Thursday, March 10, 2011

Information Failure

United States v. Espinal, No. 09-4344-cr (2d Cir. March 7, 2011) (Walker, Straub, Lynch, CJJ)

Here, the district court did not properly follow 21 U.S.C. § 851(b), which sets out the procedures for using a prior felony information to increase the mandatory minimum sentence in a drug case. Because both the defendant and the government were prejudiced, the circuit remanded the case for resentencing.

Background

The government had offered to permit defendant Santo Laiz to plead guilty to a drug offense with a ten-year mandatory minimum and agreed to refrain from filing a prior felony information. But Laiz pled guilty after the deadline, by which time the government had filed the information, which alleged that Laiz had been convicted of a felony drug offense in Massachusetts under the name “Jose Luis Lai.” During Laiz’ guilty plea, the court did not ask him whether he admitted to the conviction.

In his sentencing submissions, Laiz raised various legal challenges to the information, but did not clearly deny the allegation that he had in fact been convicted of the offense it specified. Thus, at the sentencing itself, the prosecutor sought clarification of the defendant’s position. Laiz’ attorney replied that he had “no grounds to believe that Mr. Laiz was not convicted,” but, since had not verified the conviction himself, he was “taking the word of the government.”

The district court still did not ask Laiz himself to affirm or deny the conviction. Instead, it asked the prosecutor for verification, and the AUSA responded by handing up a rap sheet that warned that it was “not supported by fingerprints.” The rap sheet had a variety of names, including “Santo Ramon Laiz” and “Jose Luis Lai,” and a birthdate of December 3, 1964. An associated docket sheet reflected a similar conviction with some different names and the same date of birth. The identifying information on these documents was not entirely consistent with those in Laiz’ PSR - the date of birth was different and some of the aliases differed, as well.

When the judge finally asked Laiz whether he affirmed or denied the conviction, on advice of counsel, Laiz remained silent. The judge, concluding that Laiz did not have a right to refuse to affirm or deny, imposed the enhanced, twenty-year minimum sentence with no further findings or warnings to Laiz.

The Appellate Court’s Decision

Laiz’ main argument on appeal was that the proof was insufficient to establish that he was the person named in the Massachusetts records. But the circuit, finding that the government had not had a “full and fair opportunity to present its best evidence” on the issue, did not rule on the sufficiency of the evidence. Instead, finding numerous procedural defects, the court sent the case back for a do-over.

Under Section 851(b), once the prosecutor has filed a prior felony information, if the defendant is convicted of the underlying offense, the district court must ask the defendant whether he affirms or denies that “he has been previously convicted as alleged in the information,” and must also inform the defendant that he waives that any collateral challenge to the prior conviction that is not made before sentence is imposed. If the defendant denies the allegation, or claims that the conviction is invalid, he must be given an opportunity file a written response to the information. This triggers a hearing, at which the government must prove any issue of fact beyond a reasonable doubt.

The district court did not follow these procedures “meticulously.” First, it did not ask Laiz to affirm or deny the prior conviction at his plea, although it did not have to then. Moreover, while Laiz did not expressly deny the conviction in his sentencing submission, the failure to do so then did not waive the objection. Accordingly, by the time of sentencing there was still “some ambiguity” as to the extent of Laiz’ objection to the enhancement.

Moreover, at sentencing, the district court did not undertake the required “affirm or deny” inquiry until after “considerable confusion about Laiz’ position had already been generated,” and never warned him that he had a right to put his objections in writing and that a failure to object would constitute a waiver. The “hearing” required by the statute was more like an “impromptu inquiry,” in which the district court examined documents handed up by the prosecutor without addressing their “obvious discrepancies” or “giving the defendant an opportunity to review and comment on them.”

Of course, Laiz did not help matters. Neither he nor his counsel made clear before sentencing whether they planned challenge the conviction, and Laiz’ refusal to affirm or deny is not covered by the statute at all. But, at least on these facts, the court refused to conclude that the refusal should be treated either as a denial - triggering the government’s beyond-a-reasonable-doubt burden - or an affirmation, which would have served as a waiver of the right to challenge the prior felony, since the district court did not follow the “affirm or deny” inquiry with the other statutory requirements: an opportunity to respond in writing and a warning of the consequences of a failure to act.

The failure to comply with § 851 does not automatically invalidate the enhanced sentence, since harmless error analysis applies. But here, Laiz was prejudiced in two distinct ways, apart from the extra ten years of prison time he received. First, the court’s failure to warn him of the effect of failing to object “may well have influenced Laiz’ unusual choice not to affirm or deny the allegations in the information,” which in turn affected the government’s burden of proof. In addition, the district court’s failure to follow the statutory procedure “compromised the reliability and thoroughness of the ‘hearing’” that it conducted.”

In the end, given the many uncertainties, the court neither affirmed the enhanced penalty nor struck it. Instead, it vacated the sentence and remanded the case for resentencing so that “proper procedures” could be followed.


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November 30, 2012 at 10:30 AM  

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