U.S. v. Ilacqua

• Citation: 562 F.2d 399
• Decision Date: 30 November 1977
• Docket Number: No. 76-2611,76-2611
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Joseph C. ILACQUA, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 399

562 F.2d 399

UNITED STATES of America, Plaintiff-Appellant, v. Joseph C. ILACQUA, Defendant-Appellee.

No. 76-2611.

United States Court of Appeals Sixth Circuit.

Argued April 8, 1977.

Decided Sept. 26, 1977.

Rehearing and Rehearing En Banc Denied Nov. 30, 1977.

Frederick M. Coleman, U. S. Atty., Cleveland, Ohio, Edwin J. Gale, Dept. of Justice, Providence, R. I., William C. Brown, Appellate Section, Crim. Div., Dept. of Justice, Washington, D. C., for plaintiff-appellant.

Paul Mancino, Jr. (Court appointed CJA), Cleveland, Ohio, for defendant-appellee.

Before PHILLIPS, Chief Judge, and WEICK and ENGEL, Circuit Judges.

ENGEL, Circuit Judge.

Defendant Joseph Ilacqua was convicted in a jury trial of possession of 1,097 cases of liquor stolen from an interstate shipment, in violation of 18 U.S.C. § 659 (1970) and of conspiracy to commit that act, 18 U.S.C. § 371 (1970).¹

Before trial, the government timely filed a notice that if Ilacqua were convicted on the above charges, it intended to seek an enhanced sentence against him as a dangerous special offender, as authorized by 18 U.S.C. § 3575, et seq. (1970).²

To invoke the statutory provisions for an enhanced sentence, the attorney charged with the prosecution of the offender is required to file with the court before trial, a notice:

(1) specifying that the defendant is a dangerous special offender who upon conviction for such felony, is subject to the imposition of a sentence under subsection (b) this section, and

(2) setting out with particularity the reasons why such attorney believes defendant to be a dangerous special offender.

18 U.S.C. § 3575(a)(1) and (2).

Section 3575(f) provides:

(f) A defendant is dangerous for purposes of this section if a period of confinement longer than that provided for such felony is required for the protection of the public from further criminal conduct by the defendant.

18 U.S.C. § 3575(f).

At issue in this appeal is what language satisfies the requirements of subsection (2) of § 3575(a) that the notice set forth "with particularity" the reasons why such attorney believes the defendant to be a dangerous special offender.³ In an effort to comply with that requirement, the government incorporated the following language in paragraph 3 of its notice:

3. That the defendant is a dangerous offender within the meaning of Title 18, United States Code, Section 3575(f) based on the following:

a) Defendant ILACQUA has five previous felony convictions including: a 1949 conviction for grand larceny, a 1953 conviction for burglary and the possession of burglary tools, a 1966 conviction for burglary and grand larceny, and the two felony convictions which are described in paragraph 2 above.¹

b) Defendant ILACQUA was convicted in 1971 of violating Title 18, United States Code, Section 659. At the request of the defendant ILACQUA, the federal probation, which was imposed on him by this Court as a result of that conviction was terminated in 1974, upon defendant's representation that such termination was necessary to enable him to gain legitimate employment.

c) Defendant's history indicates that he is not subject to rehabilitation and that a long period of separation from society is required to protect the public from his continuing criminal activity.

On motion of the defense, the trial court dismissed the government's petition to proceed under the Act because in its opinion, the foregoing language represented insufficient compliance with the "particularity" requirement:

. . . the government has failed to comply with the mandatory specific provisions of the statute, which clearly set forth that the petition must set forth with particularity the reasons why the attorney believes the defendant to be a Dangerous Special Offender and not just merely the statement of the crimes.

The trial court thereupon proceeded to sentence the defendant without employment of the Act and the government has appealed from that sentence under § 3576.⁴ We reverse.

At the outset, the defendant urges that since there was no " imposition" of sentence within the meaning of § 3576, there can therefore be no government appeal, pointing to United States v. Sisson, 399 U.S. 267, 90 S.Ct. 2117, 26 L.Ed.2d 608 (1969), as support for the proposition that statutes allowing government appeals in criminal cases are strictly construed. This claim is without merit.

Our circuit has implicitly recognized the government's right to appeal from the trial court's refusal to entertain the petition in United States v. Stewart, 531 F.2d 326 (6th Cir.), cert. denied, 426 U.S. 922, 96 S.Ct. 2629, 49 L.Ed.2d 376 (1976), although the Court did not expressly address that question. See also like recognition in United States v. Neary, 552 F.2d 1184 (7th Cir. 1977); United States v. Bailey, 537 F.2d 845 (5th Cir. 1976); United States v. Kelly, 519 F.2d 251 (8th Cir. 1975). Likewise, the legislative history of the Organized Crime Control Act of 1970, of which § 3575 and § 3576 are a part, indicates that the government was intended to have the right to appeal under such circumstances:

The Government may obtain review of the failure to impose any special sentence or the sentence imposed.

S. Rep. No. 91-617, 91st Cong., 1st Sess. 166 (1969).

While, as a general proposition, criminal statutes are to be strictly construed in favor of the defendant, we decline to apply the principle where "the (legislative) history is unambiguous and the text consistent with it." Scarborough v. United States, 431 U.S. 563, 577, 97 S.Ct. 1963, 1970, 52 L.Ed.2d 582 (1977).

Defendant's reliance upon United States v. Duardi, 514 F.2d 545 (8th Cir. 1975), is misplaced. That decision merely held that a court of appeals lacks jurisdiction to consider a government appeal prior to the imposition of sentence since no final judgment has been reached. At the same time it recognized that an order dismissing a dangerous special offender petition would be "fully reviewable" after sentence. Id. at 548. The Eighth Circuit eventually did review the order in question in United States v. Duardi, 529 F.2d 123 (8th Cir. 1975).

Turning to the principal question on this appeal of what constitutes sufficient "particularity" under § 3575(a)(2), we reject in the first instance the government's claim that its assertion that defendant was a "special offender" under § 3575(e)(1) was itself sufficient compliance with the particularity requirement of § 3575(a)(2). In light of the express language of the statute, we do not believe that the government may so lightly dispense with the notice requirement concerning dangerousness. In United States v. Kelly, supra, the court rejected a similar government argument where the notice merely set forth in statutory and conclusory language:

The defendant is dangerous within the meaning of Title 18, United States Code, Section 3575(f) requiring that a period of confinement longer than that provided for the offense for which he was convicted, Title 18 Appendix, United States Code, Section 1202(a)(1), to protect the public from further criminal conduct by said defendant.

519 F.2d at 255.

We also agree with the Seventh Circuit in United States v. Neary, that the determination of special offender status and of dangerousness represent different concepts:

We note a marked difference between the type of issue to be decided by a finding of special offender status under § 3575(e) and the type of issue decided by a finding of dangerousness under § 3575(f). The former involves historical facts, either prior convictions (under (e)(1)) or the character and concomitants of the offensive conduct (under (e)(2) and (3)). The latter essentially involves both evaluation of the character of the defendant and a prediction of future conduct matters which are traditionally left to wide discretion of a sentencing court. Because of this difference, we conclude that the essential function of a finding of special offender, under (e), is to expose the defendant to a sentence of imprisonment longer than the maximum prescribed by the statute under which he has been charged and convicted, but not exceeding twenty-five years, and that the essential functions of a finding of dangerousness, under (f), is to determine whether and to what extent a sentence in excess of the maximum for the particular offense is appropriate.

552 F.2d at 1193-94.

The express statutory requirements of the notice are designed, we think, to assure that, before invoking the Act, the prosecutor has himself made a judgment based upon a separate and informed consideration of the two concepts. As the Senate Report concluded, " '(d)angerousness' may be inferred, although not necessarily, from the establishment of the requirements of subsection (e) (special offender status)." S. Rep. 91-617, 91st Cong., 1st Sess. 166 (1969) (emphasis added).⁵ While the same evidence may establish that a defendant is both a special and dangerous offender, the statute requires the prosecutor to assess independently whether the defendant satisfies both criteria, setting forth the basis for his belief in the notice. The particularity requirement prevents a prosecutor from glossing over both concepts by the employment of boilerplate or conclusory language as, for example, in Kelly.

The prosecutor's decision is an important one in the administration of criminal justice and should not be lightly reached. It subjects the defendant to substantially increased penalties. Moreover, the demands upon the court's time at sentencing may even be greater than for the trial of the principal offense.⁶

An additional purpose of the notice provisions of § 3575, we think, is, at least in a rudimentary way, to alert the defendant to the special circumstances upon which the prosecution will rely to demonstrate to the court that he is dangerous.⁷ We by no means indicate, however, that the prosecution or the court itself is limited to the scope of the petition, or any amendment thereto....