US v. Sills
| Decision Date | 10 March 2010 |
| Docket Number | Case No. 06-20663. |
| Citation | 692 F. Supp.2d 792 |
| Parties | UNITED STATES of America, Plaintiff, v. D-15, Robert M. SILLS, Defendant. |
| Court | U.S. District Court — Eastern District of Michigan |
Julie A. Beck, Michael C. Leibson, Dawn N. Ison, U.S. Attorney's Office, Detroit, MI, for Plaintiff.
This is a criminal case. Defendant Robert Sills (Sills) is one of 25 defendants indicted for Conspiracy to Distribute 5 Kilograms or More of Cocaine. Sills was found guilty after a five-day trial. Prior to trial, the government filed a 21 U.S.C. § 851 Information seeking to enhance Sills' sentence on the basis of a prior felony drug conviction. Sills challenges government's reliance on the Information on grounds that (1) the government's inclusion of the wrong case number in the original Information was not a clerical error, (2) the government has not proved a felony conviction in the case number referenced in the government's amended information, (3) the government's pursuit of a sentence enhancement constitutes vindictive prosecution, (4) the alleged conviction was not included in the government's indictment, and (5) the alleged conviction was not submitted to the jury.
Pursuant to 21 U.S.C. § 851, the Court held a hearing to determine if the issues raised in Sills' response would except him from increased punishment. Based on the evidence submitted and the parties' arguments, the Court finds that the government has failed to prove a prior felony conviction beyond a reasonable doubt and may not seek a sentence enhancement pursuant to 21 U.S.C. § 841.
On March 29, 2007 Sills was charged with Conspiracy to Distribute 5 Kilograms or More of Cocaine. A superceding indictment involving the same charge was returned on November 6, 2008. Sills' trial was scheduled to begin on February 2, 2009.
Sills entered into plea negotiations with the government; the parties were unable to reach an agreement.
On January 29, 2009, the government filed a "21 U.S.C. § 851(a) Information Regarding Prior Convictions." The information stated:
On February 2, 2009 Sills' jury trial began with voir dire of potential jurors. On that day, the Court engaged in a colloquy with Sills regarding the Information. Sills said that he was aware that the Information was filed, that he understood the effect of the Information upon a subsequent finding of guilt, and that he desired to proceed to trial based on that understanding. Trial began on February 4 and ended on February 10, 2009. The jury found Sills guilty on February 10, 2009.
On November 23, 2009 Sills filed a motion styled as "Defendant Sills' Response and Objections to Governments Section 851 Information Alleging Prior Drug Felony Conviction Motion for Strike Information and Request for Jury Trial." (Dkt. 610.) Sills argued that the Information should be struck because it called for increased punishment on the basis of facts not charged by the grand jury and not found by a jury.
At a November 30, 2009 sentencing hearing Sills challenged the authenticity of the documents relied upon by the government to prove the prior conviction. The Court granted the government's request for an adjournment in order to procure an authenticated copy of the prior conviction.
The Court subsequently issued an order clarifying the procedural requirements of 21 U.S.C. § 851. (Dkt. 619.) These provisions permit a convicted defendant to file a written response challenging the Information and entitle the defendant to a hearing to resolve the issues raised in the response.
Sills filed an initial response on December 18, 2009 asserting that no conviction occurred in Case No. 19CR03930594, the case number included in the Information. (Dkt. 638.) Sills also asserted that the Information constituted vindictive prosecution and renewed his objections that the prior conviction was not included in the grand jury charges and that he should be entitled to a jury trial with respect to the existence of the alleged prior conviction.
On December 28, 2009 the Government filed an amended Information relying on the following conviction:
People v. Robert Sills, Jr., Case No. 193-158, Cole County Circuit Court, State of Missouri, possession of a controlled substance, RsMo § 195.202— Judgment of Sentence imposed April 21, 1995, one year probation.
(Dkt. 643.) The government asserted that, through a clerical error, it included the wrong case number in the original Information. It acknowledged that the charges in Case No. 19CR03930594 were dismissed; it asserted, however, that Sills was convicted in Case No. 193-158. (Dkt. 644.) It further asserted that the original Information contained sufficient information to put Sills on notice of the conviction on which it relied because all of the substantive information in the original Information—including the court, charge, date of conviction, and sentence imposed—accurately described Case No. 193-158.
Sills responded to the amended Information. (Dkt. 652.) He asserted that the incorrect case number in the original Information was not merely a clerical error. Sills also demanded that the government prove each factual allegation in the amended Information beyond a reasonable doubt. He renewed his other challenges as well.
Before a defendant's sentence can be enhanced due to a recidivist charge, "due process requires that a defendant receive reasonable notice and opportunity to be heard." United States v. King, 127 F.3d 483, 488 (6th Cir.1997); see also Oyler v. Boles, 368 U.S. 448, 452, 82 S.Ct. 501, 7 L.Ed.2d 446 (1962). 21 U.S.C. § 851 was enacted to fulfill this due process requirement. King, 127 F.3d at 488.
To provide reasonable notice, a defendant must be informed of the potential for an enhanced sentence before trial begins. Section 851(a) says in part:
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 entry of a plea of guilty, the United States attorney files an information with the court... stating in writing the previous convictions to be relied upon.
21 U.S.C. § 851(a). While strict compliance with the statute's procedural requirements are mandatory, United States v. Belanger, 970 F.2d 416, 418 (7th Cir.1992), the government may amend a timely Information to correct a clerical error at any time prior to sentencing. 21 U.S.C. § 851(a).
To provide a defendant with an opportunity to be heard, a court must inquire whether the defendant affirms or denies the alleged conviction before a sentence can be imposed. Id. § 851(b). A defendant who denies the alleged conviction may file a written response to the Information. Id. § 851(c). If a defendant files a written response, the court must hold a hearing to "to determine any issues raised by the response which would except the person from increased punishment." Id. The hearing takes place before the judge and the government bears the burden of proof beyond a reasonable doubt for all issues of fact. Id.
The purpose of § 851 is to "allow a defendant to make an informed decision about whether or not to plead guilty." United States v. Hamilton, 208 F.3d 1165, 1168 (9th Cir.2000). An informed decision can only be made if a defendant has notice of the alleged conviction before trial begins. As noted above, the government must strictly comply with the procedural requirements of § 851. Belanger, 970 F.2d at 416. However, the Sixth Circuit "interprets § 851's notice requirements so as to avoid elevating form over substance." King, 127 F.3d at 489. The clerical error exception in 21 U.S.C. § 851(a) is an area where substance prevails over form. So long as the government's initial Information is timely and meets all procedural requirements, the government may file an amended Information correcting clerical errors at any time until the defendant is sentenced.
Whether a specific error in a § 851(a) Information is a clerical error or a substantive error is fact-specific. Only an error which could confuse a defendant about the prior conviction and potentially affect his decision whether to plead guilty or go to trial is one of substance. Hamilton, 208 F.3d at 1168. In contrast, a mere typographical error which does not preclude a defendant from having reasonable notice and an opportunity to be heard will be considered a clerical error and can be corrected prior to sentencing. King, 127 F.3d at 489; 21 U.S.C. § 851(a). A court must consider the precise error, the context of the case, and whether a defendant was provided with sufficient notice prior to the commencement of trial.
Section 581 does not require the government include any specific factual allegations in an Information; the government must merely include enough detail to provide the defendant with notice. Each additional detail included in a § 851 Information increases the notice provided to the defendant, but also increases the risk of error in describing the precise details of a prior conviction. When a prior conviction is described in great detail, a defendant will often have sufficient notice even if the Information contains an error. In such situations, courts have...
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