United States v. Duardi, 23939-1.
| Decision Date | 28 February 1973 |
| Docket Number | No. 23939-1.,23939-1. |
| Citation | 384 F. Supp. 861 |
| Parties | UNITED STATES of America, Plaintiff, v. James S. DUARDI et al., Defendants. |
| Court | U.S. District Court — Western District of Missouri |
Bert C. Hurn, U. S. Atty., Gary Cornwell, Strike Force, Kansas City, Mo., for plaintiff.
Michael J. Drape, Kansas City, Mo., for Duardi.
Lawrence F. Gepford, Kansas City, Mo., for Brancato.
David R. Freeman, Federal Public Defender, Kansas City, Mo., for Bishop.
Patrick A. Williams, Tulsa, Okl., for King.
Roehm A. West, Tulsa, Okl., for Husong.
Stephen Jones, Oklahoma, City, Okl., for Grayson.
This case presents important questions concerning the proper application of Sections 3575-3578, Title 18, United States Code. The position taken by the government has required detailed examination of the statute and its Congressional history.
The government, prior to trial, purportedly in complaince with § 3575(a), Title 18, United States Code, filed an in camera notice with another judge of this Court which stated in substance that the attorney charged with the prosecution of this case had reason to believe that each defendant was a "dangerous special offender" and therefore subject to the imposition of sentence under § 3575(b), Title 18, United States Code. That notice stated that the government believed all the defendants were "dangerous special offenders" for the reason that the violations alleged in the indictment* were within the definition of § 3575(e)(3). No mention whatever was made of § 3575(f) in the notice filed pursuant to § 3575(a).
In our memorandum and order of January 2, 1973, 384 F.Supp. 856, we stated that "the complicated procedure established by those sections §§ 3575-3578 makes clear that even though one may be found to be a `special offender' within the meaning of § 3575(e), he may not properly be sentenced under that section unless he also be found to be `dangerous' within the meaning of § 3575(f)." We specifically directed attention to the fact that "Subsection (f) expressly provides that a defendant may be considered to be `dangerous' for purposes of sentencing only if it is determined that `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.'" We also noted that "the legislative history of § 3575 makes clear that both a finding that a particular defendant is a `special offender' within the meaning of subsection (e) and also is `dangerous' within the meaning of subsection (f) must be made before the procedures outlined in that section may be utilized."
In our memorandum and order of January 2, 1973, after indicating our agreement with the suggestion of all parties that they be afforded an opportunity to state their views as to what would be appropriate procedures pursuant to § 3575 under the circumstances of this case, we entered various orders, which included the following:
The government's response to that order filed January 22, 1973 reflects either a misunderstanding or an apparent disregard of the explicit provisions of § 3575(f), the careful and lengthy Congressional history and purpose of §§ 3575-3578, and the specific order of this Court that the government file a statement of the evidence it intends to adduce "in order to support a finding of dangerousness, as required by § 3575(f) of Title 18, United States Code."
Suggestions in the government's response have focused attention to facets of this case which have not heretofore been given appropriate consideration. Those matters require a much fuller discussion than would have otherwise been necessary.
In response to our order to obtain the benefit of the experience of other courts, the government stated on the first page of its response that "the case at bar is the first case in which the Department of Justice has asked that this statute be invoked since the statute became effective on October 15, 1970."
The files and records of this Court show that on November 15, 1971, in United States v. Civella, et al., No. 23562-3, at the time of arraignment and in apparent violation of that portion of § 3575(a) which provides that "in no case shall the fact that the defendant is alleged to be a dangerous special offender . . . be disclosed . . . to the presiding judge without the consent of the parties," the government in fact filed a § 3575 notice with the Honorable William H. Becker, Chief Judge of this Court, who was the presiding judge in that case.
The government's representation that this case is the first case in the United States in which the Department of Justice has asked that § 3575 be invoked could be accurate only if it is assumed that the Department did not "ask" that the § 3575 notice be filed in the Civella case. Principles stated in Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104, make it clear that counsel representing the United States can no longer plead ignorance of actions taken by other government counsel. Certainly, if staff lawyers in a State prosecutor's office must, as Chief Justice Burger stated in Santobello v. New York, 404 U.S. 257, 262, 92 S.Ct. 495, 499, 30 L.Ed.2d 427 let "the left hand know what the right hand is doing," the same thing must be true in regard to government Strike Force attorneys who apparently are a part of the Department of Justice itself, rather than members of a United States District Attorney's staff. See former Assistant Attorney General Will Wilson's article in 46 Notre Dame Lawyer, 41, 44 (Fall, 1970), to which we will later make reference.
Considerations of accuracy to one side, it is important that we give brief notice to the 1971 case of Civella, the first case in this district in which the government filed a § 3575 notice, because of advice given this Court by the government in that case.
The defendants in Civella promptly filed a motion to strike the § 3575 notice. The government initially filed a response on December 6, 1971, in which it suggested that it would be "more appropriate to postpone consideration of this motion involving a serious constitutional issue . . . until after trial." Five months later, however, on May 9, 1972, the government filed a motion to withdraw the § 3575 notice initially filed on November 19, 1971, "pending further review of the Department of Justice policy concerning the class of cases in which such special sentencing procedures should be actively pursued by the government."
It will obviously be helpful for this Court to be advised of the policy which apparently prohibited any effort on the government's part to invoke §§ 3575-3578 from the date those statutes became law in 1970 except in two cases, both of which happened to pend in the Western District of Missouri. Our order will accordingly request the government to provide us with the various policy guidelines which have been promulgated from time to time by the Department of Justice as those policy guidelines relate to enhanced sentencing under §§ 3575-3578.
The government's statement in Civella in regard to the "further review" of policy and the manner in which the government apparently violated § 3575(a) in connection with that case focused particular attention on the question of whether the § 3575 notice filed in this case complies with the express provisions of § 3575(a). Our order will request the government's views in regard to that question for reasons we now state.
The relevant portion of § 3575(a) provides:
(a) Whenever an attorney charged with the prosecution . . . has reason to believe that the defendant is a dangerous special offender, such attorney . . . may sign and file with the court, and may amend, 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) of this section, and (2) setting out with particularity the reasons why such attorney believes the defendant to be a dangerous special offender. (Emphasis ours.)
The notice filed in this case does not set anything out with particularity. Indeed, the single sentence which apparently purported to set out "with particularity the reasons why such attorney believes the defendant to be a dangerous special offender" is confined to a conclusory statement which did no more than paraphrase the definition for a "special offender" within the meaning of "§ 3573(e)(3) sic," (an obvious reference to § 3575(e)(3).)
No reasons whatsoever are stated in the notice which would indicate any reason why the government believed that any particular defendant in this case is "dangerous" within the meaning of § 3575(f). That section, as we pointed out in our memorandum of January 2, 1973, expressly provides that "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."
It is obvious from other portions of the government's response that it does not believe that either it or any court need pay any substantial attention to the Congressional definition of "dangerous" as provided in § 3575(f). We do not believe that the...
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...§ 849 sentencing mechanism. See 21 U.S.C. §§ 849(a), (e), & (f); United States v. Duardi, 384 F.Supp. 856 ("Duardi I") & 384 F.Supp. 861 ("Duardi II") (W.D. Mo.1973), aff'd, 529 F.2d 123 (8th Cir. 1975) (construing "sister statute" 18 U.S.C. §§ 3575-3578); United States v. Kelly, 384 F.Supp......
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United States v. Duardi
...a finding of dangerousness, as required by § 3575(f) of Title 18, United States Code." A second memorandum opinion was filed on February 28, 1973, 384 F.Supp. 861. That opinion, among other things, focused particular attention on whether the original § 3575(a) notice filed by the government......
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...court found that the key to this notification conflict was the distinction between 'presiding judge' and 'court.' See United States v. Duardi, W.D.Mo.1973, 384 F.Supp. 861, aff'd, 8 Cir. 1975, 529 F.2d 123, where the government did file the § 3575 notice with another judge of the court prio......
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...yet pronounced final sentence. See United States v. Duardi, 514 F.2d 545 (8th Cir. 1975). Judge Oliver's opinion in United States v. Duardi, 384 F.Supp. 861 (W.D.Mo.1973), is representative of the approach taken by both courts. He quoted those portions of the legislative history which empha......