U.S. v. Harden

• Decision Date: 03 November 1994
• Docket Number: No. 92-4512,92-4512
• Citation: 37 F.3d 595
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Joe HARDEN, Defendant-Appellant. Non-Argument Calendar. United States Court of Appeals, Eleventh Circuit
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 595

37 F.3d 595

UNITED STATES of America, Plaintiff-Appellee, v. Joe HARDEN, Defendant-Appellant.

No. 92-4512

Non-Argument Calendar United States Court of Appeals,

Eleventh Circuit.

Nov. 3, 1994.

Paul D. Lazarus, Miami, FL, for appellant.

Roberto Martinez, U.S. Atty., Jeffrey N. Kaplan, Linda Collins Hertz, Anne M. Hayes, Asst. U.S. Attys., Miami, FL, for appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before TJOFLAT, Chief Judge, BIRCH and DUBINA, Circuit Judges.

BIRCH, Circuit Judge:

This appeal challenges conviction and sentence for possession with intent to distribute cocaine base or crack. It further presents the opportunity for us to decide the first-impression issue in our circuit of whether prior state felony drug convictions that were not prosecuted by indictment are properly the basis for statutory enhancement. We AFFIRM.

I. BACKGROUND

On August 25, 1990, defendant-appellant, Joe Harden, led detectives from the Broward County Sheriff's Organized Crime Division on a chase by vehicle and on foot following his refusal to produce his driver's license and vehicle registration. In the course of the pursuit, Harden discarded a brown paper bag, which a detective retrieved. The bag contained eighty-two plastic bags, each with ten pieces of crack cocaine inside and $480. After Harden's arrest, two more "ten-packs" of crack cocaine in a brown paper bag inside of a gym bag were found during an inventory search of Harden's pickup truck. Eight additional ten-packs of crack cocaine were recovered from a yard through which Harden ran during the chase. The parties stipulated that the paper bag deposited by Harden contained 201.3 grams of crack cocaine, 5.295 grams of crack cocaine were in the car, and 21.1 grams of crack cocaine were in the yard.

A federal grand jury returned a one-count indictment charging Harden with possession of cocaine base with intent to distribute in violation of 21 U.S.C. Sec. 841(a)(1) and 18 U.S.C. Sec. 2. The government filed pretrial informations noticing its intent to use prior felony drug convictions and the possession of over fifty grams of cocaine base to request a minimum mandatory sentence enhancement pursuant to 21 U.S.C. Secs. 841 and 851. Contending that federal prosecution violated his due process rights, Harden moved to dismiss the indictment. The district court denied this motion; Harden was convicted.

In his objections to the presentence investigation report, Harden challenged his prospective mandatory sentence of life imprisonment because (1) the previous state felony drug convictions that triggered the statutory sentencing enhancement had not been prosecuted by indictment, (2) the enhancement based on the quantity of cocaine was precluded because the indictment did not allege a specific quantity of cocaine, and (3) the statutory and Sentencing Guidelines punishment for cocaine base was an unconstitutional violation of his equal protection and due process rights. Following a hearing concerning Harden's sentencing objections on May 28, 1992, the district court overruled them. Harden was sentenced to life imprisonment; he timely appealed.

II. DISCUSSION

A. Federal Prosecution

Harden contends that the district court's not dismissing the indictment was a due process violation. He claims that the county officers arbitrarily decided to refer his case for federal rather than state prosecution because crimes involving crack cocaine are punished more harshly in federal court than in state court. Thus, he contends that his federal prosecution resulted from the desire of local law enforcement to enhance his penalty.

While investigative agencies may present cases to the United States Attorney, only a government attorney can initiate prosecution. Bordenkircher v. Hayes, 434 U.S. 357, 364, 98 S.Ct. 663, 668, 54 L.Ed.2d 604 (1978); see Fed.R.Crim.P. 7(c)(1) (indictment "shall be signed" by government attorney). Provided that the prosecutor has probable cause to believe that an individual committed an offense prohibited by statute, the decision whether to prosecute and what charge to file or present to a grand jury are subject to prosecutorial discretion. United States v. Batchelder, 442 U.S. 114, 124, 99 S.Ct. 2198, 2204, 60 L.Ed.2d 755 (1979); Bordenkircher, 434 U.S. at 364, 98 S.Ct. at 668. Significantly, the United States Attorney has prosecutorial discretion even if a case is first referred for state prosecution because a defendant may be prosecuted and convicted under a federal statute following conviction in state court for the same conduct without violating due process. Abbate v. United States, 359 U.S. 187, 190-96, 79 S.Ct. 666, 668-71, 3 L.Ed.2d 729 (1959). Absent evidence that the decision to institute federal prosecution was improperly motivated or based on a constitutionally impermissible classification, Wayte v. United States, 470 U.S. 598, 608, 105 S.Ct. 1524, 1531, 84 L.Ed.2d 547 (1985), prosecution in federal rather than state court does not transgress due process even without guidelines for such referral. United States v. Williams, 963 F.2d 1337, 1342 (10th Cir.1992), ¹ see United States v. Beede, 974 F.2d 948, 952-53 (8th Cir.1992), cert. denied, --- U.S. ----, 113 S.Ct. 1016, 122 L.Ed.2d 163 (1993); United States v. Robinson, 967 F.2d 287, 289-90 (9th Cir.1992); United States v. Goodapple, 958 F.2d 1402, 1410-11 (7th Cir.1992), United States v. Parson, 955 F.2d 858, 873 n. 22 (3d Cir.1992); United States v. Allen, 954 F.2d 1160, 1165-66 (6th Cir.1992); United States v. Carter, 953 F.2d 1449, 1461-62 (5th Cir.), cert. denied, --- U.S. ----, 112 S.Ct. 2980, 119 L.Ed.2d 598 (1992); United States v. Turpin, 920 F.2d 1377, 1387-88 (8th Cir.1990), cert. denied, 499 U.S. 953, 111 S.Ct. 1428, 113 L.Ed.2d 480 (1991).

Our court has addressed a similar case where the defendant-appellant argued that the state and federal law enforcement agencies had engaged in " 'de facto' " sentencing in violation of his due process rights. United States v. King, 972 F.2d 1259, 1260 n. 3 (11th Cir.1992) (per curiam). Because he could have been prosecuted for possession with intent to distribute cocaine base under both federal and state law, the appellant contended that he had been prosecuted federally because the sentences for crack cocaine crimes are harsher in federal court than in state court. We determined that "[b]ecause he could have been prosecuted in both state and federal court, we cannot conclude that his [due process] rights were violated because he was prosecuted only in federal rather than state court." Id.

Moreover, the Supreme Court has decided that sentencing considerations alone do not establish a constitutional violation:

The prosecutor may be influenced by the penalties available upon conviction, but this fact, standing alone, does not give rise to a violation of the Equal Protection or Due Process Clause. Just as a defendant has no constitutional right to elect which of two applicable federal statutes shall be the basis of his indictment and prosecution neither is he entitled to choose the penalty scheme under which he will be sentenced.

Batchelder, 442 U.S. at 125, 99 S.Ct. 2205 (citations omitted). Accordingly, Harden's opposition to his federal prosecution as a due process violation is without merit.

B. Statutory Enhancement for Prior Felony Drug Convictions

Harden maintains that his statutory enhancement, rendering a mandatory life imprisonment sentence, was erroneous. Because his two prior felony drug convictions in Florida courts were prosecuted by information without waiver of indictment, Harden contends that they cannot be used as statutory enhancements. This argument, asserted in the objections to his presentence investigation report and at his sentencing proceeding, was rejected by the district court.

A person with "two or more prior convictions for a felony drug offense" who subsequently is convicted of possessing fifty grams or more of a mixture or substance containing cocaine base with the intent to distribute "shall be sentenced to a mandatory term of life imprisonment without release." 21 U.S.C. Sec. 841(b)(1)(A) (1988). To increase the punishment for a federal drug conviction because of one or more prior felony drug convictions, the United States Attorney must file a pretrial information noticing the previous drug convictions upon which the government intends to rely. 21 U.S.C. Sec. 851(a)(1). The record evidences that the government filed an information listing Harden's prior felony drug convictions and that Harden did not contest those previous convictions.

Harden argues, however, that the court misinterpreted the statutory requirements for the enhancing prior felony drug convictions. "An information may not be filed under this section if the increased punishment which may be imposed is imprisonment for a term in excess of three years unless the person either waived or was afforded prosecution by indictment for the offense for which such increased punishment may be imposed." 21 U.S.C. Sec. 851(a)(2) (emphasis added). Harden asserts that the prior drug convictions used for enhancement must be obtained by indictment. He contends that the statute would be superfluous if it referred to the subject federal conviction being appealed because all federal crimes are prosecuted by indictment. He also argues that the past tense phrasing, "unless the person either waived or was afforded prosecution by indictment," allegedly excludes the present federal conviction on appeal. ² Id. (emphasis added). The government urges that the district court correctly determined that the offense prosecuted by indictment referred to the present federal cocaine base offense and not to the previous felony drug convictions.

Statutory interpretation is a question of law subject to de novo review. James v. United States, 19 F.3d 1, 2 (11th Cir.1994) (per curiam). Although this question of statutory interpretation is...