Friday, March 20, 2009

For Your Information

United States v. Morales, No. 07-4202-cr (2d Cir. March 18, 2009) (per curiam)

Morales was charged in a two count drug indictment; one count had a 5-year mandatory minimum, under 21 U.S.C. § 841(b)(1)(B), while the other had a 10-year mando under § 841(b)(1)(A). Before trial, the government filed a prior felony information pursuant to 21 U.S.C. § 851(a)(1). This had the effect of doubling the mandatory minimum to which Morales was exposed. But the information specifically indicated that Morales would be subject to the “enhanced penalties of Title 21, United States Code, Sections 841(a), 841(b)(1)(B) and 851.” After trial, but before sentencing, when it is otherwise to late to file an information, the government filed an amended information referencing § 841(b)(1)(A).

At sentencing, Morales complained that he went to trial because he believed that the only mandatory minimum he faced was 10 years: the 5 years under § 841(b)(1)(B) - which was doubled by the prior felony information - and the 10 years under § 841(b)(1)(A), which he indicated he believed the government had refrained from doubling in an exercise of its discretion. Not an unreasonable thought, since the defendant was, at the time, 67 years old.

The government, on its part, noted that § 851 does not require that a prior felony information identify the statutory basis of the proposed enhancement at all. It claimed that it had simply made a clerical error, and that the amended information corrected the error, which is expressly permitted by the language of § 851(a)(1). The district court agreed, found that Morales was subject to a 20-year mandatory minimum, and imposed it.

On appeal, the circuit vacated for further findings. It agreed that § 851 does not require the government to specify the basis of the enhancement or its length, but looked beyond the language of the statute to determine its purpose. In fact, § 851 has two purposes. The first, not implicated here, is to allow the defendant to contest the accuracy of the claim that he has a prior felony conviction. But the second, inherent in the statute’s requirement that the information be filed before trial or the entry of a guilty plea, is that the defendant is supposed to have “ample time to determine whether to enter a plea or go to trial and plan his trial strategy with full knowledge of the consequences of a potential verdict.” After all, if an opportunity to question the prior conviction were all that was required, “notice after conviction but prior to sentencing would suffice.”

Accordingly, the court held that “a prior felony information that, like this one, could mislead a defendant as to the minimum penalty he or she would face after a jury’s conviction undermines Congressional intent.” Given this, it is “not possible to determine the appropriate remedy, if any, until it is known whether the mistake in the prior felony information adversely affected defendant’s decision to go to trial or his trial strategy.” The court therefore remanded the case to the district court for further findings on “(1) whether defendant understood the citation to 841(b)(1)(B) and the absence of a citation to 841(b)(1)(A) as an indication that the government had elected not to seek Section 841(b)(1)(A)’s higher mandatory minimum; and (2) if so, whether defendant’s misapprehension adversely affected trial strategy or triggered a decision to go to trial rather than to accept or seek a plea bargain.”

In a footnote, the appellate court also pointed out that the district court could still impose a 20-year sentence, even if it concluded that Morals was not subject to a 20-year mandatory minimum.

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