US v. Hines

• Court: U.S. District Court — District of Massachusetts
• Writing for the Court: Charles P. McGinty, Asst. Federal Public Defender, Boston, Mass., for Hines, Cr. No. 91-10298-K
• Citation: US v. Hines, 802 F. Supp. 559 (D. Mass. 1992)
• Decision Date: 24 August 1992
• Docket Number: Crim. No. 91-10298-K,91-10278-Y.
• Parties: UNITED STATES of America v. Johanna HINES, a/k/a Robert Hines. UNITED STATES of America v. Daniel D. TAVARES.

802 F. Supp. 559

UNITED STATES of America v. Johanna HINES, a/k/a Robert Hines.

UNITED STATES of America v. Daniel D. TAVARES.

Crim. Nos. 91-10298-K, 91-10278-Y.

United States District Court, D. Massachusetts.

August 24, 1992.

COPYRIGHT MATERIAL OMITTED

Assistant U.S. Attys. A. Clayton Spencer and Michael J. Pelgro, Boston, Mass., for plaintiff.

Charles P. McGinty, Asst. Federal Public Defender, Boston, Mass., for Hines, Cr. No. 91-10298-K.

Owen Walker, Federal Public Defender, Boston, Mass., for Tavares, Cr. No. 91-10278-Y.

SENTENCING MEMORANDUM

FUSTE, District Judge.

On August 4, 1992, we had occasion to sentence Mr. Johanna Hines and Mr. Daniel Tavares, defendants in two jury trials held in May 1992 in the District of Massachusetts. The two cases involved indictments for violation to 18 U.S.C. § 922(g)(1), felon in possession of a firearm. After guilty verdicts, presentence reports were prepared by the Probation Officer and, as a result, the court was prepared to sentence both defendants under the Armed Career Criminal ("ACC") dispositions of 18 U.S.C. § 924(e)(1). Certain state court convictions seemed to provide the basis for enhanced incarceration penalties.

Objections to the presentence reports were duly entered by the Federal Public Defender of the District. The objections were aimed at invalidating the state convictions as underlying offenses for the application of the enhanced penalties of the ACC configuration. United States Sentencing Guidelines section 4B1.4 requires that a convicted felon in possession of a firearm, 18 U.S.C. § 922(g)(1), serve an enhanced sentence if that defendant has at least three prior convictions for a violent felony or serious drug offense, or both, committed on occasions different from one another.

At the time of the sentencing of defendant Johanna Hines, Crim. No. 91-10298-K, the government took the position that one of the defendant's three previous convictions did not qualify as an 18 U.S.C. § 924(e)(1) predicate offense. Even though the ACC status was not triggered, the government argued that the three convictions were to be counted for Criminal History Category purposes. The defendant's position was that certain constitutional infirmities nullified the three convictions and invalidated them both for purposes of ACC, 18 U.S.C. § 924(e)(1), and Criminal History Category determination. See 18 U.S.C. § 3553(a)(2) and USSG §§ 4A1.1 to 4A1.3.

In the case of Daniel Tavares, Crim. No. 91-1078-Y, the government took the position that the seven prior convictions served as predicate offenses for penalty enhancement. The defendant argued both that some of the convictions were for non-violent crimes and that the court should not be allowed to make such determination by referring to certain sources proscribed under Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), and United States v. Harris, 964 F.2d 1234 (1st Cir.1992). In addition, it was argued that at least three cases, referred to as "guilty-filed" cases, did not qualify as convictions.

After hearing argument on the applicability of recent First Circuit case law, United States v. Robert Paleo, 967 F.2d 7 (1st Cir.1992); United States v. Payne, 966 F.2d 4 (1st Cir.1992); United States v. Gerald Harris, 964 F.2d 1234 (1st Cir.1992); and, after considering our independent interpretation of Massachusetts law, we declared the prior convictions valid and sentenced the defendants accordingly. In the case of Hines, the prior convictions were only counted for Criminal History Category purposes. No ACC enhancement was imposed. In the case of Tavares, the seven predicate offenses suggested by the presentence report were counted. An enhanced ACC sentence was imposed.

I. Massachusetts' Two-Tier System

This is not the first time that the Massachusetts two-tier system for criminal cases in district courts and the Boston Municipal Court have been the object of constitutional attack. The Supreme Court of the United States, in Ludwig v. Massachusetts, 427 U.S. 618, 96 S.Ct. 2781, 49 L.Ed.2d 732 (1976), declared the two-tier system constitutional and not violative of an accused's fourth-amendment right to a trial by jury.¹See also Justices of the Boston Municipal Court v. Lydon, 466 U.S. 294, 296, 104 S.Ct. 1805, 1807, 80 L.Ed.2d 311 (1984).

The Supreme Judicial Court of Massachusetts, in Commonwealth v. Duquette, 386 Mass. 834, 438 N.E.2d 334 (1982), gives a good explanation of the two-tier system as it exists today. After the 1979 court reorganization, a felony defendant facing imprisonment of not more than five years is entitled to a trial by a first-tier District Court jury in the first instance. Alternatively, at the first tier, a defendant may waive his right to a first instance jury trial and elect a bench trial by a judge of the District Court or the Boston Municipal Court. If convicted, he may then appeal to the District Court jury of six session, where he will be tried de novo by a jury unless he once again waives a jury trial and elects to have a second de novo bench trial by a second judge.

When a defendant first appears before the first tier of the District Court, several alternatives are available to him. A trial may take place with or without a jury. The defendant may decide to enter a formal plea of guilty, such as we know them in federal court, and put an end to his case, or he may follow either of two unique alternatives known as "continuance without a finding" or "admission to sufficient facts." If the defendant obtains from the court a continuance without a finding, the case is continued for a lengthy period of time. No finding of guilt is made and some conditions are imposed, such as restitution. At the end of the period, if the court is satisfied that the harm done has been corrected by restitution or otherwise, the court may dismiss the case and no conviction results.

An "admission to sufficient facts" to find defendant guilty may also be pursued. An admission to sufficient facts is not a guilty plea or a nolo contendere. "Admission to sufficient facts," although technically not a plea, is a procedure mostly utilized in jury-waived sessions (first tier) of the District Court. A defendant, after having initially pled not guilty at arraignment, changes his mind, admits to sufficient facts, may be found guilty and sentenced, but preserves the right to request a de novo trial at the second tier or jury of six session of the District Court. See Kent B. Smith, Mass. Crim.Prac. & Proc. § 1202 (1983).

What is the purpose of the summary disposition procedure under admission to sufficient facts? In a great number of cases, this simple procedure puts an end to the dispute between the Commonwealth and a defendant. The admission is entered and a disposition is made by the court. The defendant is allowed to test his case, perhaps get it dismissed or obtain an acquittal, or obtain a satisfactory or advantageous disposition, or simply curtail the first jury proceeding and go to the jury of six session. He preserves his right to a de novo trial. The procedure is used by defense attorneys and defendants in order to ascertain the penalty or to try to obtain a continuance with or without a finding and then decide whether to have a de novo jury trial. Smith, supra, § 1202. The system is quite advantageous to a defendant. If the first disposition is not acceptable, since he has not entered a formal guilty plea, he gets a second opportunity to test the government's case.

The Supreme Judicial Court, in Duquette, establishes the parameters of the validity of an admission to sufficient facts in the first tier and in the jury of six session. Duquette, 438 N.E.2d at 339-43. At the first tier of the District Court system, admissions to sufficient facts are treated informally, provided the defendant has first made a valid written waiver of his right to an immediate jury trial. Once the jury trial is waived, he could choose to admit to sufficient facts and be sentenced. The important point is that the defendant can still appeal to the jury of six session and obtain a trial de novo. As Duquette points out at page 342, at this first level any theoretical problems arising from the admission, whether of a constitutional or statutory nature, are wiped out by the appeal for a trial de novo. The defendant's remedy for any perceived unfairness in result and sentence is to appeal to the jury of six session and obtain a new trial.

An admission to sufficient facts in the second tier or the jury of six session, whether bench or jury trial, is treated differently. Formality replaces the informality of the first tier practice because the jury of six session represents a defendant's last opportunity for a trial. At this level, an admission to sufficient facts is much like a guilty plea. Here it is important that the defendant fully understand the impact that an admission to sufficient facts will have on his rights. The finality of a conviction at this second level requires that the following be complied with:

1) The defendant should sign the written waiver of trial by jury required by law and the judge should make the inquiries required by Ciummei v. Commonwealth, 378 Mass. 504, 392 N.E.2d 1186 (Mass.1979).

2) The facts admitted to should be formalized in written stipulations to be filed with the papers of the case.

3) The judge should be satisfied that there is a factual basis for the finding of guilty.

4) The judge should make certain that the defendant knows that by admitting to sufficient facts he is waiving his rights to confront and cross-examine witnesses against him, and the right to call witnesses.

5) The judge should make certain that the defendant understands that by admitting to sufficient facts he is, for all purposes, pleading guilty at this second tier and that his Boykin rights are gone forever (the right to trial, the right to confrontation, and the privilege against self-incrimination). Boykin

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