U.S. v. White

Decision Date19 November 1992
Docket NumberNo. 941,D,941
Citation980 F.2d 836
PartiesUNITED STATES of America, Appellee, v. Kevin WHITE, Defendant-Appellant. ocket 91-1376.
CourtU.S. Court of Appeals — Second Circuit

Richard A. Reeve, Asst. Federal Public Defender, New Haven, Conn., for defendant-appellant.

Anthony E. Kaplan, Asst. U.S. Atty., D.Conn., New Haven, Conn. (Albert S. Dabrowski, U.S. Atty., D.Conn., of counsel), for appellee.

Before: VAN GRAAFEILAND, KEARSE, and MAHONEY, Circuit Judges.

MAHONEY, Circuit Judge:

Defendant-appellant Kevin White appeals from a sentence imposed pursuant to a judgment of conviction entered in the United States District Court for the District of Connecticut, Warren W. Eginton, Judge, on May 31, 1991 after a jury trial. White was sentenced to a statutory minimum of twenty years imprisonment based upon a prior conviction for a felony drug offense, in accordance with 21 U.S.C. § 841(b)(1)(A) (1988 & Supp. II 1990). 1 United States v. White, 764 F.Supp. 254 (D.Conn.1991).

White asserts that this sentencing enhancement was improper because the government failed to file the information required by 21 U.S.C. § 851(a)(1) (1988) to trigger such enhancement "before trial," as mandated by that statute. 2 After an initial filing with the office of the clerk of the district court in Bridgeport, Connecticut that was rejected by that office, the government filed the information a second time before the jury had been sworn or evidence taken, but after jury selection had occurred. The government contends, and the district court ruled, that the second filing occurred "before trial" within the meaning of § 851(a)(1). The government also argues that in any event, there was substantial compliance with the statute.

We conclude that the initial filing was erroneously rejected by the clerk's office, and remand for a determination whether that filing occurred "before trial."

Background

On July 5, 1990, White was indicted on two counts by a federal grand jury sitting in the District of Connecticut. Count one of the indictment charged White with conspiring to possess with intent to distribute fifty grams or more of "crack" cocaine in violation of 21 U.S.C. §§ 846 and 841(a)(1) (1988). Count two charged White with employing a minor to distribute fifty grams or more of "crack" cocaine in violation of 21 U.S.C. § 845b (1988) 3 and 18 U.S.C. § 2 (1988). White's arrest and indictment resulted from a transaction on January 10, 1990 in which White directed the delivery of crack cocaine by a minor to an undercover police officer.

White was arraigned on July 19, 1990. At the arraignment, White was represented by counsel and entered a plea of not guilty. Prior to the entry of White's plea, the district court instructed the government's attorney to recite the penalties corresponding to the charges in the indictment. The attorney explained that count one of the indictment generally carried a penalty of ten years to life for the conspiracy charged, but that in this case the mandatory minimum penalty was twenty years imprisonment because White had a previous conviction for drug trafficking. The government's attorney further stated that the penalty for count two of the indictment was also twenty years to life. Upon inquiry by the court, White responded that he understood the penalties that he faced if convicted of the charges contained in the indictment.

On September 5, 1990, the grand jury returned a three-count superseding indictment. In addition to recharging the counts stated in the initial indictment, the superseding indictment charged White with possessing with intent to distribute fifty grams or more of "crack" cocaine within 1000 feet of an elementary school in violation of 21 U.S.C. §§ 841(a)(1) and 845a(a) (1988) 4 and 18 U.S.C. § 2 (1988). On September 20, 1990, White was arraigned on the superseding indictment. As during the initial arraignment, White was represented by counsel, pled not guilty, and was explicitly advised that he confronted penalties of twenty years to life on each of the counts charged in the superseding indictment. Once again, White stated that he understood the charges and their corresponding penalties.

During the pendency of the prosecution, but well before trial, the government informed defense counsel of its intention to file a § 851 information. In the course of plea negotiations, however, government counsel indicated that if White agreed to plead guilty to count one of the superseding indictment, the government would forgo its right to file the § 851 information and seek enhanced punishment under § 841(b)(1)(A). Ultimately, the negotiations proved unavailing, and the government undertook to file the information.

On November 29, 1990, the government mailed the information for filing to the office of the clerk of the district court in Bridgeport, Connecticut. A copy of the information was also mailed that same day to White's trial counsel at the address stated in the docket sheet and the notice of appearance filed by that attorney.

On December 3, 1990, a jury was selected for trial, but was not sworn. The next day, the government received in the mail from the clerk's office the original unfiled § 851 information, with a notice that the information had not been accepted for filing because no address for the attorney of record appeared on the signature page of the information.

The government's brief on appeal asserts that failure to include the attorney's address was apparently deemed by the clerk to contravene D.Conn.Crim.R. 1, 5 which incorporates by reference twenty-one provisions of the District of Connecticut Rules of Civil Procedure, including D.Conn.Civ.R. 6. 6 The latter rule states in pertinent part that: "All pleadings must be prepared in conformity with the Federal Rules of Civil Procedure.... Pleadings that do not conform to [this requirement] will not be accepted by the Clerk." Fed.R.Civ.P. 11 requires that: "Every pleading, motion, and other paper of a party represented by an attorney shall be signed by [the] attorney of record ..., whose address shall be stated (emphasis added)." 7 Thus, the omission of the attorney's address was apparently considered a violation of Fed.R.Civ.P. 11, incorporated via D.Conn.Civ.R. 6 in D.Conn.Crim.R. 1. There is nothing in the record that directly expresses the clerk's rationale for rejecting the initial filing; only the fact of rejection is clear.

Upon receipt of the rejected information, the government supplied the requisite address on the signature page and mailed the amended information that same day to the clerk's office. The information was received and filed by the clerk's office on the next day, December 5, 1990. White's counsel did not receive a copy of the information until December 11, 1990, evidently because counsel changed his address during the pendency of the case without notice to the court or opposing counsel.

On December 13, 1990, the jury was sworn and the presentation of evidence commenced. At the trial's conclusion, White was convicted on all three counts charged in the superseding indictment. Prior to sentencing, White filed a motion to dismiss the § 851 information, contending that it was not filed "before trial" as required by the statute.

The district court denied White's motion. White, 764 F.Supp. at 255. The court noted that although § 851(a)(1) clearly requires that the information be filed before trial, the statute does not specify what event determines the commencement of trial. Id. Applying principles developed in the area of double jeopardy, the court concluded that a trial commences for § 851 purposes when the jury is sworn and jeopardy attaches, not when the jury is selected. Id. Because the § 851 information was filed and served before the jury was sworn, the court concluded that the government had complied with the statute, and denied White's motion. Id.

White was accordingly sentenced to the mandatory minimum sentence of twenty years pursuant to the § 841(b)(1)(A) enhancement. The court noted that had it not been bound by the mandatory minimum, it would have set sentence at fourteen years, the minimum of the applicable Guidelines range of 168 to 210 months.

This appeal followed.

Discussion

White contends on appeal that the district court erred in its interpretation of § 851(a)(1) to permit filing of a § 851 information after jury selection. 8 The government defends the district court's statutory construction, and additionally contends that in any event, there was substantial compliance with the statutory filing requirement.

We initially address the issue of statutory construction. We next consider, sua sponte, the question whether the clerk properly rejected the initial § 851 filing. Responding in the negative, we do not reach the government's argument as to substantial compliance, and remand for a determination whether the initial filing occurred "before trial" within the meaning of § 851(a).

A. The Meaning of "Before Trial" in Section 851(a)(1).

Our interpretation of § 851(a)(1) must begin, of course, with the statute's language. Mallard v. United States Dist. Court, 490 U.S. 296, 300, 109 S.Ct. 1814, 1817, 104 L.Ed.2d 318 (1989). Section 851 provides that the required information must be filed "before trial," but does not specify the event which signifies the beginning of trial. The statute is accordingly ambiguous with respect to the issue presented for decision in this case. The parties agree, moreover, and the court concurs, that there is no relevant legislative history to assist our inquiry. Nor does the precise meaning of "before trial" become clear upon examination of the statutory context in which this phrase appears. Cf. McCarthy v. Bronson, --- U.S. ----, 111 S.Ct. 1737, 1740, 114 L.Ed.2d 194 (1991) ("statutory language must always be read in its proper context").

We accordingly turn for assistance to some familiar canons of statutory construction. One...

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