U.S. v. Burt

• Decision Date: 10 October 1986
• Docket Number: No. 84-1341,84-1341
• Citation: 802 F.2d 330
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Benton D. BURT, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 330

802 F.2d 330

UNITED STATES of America, Plaintiff-Appellant, v. Benton D. BURT, Defendant-Appellee.

No. 84-1341.

United States Court of Appeals Ninth Circuit.

Argued and Submitted May 13, 1986.

Decided Oct. 10, 1986.

Charles B. Burch, Asst. U.S. Atty., San Francisco, Cal., for plaintiff-appellant.

Ephraim Margolin, San Francisco, Cal., for defendant-appellee.

Appeal from the United States District Court for the Northern District of California.

Before SNEED, FARRIS and FERGUSON, Circuit Judges.

FERGUSON, Circuit Judge:

Defendant Benton Burt was convicted of violating 18 U.S.C. Sec. 922(h)(1), receipt of a firearm by a convicted felon. The government appeals the district court's refusal to sentence the defendant as a dangerous special offender ("DSO"). The issue before us is whether the district court, for purposes of the DSO statute, properly disregarded a prior conviction obtained by a procedure later found unconstitutional, but held not retroactive. We hold that it did, and affirm.

I.

On January 12, 1983, the government charged the defendant with firearms violations by a convicted felon. In February 1983, the government filed an application requesting that, if convicted, the defendant be sentenced as a dangerous special offender. The application alleged that the defendant was dangerous as defined by the statute and that he was a special offender because he had been convicted of second degree murder in 1973 and assault with a deadly weapon in 1962. After a jury returned a guilty verdict, the district court held a hearing on the government's DSO application.

After the hearing, the court refused to include the 1962 conviction for the purpose of qualifying the defendant as a special offender. The court found that, during the 1962 trial, the prosecutor, and the trial judge through jury instructions, commented on the defendant's refusal to testify. The defense attorney in the 1962 case made a tactical decision not to put Burt on the witness stand because he had a prior juvenile offense that could be used to impeach him and because he spoke in short, clipped sentences. At closing argument, the district attorney urged the jurors to treat the defendant's silence as evidence of his guilt. The judge instructed the jury:

As to any evidence or facts against [the defendant] which [he] can reasonably be expected to deny or explain because facts within his knowledge, if he does not testify or if, though he does testify, he fails to deny or explain such evidence, the jury may take that failure into consideration as tending to indicate the truth of such evidence and as indicating that among the inferences that may reasonably be drawn therefrom those unfavorable to the defendant are the more probable.

The jury initially found itself deadlocked and requested additional instruction on the defendant's failure to testify. Only after the judge repeated the instruction and explained its meaning did the jury convict Burt.

Although the United States Constitution and California law permitted this practice at the time, the United States Supreme Court later held that such conduct violated a defendant's Fifth Amendment rights. Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965). The Supreme Court, in Tehan v. United States ex rel. Shott, 382 U.S. 406, 86 S.Ct. 459, 15 L.Ed.2d 453 (1966), however, declared that Griffin was not retroactive.

The district court recognized the 1962 conviction could not be overturned, but held that the conviction was invalid for the purposes of sentence enhancement:

The defendant has served a term of incarceration for the crime for which he was convicted in 1962. The instruction twice given at his trial and the comments made by the judge and prosecutor would not be permitted today under prevailing constitutional principles. Indeed, judicial or prosecutorial comment on the defendant's silence in a criminal trial is so anathematic to the idea of a fair trial in our current constitutional thinking that today one is somewhat shocked that such comment was ever considered appropriate.... Twenty-two years have passed since the 1962 conviction; next year marks the twentieth anniversary of the Griffin decision. It would in this Court's opinion be improper to add additional years to a sentence of imprisonment on the basis of a twenty-two year old conviction which, although clearly constitutional, is nonetheless tainted and defective in light of our present constitutional mores.

Thus, because the government failed to demonstrate that the defendant had two felony convictions the court denied the application. The court then sentenced the defendant to a five-year imprisonment term. The government appeals the court's DSO ruling. ¹

II.

The dangerous special offender provisions, 18 U.S.C. Secs. 3575-3576, of the Organized Crime Control Act of 1970, permit a district court to impose an enhanced sentence of up to twenty-five years imprisonment for certain offenders. ² To impose an enhanced sentence, a court must determine that the defendant qualifies both as a dangerous offender, id. Sec. 3575(f), ³ and as a special offender, id. Sec. 3575(e)(1)-(3).

Congress intended the DSO statute to apply to three narrow categories of offenders who pose a danger to society: "habitual criminals," "professional offenders," and "organized crime offenders." H.R.Rep. No. 1549, 91st Cong., 2d Sess., reprinted in 1970 U.S.Code Cong. & Ad.News 4007, 4038. The statute provides that the government must prove by a preponderance of the evidence that a defendant falls within one of the special offender classifications: section 3575(e)(1) provides that a defendant may qualify as a special offender based on the number and frequency of prior felony convictions; sections 3575(e)(2) and 3575(e)(3) provide that certain "professional" or "organized crime" activities qualify a defendant for the sentence enhancement.

Under section 3575(e)(1), the habitual offender provision on which the government based its DSO application, the government must prove that (1) the defendant previously was convicted of two or more felonies; (2) the defendant was imprisoned; and (3) the defendant's release from prison, or commission of a felony, was within the five-year period immediately preceding the commission of the latest offense. The statute limits the types of convictions that may be used under this provision:

A conviction shown on direct or collateral review or at the [Dangerous Special Offender] hearing to be invalid or for which the defendant has been pardoned on the ground of innocence shall be disregarded for the purposes of paragraph (1) of this subsection.

18 U.S.C. Sec. 3575(e).

Congress included the separate hearing provision in the statute to give the defendant an opportunity to question the validity of any conviction used for sentence enhancement. See United States v. Scarborough, 777 F.2d 175, 181 (4th Cir.1985). The Senate Judiciary Committee stated that " 'fairness demands a hearing focused on the precise question of the existence of the grounds for' " a dangerous special offender sentence. S.Rep. No. 617, 91st Cong., 1st Sess. 92 (1969) (quoting Model Penal Code Sec. 7.08, comment at 55 (Tent. Draft No. 2, May 3, 1954)). Therefore, a district court must consider a defendant's challenge to a conviction used to support a special offender application. Scarborough, 777 F.2d at 182 (district court erred by refusing to consider defendant's claim that conviction was invalid). ⁴

However, the Act does not define what criteria a sentencing court should employ to determine whether a conviction is "invalid." Furthermore, the legislative history provides only partial guidance. The House report accompanying the bill simply repeats the statutory language of section 3575(e). H.R.Rep. No. 1549, 91st Cong., 2d Sess., reprinted in 1970 U.S.Code Cong. & Ad.News 4007, 4038. The Senate Report reference to the provision is as follows: "Invalid convictions are not regarded. See Burgett v. Texas, 389 U.S. 109, 115 [88 S.Ct. 258, 262, 19 L.Ed.2d 319] (1967)." S.Rep. No. 617, 91st Cong., 1st Sess. 164 (1969). Before we determine what constitutes an invalid conviction, we must first discuss what standard governs our review of the district court's decision.

III.

In general, appellate review of dangerous special offender sentencing decisions is broader than review of usual sentencing. See, e.g., United States v. Soto, 779 F.2d 558, 562 (9th Cir.), modified, 793 F.2d 217 (9th Cir.1986); 18 U.S.C. Sec. 3576. ⁵ The statute permits an appellate court "to modify or vacate sentences that are based upon erroneous findings or are otherwise unnecessary and unfair." Scarborough, 777 F.2d at 180. However, the statute does not specify the standard for reviewing decisions concerning the validity of prior convictions.

If we are simply reviewing the district court's interpretation of the statute, we would use the de novo standard. See United States v. McConney, 728 F.2d 1195, 1201 (9th Cir.) (en banc), cert. denied, 469 U.S. 824, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984). Our review of the legislative history and statutory scheme satisfies us that Congress did not intend for appellate courts to have that broad a power of review for validity determinations. Rather, Congress intended the sentencing court in each case to have primary responsibility for determining whether a conviction is "invalid" for the purposes of the Act.

We first note that Congress did not impose rigid rules on a district court's determination of what constitutes an invalid conviction. See S.Rep. No. 617, 91st Cong., 1st Sess. 90 (1969) ("The procedures established ... for sentencing special offenders, therefore, have been designed to protect the defendant's and the Government's interests ..., but to guard against the unnecessary formalization of sentencing procedures."). Congress provided no explicit guidance for making such a determination, except its reference to Burgett. Given...