United States v. Cox, 82-00172-01-CR-W-6.

Citation556 F. Supp. 812
Decision Date23 February 1983
Docket NumberNo. 82-00172-01-CR-W-6.,82-00172-01-CR-W-6.
PartiesUNITED STATES of America, Plaintiff, v. Eddie David COX, Defendant.
CourtU.S. District Court — Western District of Missouri

Mark J. Zimmermann, Asst. U.S. Atty., W.D.Mo., Kansas City, Mo., for plaintiff.

Raymond Conrad, Jr., Federal Public Defender, W.D.Mo., Kansas City, Mo., for defendant.

ORDER DENYING MOTION TO STRIKE NOTICE OF SPECIAL OFFENDER

SACHS, District Judge.

Prior to the trial of this case and defendant's conviction the government filed under seal with another judge of this court a notice of dangerous special offender, under 18 U.S.C. § 3575(a). Defendant has filed a motion to strike the notice, contending that the statute is unconstitutional because it "fails to provide an adequate standard of proof" and is void for vagueness. The statute provides for an enhanced sentence if it appears by a "preponderance of the information" that the defendant is a dangerous special offender. 18 U.S.C. § 3575(b).

Defendant's contentions are not without appeal, but the weight of authority is supportive of the statute. United States v. Schell, 692 F.2d 672 (10th Cir.1982). The Court will follow the general consensus of appellate judges, thereby distinguishing a ruling by former Chief Judge Oliver of this Court in a comparatively early test of the statute in question. United States v. Duardi, 384 F.Supp. 874 (W.D.Mo.1974), affirmed on other grounds, 529 F.2d 123 (8th Cir. 1975).

The vagueness contention is directed against the requirement that enhanced sentencing be "not disproportionate in severity" to the maximum allowed for the felony involved in the case. Defendant also contends that the concept of dangerousness is excessively vague. This argument has been rejected by at least five appellate courts, and Circuit Judge Logan recently stated in Schell, that the "concept of dangerousness ... merely articulates considerations underlying any bail or sentencing decision." 692 F.2d at 675. This portion of the Schell ruling was approved by the entire appellate panel, including Circuit Judge McKay, who dissented as to the constitutional validity of the statutory standard of proof. The Court concludes that this portion of Schell, adverse to defendant's contention of vagueness, is rather clearly right. The statute is therefore sustained by this Court against the charge of vagueness.

Somewhat more troubling is the standard of proof question. The statute provides that the Court shall decide the dangerous special offender issue based on the "preponderance of the information." 18 U.S.C. § 3575(b). In Judge Logan's opinion, he notes that "the judge must find certain historical facts about defendant's past record that are easily verifiable", but that there are inherent difficulties in making the ultimate "finding of dangerousness." Ibid., 678-9. Resolving the ultimate issue, therefore, may justifiably turn on the preponderance of information, which is the test chosen by Congress. Judge Logan's ruling is accepted, not only because it represents the majority view, but also because it appears to be sensible.

Judge Oliver's concerns were somewhat different, and have been followed by this Court in normal sentencing. In Duardi, the government sought to have sentencing turn on the judge's conclusion that, more likely than not, defendant had been guilty of grave offenses with which he had not been charged. 384 F.Supp. at 881-2. Judge Oliver declared such a practice "untenable". The course of the law since 1974 has not established that Judge Oliver's view was erroneous. A simple preponderance of the information test was deemed inadequate to establish derogatory information in the leading case of United States v. Fatico, 458 F.Supp. 388, 408-12 (E.D.N.Y.1978), affirmed, 603 F.2d 1053 (2d Cir.1979), cert. den., 444 U.S. 1073, 100 S.Ct. 1018, 62 L.Ed.2d 755 (1980). Fatico involved normal sentencing, after a hearing to resolve contested hearsay information presented by the government. Judge Weinstein in Fatico noted the constitutional question relating to the special offender statute, and rejected a "preponderance of the information" test. 1.c. 408. Cf. United States v. Dace, 502 F.2d 897, 901 (8th Cir.1974) (sentencing court cannot summarily rely on "unverified derogatory hearsay" that is not disclosed to a defendant, or that is challenged by the defendant).

There is no occasion in this case to reconsider Judge Oliver's ruling as to the unconstitutionality of the statutory preponderance of information test, when applied to proving a constituent fact in sentencing under the special offender statute. The Duardi decision...

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2 cases
  • U.S. v. Davis
    • United States
    • U.S. Court of Appeals — Third Circuit
    • 1 Agosto 1983
    ...864, 98 S.Ct. 197, 54 L.Ed.2d 139 (1977) (considering only the standard of proof required to prove dangerousness); United States v. Cox, 556 F.Supp. 812, 813-14 (W.D.Mo.1983); United States v. Holt, 397 F.Supp. 1397, 1399-400 (N.D.Tex.1975), modified on other grounds sub nom. United States ......
  • US v. Johnson
    • United States
    • U.S. District Court — Eastern District of Missouri
    • 5 Abril 1988
    ...proof for contested facts in sentencing, without encountering the problems foreseen by the Lee majority opinion. See United States v. Cox, 556 F.Supp. 812, 814 (W.D.Mo.1983). Absent appellate guidance to the contrary, I expect to continue this Sentencing will proceed under the Guidelines. S......

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