The opinion of the court was delivered by: Eduardo C. Robreno, District Judge.
This case raises the novel issues in this circuit of whether
the statutory requirement that the Government serve upon
defendant or his counsel prior to trial a notice of intent to
enhance a drug-related offense to trigger the twenty year
mandatory minimum is jurisdictional, and whether, in this case,
the Government satisfied the statutory service requirement when
it served counsel for defendant with the notice of intent to
enhance the sentence by facsimile ("fax") transmission.
On September 16, 1998, a jury convicted defendant John
Galiczynski of conspiracy to distribute methamphetamine (Count
One), possession of methamphetamine (Count Six), and possession
of methamphetamine with intent to distribute, and aiding and
abetting (Count Seven), in violation of 18 U.S.C. § 2;
21 U.S.C. § 841(a)(1), 846. Defendant's total offense level was
calculated at 34, and his criminal history category was
calculated at III.*fn1 Under the Sentencing Guidelines,
defendant faced a term of imprisonment from 188 to 235 months.
Further, Counts One and Seven of the indictment required that
defendant face a statutory mandatory minimum often years (120
On September 9, 1998, prior to trial, and pursuant to
21 U.S.C. § 851(a)(1), the Government filed a notice with the Clerk of
the Court ("Clerk") designating one of defendant's prior felony
drug convictions for the purpose of seeking an enhanced
sentence.*fn2 Under the enhanced penalty provision of
21 U.S.C. § 841(b)(1)(A), rather than facing a ten year (120 months)
mandatory minimum for possessing methamphetamine with intent to
distribute, defendant, as a repeat felony drug offender, would be
confronted with a twenty year (240 months) mandatory minimum. See
21 U.S.C. § 841(b)(1)(A) ("If any person commits such a
violation after a prior conviction for a felony drug offense has
become final, such person shall be sentenced to a term of
imprisonment, which may not be less than 20 years and not more
than life imprisonment . . ."). If applicable, the twenty year
mandatory minimum would supersede the lesser Guideline range of
188 to 235 months. Thus, unlike with the Guideline range, the
Court would not have the power to depart downward from the twenty
year mandatory minimum, absent a U.S.S.G. § 5K1.1
"substantial assistance" motion by the Government, or application
of the "safety valve" provision as set forth in U.S.S.G. §
5C1.2 and 18 U.S.C. § 3553(f), neither of which is applicable
in this case.
On March 3, 1999, the Court held a sentencing hearing.
Defendant objected to the imposition of the sentence enhancement
and argued that the twenty year enhanced sentence should not
apply in this case because the Government failed to comply with
the statutory service requirement of 21 U.S.C. § 851(a)(1).
§ 851(a)(1), before a sentence enhancement may be imposed
upon a defendant who has a prior felony drug conviction, the
Government, prior to trial, must file a notice with the Clerk and
serve such notice upon defendant or counsel for defendant,
indicating the prior conviction to be relied upon. See
21 U.S.C. § 851(a)(1). Defendant does not dispute that the Government
filed the notice of intent to enhance with the Clerk on September
9, 1998. However, defendant claims that neither he nor his
counsel was ever served with the notice of intent to enhance the
sentence designating the specific prior offense that the
Government intended to rely upon in seeking the enhanced
sentence. The Government contends that the Assistant United
States Attorney ("AUSA") assigned to the case served the notice
of intent to enhance the sentence upon counsel for defendant via
fax on September 9, 1998, and that service was evidenced by the
certificate of service filed on that date.
A. Is The Statutory Service Requirement
Of 21 U.S.C. § 851(a)(1) Jurisdictional?
1. Both the plain language of the statute
and case law compel the conclusion
that service is jurisdictional.
Title 21, United States Code, Section 851(a)(1) provides:
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
(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) (parentheses in original) (emphasis
added). The purposes of the statutory service requirement*fn3 of
§ 851(a)(1) are that "a defendant [who] may be precluded from
challenging the validity of a conviction at a later date has
adequate notice of the penalties he faces and adequate time to
contest the validity of the prior conviction," United States v.
Carvajal-Minoto, 706 F. Supp. 726,, 728 (N.D.Cal. 1989), and
"provides the defendant with the information he needs to
determine whether he should enter a plea or go to trial." United
States v. Velasco, 847 F. Supp. 580, 587 (N.D.Ill. 1994). By
doing so, Congress afforded defendants "a measure of protection
against section 841's harsh sentence enhancement mechanisms."
United States v. Hill 142 F.3d 305, 312 (6th Cir. 1998), cert.
denied, ___ U.S. ___, 119 S.Ct. 225, 142 L.Ed.2d 185 (1998).
The Third Circuit has expressly declined to address the issue
of whether the statutory service requirement, like the filing
requirement, is a jurisdictional prerequisite to imposing an
enhanced sentence. See United States v. Allen, 566 F.2d 1193,
1196 (3d Cir. 1977), cert. denied, 435 U.S. 926, 98 S.Ct. 1491,
55 L.Ed.2d 519 (1978). However, a number of courts outside the
circuit have specifically held that the statutory service
requirement is jurisdictional, and other courts have recognized
this principle in dicta. For example, in United States v.
Velasco, 847 F. Supp. 580 (N.D.Ill. 1994), and United States v.
Carvajal-Minota, 706 F. Supp. 726 (N.D.Cal. 1989), the Government
sought to enhance each of the defendants' sentences based on
prior convictions. The notices of intent to enhance the sentences
had been filed with the Clerks, but not served upon the
defendants. Both courts held that the statutory service
requirement was a jurisdictional prerequisite, which could not be
fulfilled either by showing that defendant had actual notice of
the enhancement or by circumstantial evidence of the Government's
practice with regard to service. See Velasco, 847 F. Supp. at
586-87; Carvajal-Minota, 706 F. Supp. at 727. The court in
In drafting section 851, Congress explicitly
called for filing and service upon the
defendant. The term "service" is a
term of art. A large body of jurisprudence
and numerous rules have been developed
to govern the service of papers
in judicial proceedings. This Court cannot
second-guess the legislature by assuming
that the use of the term "serve"
was casual. The Courts have clearly
held that filing is a jurisdictional requirement.
This Court sees no reason
to disregard the clear language of Congress
regarding service and will not assume
that, while filing is a strict requirement,
service is an informal and
Carvajal-Minota, 706 F. Supp, at 727. Accord Harris v. United
States, 149 F.3d 1304, 1306-07 (11th Cir. 1998) ("`Unless and
until . . . the government files and serves an information as
required by § 851, the district court has no power to act
with respect to an enhanced sentence.'") (quoting United States
v. Olson, 716 F.2d 850, 853 (11th Cir. 1983)); United States v.
Kennedy, 133 F.3d 53, 59 (D.C.Cir. 1998), cert. denied, ___ U.S.
___, 119 S.Ct. 255, 142 L.Ed.2d 210 (1998) ("Put succinctly, `[a]
prosecutor's compliance with § 851(a)(1) is simply a
necessary condition to a judge's imposing an enhanced sentence on
the basis of a defendant's prior convictions.'") (quoting United
States v. Vanness, 85 F.3d 661, 663 n. 2 (D.C.Cir. 1996)); 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, especially with respect to
the timing of the government's filing with the court and serving
on the defendant a notice signifying its intent to rely on a
prior drug conviction."); United States v. Larsen, Nos. 90-8027,
90-8090, 1991 WL 240140, at *2 (10th Cir. Nov. 12, 1991) ("This
court has insisted upon strict compliance with the mandatory
language of the procedural requirements [of § 851] [and] that
both the filing and service requirements of the statute are
jurisdictional in nature."); United States v. Locklear, No.
90-7393, 1991 WL 89900, at *2-3 (4th Cir. May 31, 1991) ("[T]he
language of [§ 851] has been strictly construed so that a
failure to comply with the filing and service requirements leaves
the court without authority to impose an enhanced sentence.");
United States v. Noland, 495 F.2d 529, 533 (5th Cir. 1974), cert.
denied, 419 U.S. 966, 95 S.Ct. 228, 42 L.Ed.2d 181 (1974)
(holding that the mandatory language of § 851 "restrict[s]
the court's authority to impose enhanced sentences to cases where
the information is filed with the court and served on the
defendant before trial,").
Moreover, the intent of Congress is clearly reflected in the
plain language of the statute directing that both filing and
service be completed before the sentence enhancement can be
imposed. On point is United States v. Larsen, Nos. 90-8027,
90-8090, 1991 WL 240140 (10th Cir. Nov. 12, 1991), where the court
of appeals, in finding that the statutory service requirement is
a jurisdictional threshold, reasoned that the language of §
851(a)(1) is peremptory, and the fact that the service
requirement is separated from the filing requirement by the
conjunctive "and" indicates Congress' intent that both
requirements be fulfilled. See id. at *2.
Therefore, given the persuasive authority and the plain
language of the statute, the Court concludes that the statutory
service requirement contained within § 851(a)(1) is a
jurisdictional prerequisite to the Court's imposition of a