United States v. White, Crim. No. N-90-40 (WWE).
| Citation | 764 F. Supp. 254 |
| Decision Date | 17 April 1991 |
| Docket Number | Crim. No. N-90-40 (WWE). |
| Court | U.S. District Court — District of Connecticut |
| Parties | UNITED STATES of America, Plaintiff, v. Kevin WHITE, Defendant. |
Michael Runowicz, New Haven, Conn., for plaintiff.
Timothy Pothin, New Haven, Conn., for defendant.
RULING ON DEFENDANT'S MOTION TO DISMISS SECOND OFFENDER INFORMATION
Defendant has filed a motion to dismiss a Second Offender Information, claiming that the United States Attorney failed to timely file the Information as required by 21 U.S.C. Section 851. For the reasons set forth below, the defendant's motion will be denied.
On September 5, 1990 defendant was charged in a three count superseding indictment. Count One charged defendant with conspiracy to possess with intent to distribute and the distribution of more than fifty grams of cocaine base in violation of 21 U.S.C. Sections 841(a)(1) and 846. Count Two charged defendant with possession and distribution of more than fifty grams of cocaine base within 1,000 feet of a school in violation of 21 U.S.C. Sections 845a(a) and 841(a)(1). Count Three charged defendant with employing a person under the age of eighteen to distribute more than fifty grams of cocaine base in violation of 21 U.S.C. Section 845b(a)(1). On December 3, 1991 a jury was empaneled, but not sworn. The United States Attorney filed with the court a Second Offender Information on December 5, and defense counsel was served on December 11. The jury was sworn, and the trial began on December 13. On December 18, 1991 the defendant was found guilty on all three counts charged in the superseding indictment.
The procedure for establishing a defendant's prior conviction, for the purpose of seeking a sentence enhancement, is set forth in Title 21 U.S.C. Section 851.
No person who stands convicted of an offense under this part shall be sentenced to increased punishment by reason of one or more prior convictions, unless before trial, or before the entry of a plea of guilty, the United States attorney files an information with the court (and serves a copy of such information on the person or counsel for the person) stating in writing the previous convictions to be relied upon.
21 U.S.C. § 851(a)(1).
It is clear from the statute that an Information must be filed with the court and served on the defendant or defendant's counsel prior to the start of trial, however, it is not precisely clear when a trial commences. The defendant argues that the trial commenced when the jury was empaneled on December 3, while the government asserts that a trial can not begin until the jury has been sworn.
Although there are no cases within the Second Circuit directly on point, it is helpful to examine issues dealing with the commencement of a jury trial within the context of the attachment of double jeopardy. A trial begins and jeopardy attaches when the jury is sworn, not when the jury is selected. United States v. Wedalowski, 572 F.2d 69 (2d Cir.1978). In United...
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U.S. v. White
...a prior conviction for a felony drug offense, in accordance with 21 U.S.C. § 841(b)(1)(A) (1988 & Supp. II 1990). 1 United States v. White, 764 F.Supp. 254 (D.Conn.1991). White asserts that this sentencing enhancement was improper because the government failed to file the information requir......
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People v. Vest
...when the jury is sworn," any time before the swearing of the jury was "before trial" under section 851(a)(1). United States v. White, 764 F.Supp. 254, 255 (D.Conn.1991). The appellate court in White held that double-jeopardy concerns dictate a different mark for the start of trial than in t......