U.S. v. Ladson, 10–10151.

• Decision Date: 24 June 2011
• Docket Number: No. 10–10151.,10–10151.
• Court: U.S. Court of Appeals — Eleventh Circuit
• Parties: UNITED STATES of America, Plaintiff–Appellee,v.James Jovan LADSON, Defendant–Appellant.

643 F.3d 1335

22 Fla. L. Weekly Fed. C 2216

UNITED STATES of America, Plaintiff–Appellee,

v.James Jovan LADSON, Defendant–Appellant.

No. 10–10151.

United States Court of Appeals, Eleventh Circuit.

June 24, 2011.

Jason Linder, James H. Swain, Arimentha R. Walkins, U.S. Attys., Miami, FL, for Plaintiff–Appellee.Richard Carroll Klugh, Jr. (Court–Appointed), Miami, FL, for Defendant–Appellant.Appeal from the United States District Court for the Southern District of Florida.Before PRYOR and COX, Circuit Judges, and WATKINS,^* District Judge.WATKINS, District Judge:

James Jovan Ladson appeals his convictions (Counts I, II, and IV), his sentence of mandatory life imprisonment based upon his conviction for conspiracy to distribute controlled substances, enhanced by two prior felony drug offenses (Count I), and his sentence based upon his conviction for possession with intent to distribute a controlled substance and an increased statutory maximum penalty based upon a prior felony drug offense (Count II). Ladson raises three issues on appeal: (1) whether there was sufficient evidence to support his convictions; (2) whether there were cumulative errors at trial that prejudiced him to the extent that he is entitled to a new trial; and (3) whether the Government properly filed and served its 21 U.S.C. § 851 notice of enhanced sentence. Finding that the first two issues lack merit, we focus our analysis on the Government's service of the notice of enhancement under § 851(a)(1).

Ladson argues that the Government did not file and serve an information containing notice of an enhanced sentence in accordance with § 851(a)(1). We agree that he was not served before trial with a copy of the information in accordance with § 851(a)(1), and thus the district court lacked authority to impose an enhanced sentence on Counts I and II under 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), (C), and 846. We therefore vacate Ladson's mandatory term of life imprisonment on Count I and ten-year sentence on Count II, and remand with instructions to resentence Ladson on Counts I and II without the § 851 sentence enhancement under the second information. We affirm the judgment of conviction on Counts I, II, and IV.

I.

In September 2008, a grand jury indicted Ladson and seven others for conspiracy to possess with intent to distribute 50 grams or more of cocaine base, as well as cocaine, ecstasy, and marijuana, in violation of 21 U.S.C. §§ 841(a)(1) and 846 (Count I). The superseding indictment filed in January 2009 added two other defendants and three new charges against Ladson: (1) possession with intent to distribute cocaine, in violation of 21 U.S.C. § 841(a)(1) (Count II); (2) possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A)(i) (Count III); and (3) being a felon in possession of a firearm and ammunition, in violation of 18 U.S.C. § 922(g)(1) (Count IV).

Ladson's trial was scheduled to begin with jury selection on May 12, 2009. On May 4, 2009, the Government provided Ladson's trial counsel with a copy of an information (the “first information”) giving notice of the Government's intent to seek enhanced penalties under Counts I and II of the indictment on the basis of a single prior felony drug conviction. It is undisputed that the first information was never filed with the district court.¹

On May 12, 2009, before the district court brought the jury pool into the courtroom to begin jury selection, the Government announced its intention to file a § 851 sentence enhancement that could result in a mandatory sentence of life imprisonment and remove the possibility of a favorable plea agreement. ² The Government advised the district court that it would be filing the § 851 enhancement before jury selection because “if we pick a jury we will have crossed the Rubicon and there's not really much coming back at that point.” Before handing the district judge that information in open court (the “second information”), the Government said, “[W]e would like to file with the court the 851 enhancement .... May I approach and file with the Court?” The district court granted the request. Ladson's trial counsel asked for a last moment to confer with his client about the Government's plea offer: “Wait before you actually clock it in.” After a brief conference, Ladson's trial counsel informed the district court that Ladson intended to go to trial. The Government responded, “Your honor, please file the 851 enhancement.”³

A colloquy ensued between the district court and Ladson:

THE COURT: Mr. Ladson, I want to make sure you—I want to read this to you. It says here, the defendant is hereby notified [that] the United States intends to rely at sentencing upon the following convictions for felony drug offenses and will seek the enhanced penalties applicable to Counts 1 and 2 of the indictment. And there is a State of Florida versus James Ladson Circuit Court of the Eleventh Judicial Circuit judgment dated September 29, 2000, another one dated 2001, September 20, 2001. It goes on to say as a result of the United States seeking this enhancement, the defendant is exposed on Count 1 to a mandatory term of life imprisonment without release, and on Count 2 to a maximum term of imprisonment of 30 years and a term of supervised release of six years. First, I want to make sure—you understand this?

DEFENDANT: If I told you I did, I would be lying to you. But I hear what you're saying.

THE COURT: All right. I just—there was a case recently where defendants went to trial in a situation like this. They were convicted. One of the guys at sentencing says, Judge, how long is life? I want to make sure you understand life is life. There's no parole. Life is not something you get out in a short while. You understand that?

DEFENDANT: (Defendant nodding head.)

THE COURT: Okay. Let's invite the jury in.

Jury selection immediately followed this colloquy, and the trial commenced. On May 13, 2009, the district court declared a mistrial because of the Government's late disclosure of fingerprint evidence.

In July 2009, the Government filed a second superseding indictment. The second superseding indictment charged Ladson and one co-defendant with conspiracy to possess with intent to distribute 50 grams or more of cocaine base, as well as cocaine, ecstasy, and marijuana, in violation of 21 U.S.C. §§ 841(a)(1) and 846 (Count I). Ladson was also charged with: (1) possession with intent to distribute five grams or more of cocaine base, cocaine, and marijuana, in violation of 21 U.S.C. § 841(a)(1) (Count II); (2) possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A)(i) (Count III); and (3) being a felon in possession of a firearm and ammunition, in violation of 18 U.S.C. § 922(g)(1) (Count IV). On August 3, 2009, Ladson went to trial on these charges, and on August 7, 2009, the jury found him guilty on Counts I, II, and IV of the second superseding indictment. He was acquitted of the § 924(c) charge in Count III.

No § 851 sentence enhancement information appeared as a docket entry on the district court's Case Management/Electronic Case Filing docket (“CM/ECF”) until September 15, 2009, five weeks after the conclusion of the second trial. However, the information docketed on September 15, 2009 (the “third information”), was not the second information the district court received in open court from the Government on May 12, 2009. Rather, the docketed third information, a replacement for the second information, was emailed from the Government to the district court on September 14, 2009. The clerk of the court physically date-stamped the third information May 12, 2009, but it was electronically time-stamped September 15, 2009, by CM/ECF. Notably, the third information was not physically or electronically signed by the filing Assistant United States Attorney. The attached Certificate of Service was electronically signed by the filing Assistant United States Attorney, however, and stated, “I hereby certify that on or about May 12th, 2009, I will electronically file[ ] the foregoing document with the Clerk of the Court using CM/ECF, and that the foregoing document is being served this day on all counsel of record via transmission of Notice(s) of Electronic Filing.” (emphasis added). The third information contained notice that the Government was pursuing a sentence enhancement of mandatory life imprisonment on Count I of the superseding indictment, and a maximum term of imprisonment of thirty years and a term of supervised release of six years on Count II of the superseding indictment.⁴ Like the second information, the third information referenced two prior felony drug convictions.

At sentencing on January 5, 2010, only the second information was at issue as the basis for a § 851 sentence enhancement. Ladson's sentencing counsel⁵ objected to the sentence enhancement, arguing that the second information was not properly filed and served in accordance with § 851(a)(1). Ladson argued that the district court's summary of a portion of the second information in open court prior to the first trial did not suffice for service, that the Government filed its only copy of the second information with the district court just before the beginning of the first trial on May, 12, 2009, and thus Ladson could not have been personally served with a copy in the courtroom. Ladson also repeatedly urged the district court to hold an evidentiary hearing to determine whether the second information was timely served.

The Government argued that the second information was properly filed because it was handed to the district court in open court and it was properly served on Ladson because he had actual notice of the information and the district court had read a portion of the information to him in open court. The Government further reasoned that service was accomplished because: (1) the Government emailed the first...