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 ...