ORAL ARGUMENT NOT YET SCHEDULED

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

95-3083

UNITED STATES OF AMERICA, Plaintiff- Appellee,

CHARLES xxxxxxx, Defendant- Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

BRIEF FOR APPELLANT

A.J. KRAMER

FEDERAL PUBLIC DEFENDER

625 Indiana Avenue, N.W.

Suite 550

Washington, D.C. 20004

(202) 208-7500

L. BARRETT BOSS

Assistant Federal Public Defender

Counsel for Appellant

Cr. No. 94-432 (NHJ)

CERTIFICATE AS TO PARTIES,

RULINGS, AND RELATED CASE

Pursuant to Rule 28(a)(1) of the General Rules of this Court,

appellant hereby states as follows:

A. Parties and Amici: The parties below and in this court are the defendant-appellant, Charles xxxxxxx, and the plaintiff-appellee, United States of America. There are no intervenors or amici, either in the district court or in this Court.

B. Rulings Under Review: In this appeal, the defendant challenges the pretrial and post-trial rulings of the district court, the Honorable Norma Holloway Johnson, denying defendant's motion to suppress. In addition, the defendant challenges the district court's jurisdiction to impose an enhanced, mandatory life sentence.

C: Related Cases: This case has not been before this Court or any other court previously.

TABLE OF CONTENTS

CERTIFICATE AS TO PARTIES,

RULINGS, AND RELATED CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i

TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .iv

ISSUES PRESENTED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

STATUTES AND REGULATIONS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

JURISDICTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

A.The Suppression Motion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

B.The Evidence At Trial. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

C.The Mandatory Life Sentence. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

SUMMARY OF ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

I.THE TANGIBLE EVIDENCE SEIZED DURING THE SEARCH SHOULD HAVE BEEN SUPPRESSED BECAUSE THE AFFIDAVIT IN SUPPORT OF THE SEARCH WARRANT FAILED TO ESTABLISH PROBABLE CAUSE, AND BECAUSE THE GOOD FAITH EXCEPTION WAS INAPPLICABLE. . . . . . . . . . . . . . . . . . . . . . 15

A.Probable cause requires that the totality of circumstances presented in the affidavit provide reason to believe that evidence of a crime will be found at the subject property at the time of the search, and this Court will uphold that finding only if it is supported by substantial evidence. . . . . . . . . . . . . . 15

1.Standard of Review: There must be substantial evidence to support the probable cause determination.. . . . . . . . . . . . 16

2.Information received from informants must be carefully scrutinized, and the affidavit must establish the informant's reliability and basis of knowledge. . . . . . . . . . . . . . . . . . . 16

3.The search warrant cannot be based on "stale" information.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

B.The affidavit failed to establishprobable cause. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

C.The good faith exception is inapplicable because the affidavit contains a significant misrepresentation. . . . . . . . . . . . . . . . . . . . . . . 26

II.EVEN IF PROBABLE CAUSE WERE ESTABLISHED, THE FRUITS OF THE SEARCH SHOULD HAVE NONETHELESS BEEN SUPPRESSED UNDER FRANKS V. DELAWARE.. . . . . . . . . . . . . . . . . 27

III.THE DISTRICT COURT WAS WITHOUT JURISDICTION TO IMPOSE THE ENHANCED SENTENCE IN THIS CASE OF LIFE IMPRISONMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

A. A failure to comply strictly with the notice requirements of 21 U.S.C. § 851(a) deprives a district court of jurisdiction to impose an enhanced sentence. . . . . . . . . . . . . . . . 32

B.The notice provided to Mr. xxxxxxx failed to satisfy the requirements and objectives of Section 851(a) because it apprised Mr. xxxxxxx that the applicable mandatory minimum sentence following a conviction was 10 years, not life imprisonment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

C. Because the sentencing court was without jurisdiction to impose the life sentence, the doctrines of waiver (by trial counsel) and of harmless error are inapplicable. . . . . . . . . . . 37

D. The case must be remanded for re-sentencing. . . . . . . . . . . . . . . . . 38

CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40

CERTIFICATE OF LENGTH. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40

CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41

CONTENTS OF ADDENDUM . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42

TABLE OF AUTHORITIES

CASES

Arnold v. United States,

443 A.2d 1318 (D.C. 1982). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35, 36

Franks v. Delaware,

438 U.S. 154 (1978). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .passim

Illinois v. Gates,

462 U.S. 213 (1983). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .passim

Kelly v. United States,

29 F.3d 110 (7th Cir. 1994). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33, 34, 37, 38

Massachusetts v. Upton,

466 U.S. 727 (1984). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .16

Neary v. United States,

998 F.2d 563 (8th Cir. 1993). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37, 38

Schoeneman v. United States,

317 F.2d 173 (D.C. Cir. 1963). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Sgro v. United States,

287 U.S. 206 (1932). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .18

Suveges v. United States,

7 F.3d 6 (1st Cir. 1993). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

United States v. Allen,

960 F.2d 1055 (D.C. Cir.),

cert. denied, U.S. , 113 S.Ct. 231 (1992). . . . . . . . . . . . . . . . . . . . . . . . .17

United States v. Belanger,

970 F.2d 416 (7th Cir. 1992). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33, 35, 36

United States v. Beltempo,

675 F.2d 472 (2d Cir.)

cert. denied, 457 U.S. 1135 (1982). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20, 21

United States v. Boyce,

601 F.Supp. 947 (D. Minn. 1985). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

United States v. Bruner,

657 F.2d 1278 (D.C. Cir. 1981). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

United States v. Button,

653 F.2d 319 (8th Cir. 1981). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19, 20, 23

United States v. Dawkins,

17 F.3d 399 (D.C. Cir. 1994). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .17

United States v. Davis,

617 F.2d 677 (D.C. Cir. 1979),

cert. denied, 455 U.S. 967 (1980). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

United States v. Ferguson,

758 F.2d 843 (2d Cir.),

cert. denied, 474 U.S. 1032 (1985). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

United States v. Gonzalez-Lerma,

14 F.3d 1479 (10th Cir.),

cert. denied, U.S. , 114 S.Ct. 1862 (1994). . . . . . . . . . . . . . . . . . . . . . . . .37

United States v. Gramlich,

551 F.2d 1359 (5th Cir.),

cert. denied, 434 U.S. 866 (1977). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

United States v. Johnson,

944 F.2d 396 (8th Cir.),

cert. denied, 502 U.S. 1008 (1991). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35, 36, 37

United States v. Jordan,

810 F.2d 262 (D.C. Cir. 1987),

cert. denied, 481 U.S. 1032 (1987). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35, 36

United States v. Kolodziej,

712 F.2d 975 (5th Cir. 1983). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22, 23

United States v. Laws,

808 F.2d 92 (D.C. Cir. 1986). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .17, 21

United States v. Leon,

468 U.S. 897 (1984). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .26

United States v. Neal,

500 F.2d 305 (10th Cir. 1974). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

United States v. Noland,

495 F.2d 529 (5th Cir. 1974)

cert. denied, 419 U.S. 966 (1974). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

United States v. Olson,

716 F.2d 850 (11th Cir. 1983). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33, 38

United States v. Richardson,

861 F.2d 291 (D.C. Cir. 1988)(per curiam),

cert. denied, 489 U.S. 1058 (1989). . . . . . . . . . . . . . . . . . . . . . . . . .18, 26, 28, 29

United States v. Rule,

594 F.Supp. 1223 (D. Me. 1985),

vacated on other grounds,

781 F.2d 953 (1st Cir. 1986). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

United States v. Savoca,

761 F.2d 292 (6th Cir.),

cert. denied, 474 U.S. 852 (1985). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

United States v. Thomas,

989 F.2d 1252 (D.C. Cir. 1993)(per curiam). . . . . . . . . . . . . . . . . . . . . . .16, 24,30

United States v. Vaughn,

830 F.2d 1185 (D.C. Cir. 1987). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

United States v. Velasco,

847 F.Supp. 580 (N.D. Ill. 1994). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33, 37

United States v. Weaver,

905 F.2d 1466 (11th Cir. 1990),

cert. denied, 498 U.S. 1091 (1991). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38

United States v. White,

980 F.2d 836 (2d Cir. 1992). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .35, 36

United States v. Wright,

932 F.2d 868 (10th Cir.),

cert. denied, 502 U.S. 962 (1991). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

United States v. Warren,

42 F.3d 647 (D.C. Cir. 1994). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17, 19

Zurcher v. Stanford Daily,

436 U.S. 547 (1978). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .24

STATUTES AND FEDERAL RULES

18 U.S.C. § 922(g)(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4

18 U.S.C. § 924(c)(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

21 U.S.C. § 841 et seq. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

21 U.S.C. § 851(a).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .passim

21 U.S.C. § 851(b).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .35

21 U.S.C. § 860(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Authorities principally relied upon are marked with an *

ISSUES PRESENTEDI.WHETHER THE AFFIDAVIT FOR THE SEARCH WARRANT ESTABLISHED PROBABLE CAUSE WHERE THERE WAS VIRTUALLY NO SHOWING THAT THE INFORMANTS RELIED UPON WERE RELIABLE OR HAD ANY BASIS OF KNOWLEDGE, AND IF PROBABLE CAUSE WERE NOT SHOWN, WHETHER THE GOOD FAITH EXCEPTION TO THE EXCLUSIONARY RULE APPLIED WHERE THE AFFIANT SUGGESTED THAT A CRITICAL FACT WAS WITNESSED BY THE POLICE, WHEN, IN FACT, IT WAS WITNESSED BY A THIRD PARTY WHO HAD AN OBVIOUS MOTIVE TO IMPLICATE THE DEFENDANT.

II. WHETHER, IF THE AFFIDAVIT DID ESTABLISH PROBABLE CAUSE, THE AFFIANT'S MISREPRESENTATION WAS MATERIAL TO THAT DETERMINATION, AND IF SO, WHETHER THAT MISREPRESENTATION WAS MADE KNOWINGLY OR WITH A RECKLESS DISREGARD FOR THE TRUTH.

III. WHETHER THE DISTRICT COURT WAS WITHOUT JURISDICTION TO IMPOSE AN ENHANCED, MANDATORY LIFE SENTENCE WHERE THE GOVERNMENT FAILED TO COMPLY WITH THE PRETRIAL NOTICE REQUIREMENTS OF 21 U.S.C. § 851(a).

STATUTES AND REGULATIONS

The pertinent statutes appear in the addendum to this Brief.

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

95-3083

UNITED STATES OF AMERICA, Appellee,

CHARLES xxxxxxx, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

BRIEF FOR APPELLANT

JURISDICTION

The district court had jurisdiction pursuant to 18 U.S.C.

§ 3231. The notice of appeal having been filed within the ten-day period set forth in Fed.R.App.P. 4(b), this court has jurisdiction pursuant to 28 U.S.C. § 1291.

STATEMENT OF THE CASE

On November 8, 1994, an indictment was filed, charging the defendant, Charles xxxxxxx, in five counts. (APP 13-15). The first count charged possession with intent to distribute more than 50 grams of cocaine base, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A)(iii). The second count charged the defendant with unlawful possession with intent to distribute cocaine base within 1000 feet of a school, in violation of 21 U.S.C. § 860(a). The third count charged that Mr. xxxxxxx used and carried a firearm during a drug trafficking offense, in violation of 18 U.S.C.

§ 924(c)(1). The fourth count charged Mr. xxxxxxx with unlawful possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1). The fifth count charged Mr. xxxxxxx with unlawful possession of a prohibited weapon, in violation of D.C. Code 1981 § 22-3214(a). All five offenses were alleged to have occurred on August 23, 1994, the date that a search warrant was executed at 513 Florida Avenue, N.E.

A suppression hearing was held on February 14, 1995. The jury trial began on February 15, 1995. On February 24, 1995, the jury returned a verdict of guilty on Counts One and Two, but was unable to reach a verdict on Counts Three, Four, and Five. (APP 71-72)(2/24: 4-5). On February 27th, a mistrial was declared as to those remaining counts. (APP 74-79)(2/27: 4-9).

On February 28, 1995, the suppression hearing was re-opened and the district court again denied the defendant's motion to suppress evidence. (APP 106)(2/28: 27).

On June 26, 1995, Mr. xxxxxxx was sentenced to mandatory life imprisonment on each count, to be served concurrently. (APP 119-122). A timely notice of appeal was filed on that same date. (APP 123).

FACTS

This case arises from the execution of a search warrant for the basement at 513 Florida Avenue, N.E., in the District of Columbia and within 1000 feet of Gallaudet University. The search took place on August 23, 1994, at which time Mr. xxxxxxx was incarcerated on another charge. During the search, the police found just over 50 grams of cocaine base and a semi-automatic pistol.

A. The Suppression Motion

Mr. xxxxxxx filed a motion to suppress the evidence found during the search of the basement of 513 Florida Avenue, N.E., arguing that the affidavit in support of the warrant failed to establish probable cause, and that to the extent that probable cause was established, it was due to misrepresentations made by the affiant. After a pretrial hearing on February 14, 1995, and then again after a post-trial hearing on February 28, 1995, the district court denied Mr. xxxxxxx's motion to suppress.

The search warrant at issue in this case, authorizing the search of the basement apartment at 513 Florida Avenue, N.E., was issued by a Superior Court Judge, the late Judge Luke Moore, on August 23, 1994. (APP 9). The warrant was based on an affidavit, of that same date, submitted by Metropolitan Police Department Detective Dean M. Welch. (APP 10-12).

The affidavit first set forth the "resume" of Detective Welch, noting that he was an eleven-year police veteran who had experience in narcotic investigations and who had applied for and received over 50 Superior Court search warrants. (APP 10). Then, the affidavit, in a section entitled "police report," recited information received from three confidential informants:

Within the past several months members of the Metropolitan Police Department received a complaint from NSID SE 0235 that a subject known to It as Charles was selling crack from the basement of 513 Florida Avenue N.E. Washington. SE 0235 stated that It has been inside the basement apartment and has seen Charles in possession of a .32 caliber handgun with a bulldog on the grips of the weapon.

Within the past two months Members of the Metropolitan Police received allegations from a citizen that a subject was selling crack cocaine from within his apartment.

Within the past 24 hours NSID SE 0133 informed Members of Metropolitan Police Department that a subject was selling crack cocaine from the premises. SE 0133 stated that It personally knows the subject. (APP 10) (spaces inserted to distinguish among informants)

The next section of the affidavit, entitled "investigation," reported that the police attempted to make a controlled narcotics purchase at 513 Florida Avenue, N.E., but were unsuccessful. According to the affidavit, at the time of the scheduled buy (the date of which is not set forth in the document), the police observed "the Target" driving away. The police followed the target's automobile, and after the target's vehicle travelled only "a short distance[,]...it was observed to pass through a red light...." (APP 11).

After the vehicle was stopped, the affiant reported the following sequence of events:

The target was approached and asked to step from the vehicle. The target was observed to throw out of the passenger window two pouches. One pouch contained 3 packets of rocklike substance and the other contained 28 packets of a rocklike substance. A portion of the substance was field tested as positive for cocaine.... The target was arrested. (APP 11).

The affidavit also reported that after being arrested, Mr. xxxxxxx complained that he was not feeling well and that he wanted to go to the hospital. This request was refused because Mr. xxxxxxx "had no visible illnesses." The affidavit stated that Mr. xxxxxxx refused the invitation to have uniformed police officers go to his home for some medicine because no one was present at his residence. According to the affidavit, "a person was interviewed who had been inside the residence within the past few hours and had met the targets mother who was present inside the residence." (APP 11).

The affiant then alleged that in his experience, individuals who distribute drugs generally keep drug paraphernalia, drug proceeds, and weapons "on the same premises as their narcotics." (APP 11). Next, the affidavit apprised the reviewing judge that Mr. xxxxxxx had convictions for narcotic offenses in Superior Court in 1987 and in 1985. In addition, the affidavit listed two pending narcotic cases in Superior Court. Finally, the affiant stated that based on his experience there was probable cause to believe that contraband and evidence of drug distribution existed at 513 Florida Avenue, N.E. (APP 12).

In his motion to suppress, Mr. xxxxxxx argued that the affidavit failed to establish probable cause for the issuance of the search warrant. First, there was no information provided regarding the informants' past reliability or the basis for their knowledge. Second, the affidavit failed to link Mr. xxxxxxx with any drug distribution which was occurring at the Florida Avenue address. Third, the police never independently corroborated any of the information provided by the informants because the attempted controlled buy was unsuccessful. Finally, Mr. xxxxxxx argued, the affidavit contained misrepresentations because it suggested that the police observed the target throwing drugs out of the car window after the traffic stop, when in fact the police did not observe this activity; rather, the source of the information was a passenger in the car (who was not even referenced in the affidavit) who had an obvious motive to claim that Mr. xxxxxxx threw the drugs out of the car because the drugs were found much closer to her than to Mr. xxxxxxx.

At the suppression hearing on February 14th, Detective Dean Welch, the affiant, was called as a witness for the government. Detective Welch admitted that the police did not witness Mr. xxxxxxx throw out the pouches which were later discovered to contain cocaine base. Rather, this allegation was made by a passenger in the car, a woman named Nikia. (APP 22-23)(2/14: 93-94). Detective Welch further conceded that the drugs were found on the passenger's side of the car, and that this fact also was omitted from the affidavit. (APP 31, 33)(2/14: 102, 104).

Although the affidavit did not link Mr. xxxxxxx to the Florida Avenue address, Detective Welch testified that this nexus was established by the defendant's drivers license and information provided by the passenger in the car. (APP 25)(2/14: 96).

Detective Welch also conceded that the affidavit did not reflect the date or time of the traffic stop. (APP 28-29)(2/14: 99-100). However, Detective Welch testified that the stop had occurred on August 22, 1994, the night before the search warrant was applied for, issued, and executed. (APP 37)(2/14: 108).

The district court denied the motion to suppress, holding that while the affidavit could have been more specific, the court had

no reason to believe that [Detective Welch] was engaging in artful dodging by saying, in essence, that the target was observed to throw something out of the window. The fact that he doesn't say 'by a police officer,' it could have been just a regular John Doe or Jane Doe walking on the street could have observed it, and I don't know that--it's true that someone observed it. Based upon the testimony he has given here today, someone observed it, and the fact that he doesn't say, well, it's someone who maybe could have been charged, someone who should have been charged, I don't know. There's certainly not enough evidence to that effect. (APP 40-41)(2/14: 131-32).

After the conclusion of the trial, the suppression motion was re-opened at the defendant's request. Specifically, counsel for the defendant argued that one of the officers who was present for the traffic stop, Detective Kline, should be called to testify on the issue of whether he ever saw the defendant in possession of the pouches which were allegedly thrown out of the car. At that hearing, Detective Kline testified that he and his partner Detective Zerega were present for the traffic stop. (APP 90)(2/28: 11). Detective Kline stated that although he saw Mr. xxxxxxx reach into the console of the car, he did not see Mr. xxxxxxx in possession of the pouches and did not see him making any throwing motions. (APP 94-95)(2/28: 15-16). According to Detective Kline, when he saw Mr. xxxxxxx reach for the console, the Detective ducked behind the car door for cover. (APP 98-99)(2/28: 19-20). Detective Kline testified that he informed Detective Welch that he (Kline) did not witness Mr. xxxxxxx throw anything out the window. He further testified that Detective Welch knew about the presence of the passenger, and that Welch had been told it was the passenger, not the police, who saw Mr. xxxxxxx allegedly throw the pouches from the car. (APP 101)(2/28: 22). After hearing the testimony, the court, noting that Detective Kline's testimony was not inconsistent with Detective Welch's earlier testimony, denied the motion to set aside the court's previous ruling. (APP 106-108)(2/28: 27-29).

B. The Evidence At Trial

At trial, the government's witnesses were law enforcement personnel who testified about the search of the basement at 513 Florida Avenue, N.E., the evidence seized during the search, and the tests performed on that evidence. The testimony revealed that the basement at that address was a general storage area, but that there was also a separate, locked small room which had a bed, a dresser, and some clothes hanging up. (APP 44-45)(2/15: 54-55).

Inside a backpack in that small room, the police uncovered crack cocaine, approximately $500 in currency, two small scales, and some of Mr. xxxxxxx's personal papers. (APP 46-47, 48-49)(2/15: 62-63, 71-72). According to a forensic chemist with the DEA, the total weight of the cocaine base was just over 50 grams (51.152 grams). (APP 53)(2/16: 59). Also, in that room, the police found two photographs of Mr. xxxxxxx, and Detective Kline testified that one of the suits worn by Mr. xxxxxxx in the photograph was found hanging in that room. (APP 50)(2/15: 91). Detective Kline also testified that a semiautomatic pistol was found between the mattress and box springs of the bed located in that same area. (APP 51)(2/15: 92). The government's fingerprint expert, Richard Griffin, testified that Mr. xxxxxxx's fingerprints were identified on an Esquire magazine found in the room, but were not identified on any of the other items seized by the police. (APP 58-59)(2/17: 22-23).

The defense contended that 513 Florida Avenue was a group house in which a number of individuals lived. Mr. David Marable, a tenant from the house, testified that a number of people in addition to Mr. xxxxxxx stayed in the basement at that address. (APP 61-63)(2/17: 54-56). Mr. Marable also reported that Mr. xxxxxxx did not stay in the small room on a daily basis, that other people were also staying in that room during August of 1994, and that these other individuals also had a key to that room. (APP 64-65)(2/17: 57-58).

The defense attempted to call Mr. xxxxxxx's mother, who also resided at 513 Florida Avenue, N.E., as a defense witness. However, the government suggested that Ms. xxxxxxx had a Fifth Amendment privilege because she made statements regarding ownership of one of the guns which was found upstairs at that address (for which Mr. xxxxxxx was not charged). (APP 55-57)(2/17: 3-5). Although the defense proffered that the direct of Ms. xxxxxxx would be restricted to the issue of who had access to the house, independent counsel was appointed for Ms. xxxxxxx and she asserted her fifth amendment privilege. (APP 66-69)(2/17: 67-70).

On February 24, 1995, the jury returned verdicts of guilty on Count One (possession with intent to distribute) and Count Two (possession with intent to distribute within 1000 feet of a school), but was unable to return a verdict as to the remaining counts. (APP 71-72)(2/24: 4-5). On February 27, 1995, the court declared a mistrial as to Counts Three, Four, and Five because the jury was unable to reach unanimous verdicts on those counts. (APP 79)(2/27: 9).

C. The Mandatory Life Sentence

On February 14, 1995, prior to the start of the suppression hearing, Mr. xxxxxxx was served with an enhancement notice, pursuant to 21 U.S.C. § 851(a). (APP 16-17). The notice, which was also read to the defendant by the trial judge, correctly set forth Mr. xxxxxxx's prior criminal convictions, but incorrectly informed him that if convicted at trial, he was facing only a mandatory minimum sentence of ten (10) years. (APP 20-21)(2/14: 4-5).

On June 26, 1995, the defendant was sentenced to mandatory life imprisonment as a result of his two, prior felony drug convictions. See 21 U.S.C. § 841(b)(1)(A)(iii). Both counsel and the court acknowledged that the court had no discretion in this regard. (APP 113-114)(6/26: 6-7). Accordingly, defense counsel did not contest any of the facts in the presentence report and did not allocute on his client's behalf. (APP 113)(6/26: 6). The defendant also did not allocute. (APP 114)(6/26: 7). No objection was made by defense counsel at the time of sentencing to the insufficiency of the prior notice of potential enhancement.

SUMMARY OF ARGUMENT

This prosecution arose from the issuance and execution of a search warrant, and the seizure of just over 50 grams of cocaine base and a handgun. However, the underlying search warrant was defective because there was a lack of probable cause to search the subject residence. Specifically, the affidavit in support of the warrant relied primarily on informant information which possessed little, if any, indicia of reliability, and which, for the most part, was months old. Furthermore, the police were unsuccessful in corroborating this information through a controlled buy at the subject property. Finally, the good faith exception to the exclusionary rule is inapplicable in this case because the affiant misled the issuing judge by suggesting that the defendant during a traffic stop was observed by the police to throw bags of cocaine base out of the car window. In fact, the police saw no such thing; rather, a passenger in the car made this allegation. Yet, the affidavit neither referenced the existence of the passenger, nor apprised the judge of the passenger's obvious motive to implicate the defendant since the drugs were found much closer to her than to Mr. xxxxxxx.

To the extent that the affidavit did establish probable cause to search the subject residence, suppression was nonetheless required under Franks v. Delaware, 438 U.S. 154 (1978). First, the clear and unmistakable implication of the affidavit, that it was the police (rather than a potential defendant or co-defendant) who observed the drugs being thrown from the car, was false. Second, this supposed observation by the police was clearly material to any finding of probable cause because it not only served as independent evidence on which to base the warrant, but also provided a critical measure of police corroboration for the otherwise deficient informant information. Third, the testimony established that the affiant knew that the observation was not made by the police, but by the passenger, and there was no testimony that the affiant had simply made a good faith mistake. Accordingly, this material misrepresentation, which was made knowingly and intentionally, or at least with reckless disregard for the truth, requires suppression of the fruits of the search.

Finally, the district court was without jurisdiction to impose the enhanced, life sentence in this case because of the government's failure to comply with the pretrial notice requirements of 21 U.S.C. § 851(a)(1). The primary purpose behind Section 851 is to ensure that a defendant understands the potential punishment to which he or she would be exposed upon conviction in order to allow the defendant to decide whether or not to plead guilty or to go to trial. Where there is a failure to comply with the requirements of this subsection, a district court is without jurisdiction to impose the enhanced sentence. Here, the enhancement notice, which was served on the defendant and which was read to him by the trial judge, affirmatively misinformed Mr. xxxxxxx that he faced only a mandatory minimum sentence of 10 years, rather than the mandatory life sentence which was ultimately imposed. In light of this error, this Court should remand the case for re-sentencing with instructions that the district court is without authority to impose the enhanced life sentence.

ARGUMENT

I. THE TANGIBLE EVIDENCE SEIZED DURING THE SEARCH SHOULD HAVE BEEN SUPPRESSED BECAUSE THE AFFIDAVIT IN SUPPORT OF THE SEARCH WARRANT FAILED TO ESTABLISH PROBABLE CAUSE, AND BECAUSE THE GOOD FAITH EXCEPTION WAS INAPPLICABLE.

A. Probable cause requires that the totality of circumstances presented in the affidavit provide reason to believe that evidence of a crime will be found at the subject property at the time of the search, and this Court will uphold that finding only if it is supported by substantial evidence.

1. Standard of Review: There must be substantial evidence to support the probable cause determination.

While this Court does not engage in a de novo determination of probable cause, it must find that "the decision to issue the warrant ...[was] supported by substantial evidence." United States v. Thomas, 989 F.2d 1252, 1254 (D.C. Cir. 1993)(per curiam)(citing Massachusetts v. Upton, 466 U.S. 727, 728 (1984)).

2. Information received from informants must be carefully scrutinized, and the affidavit must establish the informant's reliability and basis of knowledge.

The current standard for judging the adequacy of a search warrant was formulated by the Supreme Court in Illinois v. Gates, 462 U.S. 213 (1983). There, the Court held that

The task of a judicial officer from whom a search warrant is requested is "to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the 'veracity' and 'basis of knowledge' of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place."

Thomas, 989 F.2d at 1254 (quoting Illinois v. Gates, 462 U.S. at 218). In Gates, the Supreme Court abandoned strict adherence to the two-prong veracity and basis of knowledge test for probable cause, holding instead that "a deficiency in one may be compensated for, in determining the overall reliability of a tip, by a strong showing as to the other, or by some other indicia of reliability." 462 U.S. at 233.

Where, as here, a search warrant depends on allegations made by an unnamed informant, it

has been regarded as vulnerable because the tip is hearsay, which, like all hearsay, is susceptible to special concerns of perception and veracity. If the tip is to serve as a basis for a finding of probable cause, the 'neutral and detached magistrate' issuing the warrant must have substantial reason to believe that nonetheless the hearsay is reliable. Without that determination, the magistrate would cede his duty to gauge probable cause to the informant and the possibly overzealous law-enforcement officer.

United States v. Laws, 808 F.2d 92, 95 (D.C. Cir. 1986) (citations omitted).

In order to ensure that the reviewing judicial official does not base a determination on unreliable information, courts insist that the affidavit demonstrate some basis from which to conclude that an informant is reliable: that the police corroborate at least some of the assertions made by an informant, see United States v. Dawkins, 17 F.3d 399, 404 (D.C. Cir. 1994); Laws, 808 F.2d at 97; or that the affidavit provide sufficient information about the informant's credibility in other instances so that the magistrate can determine the informant's reliability, see United States v. Warren, 42 F.3d 647, 652 (D.C. Cir. 1994); Laws, 808 F.2d at 100. One common method of corroborating an informant's information regarding drug dealing at a particular location is for the police to conduct a controlled buy at the location to be searched. In many instances where probable cause might otherwise be lacking, the successful completion of the controlled transaction has been recognized as critical to the probable cause determination. Warren, 42 F.3d at 652; United States v. Allen, 960 F.2d 1055, 1057 (D.C. Cir.), cert. denied, U.S. , 113 S.Ct. 231 (1992); United States v. Richardson, 861 F.2d 291 (D.C. Cir. 1988)(per curiam), cert. denied, 489 U.S. 1058 (1989).

3. The search warrant cannot be based on "stale" information.

The affidavit must also establish the "crucial" element that "there was probable cause for the search at the time the warrant was issued." United States v. Bruner, 657 F.2d 1278, 1298 (D.C. Cir. 1981); see Sgro v. United States, 287 U.S. 206, 210-11 (1932) (a valid warrant is one which is based upon "facts so closely related in time to the issue of the warrant as to justify aa finding of probable cause at that time."); Schoeneman v. United States, 317 F.2d 173, 177 (D.C. Cir. 1963) ("...the critical question here is whether the affidavits when presented to the commissioner gave probable cause to believe that the government documents were still on the premises." (emphasis added)).

B. The Affidavit Failed to Establish Probable Cause.

Detective Welch's affidavit in support of the search warrant failed to establish probable cause to believe that drugs, weapons, and/or evidence of drug dealing would be found at 513 Florida Avenue, N.E. The primary deficiency with the affidavit was that although it relied almost completely on allegations made by informants, the affiant failed to provide any information from which the reliability of those informants could be deduced. In addition, the affidavit explained only how one of these informants (SE 0235) "knew" this information. Moreover, the information from that individual, and from the anonymous tipster, were months old by the time the warrant was applied for and issued.

With regard to the first informant relied upon by Detective Welch, SE 0235, there was not a scintilla of information from which the judge could have discerned that this individual was reliable. There was no information that this individual had previously provided information to the police, and that such information had been credible. See, e.g., Warren, 42 F.3d at 650 (where affiant noted that informant had previously led to seizures of large amounts of cocaine, guns, and 52 defendants, and that informant had "never proven unreliable."). Also, there was no independent police corroboration of any of the informant's information (e.g., that an individual named Charles resided at that address).

Even if SE 0235's information was fully credited, it was too stale to provide any support for probable cause. The affidavit reflects that SE 0235 reported his or her allegation to the police "within the past several months." Where an affiant uses such potentially misleading phraseology, courts will "assume[] that the transactions took place in the most remote part of the given period....The reason for this policy is obvious. If this were not the construction given to this phrase, stale information could be made to appear current by the mere use of 'within' language." United States v. Button, 653 F.2d 319, 324-25 (8th Cir. 1981) (quotations and citations omitted, internal ellipses in original). Where drugs are involved, staleness is a particular problem because the material is small in size, can be easily hidden, is highly portable, and is likely to be sold. See United States v. Savoca, 761 F.2d 292, 297-298 (6th Cir.)(noting that "whether a sufficient nexus has been shown to a particular location turns in part on the type of crime being investigated, the nature of things to be seized, the extent of opportunity to conceal the evidence elsewhere, and the normal inferences that may be drawn as to likely hiding places"), cert. denied, 474 U.S. 852 (1985); United States v. Beltempo, 675 F.2d 472, 473 (2d Cir.) (holding that staleness determination requires consideration of whether the object sought "is large or small, moveable or fixed, disposable or permanent and innocuous or incriminating."), cert. denied, 457 U.S. 1135 (1982). Moreover, given that the nature of the drug trade is to sell whatever stock is on hand, the fact that drugs were at an address two or three months earlier provides little reason to believe that the same drugs, or for that matter other drugs, will still be there when the warrant is executed. See Button, 653 F.2d at 325.

Accordingly, courts have been reluctant to base warrants on information more than a few days old, unless the nature of the evidence or contraband sought in the warrant is such that one could reasonably infer that it would still be located on the premises. Compare United States v. Neal, 500 F.2d 305, 309 (10th Cir. 1974) (information related to activity three months prior to application for warrant stale because no circumstances shown to exist from which it could be inferred that the grounds continued to exist beyond that moment in time) with United States v. Vaughn, 830 F.2d 1185, 1187 (D.C. Cir. 1987) (informant reported seeing drugs at the place to be searched within 36 hours of the warrant being issued); Laws, 808 F.2d at 104 (information contained in affidavits in support of search warrant were not too stale where the time between tip and issuance of warrant was less than 10 hours); Beltempo, 675 F.2d at 473 (information not stale despite being over 50 days old because it referred to traces of heroin spilled into a rug which would linger for months with no risk of evaporation or dissolution).

The second informant relied upon by Detective Welch was an "unknown and anonymous citizen" who reported simply that "a subject was selling crack cocaine from within his apartment." Obviously, there is no basis from which to conclude that this individual is the slightest bit reliable, that he or she had a basis for knowing this information, or that he or she was truthful. This informant neither named Mr. xxxxxxx as the individual who was conducting this activity, nor specified in which apartment this activity was occurring. Indeed, the affidavit does not even report that the informant provided a specific address.

In Gates, which dealt with an anonymous tip, the Court went to great lengths to "emphasize[] the importance of independent police work corroborating the details of an informant's tip." Laws, 808 F.2d at 97; see Gates, 462 U.S. at 244-45 ("corroboration through other sources of information reduced the chances of a reckless or prevaricating tale, thus providing a substantial basis for crediting the hearsay."); Laws, 808 F.2d at 98 ("That the informant's reliability [in Gates] was unknown to the police became 'far less significant' after their investigation tended to confirm key aspects of the tip, and with this degree of verification it was reasonable to conclude that the affiant was probably correct in his claim of illegal activity by the Gates."). Here, unlike in Gates, the tip provided no such details, and there was absolutely no independent police corroboration.

Further, as the Court in Gates recognized, this type of conclusory assertion

gives the magistrate virtually no basis at all for making a judgment regarding probable cause. Sufficient information must be presented to the magistrate to allow that official to determine probable cause; his action cannot be a mere ratification of the bare conclusions of others. In order to ensure that such abdication of the magistrate's duty does not occur, courts must continue to conscientiously review the sufficiency of affidavits on which warrants are issued.

Gates, 462 U.S. at 239; see, e.g., United States v. Kolodziej, 712 F.2d 975, 977 (5th Cir. 1983) (per curiam) (finding no probable cause where tip was "nothing more than a conclusion" that defendant was engaging in criminal conduct, where the affidavit failed to set forth the basis of the informant's knowledge, where the "affidavit [did] not contain an affirmative allegation that any of the three informants was known to be reliable," and where there was no independent police investigation which corroborated the informants' tips.). Finally, as was the first informant's tip, this information was reported "within the past two months." Accordingly, this Court must assume that this information was sixty days old; and accordingly, it was too stale to support probable cause at the time of the warrant.

The third informant, SE 0133, reported that within the "past 24 hours," "a subject was selling crack cocaine from the premises. SE 0133 stated that It personally knows the subject." Although this informant's information was not yet stale, it was again merely a conclusory assertion which lacked any indicia of reliability, any independent corroboration, and any basis for discerning how, if at all, the informant obtained such knowledge. See Gates, 462 U.S. at 239; Kolodziej, 712 F.2d at 977. Furthermore, although the informant claimed to know the subject, it was apparent that the informant did not know the subject's name (or, as with the first informant, that information would certainly have been included in the affidavit), and was unable to provide any physical description of the subject. See Button, 653 F.2d at 324 (finding informant's information deficient where informant stated that Angel Dust was located in the residence, but affidavit did not reveal whether informant had actually been in the residence, whether informant had personally observed the drugs, and whether informant specifically mentioned the defendant).

The fourth source of information relevant to the probable cause determination was also an unknown informant, although the affiant did not reveal this fact to the judge who signed the warrant. According to that informant, when Mr. xxxxxxx's automobile was stopped by the police after the unsuccessful attempt at a controlled buy, Mr. xxxxxxx threw two pouches of crack cocaine out of the car window. While we concede that this would appear on its face to be the strongest piece of information in the probable cause equation, this allegation, without any additional information from reliable informants, can not support a finding of probable cause to search Mr. xxxxxxx's residence. See Zurcher v. Stanford Daily, 436 U.S. 547, 556 (1978) ("The critical element in a reasonable search is not that the owner of the property is suspected of crime but that there is reasonable cause to believe that the specific 'things' to be searched for and seized are located on the property to which entry is sought.").

As this Court noted in Thomas, "illegal activity occurring away from the residence, can support a finding of probable cause to issue a search warrant for the residence, if there is a reasonable basis to infer from the nature of the illegal activity observed, that relevant evidence will be found in the residence." Thomas, 989 F.2d at 1254-55 (emphasis added); see, e.g., United States v. Gramlich, 551 F.2d 1359, 1362 (5th Cir. 1977)(where owner of residence is arrested smuggling a large quantity of contraband miles away from his residence, this was "insufficient to justify the inference that incriminating evidence existed" at the defendant's residence.), cert. denied, 434 U.S. 866 (1977). Here, the fact that Mr. xxxxxxx had cocaine with him in an automobile and attempted to discard it during a traffic stop does not provide a basis for believing that such evidence could also be found inside his residence. Indeed, the allegation that Mr. xxxxxxx was supposedly throwing the drugs away disproves, more than it establishes, the type of information needed to support the warrant. It should also be noted that the affidavit does not reflect when this incident occurred in relation to the application for the search warrant.

To summarize, the affidavit is permeated with serious deficiencies with regard to the first three informants. First, there was no information provided from which the judge could have determined that any of the informants were reliable. Second, two of the three confidential informants provided information approximately two to three months before Detective Welch sought the warrant. Third, the third informant, SE 0133, provided only a conclusory assertion that drugs would be located at the premises, and the affidavit failed to set forth any basis for deducing the basis for that informant's knowledge. Accordingly, the information from the three informants amounts to not even one brick in the probable cause wall.

The final element in the probable cause determination was the observation of Mr. xxxxxxx, at some unstated time and date, throwing drugs out of the car when he was stopped by the police. Yet, the mere finding of drugs during a traffic stop is not, by itself, sufficient evidence on which to base a search of an individual's residence.

C. The Good Faith Exception Is Inapplicable Because The Affidavit Contains A Significant Misrepresentation.

It is now well established that under United States v. Leon, 468 U.S. 897 (1984), the failure of the affidavit to establish probable cause does not necessarily require application of the exclusionary rule. Rather, where the officers act in good faith and rely on a lawfully issued search warrant, the fact that the affidavit does not establish probable cause is ultimately irrelevant. However, the good faith exception iterated in Leon does not apply where the affiant "made a false, material statement knowingly and intentionally or with reckless disregard for the truth." Richardson, 861 F.2d at 294 n.5.

Here, the affiant falsely represented to the issuing judge that police officers personally witnessed Mr. xxxxxxx in possession of crack cocaine and witnessed him throw the drugs out of the car window. Indeed, the affidavit could not more clearly suggest that it was the police who observed Mr. xxxxxxx throw out the drugs. To begin with, this information is related to the judge in the "investigation" section of the affidavit which appears to focus almost entirely on the direct observations by "members of the Metropolitan Police Department." The first paragraph details how police officers, along with an informant, went to the residence to conduct a controlled buy, but Mr. xxxxxxx was observed driving away from the premises. The second paragraph relates that police officers followed Mr. xxxxxxx's automobile and, fortuitously, observed Mr. xxxxxxx commit a traffic infraction.

The third paragraph continues the chronology of the police report on the traffic stop:

The target was approached and asked to step from the vehicle. The target was observed to throw out of the passenger window two pouches.

While not explicit, it is clear in the first sentence that the target was approached and ordered out of the vehicle by members of the Metropolitan Police Department. The exact same inference arises from the second sentence; that is, the target was observed throwing out the pouches by members of the Metropolitan Police Department. Significantly, since the affidavit does not even reference the passenger, there is not even a possible inference that someone other than a police officer witnessed this event. By so constructing the affidavit, the affiant deprived the judge of critical information: that the only individual who actually witnessed these events was an informant who had a strong motive to point the finger at Mr. xxxxxxx in order to exonerate herself since the drugs were found much closer to her than to the defendant. The affiant also failed to inform the judge about the informant's "track record" in providing information, and the extent to which the police independently corroborated her allegations. Therefore, in light of the affiant's misrepresentation, the good faith exception to the exclusionary rule is inapplicable.

II. EVEN IF PROBABLE CAUSE WERE ESTABLISHED, THE FRUITS OF THE SEARCH SHOULD HAVE NONETHELESS BEEN SUPPRESSED UNDER FRANKS V. DELAWARE.

To the extent probable cause was established, it was only because of Detective Welch's misrepresented information regarding the observations of Mr. xxxxxxx after the traffic stop. In the event that this Court finds that probable cause is established on the face of the affidavit, then this Court must proceed to determine whether the evidence should nevertheless have been suppressed under the Supreme Court's holding in Franks v. Delaware, 438 U.S. 154 (1978).

Under the Franks test, in order to challenge the affidavit successfully, the defendant must show that (1) the affidavit contained false statements; (2) the statements were material to the issue of probable cause; and (3) the false statements were made knowingly and intentionally, or with reckless disregard for the truth."

Richardson, 861 F.2d at 293. The district court's findings of fact after a Franks hearing are reviewed under a clearly erroneous standard. United States v. Ferguson, 758 F.2d 843, 849 (2d Cir.), cert. denied, 474 U.S. 1032 (1985).

With regard to the first element, Detective Welch's suggestion in the affidavit that the police, rather than an informant, witnessed Mr. xxxxxxx throw the drugs out of the window was blatantly false, and the district court's failure to so find was clearly erroneous. Indeed, a primary reason for the Supreme Court's ruling in Franks was to address the potential for misrepresentations regarding informants. As the Court noted, "[i]f an informant's tip is the source of information, the affidavit must recite ... some of the underlying circumstances from which the officer concluded that the informant...was credible or his information reliable." Franks v. Delaware, 438 U.S. 154, 165 (1978) (quotations and citations omitted). Here, the affiant circumvented these critical requirements by omitting the fact that it was the informant who witnessed this conduct and by suggesting instead that it was the police. See United States v. Boyce, 601 F.Supp. 947, 952 (D. Minn. 1985) (where affiant's phrasing inaccurately bolstered the credibility and reliability of the informant); United States v. Rule, 594 F.Supp. 1223, 1240 (D. Me. 1985) (where "both the structuring of the affidavit and the nondisclosure of essential information relating to [the informant's] credibility" rendered the magistrate "unable fully to evaluate on a proper understanding the information provided him in the affidavit."), vacated on other grounds, 781 F.2d 953 (1st Cir. 1986).

Second, this particular allegation was "material" to the probable cause determination. As previously noted, all of the other potentially relevant information was received from informants. That information was entitled to little, if any, weight in light of the aforementioned problems: the failure to provide a basis from which to conclude that these individuals were reliable; the generally conclusory nature of their allegations; the failure of the police to independently corroborate the allegations; and the staleness of the information provided by two of the three informants. Accordingly, the purported police observation of cocaine being thrown by Mr. xxxxxxx out of the automobile served not only as independent evidence on which to base a search warrant, see Thomas, 989 F.2d at 1254-55, but also to provide a measure of police corroboration for the other general allegations made by the three informants. Indeed, the critical nature of this allegation to the probable cause determination is demonstrated by the fact that despite the informants' information being in the possession of the police prior to the traffic stop, it was not until after that event that the affiant applied for, and obtained, a search warrant.

Third, the false statements were made knowingly and intentionally, or with reckless disregard for the truth. Detective Welch, at the suppression hearing, conceded that he knew that the observations reported in his affidavit were witnessed by the passenger, not by the police, and that the drugs were found on the passenger's side of the automobile. (APP 31)(2/14: 102). At the post-trial suppression hearing, Detective Kline confirmed that the police did not see the defendant in possession of the pouches. (APP 94-95) (2/28: 15-16). The affidavit clearly reveals that Detective Welch knew how to report hearsay information and information received from "informants." Yet, there is absolutely no indication in the affidavit that this observation was reported to the police by a third party informant, and not observed directly by the police. Furthermore, Detective Welch never testified that he believed that his affidavit accurately reflected what transpired during the traffic stop or that he made a good faith mistake in the manner in which he reported it. Accordingly, there is ample evidence from which to conclude that Detective Welch's false statement was made knowingly, or at the very least, with reckless disregard for the truth, and therefore, the evidence should have been suppressed under Franks.

III. THE DISTRICT COURT WAS WITHOUT JURISDICTION TO IMPOSE THE ENHANCED SENTENCE IN THIS CASE OF LIFE IMPRISONMENT.

While Section 841 of Title 21 of the United States Code imposes more serious minimum sentences for offenders with prior convictions, Section 851 provides defendants with some protection from these harsh consequences by requiring pretrial notice of the government's intention to seek such an enhancement. Without such notice, the district court is without jurisdiction to impose any such enhanced sentence. In this case, the government's pretrial notice informed the defendant only that he was subject to a mandatory minimum penalty of ten years. However, after the defendant was convicted at trial, the government suggested to the probation office that because of the defendant's prior convictions, the applicable mandatory minimum sentence was life imprisonment, and this was the sentence ultimately imposed upon Mr. xxxxxxx. While the notice properly informed Mr. xxxxxxx of his prior convictions, it affirmatively misinformed him about the potential punishment facing him in the event of a conviction.

In light of the government's failure to properly notify the defendant pretrial that his prior convictions exposed him to this mandatory, enhanced sentence, the district court was without jurisdiction to impose it. And, because the district court was without jurisdiction, the doctrine of harmless error is inapplicable and this Court must exercise a de novo standard of review in considering this issue. Finally, the appropriate remedy for this error is for this Court to remand the case for re-sentencing without application of the unnoticed life imprisonment enhancement.

A. A failure to comply strictly with the notice requirements of 21 U.S.C. § 851(a) deprives a district court of jurisdiction to impose an enhanced sentence.

Section 851(a) deprives a district court of jurisdiction to enhance a defendant's sentence where the notice of the potential enhancement is not properly served on the defendant prior to the start of his or her trial. Specifically, the statute provides that

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,... 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). Courts have required "strict compliance" by the government with these requirements. United States v. Belanger, 970 F.2d 416, 418 (7th Cir. 1992) ("Strict compliance with the mandatory language of the procedural requirements of § 851 is required....") (citations omitted); United States v. Noland, 495 F.2d 529, 533 (5th Cir. 1974) ("In granting this discretion [to obtain enhanced sentences] to the prosecution, Congress imposed a strict condition on its exercise."), cert. denied, 419 U.S. 966 (1974); United States v. Velasco, 847 F.Supp. 580, 586 (N.D. Ill. 1994) ("Because of the important due process interests at stake, courts have long required strict compliance with the filing and notice requirements of § 851(a)(1).")

Every court that has addressed the issue has held that the government's failure to strictly comply with the notice provisions of Section 851(a)(1) deprives the sentencing court of jurisdiction to impose the enhanced sentence. Kelly v. United States, 29 F.3d 1107, 1110 (7th Cir. 1994); Suveges v. United States, 7 F.3d 6, 10 (1st Cir. 1993); United States v. Wright, 932 F.2d 868, 882 (10th Cir.), cert. denied, 502 U.S. 962 (1991); United States v. Olson, 716 F.2d 850, 853 (11th Cir. 1983); Noland, 495 F.2d at 533. As the Seventh Circuit explained in Kelly, the jurisdictional nature of the Section 851(a)(1) notice requirement is derived from the language of that section which directs that "'[n]o 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 served with notice." Kelly, 29 F.3d at 1110.

B. The notice provided to Mr. xxxxxxx failed to satisfy the requirements and objectives of Section 851(a) because it apprised Mr. xxxxxxx that the applicable mandatory minimum sentence following a conviction was 10 years, not life imprisonment.

Here, the government's purported notice, pursuant to Section 851, was defective because although the prior convictions exposed the defendant to a mandatory life sentence, the notice wrongly informed Mr. xxxxxxx that upon conviction he would be "subject to a minimum period of imprisonment of not less than ten years and not more than life...." (APP 16-17). Mr. xxxxxxx was misinformed not only by the written notice served upon him by the government, but also by the explicit, oral information provided to him by the trial court. (APP. 20-21)(2/14: 4-5). As a result of this error, Mr. xxxxxxx proceeded to trial under the erroneous impression that the applicable mandatory minimum sentence was only ten years, not life in prison.

Providing Mr. xxxxxxx with such incorrect information about the potential sentence he faced struck at the heart of Section 851, and rendered the district court without jurisdiction to impose a life sentence. While there is little direct legislative history for Section 851, there is ample history for the virtually identical District of Columbia statute that was passed almost contemporaneously. Indeed, this Court and others have relied on the history behind the District of Columbia statute in interpreting Section 851. United States v. Jordan, 810 F.2d 262, 269 (D.C. Cir. 1987), cert. denied, 481 U.S. 1032 (1987); United States v. White, 980 F.2d 836, 842 (2d Cir. 1992); Belanger, 970 F.2d at 418; United States v. Johnson, 944 F.2d 396, 407 (8th Cir.), cert. denied, 502 U.S. 1008 (1991). The legislative history reveals that the primary purpose of the pretrial notice requirement was to provide the defendant with sufficient information about the potential punishment to which he or she would be exposed upon conviction to allow the defendant to decide whether or not to plead guilty or to go to trial. Arnold v. United States, 443 A.2d 1318, 1325 (D.C. 1982) (analyzing identical D.C. Code provision). As the District of Columbia Court of Appeals noted in Arnold,

the requirement of such notice...merely fulfills the right of an accused, under the fifth and sixth amendments of the Constitution, to be informed before trial of the nature of the charges against him. Moreover, as a matter of legislative policy, the District Committee has taken cognizance of, first, the importance of permitting the accused to determine intelligently, with foreknowledge of the risk which the instant litigation poses, both how to plead and how or to what extent to defend; and, secondly the unfairness, possibly rising to the level of a denial of fifth amendment due process, of surprising the defendant after trial with "stakes" 50 percent greater than he might have supposed, or possibly many times greater in the case of the indeterminate sentence without limitation. (S.Rep.No. 91-538, 91st Congress, 1st Sess. 10 (1969)).

Id.

This same analysis has been applied by this Court to Section 851. Jordan, 810 F.2d at 269 (Citing Arnold and noting that the "twofold purpose of § 851(a) [was]: 'to give notice to the defendant so that he may reasonably assess whether to plead guilty or proceed to trial, and ...to avoid the 'unfairness' of increasing the potential punishment after the trial has begun.'"). Other federal courts have also relied on the legislative intent behind the District of Columbia statute in interpreting Section 851. Johnson, 944 F.2d at 407 (Adopting the legislative history formulation set forth in Arnold); White, 980 F.2d at 842 (2d Cir. 1992) (Citing Johnson and Arnold for the proposition that Section 851 "allows the defendant an opportunity to determine whether to enter a plea or go to trial, and to plan his trial strategy with full knowledge of the consequences of a guilty verdict."). Belanger, 970 F.2d at 418 (Same).

In light of the statute's purpose, the mere fact that the government's notice accurately set forth Mr. xxxxxxx's prior convictions is insufficient to constitute compliance the provisions of Section 851(a)(1). Indeed, while Section 851(b) is directed "primarily at ensuring the validity of defendants' prior convictions, the filing and notice requirements of § 851(a) serve the additional function of allowing the defendant to "plan his trial strategy with full knowledge of the consequences of a potential guilty verdict." Velasco, 847 F.Supp. at 587 (N.D. Ill. 1994)(citing Johnson, 944 F.2d at 407). Where, as here, the notice wrongly informed the defendant that he was only exposed to a minimum sentence of ten (10) years, the defendant was deprived of this important statutory objective.

C. Because the sentencing court was without jurisdiction to impose the life sentence, the doctrines of waiver (by trial counsel) and of harmless error are inapplicable.

Because the district court was without jurisdiction to impose the enhanced sentence, there could be no waiver of the issue by trial counsel. As the Seventh Circuit noted, even in the context of a defendant's petition pursuant to 28 U.S.C. § 2255, where the defendant had not raised the issue at trial or on direct appeal, "questions about the court's jurisdiction cannot be waived." Kelly, 29 F.3d at 1113 (citations omitted). Rather, "the court has an independent duty to assure itself that its jurisdiction is properly had, and as a result parties can raise jurisdictional defects at any time." Id.; see also Neary v. United States, 998 F.2d 563, 565 (8th Cir. 1993) (In defendant's action brought pursuant to 28 U.S.C. § 2255, the court found no waiver despite the fact that the defendant at the time of sentencing had affirmatively waived his right under the statute to receive pretrial notice of the enhancement.).

Furthermore, the fact that the defendant's prior convictions, in fact, may have exposed him to a mandatory life sentence does not render the notice deficiencies harmless. Rather, given that the district court lacked jurisdiction to impose the sentence, this Court can not reach the issue of whether the failure to provide notice constitutes harmless error. As the Eleventh Circuit has held, "harmless error cannot give the district court authority it does not possess." Olson, 716 F.2d at 853; see Neary, 998 F.2d 563, 565 (8th Cir. 1993); Kelly, 29 F.3d at 1111. Indeed, in United States v. Weaver, 905 F.2d 1466, 1481 (11th Cir. 1990), cert. denied, 498 U.S. 1091 (1991), the court held that:

Even when the defendant is not surprised by the enhanced sentence, was aware from the outset that his previous conviction could lead to an enhanced sentence, never challenged the validity of the prior conviction, and admitted it at the sentencing hearing, the statute prohibits an enhanced sentence unless the government first seeks it by properly filing an information prior to trial.

Id. (citation omitted).

D. The case must be remanded for re-sentencing

In light of this error, the appropriate remedy is for this Court to remand for re-sentencing with instructions that the district court is without the jurisdiction to impose a mandatory life sentence; instead, the district court has jurisdiction to impose a mandatory minimum sentence of ten (10) years and whatever additional sentence is required by the Guidelines. In addition, given that all parties at the original sentencing were under the mistaken impression that Mr. xxxxxxx was going to be subjected to a mandatory life sentence regardless of the findings in the presentence report, there was no reason to challenge those factual findings or to make any allocution on behalf of the defendant. Indeed, when it came time for defense counsel to allocute, the following colloquy ensued:

MR. KRAUTHAMER: Your Honor, I don't think it makes a difference what I say as far as what the sentence is going to be. The Court's hands are tied.

THE COURT: Well, unfortunately, as you say, my hands are tied as far as the sentence is concerned. I don't have any discretion either.

MR. KRAUTHAMER: So, I'll save Mr. xxxxxxx some time by not talking. I mean, I wish I could say something.

(APP 113)(6/26: 6). Accordingly, at the time of re-sentencing, defense counsel should be free to challenge the findings within the pre-sentence report and to argue for a sentence in the low end of the guideline range.

CONCLUSION

For the foregoing reasons, Mr. xxxxxxx's convictions should be set aside and/or his case should be remanded for re-sentencing.

Respectfully submitted,

A.J. KRAMER

FEDERAL PUBLIC DEFENDER

__________________________

L. Barrett Boss

Assistant Federal Public Defender

625 Indiana Avenue, N.W.

Suite 550

Washington, D.C. 20004

(202) 208-7500

Counsel for Charles xxxxxxx

CERTIFICATE OF LENGTH

I hereby certify that the foregoing brief for appellant Charles xxxxxxx does not exceed the number of words permitted by Rule 28(d) of the General Rules of this Court.

_____________________________

L. Barrett Boss

CERTIFICATE OF SERVICE

I hereby certify that on the day of January, 1996 I caused two copies of the foregoing Brief of Appellant Charles xxxxxxx, together with the Addendum and the Appendix thereto, to be served by first-class mail, postage prepaid, upon:

John Fisher, Esquire

Chief, Appellate Division

Office of the United States Attorney

for the District of Columbia

555 - 4th Street, N.W.

Washington, D.C. 20001

_____________________________

L. Barrett Boss

CONTENTS OF ADDENDUM

The following pertinent statutes are included in the addendum:

1. 21 U.S.C. § 841(a)(1)

2. 21 U.S.C. § 841(b)(1)(A)(iii)

3. 21 U.S.C. § 851(a)

4. 21 U.S.C. § 851(b)