U.S. v. Ingram, CR 07-4056-2-MWB.

Decision Date11 May 2009
Docket NumberNo. CR 07-4056-2-MWB.,CR 07-4056-2-MWB.
PartiesUNITED STATES of America, Plaintiff, v. Michael INGRAM, Defendant.
CourtU.S. District Court — Northern District of Iowa

Shawn Stephen Wehde, U.S. Attorney's Office, Sioux City, IA, for Plaintiff.

Priscilla Elizabeth Forsyth, Attorney at Law, Sioux City, IA, for Defendant.


MARK W. BENNETT, District Judge.

                TABLE OF CONTENTS
                I. INTRODUCTION                                               1072
                A. Pretrial Proceedings                                    1072
                     B. Trial And Conviction                                    1073
                     C. Post-Trial Proceedings                                  1073
                     D. The Prosecution's Appeal                                1074
                     E. Proceedings On Remand                                   1076
                 II. LEGAL ANALYSIS                                             1079
                     A. The Prosecution's Second Bite At The Apple              1079
                        1. Sua sponte raising the issues                        1079
                        2. Lack of authority                                    1079
                        3. Unsupported conclusions                              1087
                     B. The Prosecution's Present Proof Of A Prior Conviction   1091
                        1. Preliminary evidentiary questions                    1091
                          a. Arguments of the parties                           1092
                          b. Analysis                                           1093
                       2. Proof of the prior conviction                         1096
                III. CONCLUSION                                                 1098

Defendant Michael Ingram was back before the court on May 8, 2009, for completion of a sentencing hearing on a charge of conspiring to distribute crack cocaine after a prior felony drug conviction in violation of 21 U.S.C. §§ 846 and 851. Although this court held that the prosecution had failed, in its first attempt, to establish a prior felony drug conviction, on the prosecution's appeal, in a per curiam decision, the United States Court of Appeals for the Eighth Circuit vacated and remanded, on grounds never raised by the prosecution in its appeal, to give the prosecution another chance to prove Ingram's alleged prior conviction. See United States v. Ingram, 309 Fed.Appx. 66 (8th Cir.2009) (per curiam) (unpublished op.). This written ruling is entered not only to explain whether or not the prosecution has now proved defendant Ingram's alleged prior felony drug conviction, but also to register respectful disagreement with giving the prosecution a "second bite at the apple" to try to do so.

The prosecution has now cured deficiencies in its proof of Ingram's prior felony conviction. However, giving the prosecution a second bite at the apple, on grounds that the prosecution never raised in its appellate briefs, eviscerates several long-standing, bedrock principles of appellate review, including the doctrines of "plain error" and "party presentation"; creates out of thin air a "bailout" not requested by the prosecution;1 is unsupported by any precedent in this Circuit or anywhere else; is unsupported by any conceivable analogue in criminal law (or civil law, for that matter); is inconsistent with the plain language of 21 U.S.C. § 851, and thus contravenes the intent of Congress; and is inconsistent with the record and the facts in this case, ignored or overlooked in the per curiam opinion, concerning when the prosecution not only should have known but actually knew that Ingram's prior conviction was in dispute. For each of these reasons, and in the context of a recent string of eleven reversals of the Eighth Circuit Court of Appeals by the United States Supreme Court on sentencing issues on which the Eighth Circuit Court of Appeals had erroneously tilted in favor of the prosecution, the appellate court's sua sponte review and remand in this case are deeply troubling.

A. Pretrial Proceedings

In an October 26, 2007, Superseding Indictment, defendant Michael Ingram was charged with conspiring with three co-defendants and others, from between about 2006 through August 6, 2007, to distribute and to possess with intent to distribute 50 grams or more of a mixture or substance containing a detectable amount of cocaine which contained cocaine base, commonly called "crack cocaine," in Ingram's case, after he had been convicted of a felony drug offense, that is, manufacture/delivery of a controlled substance, on or about October 24, 2001, in Cook County, Illinois, case number 01CR219510, all in violation of 21 U.S.C. §§ 846 and 851. Defendant Ingram's three co-defendants all eventually entered guilty pleas to the conspiracy charge, but Ingram proceeded to trial.

On February 4, 2008, prior to Ingram's trial, the prosecution filed a Notice Of Intent To Seek Enhanced Penalties Pursuant To 21 U.S.C. § 851 (§ 851 Notice), notifying the defendant and the court that the prosecution intended to rely on a previous conviction for enhanced punishment, identifying that prior conviction as one for "[m]anufacture/delivery of [a] controlled substance, in Circuit Court of Cook County, Illinois, on or about October 24, 2001, in case number 01CR2195101." The § 851 Notice did not cite any applicable statute as defining the offense for which Ingram had been convicted. There is apparently no dispute that this § 851 Notice was an "information" stating the defendant's prior conviction to be relied upon within the meaning of 21 U.S.C. § 851(a). The prosecution did not append to its § 851 Notice any evidence or other documentation to prove the prior conviction, nor is the prosecution required to do so by 21 U.S.C. § 851. See 21 U.S.C. § 851(c)(1) (stating, in pertinent part, "The failure of the United States attorney to include in the information the complete criminal record of the person or any facts in addition to the convictions to be relied upon shall not constitute grounds for invalidating the notice given in the information required by subsection (a)(1) of this section."). Nevertheless, the prosecution's own § 851 Notice put the prosecution on notice, from at least February 4, 2008, that the prosecution might be required to prove Ingram's prior felony drug conviction to obtain enhanced penalties pursuant to 21 U.S.C. §§ 841(b)(1)(A) and 851.

Prior to trial, by Order dated February 28, 2008, the court granted the prosecution's February 25, 2008, Motion For Preliminary Determination Of Admissibility Of Certain Evidence, as supplemented on February 27, 2008, which pertained to admissibility of evidence of Ingram's 2001 conviction for "manufacture/delivery of a controlled substance," and denied defendant Ingram's cross-motion in limine concerning the same evidence in his February 28, 2008, Resistance To Government Motion For Preliminary Determination Of Admissibility Of 404(b) Evidence. Ingram had argued that the evidence of his prior conviction should be excluded, because there was no evidence that the prior conviction, some five years before the conduct alleged in this case, had any temporal relevancy to the charged offense; that the prior conviction did not show motive or intent to join a conspiracy to distribute controlled substances and, as such, was not probative of any element of the charged offense; that the evidence would be introduced solely to prove his propensity to engage in criminal misconduct; and that the admission of such evidence would result in undue prejudice under Rule 403, because the jury would be unable to view the prior conviction as anything other than propensity evidence. Ingram did not argue, however, that the evidence in question did not prove that he had committed the prior offense. The court preliminarily determined that evidence of Ingram's 2001 conviction was admissible, because, inter alia, if evidence of the prior conviction included charging documents and police reports, such evidence would likely be sufficient to establish the prior conviction for Rule 404(b) purposes. The court did not rule that the prosecution had proved the prior conviction or had proved that any such prior conviction was a felony drug conviction.

B. Trial And Conviction

During Ingram's trial, which began on March 3, 2008, the prosecution sought to offer a certified statement of conviction from the State of Illinois to establish defendant Ingram's prior narcotics conviction, but Ingram called the sufficiency of that certified statement into question. Specifically, from the face of the document, it was unclear precisely what illegal drug formed the basis for the conviction and whether that conviction was a felony or a misdemeanor. Real Time Trial Transcript for March 4, 2008, at 156-57. As a result, the prosecution withdrew its request to introduce evidence of defendant Ingram's Illinois conviction. Id. at 159. Thus, not later than March 4, 2008, the prosecution was on notice that there were problems with its proof of Ingram's prior felony drug conviction and, more specifically still, the prosecution was on notice that Ingram challenged the sufficiency of the prosecution's proof of such a prior conviction and whether it was for a misdemeanor or a felony.

The jury found defendant Ingram guilty of the charged conspiracy offense on March 5, 2008. However, the jury was not required to determine whether or not Ingram had previously been convicted of any felony drug offense under 21 U.S.C. § 851 to render its verdict, because the Apprendi line of cases does not require jury determination of a prior conviction. Thus, the jury verdict did not address the adequacy of the prosecution's proof of the 2001 conviction.

C. Post-Trial Proceedings

By Order dated June 5, 2008, Ingram's post-trial motions were denied, so he came on for sentencing on June 16, 2008. Prior to sentencing, the probation officer assigned to the case provided the parties with a draft Presentence Investigation Report (PSIR), which, in pertinent part, scored Ingram's sentence on...

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