United States v. Jones
| Decision Date | 12 September 2003 |
| Docket Number | No. 02-4257.,02-4257. |
| Parties | UNITED STATES OF AMERICA, <I>Plaintiff-Appellee,</I> v. JOHN EDWARD JONES, JR., a/k/a Liddy, <I>Defendant-Appellant.</I> |
| Court | U.S. Court of Appeals — Fourth Circuit |
Appeal from the United States District Court for the District of Maryland, at Baltimore. William N. Nickerson, Senior District Judge. (CR-98-48-WMN).
ARGUED: Sol Zalel Rosen, Washington, D.C., for Appellant. Andrea L. Smith, Assistant United States Attorney, Baltimore, Maryland, for Appellee. ON BRIEF: Thomas M. DiBiagio, United States Attorney, Jane M. Erisman, Assistant United States Attorney, Baltimore, Maryland, for Appellee.
Before WILLIAMS, MICHAEL, and SHEDD, Circuit Judges.
In an earlier appeal in this case, we vacated the sentence imposed upon John Edward Jones, Jr., after his conviction under 21 U.S.C.A. § 846 (West 1999) for conspiracy to distribute narcotics and remanded for resentencing in light of Apprendi v. New Jersey, 530 U.S. 466 (2000). See United States v. Jones, 2001 WL 1019398, 17 Fed. Appx. 240 (4th Cir. Dec. 18, 2001) (per curiam) (unpublished). At resentencing, Jones raised, for the first time, the issue of whether he had timely been served with notice, as mandated by 21 U.S.C.A. § 851 (West 1999), that the Government intended to proceed against him as a repeat offender.1 The district court concluded that the § 851 information was timely filed, and Jones appeals. Because I conclude that Jones waived his argument regarding the timeliness of the § 851 information by failing to raise it in his initial appeal, I would affirm.
Jones was indicted for conspiracy to distribute heroin and marijuana, in violation of § 846. Drug quantity was not specified in the indictment. The jury was asked to return a general verdict on whether the defendants were guilty of conspiracy to distribute narcotics, without specifying the drug type (marijuana or heroin). The jury found all four defendants guilty, and the court imposed a 210-month sentence on Jones.
In his initial appeal in this case, Jones challenged both his conviction and sentence on several grounds, arguing that: (1) the district court erred in allowing the jury to return a general verdict not specifying drug type where the indictment charged him with a conspiracy involving both heroin and marijuana; (2) there was insufficient evidence to support the conviction; (3) the district court's factual findings as to drug quantity violated Apprendi, and the district court erred in relying on a government informant's testimony to calculate quantity; and (4) the district court erred in refusing to give an instruction on the lesser-included offense of simple possession of marijuana. Jones, 17 Fed. Appx. at 244 & n.2.
We rejected each of Jones's contentions except his argument concerning Apprendi. With respect to that argument, we concluded that Jones's sentence violated the rule dictated by Apprendi — "that in order to authorize the imposition of a sentence exceeding the maximum allowable without a jury finding of a specific threshold drug quantity, the specific threshold quantity must be treated as an element of an aggravated drug trafficking offense." Jones, 17 Fed. Appx. at 248 (quoting United States v. Promise, 255 F.3d 150, 156 (4th Cir. 2001) (en banc)). Without a jury finding of a specific threshold quantity of marijuana, the statutory maximum sentence for conspiracy to distribute marijuana is ten years' imprisonment if the defendant has a prior felony drug conviction. See § 841(b)(1)(D). In light of Jones's prior felony drug conviction, we reasoned, the maximum sentence he could receive was ten years, and we remanded for the district court to sentence him in compliance with that limit. Jones, 17 Fed. Appx. at 248.
At resentencing, Jones argued that the § 851 information filed by the Government was untimely because it was filed after voir dire had begun. Jones contended that, for purposes of § 851, trial begins when voir dire begins, and thus failure to file before that point constitutes failure to file "before trial," as § 851 requires. Because the § 851 information was untimely filed, Jones argued, his sentence should be limited to five years, the applicable statutory maximum sentence where the defendant does not have a prior felony drug conviction and there is no jury finding of drug quantity. See § 841(b)(1)(D). The district court held that filing the information before the jury was sworn constituted filing "before trial," and therefore that the Government had complied with § 851. The district court sentenced Jones to ten years' imprisonment. Jones appeals, arguing only that the § 851 information was untimely filed.
I first consider whether Jones has waived his argument concerning the timeliness of the § 851 information. As noted above, Jones did not raise any objection at trial to the § 851 information2 and did not raise the timeliness issue in his initial appeal. Responding in this appeal to the Government's contention that he has waived any argument concerning timeliness, Jones asserts that failure timely to file a § 851 information deprives the district court of jurisdiction to impose an enhanced sentence. An objection to the timeliness of such an information, he argues, may be raised at any time because jurisdictional defects cannot be forfeited or waived. See American Canoe Ass'n v. Murphy Farms, Inc., 326 F.3d 505, 515 (4th Cir. 2003) ().
We have not addressed in a published opinion the question of whether § 851's requirements are "jurisdictional." Other circuits are split on the issue. Several circuits have stated, without detailed analysis, the proposition that § 851's requirements are jurisdictional in nature. See, e.g., United States v. Lawuary, 211 F.3d 372, 376 n.6 (7th Cir. 2000); Harris v. United States, 149 F.3d 1304, 1306 (11th Cir. 1998); United States v. Hill, 142 F.3d 305, 312 (6th Cir. 1998); United States v. Wright, 932 F.2d 868, 882 (10th Cir. 1991); cf. Lawuary, 211 F.3d at 378 (Easterbrook, J., concurring) (). On the other hand, at least three circuits have recently held explicitly that § 851's procedural requirements are not jurisdictional and are thus subject to the ordinary rules of waiver and forfeiture. See United States v. Ceballos, 302 F.3d 679, 690-92 (7th Cir. 2002) (), cert. denied, ___ U.S. ___, 123 S. Ct. 924, 925, and ___ U.S. ___, 123 S.Ct. 1571 (2003)); United States v. Mooring, 287 F.3d 725, 727 (8th Cir. 2002) (); Prou v. United States, 199 F.3d 37, 43-46 (1st Cir. 1999) (same).
The Supreme Court has instructed that subject matter jurisdiction is "the courts' statutory or constitutional power to adjudicate the case." United States v. Cotton, 535 U.S. 625, 630 (2002) (quoting Steel Co. v. Citizens for Better Env't, 523 U.S. 83, 89 (1998)). Not all statutory delineations of the court's power to act in a given case are jurisdictional provisions, however. In Steel Co., the Court held that a statute stating that "`[t]he district court shall have jurisdiction in actions brought under subsection (a) of this section . . . [to grant certain relief],'" did not affect the jurisdiction of the court; instead, the statute was properly read as "specifying the remedial powers of the court, viz., to enforce the violated requirement and to impose civil penalties." Steel Co., 523 U.S. at 90. Nothing in its jurisprudence, the Court noted, suggested "the expansive principle that a statute saying `the district court shall have jurisdiction to remedy violations [in specified ways]' renders the existence of a violation necessary for subjectmatter jurisdiction." Id. at 91-92.
Nor does the omission from an indictment of a fact that enhances the statutory maximum sentence affect the court's jurisdiction to impose an enhanced sentence. In Cotton, the Supreme Court held that "defects in an indictment [in Cotton, the omission of drug quantity] do not deprive a court of its power to adjudicate a case." Cotton, 535 U.S. at 630. Thus, the Court could conclude that there was no plain error warranting relief in sentences exceeding the 20-year statutory maximum for a detectable amount of cocaine or cocaine base even though quantity had not been charged in the indictment or submitted to the jury. Although the district court in Cotton erred in meting out the sentences in the absence of a charge in the indictment or a jury finding, its jurisdiction to impose the sentences was not affected by the omission of the quantity element from the indictment.
The relevant principle from Steel Co. and Cotton is that only those claims that concern the constitutional or statutory limits of the court's authority to adjudicate in a given action implicate jurisdiction. The district courts have jurisdiction over drug prosecutions brought under the federal drug laws pursuant to 18 U.S.C.A. § 3231, which states that "[t]he district courts of the United States shall have original jurisdiction, exclusive of the courts of the States, of all offenses against the laws of the United States." 18 U.S.C.A. § 3231 (West 2000). "This jurisdiction necessarily includes the imposition of criminal...
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