U.S. v. Ortiz, 26

• Decision Date: 08 May 1998
• Docket Number: No. 26,D,26
• Citation: 1998 WL 228126,143 F.3d 728
• Parties: UNITED STATES Of America, Appellee, v. Jose ORTIZ, a/k/a "Chole", a/k/a "Charlie"; Christine Rivera, aka Virginia Rivera, aka "Virginia"; Miguel Marrero, a/k/a "Mike"; Frank Traynham; Ivan Mendoza; Withberto Cepeda, Defendants, Juan Nieves, a/k/a, "Johnny", Defendant-Appellant. ocket 96-1183.
• Court: U.S. Court of Appeals — Second Circuit

Page 728

143 F.3d 728

UNITED STATES Of America, Appellee, v. Jose ORTIZ, a/k/a "Chole", a/k/a "Charlie"; Christine Rivera, aka Virginia Rivera, aka "Virginia" Miguel Marrero, a/k/a "Mike"; Frank Traynham; Ivan Mendoza Withberto Cepeda, Defendants Juan Nieves, a/k/a, "Johnny", Defendant-Appellant.

No. 26, Docket 96-1183.

United States Court of Appeals Second Circuit.

Argued Sept. 23, 1997.

Decided May 8, 1998.

Steven V. Manning, Assistant United States Attorney, Hartford, CT (Christopher F. Droney, United States Attorney for District of Connecticut, Hartford, CT, of Counsel), for Appellee.

Margaret P. Levy, Hartford, CT, for Defendant-Appellant.

Before: MESKILL, JACOBS, and LEVAL, Circuit Judges.

LEVAL, Circuit Judge:

Upon an indictment filed in the United States District Court for the District of Connecticut, Juan Nieves was convicted after jury trial before Janet Bond Arterton, Judge, of conspiracy to possess heroin with intent to distribute in violation of 21 U.S.C §§ 846 and 841(a)(1). Because he had been previously convicted of a felony narcotics offense in the Connecticut state courts, Nieves was sentenced as a multiple narcotics offender under the mandatory provision of 21 U.S.C. § 851(a)(2) and 841(b) to a mandatory minimum term of 120 months imprisonment.

Relying on our recent holding in United States v. Collado, 106 F.3d 1097 (2d Cir.1997), Nieves contends that the mandatory minimum sentence provision did not apply to him because his prior conviction was not prosecuted by indictment.

We affirm the conviction. In so doing, we overrule our decision in Collado interpreting § 851(a)(2). Arguments and representations about the state of the law presented in this case but not in Collado have persuaded us that Collado was incorrectly decided. ¹

BACKGROUND

In August, 1995, Nieves was charged by a federal indictment with conspiracy to possess heroin with intent to distribute. 21 U.S.C. §§ 841(a)(1), 846. Prior to the federal indictment, Nieves pleaded guilty to a narcotics felony in Connecticut state court, pursuant to a procedure of the Connecticut criminal law that does not utilize indictment by grand jury. The United States thus filed a previous offender information under 21 U.S.C. § 851(a) alleging that Nieves had been previously convicted in the Connecticut courts of felony possession of narcotic drugs and that this constituted a prior conviction justifying a sentence enhancement under 21 U.S.C. §§ 841(b) and 851.

Nieves was tried on the federal indictment in December 1995. The trial ended in a hung jury. He was retried in April 1996. This time the jury found Nieves guilty.

The sentencing guideline range for Nieves's federal conviction was 108 to 135 months. The court found, however, that Nieves's liability as a second felony narcotics offender had been established, so that 21 U.S.C. § 841(b)(1)(B) required a sentence of 120 months as the mandatory minimum. He was accordingly sentenced to 120 months imprisonment as well as a period of supervised release and a mandatory special assessment.

DISCUSSION

Section 851(a)(2) provides:

An information [alleging a previous felony narcotics offense and thus triggering the enhanced penalty provision of § 841(b) ] may not be filed ... if the increased punishment which may be imposed is imprisonment for a term in excess of three years unless the person either waived or was afforded prosecution by indictment for the 21 U.S.C. § 851(a)(2) (emphasis added).

offense for which such increased punishment may be imposed.

Relying on this statute, Nieves contends that the 120-month mandatory minimum sentence for repeat offenders provided by 21 U.S.C. § 841(b)(1)(B) could not apply to him because his previous offense was not prosecuted by indictment. He argues that the requirement of "prosecution by indictment" (or waiver thereof) refers to the prior felony offense, not the instant offense. He therefore asserts that the § 851 information was improper and the sentence enhancement is inapplicable. The United States contends he misread the statute. It argues that the phrase "offense for which such increased penalty may be imposed" refers to the instant offense, not the previous one, and that, as the instant offense was prosecuted by indictment, the requirement is satisfied.

In United States v. Collado, 106 F.3d 1097 (2d Cir.1997), a panel of this court faced the same question of statutory interpretation. There, the offender was prosecuted by indictment for a federal narcotics offense and had been previously convicted in the local courts of Puerto Rico for a felony narcotics offense not prosecuted by indictment. In support of its contention that the requirement of an indictment applied only to the instant offense, the United States relied on three arguments. The government first argued that to consider the prior offense as the one "for which such increased punishment [was being] imposed" would contravene the Ex Post Facto Clause. See id. at 1101; see also United States v. Adams, 914 F.2d 1404, 1407 (10th Cir.) (applying § 851(a)(2) to the instant offense in part to avoid ex post facto objection), cert. denied, 498 U.S. 1015, 111 S.Ct. 588, 112 L.Ed.2d 593 (1990); United States v. Espinosa, 827 F.2d 604, 617 (9th Cir.1987)(same), cert. denied, 485 U.S. 968, 108 S.Ct. 1243, 99 L.Ed.2d 441 (1988). The Collado panel rejected this argument. See Collado, 106 F.3d at 1101-02. Enhanced sentencing for recidivism has long been approved notwithstanding that the prior offenses occurred prior to passage of the enhancement provision, see Gryger v. Burke, 334 U.S. 728, 732, 68 S.Ct. 1256, 1258, 92 L.Ed. 1683 (1948); the lawfulness of the procedure cannot depend on the semantic factor of whether a recidivism statute refers to the first conviction, or the second, or the combination of the two as requiring the enhancement. In each case, the effect would be exactly the same.

The government's second argument in Collado was that, had § 851(a)(2) intended to identify the previous conviction as the one for which prosecution by indictment was required, it would have used the term "prior conviction(s)" or "previous convictions," as § 851 uses those terms elsewhere. 106 F.3d at 1102; see also Espinosa, 827 F.2d at 617 ("Had Congress intended [the appellant's] interpretation, it seems that the phrase simply would have read 'prosecution by indictment in the prior conviction.' "). We observed in response that it might equally be said that "had Congress intended to refer to the instant offense, it seems it would have referred to 'an offense under this part,' or simply to 'the offense.' " Collado, 106 F.3d at 1102. Congress could have drafted § 851(a)(2) to express either meaning clearly, and so the inherent ambiguity of the passage as legislated supports neither meaning.

Finally, the Collado panel rejected the argument that applying § 851(a)(2) to the prior offense would improperly restrict the reach of § 841 "[d]espite Congress's ... evident attempt in 1984 [when it passed the amended sentence enhancement provision of § 841(b) ] to broaden the scope of § 841(b) prior convictions to include state and foreign convictions (in addition to federal convictions)." Id. at 1102 (quoting Espinosa, 827 F.2d at 617) (first alteration in original). We agreed that Congress intended to, and did, broaden § 841(b) in 1984, but found no evidence to illuminate the issue whether Congress intended to include prior convictions where the defendant was not afforded the protection of prosecution by indictment. Id.

Collado noted that several circuits had accepted these arguments. See United States v. Brown, 47 F.3d 1075, 1078 (11th Cir.1995) (per curiam); United States v. Harden, 37 F.3d 595, 601, (11th Cir.1994); United States v. Trevino-Rodriguez, 994 F.2d 533, 536 (8th Cir.1993); United States v. Burrell, 963 F.2d 976, 993 (7th Cir.), cert. denied, 506 U.S. 928 The defendant in Collado, meanwhile, advanced the argument that, as federal felony narcotics prosecutions are only by indictment (or waiver), the requirement of § 851(a)(2) that the prosecution be by indictment would be surplusage if it referred to the present (federal) prosecution. According to the Collado defendant's argument, the provision would be meaningful only if it applied to the prior prosecutions because only they could be nonfederal and therefore otherwise than by indictment. 106 F.3d at 1103. The government in Collado offered nothing to rebut this argument.

                113 S.Ct. 357, 121 L.Ed.2d 270 (1992);  Adams, 914 F.2d at 1407;  Espinosa, 827 F.2d at 617.   We nevertheless found them unpersuasive.
                

The Collado panel concluded that § 851(a)(2) was ambiguous. The panel could find no basis for deciding whether it was meant to apply to the instant or prior prosecution. Accordingly, we invoked the rule of lenity to hold that the defendant's "sentence [in that case] should not be enhanced on the basis" of a prior conviction prosecuted without grand jury indictment or the waiver thereof. Id. ²

We reconsider the question because the United States has provided new information that supports its interpretation of § 851(a)(2) far more convincingly than any argument advanced in Collado. The government's briefing shows that at the time § 851(a)(2) was formulated in 1970, federal felony narcotics violations were prosecutable without indictment in the Virgin Islands, ³ and the Panama Canal Zone. ⁴ Moreover, in Guam, federal prosecutions proceeded without indictment until 1968. ⁵ The apparent redundancy of § 851(a)(2) as applied to federal prosecutions evaporates in light of this information, because the provision confers a procedural safeguard for offenders facing charges eligible for enhancement under §§ 841-45 in territorial jurisdictions where federal prosecution by information is possible.

We think this new information does much to clarify the meaning of § 851(a)(2). The provision is not free of ambiguity; it still can be interpreted to impose a...