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U.S. v. GALICZYNSKI

March 26, 1999

UNITED STATES OF AMERICA
v.
JOHN GALICZYNSKI



The opinion of the court was delivered by: Eduardo C. Robreno, District Judge.

MEMORANDUM

I. INTRODUCTION

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.

II. FACTS

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 months).

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.

III. ANALYSIS

  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 standard practice with regard to service. See Velasco, 847 F. Supp. at 586-87; Carvajal-Minota, 706 F. Supp. at 727. The court in Carvajal-Minota explained:

  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
  secondary requirement.

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 ยง 851(a)(1) is a jurisdictional prerequisite to the Court's imposition of a sentence ...


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