant had notice of the § 851 information at the time of his plea; indeed, it was on that very day, immediately before his plea, that the information was filed. Thus, the purpose of the statute was fulfilled.
Defendant objects that he was nonetheless prejudiced by the filing of the information after he elected to go to trial on the (severed) felon-in-possession counts, and after he made certain other tactical decisions. It may be that the lack of a § 851 information on still-pending counts factored into his thinking. But defendant's argument does not advance the ball when it comes to statutory construction. Congress did not provide that a § 851 information can be filed only if it will cause defendant no unfair prejudice at all. Rather, Congress made the judgment that the only relevant prejudice is in deciding whether to go to trial or plead guilty on the count to be enhanced. To this end, the statute provides only that the § 851 information must be filed "before trial, or before entry of a plea of guilty."
Accordingly, the court concludes that the § 851 information was timely filed.
Defendant's second argument seems to address the indictment, not the § 851 information. He states: "The indictment pleads conspiracy but does not specify the amount of drugs to be produced under that conspiracy. This is fatal to any government attempt to sentence above the minimum under § 841." Def Obj (Doc #690) at 5:9-11. Indeed, the superseding indictment (filed years before the Supreme Court's decision in Apprendi v New Jersey, 530 US 466 (2000)) does not specify the amount of drugs involved in the conspiracy. The second superseding indictment discusses quantity -- alleging in count 1 that the conspiracy was "to manufacture and to distribute a Schedule II narcotic controlled substance, to wit, 1 kilogram or more of a mixture and substance containing a detectable amount of methamphetamine" -- but as noted above, defendant pled to the superseding indictment.
But defendant's argument is moot. A non-quantity based charge coupled with the § 851 information exposes defendant to a thirty-year statutory maximum term of imprisonment under the second sentence of 21 USC § 841(b)(1)(C) (1993). The court has not sentenced defendant above this thirty-year maximum. Accordingly, this objection is without merit. Indeed, defendant's challenge to the § 851 information addressed in Part II.A is also moot inasmuch as the court has not sentenced defendant above the twenty-year maximum for an unenhanced sentence under the first sentence of 21 USC § 841(b)(1)(C). (That said, the court finds it proper to include the discussion in Part II.A because the government advocated for a sentence greater than twenty years, a position the government may wish to pursue on appeal or cross-appeal.)
The court also notes that a challenge by the government to sentencing under 21 USC § 841(b)(1)(C) (which the government in any event appeared to concede at sentencing was the applicable subparagraph) would also be moot: Although the second sentence of 21 USC § 841(b)(1)(A) (implied by the second superseding indictment) provides for a twenty-year mandatory minimum term of imprisonment and the second sentence of 21 USC § 841(b)(1)(C) (implied by the superseding indictment) establishes no mandatory minimum, the court has nonetheless sentenced defendant to a term "not less than 20 years" as prescribed by the second sentence of 21 USC § 841(b)(1)(A).
Third, defendant contends that the indictment violates Apprendi, because it fails to specify which subparagraph of § 841(b)(1) applies. As discussed immediately above, this point is moot, as the court has not sentenced defendant above the thirty-year statutory maximum found in the second sentence of 21 USC § 841(b)(1)(C), the most lenient penalty provision in § 841(b)(1) and the one that is not quantity-dependent.
Defendant's fourth argument is that the enhancements described in § 841(b)(1) and noticed by way of a § 851 information do not apply to conspiracies under 21 USC § 846. This argument must be directed to the Supreme Court or the Ninth Circuit en banc, as it is squarely foreclosed by Ninth Circuit precedent. See United States v O'Brien, 52 F3d 277, 278-79 (9th Cir 1995) (relying on United States v Dabdoub-Canez, 961 F2d 836 (9th Cir 1992)). Moreover, the issue appears to be moot for the reasons described in Part II.B -- even if the § 851 information was improper, the court has not sentenced defendant above the twenty-year statutory maximum term of imprisonment provided in the first sentence of 21 USC § 841(b)(1)(C).
Finally, defendant contends that a ten-year statute of limitations bars the filing of the § 851 information. Whatever the statute of limitations for the underlying offense may be, there is no statute of limitations on the filing of the information (aside from the § 851(a) requirement that the information be filed "before trial, or before entry of a plea of guilty"). Accordingly, the court finds this argument without merit, and, again, apparently moot.
For the foregoing reasons, defendant's objections to the § 851 information are OVERRULED.
IT IS SO ORDERED.
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