UNITED STATES v. NOLAND

RONEY, Circuit Judge:

Convicted on two drug counts carrying a maximum penalty of five years each, Scott Allen Noland was given enhanced concurrent sentences of ten years on each count by reason of a prior drug felony conviction. Noland appeals the enhanced portion of his sentence on the sole ground that the United States attorney filed with the District Court an information for enhancement one day after sentencing, rather than prior to trial as required by 21 U.S.C.A. § 851. In this case, apparently the first to be decided under this new enhancement section passed in 1970, we hold that strict compliance by the Government with the statutory filing requirement is a prerequisite for an enhanced sentence. We therefore set aside so much of the sentence as resulted from enhancement. We affirm the conviction, however, finding that defendant's challenge to the venue of the trial is unfounded, and that any prejudice resulting from the prosecutor's instructions to certain potential witnesses not to talk to the defense was removed by countermanding those instructions in sufficient time to permit defense counsel to prepare his case for trial.

I.

Prior to the passage of the Comprehensive Drug Abuse Prevention and Control Act of 1970, 21 U.S.C.A. § 801 et seq., the procedure for enhancement for narcotics and marijuana convictions was contained in 26 U.S.C. § 7237(c) (2) (1964) which provided that the United States attorney advise the court after conviction whether the conviction is the offender's first or subsequent offense, and "[i]f it is not a first offense, the United States attorney shall file an information setting forth the prior convictions." The section then gave the offender the opportunity to affirm or deny his identity as the prior offender, and if he denied it, sentence was postponed until a trial by jury on the issue of identity. The section then provided that second offenders "shall be" given enhanced sentences in excess of the sentence that would be given a first offender.1

In several cases under this provision, the courts held that an enhanced sentence would not be set aside because of technical defects in procedure, if there had been substantial compliance with the statutory purposes of advising the court of past convictions and of permitting the offender to deny and litigate his identity as the person previously convicted. Good v. United States, 410 F.2d 1217, 415 F.2d 771 (5th Cir. 1969), cert. denied, 397 U.S. 1002, 90 S.Ct. 1131, 25 L.Ed.2d 413 (1970) (defendant admitted previous conviction at sentencing hearing in response to question from the court); King v. United States, 346 F.2d 123 (1st Cir. 1965) (after admitting prior conviction, defendant was sentenced prior to filing of information); United States v. Bell, 345 F.2d 354 (7th Cir.), cert. denied, 382 U.S. 882, 86 S.Ct. 175, 15 L.Ed.2d 123 (1965) (court vacated first offender sentence and imposed enhanced sentence on Government's motion to vacate and for leave to file information); United States v. Duhart, 269 F.2d 113 (2d Cir. 1959) (enhanced sentence vacated and reimposed after discovery that no information had been filed); Knight v. United States, 225 F.2d 55 (9th Cir.), cert. denied, 350 U.S. 890, 76 S.Ct. 148, 100 L.Ed. 784 (1955) (Government advised court of defendant's prior convictions, which defendant admitted, but did not file information).

The above provision was repealed effective May 1, 1971 by the Comprehensive Drug Abuse and Control Act of 1970. Pub.L.No.513, §§ 1101(b) (4) (A), 1105(a), 84 Stat. 1292, 1295. Section 411 of that Act, 21 U.S.C.A. § 851, enacted the present procedure for establishing previous convictions. Section 851 opens with the provision that

The section continues by providing that the court may postpone the trial or the taking of the plea for the purpose of allowing the United States attorney to obtain facts regarding prior convictions, upon a showing that such facts cannot be obtained with due diligence prior thereto.2 These are the critical provisions to this appeal. The required information stating Noland's prior conviction was not filed until one day after sentencing. With the precedent of the cases cited above, such procedure would have complied with the prior Act sufficiently to permit the enhanced sentence to stand. But it clearly did not comply with the language of the present controlling Act, and the question posed to us is whether that lack of compliance matters when Noland admitted his conviction at the sentencing hearing and has never in this case challenged its validity. Only after the ten-year sentences were pronounced did the defendant move to reduce them to the maximum allowable for first offenders on the ground the Government had not filed the information as required by section 851. After the motion was served, the Government filed the information and the District Court subsequently denied the motion to reduce sentence.

Neither party has cited to us any cases decided after this section became effective in 1971. The thrust of prior law, which required minimum sentences, was mandatory enhancement. The United States attorney was required to advise the court whether the defendant was a first offender. The court was required to enhance the sentence of a multiple offender, whether or not the prosecutor or the court thought enhancement desirable or necessary. It was in this context of congressionally ordained mandatory enhancement that prior cases upheld enhanced sentences despite procedural defects which did not infringe the defendant's right to deny and litigate his status.

The legislative history of the Comprehensive Drug Abuse Prevention and Control Act of 1970 reveals that one major goal of the Act was to make more flexible the penalty structure for drug offenses. The purpose was to eliminate "the difficulties prosecutors and courts have had in the past arising out of minimum mandatory sentences."3 Mandatory minimum sentencing was abolished to permit greater prosecutorial and judicial flexibility.

In keeping with this purpose, the new statutory scheme contemplates prosecutorial discretion to seek enhancement. The new procedure for establishing previous convictions reflects this change in the nature of enhancement. Section 851 provides that no person shall be sentenced to increased punishment unless the United States attorney files the requisite information before trial or the taking of a guilty plea. Since the information must state the previous convictions "to be relied upon" it is obvious that the prosecutor is permitted to select which previous drug felony convictions the Government will rely upon. Both of these provisions of section 851 demonstrate that it is up to the United States attorney to seek enhancement if sentence is to be enhanced.

In granting this discretion to the prosecution, Congress imposed a strict condition on its exercise. Section 851 is phrased in mandatory language. The words "[n]o person . . . shall be sentenced to increased punishment . . . unless . . . . " restrict 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. The importance of the time of filing is emphasized first, by section 851's provision for postponement of the trial if the United States attorney cannot obtain the evidence of previous conviction in time, and second, by the provision for rectification of clerical mistakes in the information at any time before sentencing, suggesting that they may not be corrected after sentence is pronounced. This latter provision clearly militates against filing after sentence, as was done in this case.

The Government's argument that Noland was not surprised by the enhanced sentence carries no weight in the face of the plain words of the statute. Admittedly, Noland was advised at arraignment that he could receive ten years on each count. Further, he knew of his previous conviction from the outset, never challenged its validity in this case, and admitted it at the sentencing hearing. Finally, the District Court received pretrial notice of Noland's record at a bail hearing. But the statute prohibits an enhanced sentence unless the Government seeks it and requires that to obtain enhancement, the Government must file an information prior to trial. Provision for enhanced sentencing is a legislative decision, and the procedure the legislature prescribes to effectuate its purpose must be followed.

Noland's concurrent sentences must therefore be reduced to the statutory maximum of five years on each count, to run concurrently.

II.

Contrary to Noland's suggestion that the conviction should be reversed because of improper venue of the trial, a criminal defendant does not have a constitutional right to trial in his home district. See Platt v. Minnesota Mining & Manufacturing Co., 376 U.S. 240, 84 S.Ct. 769, 11 L.Ed.2d 674 (1964); cf. U.S.Const. art. III, § 2, cl. 3 & amend. VI. While there may be cases where failure to hold a trial in a defendant's home district would work such a hardship on him as to constitute a denial of due process, this is not one of them. Under Federal Rule of Criminal Procedure 21(b), a motion for change of venue is addressed to the sound discretion of the District Court. United States v. Lyles, 471 F.2d 1167 (5th Cir. 1972); Addison v. United States, 317 F.2d 808 (5th Cir. 1963), cert. denied, 376 U.S. 905, 84 S.Ct. 658, 11 L.Ed.2d 605 (1964). We are satisfied that there was no abuse of discretion here. Noland's allegations that he was charged with a related crime in the District of Colorado; that his principal counsel was there; that he and his parents, who financed his defense, resided there; and that his schooling there would be interrupted by trial in Texas, are not so compelling as to show an abuse of discretion in the District Court's denying the motion to transfer the trial from Texas to Colorado. Noland alleged that witnesses in Colorado would be inconvenienced by trial in Texas. The trial judge stated he would make a final ruling on this contention when Noland provided a list of witnesses and a summary of their anticipated testimony. No list was tendered. Under the circumstances, Noland failed to demonstrate specific facts from which the District Court could have concluded that the convenience of witnesses and the interest of justice required transfer. Lindberg v. United States, 363 F.2d 438 (9th Cir. 1966); see United States v. Kelly, 467 F.2d 262 (7th Cir. 1972), cert. denied, 411 U.S. 933, 93 S.Ct. 1905, 36 L.Ed.2d 393 (1973).

III.

Lastly, Noland was not denied a fair trial by misconduct on the part of the assistant United States attorney in charge of the case. The government contends that even though counsel may have acted improperly in forcing a defense investigator to stop questioning certain potential defense witnesses in the middle of his interrogation and in telling the witnesses not to talk to the defense, Noland has suffered no prejudice. Four days after the incident, following a meeting with the defense attorney, Government counsel gave the defense attorney a note reading:

To Whom It May Concern:

This cured any prejudice resulting from the incident, in the context of this case. After securing the note, appellant's attorney never attempted to re-interview the affected witnesses and nothing in the record indicates they would not have discussed the case with the defense, if requested.

Affirmed and remanded for reduction of sentence.