UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA :

: Cr. No. 90-177 (TFH)

v. :

:

xxxxxxxxxxxx, :

:

Defendant. :

REPLY TO GOVERNMENT'S OPPOSITION TO

DEFENDANT'S MOTION TO VACATE,

SET ASIDE, OR CORRECT SENTENCE

Defendant xxxxxx, through undersigned counsel, respectfully replies to the government's Opposition to his Motion pursuant to 28 U.S.C. § 2255 as follows:

The government contends that because Rule 7 of the Superior Court Rules of Criminal Procedure requires that felonies under the D. C. Code must be prosecuted by indictment, Mr. xxxxxx's felony convictions necessarily resulted from prosecutions by indictment. The government has produced no court records supporting its contention.

The government also argues that whether or not the felony convictions which served as the predicates for enhancement of his sentence under 21 U.S.C. § 851 were prosecuted by indictment is irrelevant, because it is the drug offense in the instant case which had to be prosecuted by indictment and not the predicate felonies. Mr. xxxxxx contends that this circuit has not ruled on that issue, and that at least one circuit has determined that § 851 is ambiguous on that point, thus triggering the rule of lenity. Mr. xxxxxx contends that the rule of lenity should be applied in his case to preclude enhancement of his sentence because the government has not met its burden of showing that the predicate felonies were prosecuted by indictment.

Congress created distinct multiple offender penalties in the drug arena in an attempt to punish multiple violators/recidivism more severely, deter drug trafficking, and protect second offenders by providing them with the opportunity to prove that prior offenses were incorrectly charged. United States v. Bell, 345 F.2d 354 (7th Cir. 1965), cert. denied, 86 S.Ct. 175 (1965); Baca v. United States, (10th Cir. 1962), cert. denied, 83 S.Ct. 1682 (1963); Tanzer v. United States, 278 F.2d. 137 (9th Cir. 196), cert. denied, 81 S.Ct. 103 (1960). Distinct multiple offender penalites are encoded in public laws such as 21 U.S.C. § 851, Proceedings to Establish Prior Convictions. 21 U.S.C. § 851 (1970). Section 851 embodies various procedural predicates to punishing multiple offenders, such as the requirement that the government provide, in writing and before trial, the previous convictions relied upon for establishing sentence enhancement for prior convictions. 21 U.S.C. § 851 (a)(1) (1970). Section 851(a)(2) provides,

An information may not be filed under this section if the increased

punishment which may be imposed is imprisonment for a term in

excess of three years unless the person either waived or was afforded

prosecution by indictment for the offense for which such increased

punishment may be imposed.

21 U.S.C. § 851 (a)(2) (1970).

The Second Circuit recently reversed a conviction for conspiracy to distribute heroin on the ground that the sentencing enhancement procedures outlined in 21 U.S.C. § 851(a)(2) are too ambiguous to support a criminal sentence enhancement. United States v. Collado, 106 F.3d 1097 (2d. Cir. 1977). In his defense, Collado urged the court that the phrase "offense for which such increased punishment may be imposed" referred to the prior felony offense, not the instant offense, thereby barring the court from considering his previous non-grand jury indicted offense. The defendant urged the court that the interpretation of § 851 (a)(2) proposed by the government amounted to mere surplusage, on the grounds that all federal felony prosecutions proceed by indictment. Id. at 1102. While the court did not find the defendant's proposed 'redundancy' argument persuasive, the court was persuaded by the fact that the statute has received several largely dissimilar interpretations by five circuit courts, leading the court to conclude that the statute is sufficiently ambiguous for the rule of lenity to apply. Id. at 1101, 1102.

The court concluded that the rule of lenity, which "aids a court in interpreting a criminal statute if there is an ambiguity," demands that "any ambiguity concerning the scope of a criminal statute...be resolved in favor of lenity." Id. at 1101, quoting United States v. Litchfield, 986 F.2d 21, 22 (2d. Cir. 1993); United States v. Kinzler, 55 F.3d 70, 71 (2d. Cir. 1995), and that in cases of sufficient statutory ambiguity where the provision is facially ambiguous and ambiguous as applied to the defendant, "the rule of lenity requires the sentencing court to impose the lesser of two penalties" and resolve all doubts in favor of the defendant. Collado, 106 F.3d at 1101, quoting United States v. Canales, 91 F.3d 363, 367 (2d. Cir. 1996). See also, Moskal v. United States, 498 U.S. 103, 108 (1990) (finding that if after considering language, structure, legislative history and political underpinnings a criminal statute remains ambiguous, the rule of lenity requires resolution in favor of a defendant).

This issue has been addressed in a number of other circuits as well, all yielding different results and relying upon disparate reasoning. The first such case to consider this issue was United States v. Espinosa, 825 F.2d 604 (9th Cir. 1987) cert. denied, 485 U.S. 968 (1988). Espinosa argued that the five year enhancement he received for a prior conviction was not authorized under

§ 851(a)(2), because 851(a)(2) pertained to prior convictions(s). Id. at 616. The court, however, affirmed Espinosa's sentence enhancement, arguing that consistent with "common sense" and the language used throughout the section, the most plausible reading of the phrase "offense for which such increased punishment may be imposed" is the current or latest offense. Id. at 617.

The Tenth Circuit, in United States v. Adams, 914 F.2d 1404 (10th Cir. 1990), cert. denied, 498 U.S. 1015 (1990), concurred with the ruling and reasoning in Espinosa and affirmed the district court's holding that the phrase "for the offense for which such increased punishment may be imposed" refers to the offense being prosecuted and not a previous offense. Id. at 1407. The court in Adams reasoned that this interpretation is necessitated by the fact that a past, prior offense cannot be subsequently increased ex post facto, whereas an enhancement for recidivist behavior is permissible. Id. at 1407. The Seventh Circuit, in United States v. Burrell, 963 F.2d 976 (7th Cir. 1992), cert. denied, 113 S.Ct. 357 (1992), found that § 851(a)(2) refers to current drug offenses, not prior convictions.

In United States v. Trevino-Lopez, 994 F.2d 533 (8th Cir. 1993), the Eighth Circuit joined with the Seventh, Ninth, and Tenth Circuits and ruled that § 851(a)(2) refers to the prosecution of the current offense. Id. at 536. Finally, in United States v. xxxxxx, 47 F.3d 1075, (11th Cir. 1995), the Eleventh Circuit considered the interpretation of 21 U.S.C. § 851(a)(2). In xxxxxx, the defendant challenged his sentences for possession of firearms and possession of crack cocaine with the intent to distribute on the grounds that the enhancement of his sentence could not be upheld absent prior offenses for which he received an indictment. The court held, however, that § 851(a)(2) permits the government to seek penalty enhancement as long as the current offense of conviction resulted from an indictment or waiver of an indictment. Id. at 106.

Implicit in these cases, however, is the understanding that § 851(a)(2) is sufficiently vague to require judicial interpretation. In fact, several circuits court decisions explicitly acknowledge that the language of § 851(a)(2) is subject to multiple interpretations.⁽¹⁾ Additionally, half the circuits have not reached the issue at bar, suggesting that the issue has not been definitively settled.⁽²⁾

The rule of lenity unquestionably requires a court to interpret all ambiguous criminal statutes in favor of the defendant.⁽³⁾ Given the explicit acknowledgement of the ambiguity and vagueness inherent in § 851(a)(2), the rule of lenity obligates this Court to interpret the statute in the way most beneficial to Mr. xxxxxx.

CONCLUSION

Wherefore, for these reasons and any others that may appear to the court, Mr. xxxxxx's motion to vacate, set aside or correct his sentence should be granted.

Respectfully submitted,

A.J. KRAMER

FEDERAL PUBLIC DEFENDER

________________________

Reita Pendry

Assistant Federal Defender

625 Indiana Avenue, N.W. #550

Washington, D. C. 20004

(202)208-7500

CERTIFICATE OF SERVICE

I certify that I have served a copy of the foregoing Reply upon Robert Okun, Esq., Assistant U. S. Attorney, by mailing a copy to him at his offices at 555 4th Street, N.W., Washington, D. C. this 27th day of February 27, 1998.

_______________________

Reita Pendry

1. Espinosa, 827 F.2d at 617 (although the statutory language is arguably susceptible to either reading"); Adams, 914 F.2d at 1407 ("[A]s a matter of abstract semantics the words 'offense for which' such increased punishment may be imposed might in vacue mean 'offense by virtue of which' or 'offense by reason of which' such increased punishment may be imposed"); Burrell, 963 F.2d at 992 (responding to the defendant's argument "although this application of the familiar maxim of statutory construction is not without appeal, we do not believe it trumps the careful reasoning set forth in Adams and Espinosa"); United States v. Moore, 25 F.3d 1051 (6th Cir. 1994) (finding "meritless" the defendant's claim that section 851 was unconstitutional, the court acknowledged, in a footnote, that "some confusion" existed regarding the claim but the court "took comfort in the fact that neither of the sections is overbroad or vague"); United States v. Collado, 106 F.3d 1097, 1102 (d.. Cir. 1997) (finding that section 851 (a)(2) is facially ambiguous).