United States v. Weaver

Opinions of the United

2001 Decisions States Court of Appeals

for the Third Circuit

9-21-2001

USA v. Weaver

Precedential or Non-Precedential:

Docket 00-2203

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Filed September 21, 2001

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

NO. 00-2203

UNITED STATES OF AMERICA

v.

RUDOLPH WEAVER,

Appellant

On Appeal from the United States District Court

for the Western District of Pennsylvania

(D.C. Criminal No. 99-cr-00002E)

District Judge: Honorable Sean J. McLaughlin

Argued March 15, 2001

Before: RENDELL, AMBRO, and BRIGHT,*

Circuit Judges

(Filed: September 21, 2001)

Thomas W. Patton, Esq. [ARGUED]

Office of Federal Public Defender

1001 State Street

1111 Renaissance Centre

Erie, PA 16501

Counsel for Appellant

Rudolph Weaver

_________________________________________________________________

* The Honorable Myron H. Bright, Senior Judge of the United States

Court of Appeals for the Eighth Circuit, sitting by designation.

Bonnie R. Schlueter, Esq. [ARGUED]

Office of United States Attorney

633 United States Post Office

& Courthouse

Pittsburgh, PA 15219

Counsel for Appellee

United States of America

OPINION OF THE COURT

RENDELL, Circuit Judge.

Rudolph Weaver appeals his armed robbery conviction on

the grounds that the jury pool in the Erie Division of the

Western District of Pennsylvania, from which the jury that

convicted him was chosen, did not reflect a fair cross

section of the community as required by the Sixth

Amendment and the Jury Service and Selection Act. Weaver

also challenges other rulings of the District Court based on

the Jencks Act and procedures he claims are required in

order to sentence him under the "Three Strikes" statute, 18

U.S.C. S 3559 (c)(1). The District Court found no violation of

Weaver's constitutional or statutory rights. We will affirm.

I. FACTS AND PROCEEDINGS

On December 21, 1998, Weaver entered the First

National Bank in Erie, Pennsylvania, waving a gun and

demanding the cash in the tellers' drawers. He threatened

to shoot the tellers if they did not comply with his orders.

The tellers emptied the contents of their drawers into

shopping bags, and Weaver left with approximately

$20,000. Later that day, bank surveillance photographs

taken during the robbery were shown on news programs,

and a former classmate of Weaver's, Mary Giulianelli,

communicated with the F.B.I. immediately after the evening

news to identify Weaver as the man shown in the photos.

App. at 767-68. The following day, Agent Van Slyke showed

a photo array to Rosalie Landon, one of the three tellers on

duty that day. Coincidentally, Landon had helped Weaver

open an account at the bank several months before the

2

robbery. She identified Weaver as the robber. App. at 502-

03.

In January 1999, a grand jury returned a two-count

indictment charging Weaver with bank robbery in violation

of 18 U.S.C. S 2113(a) and use of a dangerous weapon in

connection with a bank robbery in violation of 18 U.S.C.

2113(d). Weaver was arrested on March 25, 1999. On

February 10, 2000, as required by 18 U.S.C. S 851(a), the

government filed notice of its intent to seek a mandatory life

sentence pursuant to 18 U.S.C. S 3559(c). The case

proceeded to trial on March 21, 2000. The evidence was

overwhelming: Weaver's girlfriend, Ethel Mae Wheat,

testified that Weaver told her that he had robbed the bank

and showed her a briefcase containing several thousand

dollars. App. at 720. In addition, Wheat's son testified that

he owned a gun similar to the one in the photographs,

which had been missing since the time of the bank robbery.

App. at 634-35. They also identified certain clothing

belonging to Weaver, which was the clothing identified by

witnesses as having been worn by the robber. App. at 639-

41, 732-34. In addition, three of Weaver's acquaintances

testified that they believed the man in the surveillance

photographs to be Weaver. On March 24, 2000, a jury

found Weaver guilty on both counts. In an amended

judgment of sentence entered on July 24, 2000, the District

Court sentenced Weaver to life in prison and ordered him

to pay restitution in the amount of $31,051.30.

The District Court had jurisdiction over Weaver's criminal

prosecution pursuant to 18 U.S.C. S 3231. We have

appellate jurisdiction pursuant to 28 U.S.C.S 1291 and

18 U.S.C. S 3742. We review the District Court's findings of

fact for clear error, and its legal conclusions de novo. United

States v. Scott, 223 F.3d 208, 210 (3d Cir. 2000). Whether

a defendant has been denied his or her right to a jury

selected from a fair cross section of the community is a

mixed question of law and fact, and is reviewed de novo.

United States v. Allen, 160 F.3d 1096, 1101 (6th Cir. 1998);

United States v. Miller, 771 F.2d 1219, 1227 (9th Cir. 1985);

see also United States v. Grisham, 63 F.3d 1074, 1077

(11th Cir. 1995) (holding that constitutional challenges to

jury selection process are reviewed de novo).

3

II. DISCUSSION

A. Challenge to Fair Representation in the Jury Pool

Weaver challenges his conviction on the grounds that he

was denied his right to a jury drawn from a fair cross

section of the community as required by the Sixth

Amendment's fair cross section provision1 and the Jury

Selection and Service Act of 1968, which codifies the Sixth

Amendment right. He argues that the pool from which his

jury was selected underrepresented African-Americans and

Hispanics due to its exclusive reliance on voter registration

lists.

"[T]he American concept of the jury trial contemplates a

jury drawn from a fair cross section of the community. . . .

[I]t is part of the established tradition in the use of juries as

instruments of public justice that the jury be a body truly

representative of the community." Taylor v. Louisiana, 419

U.S. 522, 527 (1975) (internal quotation marks omitted).

This requirement of a fair cross section is not without

substantial limits -- it does not guarantee that juries be "of

any particular composition." Id. at 538. All that is required

is that "the jury wheels, pools of names, panels, or venires

from which juries are drawn must not systematically

exclude distinctive groups in the community and thereby fail

to be reasonably representative thereof." Id. (emphasis

added). The objectives of the fair cross section requirement

include avoiding "the possibility that the composition of the

juries would be arbitrarily skewed in such a way as to deny

criminal defendants the benefit of the common-sense

judgment of the community" and avoiding the "appearance

of unfairness" that would result from excluding"large

groups of individuals, not on the basis of their ability to

serve as jurors, but on the basis of some immutable

characteristic such as race, gender or ethnic background."

Lockhart v. McCree, 476 U.S. 162, 175 (1986).

_________________________________________________________________

1. The Sixth Amendment provides: "In all criminal prosecutions, the

accused shall enjoy the right to a . . . . trial[ ] by an impartial jury

of the

State and district wherein the crime shall have been committed . . . ."

U.S. Const. Amend. VI.

4

The Jury Selection and Service Act ("The Act") provides as

follows:

[A]ll litigants in Federal courts entitled to trial by jury

shall have the right to grand and petit juries selected

at random from a fair cross section of the community

in the district or division wherein the court convenes.

It is further the policy of the United States that all

citizens shall have the opportunity to be considered for

service on grand and petit juries in the district courts

of the United States, and shall have an obligation to

serve as jurors when summoned for that purpose.

28 U.S.C. S 1861 (West 2001). The Act "seeks to ensure

that potential grand and petit jurors are selected at random

from a representative cross section of the community and

that all qualified citizens have the opportunity to be

considered for service." United States v. Calabrese, 942

F.2d 218, 220 (3d Cir. 1991) (internal quotation marks

omitted). Claims under the Act are analyzed using the same

standard as a Sixth Amendment fair cross section claim.

See United States v. Test, 550 F.2d 577, 584-85 (10th Cir.

1976) (en banc) (Act's fair cross section standard is

"functional equivalent of the constitutional`reasonably

representative' standard").

When enacted, the Act required "[e]ach United States

district court [to] devise and place into operation a written

plan for random selection of . . . petit jurors that[would] be

designed to achieve the [above-mentioned] objectives of

sections 1861 and 1862." 28 U.S.C. S 1863(a) (West 2001).

Congress determined that the principal source of names for

the random selection should be either "the voter

registration lists or the lists of actual voters." Id. at

S 1863(b)(2). The Act also provided: "The plan shall

prescribe some other source or sources of names in

addition to voter lists where necessary to foster the policy

and protect the rights secured by sections 1861 and 1862

. . . ." Id.

In order to establish a prima facie violation of the fair

cross section requirement of the Sixth Amendment and the

Act, the defendant must demonstrate: (1) the group alleged

to be excluded is a "distinctive" group in the community; (2)

5

the representation of this group in jury venires is not "fair

and reasonable" in relation to the number of such persons

in the community; and (3) the underrepresentation is

caused by the "systematic exclusion of the group in the jury

selection process." Duren v. Missouri, 439 U.S. 357, 364

(1979). A defendant need not show discriminatory intent.

See id. at 368 n. 26 ("In contrast [to an Equal Protection

claim], in Sixth Amendment fair cross-section cases,

systematic disproportion itself demonstrates an

infringement of the defendant's interest in a jury chosen

from a fair community cross section.") And, "once a

defendant has made a prima facie showing of an

infringement of his constitutional right to a jury drawn a

fair cross section of the community, it is the State that

bears the burden of justifying this infringement by showing

attainment of a fair cross section to be incompatible with a

significant state interest." Id. at 368.

The plan approved by the Western District of

Pennsylvania at the time of the jury selection in Weaver's

case, and currently in effect, employs voter registration lists

as the exclusive source from which it summons potential

jurors for service. App. at 77. Juror names are drawn at

random from the voter registration lists of the seven

counties in the Erie Division and placed into a master jury

wheel ("master wheel").2Id. At periodic intervals, the Clerk

publicly draws names at random from the master wheel. All

those selected are sent jury questionnaires. Id. All those

who return questionnaires and are not disqualified, exempt

or excused, are placed in a separate wheel called the

"qualified wheel." App. at 87.

To prove his claim that the venire underrepresented

African-Americans and Hispanics in violation of his

constitutional and statutory rights, Weaver introduced the

testimony of Dr. Andrew A. Beveridge, who was recognized

as an expert in demography. Beveridge compared the

number of African-Americans and Hispanics in the adult

population of seven counties comprising the Erie Division

to the number of African-Americans and Hispanics

represented in the master wheels used in the Erie Division

since 1995.

_________________________________________________________________

2. The master wheel is emptied and refilled every two years. App. at 83.

6

The District Court found the statistical evidence offered

for the years prior to 1999 to be too "weak" to "establish

unfair and unreasonable representation" because the

findings were based on random samples that the District

Court found to be inadequate (500 persons for 1995 and

1997). App. at 16. The District Court based this

determination in part on Beveridge's concession that a

sample size of only 500 "weakens the power of the

estimate," and also on his admission that he could not

conclude within a reasonable degree of mathematical

certainty that there was underrepresentation during either

of those years without looking at the entire pattern.3 App.

at 251-52. In examining the 1999 evidence, the District

Court noted, as testified to by Beveridge and argued by

Weaver, that in contrast to 1995 and 1997, Beveridge was

able to obtain "a complete statistical breakdown" of the

1999 "master wheel." App. at 15, 99, Appellant Br. at 29.

Beveridge determined that while census figures indicate

that 3.07% of the voting population in Erie is African-

American, African-Americans comprised only 1.84% of the

1999 master wheel. He also stated that Hispanics

comprised .97% of the population, but only .26% of the

wheel.4 The absolute disparity, which is calculated by

subtracting the percentage of the group on the wheel from

the percentage of the group in the relevant population,

Ramseur v. Beyer, 983 F.2d 1215, 1231 (3d Cir. 1992) (en

banc), is thus 1.23% for African-Americans, and .71% for

Hispanics. Using a comparative disparity analysis, 5 which is

_________________________________________________________________

3. Weaver does not challenge this finding on appeal, choosing instead to

focus on the evidence Beveridge presented regarding all returned

questionnaires from 1999.

4. This chart represents the statistics before us:

1999 Wheel Percentage in Percentage in Absolute Comparative

Population Wheel Disparity Disparity

African- 3.07 1.84 1.23 40.01

Americans

Hispanics .97 .26 .71 72.98

5. An example of comparative disparity is as follows: in a master wheel

of 1000, where a group comprises 50% of the population, yet only makes

7

calculated by dividing the absolute disparity by the

percentage of the population that a particular group

comprises, id. at 1231, the disparity for African-Americans

was 40.01%, while it was 72.98% for Hispanics. This figure

"measures the diminished likelihood that members of an

underrepresented group, when compared to the population

as a whole, will be called for jury service." Id. at 1231-32.

Beveridge did not perform an additional calculation

normally used in fair cross section claims. Known as

"standard deviation" analysis, this calculation is only

utilized where the expert has performed an analysis based

on a random sample from the voter wheel.6 Here, Beveridge

claimed to be analyzing the entire wheel instead of taking

a sample.7 Therefore, he stated that there was no standard

deviation calculation. However, Beveridge did perform a

"binomial distribution analysis," which measures the

_________________________________________________________________

up 25% of the wheel, the comparative disparity is 50%, because half of

that group is being excluded. That is, there should be 500 of that group

on the wheel, but there are only 250. Hence, there is 50%

underrepresentation within the group itself.

6. Beveridge elucidated the concept by offering the following example: in

a survey of 800 persons, where the results indicate that 46% of people

would vote for Candidate A, and 46% for Candidate B, with a margin of

error of 3%, the margin of error establishes the degree of confidence that

the figures presented represent the entire voting population, even though

the survey is based on a sample of only 800 persons. Beveridge stated

that standard deviation is like a margin of error, because it establishes

the probability that a sample taken from the jury wheel accurately

reflects the composition of the entire wheel. App. at 218.

7. As we will address in our discussion of Weaver's statistical

presentation, despite his testimony, Beveridge did not actually analyze

the entire master wheel. He testified that he was able to determine the

race of nearly every juror on the master wheel based on those jurors

indicating their race on the questionnaires sent to them. The master

wheel consists of jurors chosen at random from the voter registration

rolls, before any questionnaires have been mailed yet. But Beveridge

actually examined, and testified based on, the returned questionnaires.

For the 1999 wheel, 5,877 questionnaires were mailed. App. at 125. Yet

only 4,753 of those were completed and returned. Id. Beveridge did not

attempt to account for those not returned, yet consistently testified that

he had examined the entire composition of the master wheel.

8

likelihood that the underrepresentation of African-

Americans and Hispanics would occur by random chance.

Beveridge stated that the likelihood for African-Americans

was one in 6,603,384 and for Hispanics, one in

130,337,015.

The District Court first stated that it believed that under

our existing precedent, Weaver's claim would fail on the

first prong of the prima facie case because African-

Americans and Hispanics who do not vote are not

cognizable groups. The Court then found that, even

assuming that the first prong had been satisfied, Weaver's

claim still failed on the basis of the second and third

prongs. It held that Weaver's statistical presentation was

too limited, and that using voter registration lists to

generate the venire did not amount to systematic exclusion.

We will address each of the three prongs of the prima facie

case identified in Duren, all of which Weaver must satisfy in

order to make out a fair cross section claim.

1. First Prong -- Cognizable group

The District Court here framed the issue in the same way

we did in United States v. Lewis, 472 F.2d 252, 255 (3d Cir.

1973), decided before the Supreme Court's opinion in

Duren. Lewis involved a challenge to the venire selection

process based on its alleged underrepresentation of African-

Americans. Without the guidance of Duren regarding the

prima facie claim, it appears we missed the mark as to

what a plaintiff must show in order to demonstrate that a

cognizable group was underrepresented. In Lewis , we held

that to successfully make out a fair cross section claim,

"the defendant must establish that Blacks . . . . choosing

not to register to vote were a cognizable group which were

systematically excluded." Id. at 256.

We agree with Weaver that Lewis has been overruled by

Duren at least insofar as its view of the first prong is

concerned. While it is true that persons who do not vote are

not a cognizable group, e.g., United States v. Afflerbach,

754 F.2d 866, 869 (10th Cir. 1985) ("Persons who choose

not to register to vote do not comprise . . . a cognizable

group."), this is not the relevant inquiry. Rather, when a

specific population such as African-Americans or Hispanics

9

is claimed to be underrepresented by the voter rolls, the

relevant inquiry is simply whether African-Americans and

Hispanics are cognizable groups.

This is made clear by Duren, in which the defendant

challenged the underrepresentation of women, where

Missouri had a procedure that gave women the option of

exempting themselves from jury service. 439 U.S. at 360.

The Supreme Court noted the proper approach to the first

prong:

With respect to the first part of the prima facie test,

Taylor v. Louisiana, without a doubt, established that

women are sufficiently numerous and distinct from

men so that if they are systematically eliminated from

jury panels, the Sixth Amendment's fair cross-section

requirement cannot be satisfied.

Id. at 364. Thus, we now evaluate the first prong of the

Duren fair cross section test by making the following

inquiry: Is the allegedly underrepresented group sufficiently

numerous and distinct from others in the population that

if members of the group are systematically eliminated, the

defendant's right to a jury composed of a fair cross section

of the community would be violated?8

Applying this analysis to the instant case, Weaver's claim

satisfies the first prong of the Duren test: African-Americans

and Hispanics are "distinctive" groups for the purposes of

a fair cross-section analysis. Castaneda v. Partida, 430 U.S.

482, 495 (1977) ("[I]t is no longer open to dispute that

Mexican-Americans are a clearly identifiable class.");

Ramseur, 983 F.2d at 1230 ("African-Americans are

unquestionably a constitutionally cognizable group."); see

also United States v. Royal, 174 F.3d 1, 6 (1st Cir. 1999)

_________________________________________________________________

8. Furthermore, if we were to adhere to Lewis 's theory of the relevant

cognizable group, then Duren's second prong, which was not discussed

in Lewis, could not be meaningfully applied. As we will discuss, the

second prong requires a comparison between the representation of the

group in jury venires and the number of such persons in the community.

439 U.S. at 364. Were we to define the relevant group as all African-

Americans not registered to vote, as the District Court did, the

representation of the group in the jury venire -- and, thus, the

numerator in the calculation -- would always be zero.

10

("There is no dispute that . . . Blacks are unquestionably a

"distinctive" group for the purposes of a fair cross-section

analysis."); United States v. Jackman, 46 F.3d 1240, 1246

(2d Cir. 1995) ("There is little question that both Blacks and

Hispanics are "distinctive" groups in the community for

purposes of this test."). Thus, we disagree with the District

Court's analysis of the first prong of the Duren prima facie

case.

2. Second Prong -- "Fair and reasonable"

representation

The second prong of Duren asks whether the

representation of the group in the jury venires is fair and

reasonable in relation to the number of such persons in the

community. 439 U.S. at 364. This is, at least in part, a

mathematical exercise, and must be supported by

statistical evidence. Id. "Initially, the defendant must

demonstrate the percentage of the community made up of

the group alleged to be underrepresented, for this is the

conceptual benchmark for the Sixth Amendment fair-cross-

section requirement." Id. Here, Census figures indicate that

3.07% of the voting population in the seven counties

comprising the Erie Division is African-American and.97%

is Hispanic. This data has not been challenged; hence, we

will proceed on the assumption that these figures are

correct.

In Ramseur, we considered a challenge to the jury

selection process in Essex County, New Jersey, which used

both voter registration and Department of Motor Vehicle

lists as the source of its master wheel. 983 F.2d at 1230.

Ramseur argued that African-Americans were being

excluded in violation of both the Equal Protection Clause of

the Fourteenth Amendment9 and the fair cross section

_________________________________________________________________

9. No equal protection challenge is made here. It requires a different

showing:

The first step is to establish that the group [alleged to be

underrepresented] is one that is a recognizable, distinct class,

singled out for different treatment under the laws, as written or

as

applied. Next, the degree of underrepresentation must be proved, by

comparing the proportion of the group in the total population to

the

11

provision of the Sixth Amendment. We found that while the

first prong of each test was met, Ramseur's two year-long

study establishing 14.1% absolute disparity and 40%

comparative disparity presented "insufficient" figures to

meet either the Equal Protection or Sixth Amendment

standards set forth in Castaneda and Duren, respectively.

983 F.2d at 1233-35. We denied both claims, id. at 1235,

focusing the majority of our analysis on Ramseur's Equal

Protection challenge, id. at 1229-34.

In our brief discussion of Ramseur's Sixth Amendment

claim, we appear to have combined the second and the

third prongs of Duren, and stated, generally, that our

inquiry involved an examination of "the nature of the

process by which jury lists are composed, the length of time

of underrepresentation, and the strength of the evidence

that purports to establish an `unfair and unreasonable'

representation under Duren." Id. at 1235. We determined

that, looking at these factors, Ramseur had not made out

a prima facie case under the Sixth Amendment. Id.

Ramseur presented two years of inconclusive statistical

data and the county process was shown to be facially

neutral and part of an ongoing process in New Jersey to

increase the representative nature of jury lists. Id. Though

we considered these two prongs in tandem in Ramseur,

here we will evaluate them separately. Following Duren's

approach, the strength of the evidence should be

considered under the second prong, while the nature of the

_________________________________________________________________

proportion called to serve as grand jurors, over a significant

period

of time. This method of proof, sometimes called the"rule of

exclusion," has been held to be available as a method of proving

discrimination in jury selection against a delineated class.

Finally,

as noted above, a selection procedure that is susceptible of abuse

or

is not racially neutral supports the presumption of discrimination

raised by the statistical showing. Once the defendant has shown

substantial underrepresentation of his group, he has made out a

prima facie case of discriminatory purpose, and the burden then

shifts to the State to rebut that case.

Castaneda, 430 U.S. at 494-95 (internal quotation marks and citations

omitted).

12

process and the length of time of underrepresentation

should be considered under the third.10

Looking at the strength of the evidence supporting the

second prong, we will examine the percentages of the two

populations represented on the master wheel. The

government does not challenge Weaver's data indicating

that African-Americans and Hispanics comprised 1.84%

and .97%, respectively, of the 1999 master wheel. However,

the parties do dispute which method of statistical analysis

should be used to determine the significance of the

disparity between the percentages on the master wheel and

the percentages in the voting population.

Weaver urges that we should analyze the figures using

comparative disparity, so that the figures of 40.01% for

African-Americans and 72.98% for Hispanics would form

the basis for this prong. In contrast, the government argues

that we should do as the District Court did, and determine

whether this second prong has been fulfilled by examining

whether the absolute disparity figures of 1.23% for African-

Americans and .71% for Hispanics, establish the requisite

underrepresentation. Our precedent does not dictate that

one method of statistical analysis should be used rather

than another,11 and, in fact, both methods have been

_________________________________________________________________

10. In Duren, the Supreme Court decided the second prong based solely

on statistical evidence: "The second prong of the prima facie case was

established by petitioner's statistical presentation." 439 U.S. at 364. In

its analysis of the third prong, the Court discussed the length of time of

the study and the nature of the process as they related to whether the

underrepresentation was inherent in the system itself: "[Duren's]

undisputed demonstration that a large discrepancy occurred not just

occasionally but in every weekly venire for a period of nearly a year

manifestly indicates that the cause of the underrepresentation was

systematic . . . ," id. at 366, and "Petitioner demonstrated that the

underrepresentation of women in the final pool of prospective jurors was

due to the operation of Missouri's exemption criteria . . . ," id. at 367.

11. In Ramseur, we did not specify which type of statistical analysis is

preferable in these type of cases: "Thus, both the absolute and

comparative disparity analyses present results at the margin of the range

found acceptable by the courts." 983 F.2d at 1232. Because we did note

the results of both calculations, Ramseur supports our determination

that we should consider both absolute and comparative disparity,

instead of just choosing one over the other.

13

criticized. See, e.g., Thomas v. Borg, 159 F.3d 1147, 1150

(9th Cir. 1998) (stating that "the comparative disparity test

is strongly disfavored in the Ninth Circuit on the ground

that it exaggerates the effect of any deviation."); United

States v. Shinault, 147 F.3d 1266, 1273 (10th Cir. 1998)

(pointing out that with absolute disparity, total exclusion of

group comprising small percentage of population would

result in figure appearing insignificant).

The comparative disparity method has drawn a great deal

of criticism in situations like the one before us, that is,

where a small population is subjected to scrutiny. See

Smith v. Yeager, 465 F.2d 272, 279 n.18 (3d Cir. 1972)

("[T]he comparative [disparity] approach reaches absurd

results . . . where the [African-American] population at the

time was 4.4% of the total, and the [African-American] jury

participation ranged as low as 2% of the jury list). Courts

considering this analysis have said that while "these

numbers may be more indicative of a Sixth Amendment

violation, they . . . are distorted by the small population of

the different minority groups." Shinault, 147 F.3d at 1273.

It has been argued that "a small variation in the figures

used to calculate comparative disparity can produce a

significant difference in the result, and . . . . there is reason

to doubt the accuracy of the figures . . . ." United States v.

Pion, 25 F.3d 18, 23 (1st Cir. 1994); see also United States

v. Sanchez-Lopez, 879 F.2d 541, 548 (9th Cir. 1989) ("A

comparative analysis is disfavored because it exaggerates

the effect of any deviation."); United States v. Hafen, 726

F.2d 21, 24 (1st Cir. 1984) ("[T]he comparative disparity

calculation might be a useful supplement to the absolute

disparity calculation, . . . [but] the smaller the group is, the

more the comparative disparity figure distorts the

proportional representation."); United States v. Whitley, 491

F.2d 1248, 1249 (8th Cir. 1974) (stating that comparative

disparity calculation "is ordinarily inappropriate" where a

very small proportion of the population is involved and

opining that it "distorts reality"). When comparative

disparity has been used, it has been emphasized that the

significance of the figure is directly proportional to the size

of the group relative to the general population, and thus is

most useful when dealing with a group that comprises a

large percentage of the population. See, e.g. , LaRoche v.

14

Perrin, 718 F.2d 500, 502-03 (1st Cir. 1983) (finding that

prima facie violation established where comparative

disparity was 68.22% and group comprised 68.4% of

population), overruled on other grounds by Barber v. Ponte,

772 F.2d 982, 996 (1st Cir. 1985) (en banc).

Although absolute disparity, which was the method

employed in Duren, seems to be the preferred method of

analysis in most cases, see, e.g., Shinault, 147 F.3d at 1273

("Absolute disparity . . . is the starting place for all other

modes of comparison."), it also has its share of critics.

Some courts have found that the absolute disparity

calculation "understates the systematic representative

deficiencies" in cases such as the one before us, where,

unlike in Duren, the groups at issue comprise small

percentages of the general population. Id.; see also id.

(noting that "even the complete exclusion of the groups

would result in absolute disparities of less than 6%");

Rogers, 73 F.3d at 777 ("[I]n this case, even if African-

Americans [who comprised 1.87% of population] were

excluded entirely from the lists of potential jurors, the

maximum disparity, under an absolute calculation, would

be 1.87%."). Because we think that figures from both

methods inform the degree of underrepresentation, we will

examine and consider the results of both in order to obtain

the most accurate picture possible.

Looking first at the comparative disparity figures, we find

that they are quite high -- 40.01% and 72.98%-- but that

because African-Americans and Hispanics comprise such a

small percentage of the population, the results of this

analysis are of questionable probative value.12 See United

States v. Chanthadara, 230 F.3d 1237, 1257 (10th Cir.

2000) (finding that where African-Americans accounted for

_________________________________________________________________

12. When determining if "substantial underrepresentation" had been

established as required to make out a prima facie claim under the Equal

Protection clause, we stated in Ramseur that a 40% comparative

disparity was only "borderline." 983 F.2d at 1232. Though an Equal

Protection challenge differs from a fair cross section claim, the

reasoning

of Ramseur suggests that, with respect to the comparative disparity for

African-Americans, 40.1% would not necessarily weigh in Weaver's favor,

considering that the figure is comparable to Ramseur's "borderline"

figure of 40%.

15

7.9% of population, and Hispanics, 2.74%, comparative

disparities of 40.89% and 58.39%, respectively, did not

establish prima facie violation); United States v. Clifford,

640 F.2d 150, 155 (8th Cir. 1981) (holding that where

Indians comprised 15.6% of population, 46% comparative

disparity was insufficient underrepresentation to make out

fair cross section claim).

The absolute disparity figures are much lower -- 1.23%

for African-Americans and .71% for Hispanics. These

percentages are well below those that have previously been

found insufficient to establish unfair and unreasonable

representation.13 See Thomas , 159 F.3d at 1151 (finding

that where African-Americans comprised 5.135% of

population, and there were no African-Americans on jury

panel, absolute disparity of approximately 5% was

insufficient to make out fair cross section claim); Pion, 25

F.3d at 23 (relying on absolute disparity figure of 3.4% in

finding that underrepresentation was "relatively small" for

Hispanics representing 4.2% of the general population);

United States v. Suttiswad, 696 F.2d 645, 649 (9th Cir.

1982) (finding that where African-Americans comprised

9.3% of population, Hispanics, 11.7% and Asians, 8.3%,

absolute disparities of 2.8%, 7.7%, and 4.7%, respectively,

were insubstantial); United States v. Armstrong , 621 F.2d

951, 955-56 (9th Cir. 1980) (determining that absolute

disparity of 2.83% for African-Americans comprising 4.2%

of population was not sufficient). Accordingly, the results of

this analysis fail to support this element of Weaver's prima

facie case.

Moreover, there is a fundamental weakness in the figures

relied upon by Beveridge in his statistical presentation

regarding the percentages on the "master wheel" -- a flaw

that went unaddressed by both the parties and the District

Court. As noted previously, despite his testimony, Beveridge

did not actually analyze the entire 1999 master wheel.

Instead, he examined and based his testimony on the

returned questionnaires. For the 1999 wheel, 5,877

_________________________________________________________________

13. Like with comparative disparity, Ramseur found a 14.1% absolute

disparity calculation in the Equal Protection context to be "borderline."

983 F.2d at 1232.

16

questionnaires were mailed. App. at 125. Yet only 4,753 of

those were completed and returned. Id. Beveridge did not

attempt to account for those not returned, yet consistently

testified that he had examined the entire composition of the

master wheel. We find that this discrepancy in Beveridge's

statistical presentation further undermines the strength of

the evidence. In order to support Weaver's allegation of

underrepresentation on the master wheel, Beveridge would

have had to either analyze the races of all 5,877 jurors on

the master wheel (as he claimed to have done), perform

sampling of the master wheel14 and then calculate the

standard deviation,15 or, alternatively, account for the

statistical impact of the unreturned questionnaires.

Weaver's statistical evidence is, therefore, far too weak to

support a finding of representation that is unfair and

unreasonable.

3. Third Prong -- Systematic Exclusion

While we need not reach the third prong, it merits our

attention because the District Court placed some degree of

reliance on this aspect. The third prong of Duren requires

that the defendant show that the underrepresentation of

the cognizable group is due to systematic exclusion in the

jury selection process. 439 U.S. at 366. In Duren, the

Supreme Court held that women were systematically

excluded where the underrepresentation of women on jury

lists resulted from their self-exclusion under a state law

exemption privilege. Id. at 367. The Court stated that "[t]he

resulting disproportionate and consistent exclusion of

women from the jury wheel and at the venire stage was

quite obviously due to the system by which juries were

selected." Id. In Ramseur, we found no Sixth Amendment

_________________________________________________________________

14. Weaver did present studies based on samples of the 1995, 1997, and

1999 wheels, but he did not base his appeal on this evidence, choosing

instead to argue that the evidence based on the entire 1999 wheel was

much more persuasive. Thus, we will not address Beveridge's studies

based on samples from 1995, 1997 or 1999, restricting our focus to the

statistical evidence based on all the returned questionnaires from 1999.

15. As noted previously, Beveridge stated that standard deviation was

unnecessary because he claimed to have done a complete statistical

analysis of the 1999 master wheel.

17

violation where the jury selection process was neutral on its

face and was being monitored, and modified, to try to

enhance its representative character. 983 F.2d at 1235.

Here, the government contends, and the District Court

agreed, that where substantial representation is traceable

solely to the exclusive reliance on voter registration lists,

and the underrepresented group has freely excluded itself

quite apart from the system itself, the third prong has not

been fulfilled. The government emphasizes that Weaver has

shown "no evidence of any interference with the

opportunity . . . to vote." Appellant Br. at 27. In other

words, there has been no showing of anything in the

system that has discouraged or prevented a group from

participating.

We must be careful to note that intentional

discrimination need not to be shown to prove a Sixth

Amendment fair cross section claim. Duren, 439 U.S. at

368 n. 26. Under Duren, "systematic exclusion" can be

shown by a large discrepancy repeated over time such that

the system must be said to bring about the

underrepresentation: "[Here, petitioner's] undisputed

demonstration that a large discrepancy occurred not just

occasionally but in every weekly venire for a period of

nearly a year manifestly indicates that the cause of the

underrepresentation was systematic -- that is, inherent in

the particular jury-selection process utilized." Id. at 366.

Thus, while we need not determine the limits of"systematic

exclusion" for our purposes, we note that if the use of voter

registration lists over time did have the effect of sizeably

underrepresenting a particular class or group on the jury

venire, then under some circumstances, "this could

constitute a violation of a defendant's `fair cross-section'

rights under the [S]ixth [A]mendment." Bryant, 686 F.2d at

1378 n.4; see also Barber, 772 F.2d at 989 ("A large

discrepancy occurring over a sustained period of time

where there is an opportunity for arbitrary selection is

sufficient to demonstrate that the exclusion of the

underrepresentation is systematic -- that is, inherent in the

particular jury selection process utilized."). However, we see

nothing in the record before us that is demonstrative of any

such persistent "systematic exclusion" of Blacks and

Hispanics.

18

Due to Weaver's failure to present sufficient evidence to

satisfy the requirements of the prima facie case set forth in

Duren, we will affirm the District Court's denial of Weaver's

fair cross section challenge to Erie's jury selection process.

B. Remaining Issues

1. Failure to Grant a Mistrial Based on Non-Production

of Bank Teller's Written Descriptions

Weaver also claims that the government violated the

Jencks Act, 18 U.S.C. S 3500. The Jencks Act requires that

the government disclose prior recorded statements of its

witnesses that are "related" to the subject matter of their

testimony. Id. at S 3500(b); United States v. Hill, 976 F.2d

132, 139 (3d Cir. 1992). Such disclosures must be made

after each witness testifies on direct examination. 976 F.2d

at 139.

At trial, several witnesses, including bank tellers, offered

evidence as to Weaver's identity, and as we noted, one of

the tellers, Ms. Landon, specifically recalled Weaver from

his having opened an account at the bank five months

before the robbery. Weaver contends that the Jencks Act

was violated because, after direct examination of the

various tellers, Weaver's counsel requested copies of written

reports prepared by each of them describing the robber.

The government was unable to produce any such reports.

Therefore, Weaver urges that he was entitled to a mistrial.

We review the District Court's denial of defendant's motion

for a mistrial for abuse of discretion. Id.

It was conceded that it is bank policy for tellers to write

a description of a robber immediately following the robbery.

Indeed, shortly after the robbery, each of the three tellers

did so and there was some evidence that they left them at

the scene or gave them to some unidentified law

enforcement officials who arrived on the scene. None of the

tellers, however, could remember to whom they gave the

descriptions and thus the District Court concluded that

there was no evidence that the written descriptions were

ever in the custody of federal law enforcement officials.16

_________________________________________________________________

16. Although each teller testified on cross-examination that she wrote

such a statement immediately after the robbery occurred, none of the

19

Because the Jencks Act only applies to evidence in the

possession of the United States, and not state authorities,

see 18 U.S.C. S 3500(b) ("in the possession of the United

States"); United States v. Bermudez, 526 F.2d 89, 100 n.9

(2d Cir. 1975); United States v. Smith, 433 F.2d 1266, 1269

(5th Cir. 1970); Beavers v. United States, 351 F.2d 507,

509 (9th Cir. 1965), we conclude there was no showing of

a Jencks Act violation.

2. Notice of Intent to Seek Life Imprisonment Under

the Provisions of Title 18 U.S. Code 3559 (c)(1)

Pursuant to 18 U.S.C. S 3559(c)(1)(A)(i),"a person who is

convicted in a court of the United States of a serious violent

felony shall be sentenced to life imprisonment if the person

has been convicted . . . on separate prior occasions in a

court of the United States or of a State of 2 or more serious

violent felonies." Id. This is routinely referred to as the

"Three Strikes" provision. Weaver contends that the

government's February 10, 2000 notice of its intent to seek

a sentence of life imprisonment under this statutory

provision was defective because it failed to properly inform

him of the nature of the prior convictions relied upon, and

thus provided him inadequate notice. The sufficiency of

such notice is a question of law that we review de novo.

United States v. King, 127 F.3d 483, 487 (6th Cir. 1997).

Notice of intent to seek life imprisonment under the

provisions of 18 U.S.C. 3559(c)(1) requires notice under 21

U.S.C. S 851, which states:

(a)(1) 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,

_________________________________________________________________

tellers could recall to whom she gave the written description. App. at

486-88, 525-26, 560-61. Teller Landon testified that she did not recall if

she had given her written description form to law enforcement personnel,

stating that "[p]erhaps they took it, I don't remember who got the form."

Agent Curtis and Officer Emrick both testified that they did not see any

written statements by the tellers, App. at 535-36, 691, 698, and neither

the Erie Police Department nor the bank had any written descriptions of

the robber by the tellers, App. at 567, 683, 868.

20

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. . . . Clerical

mistakes in the information may be amended at any

time prior to the pronouncement of sentence.

(c)(1) If the person denies any allegation of the

information of prior conviction, or claims that any

conviction alleged is invalid, he shall file a written

response to the information. . . . The failure of the

United States attorney to include in the information

the complete criminal record of the person or any facts

in addition to the convictions to be relied upon shall

not constitute grounds for invalidating the notice given

in the information required by subsection (a)(1) of this

section.

21 U.S.C. S 851. The requirements set out inS 851 are

mandatory and a district court may not impose an

enhanced sentence unless the defendant has been notified

of the "strikes" in compliance with these provisions. United

States v. Olson, 716 F.2d 850, 853 (11th Cir. 1983). The

government gave notice to Weaver of its intent to rely upon

three prior convictions: a "July 3, 1975 conviction for

involuntary manslaughter," a "November 21, 1977

conviction for armed robbery," and a "June 19, 1989

conviction for armed robbery." It later amended the notice

in certain respects, as we will discuss below. Weaver

contends that the government's notice was flawed in three

ways.

First, one of the previous convictions set forth in the

notice sent to Weaver contained an error, in that it

indicated that his July 3, 1975 conviction was for

"involuntary manslaughter," when it was actually for

"voluntary manslaughter." Second, the original notice sent

to Weaver indicated that one of the prior convictions that

the government would rely upon was his November 21,

1977 conviction for armed robbery. In fact, there was no

crime in Pennsylvania entitled "armed robbery" in 1977.

Rather, on November 21, 1977, Weaver was found guilty of

two separate robberies that were consolidated for trial and,

with respect to one of the two robbery convictions, the jury

21

also convicted Weaver of using a "prohibited offensive

weapon."

Finally, the reference to Weaver's third conviction

improperly referred to an armed robbery conviction on

June 19, 1989. Weaver was originally convicted on June 19,

1989, but the conviction was not for armed robbery.

Instead, Weaver had been convicted of two separate charges

of robbery and criminal conspiracy relating to the robbery

of two banks on the same day, and both convictions were

later vacated and re-entered on July 2, 1997.

We have not had occasion to specifically address the

sufficiency of notice under S 851. However, we are guided

by rulings of our sister courts of appeals in assessing the

adequacy of a S 851 information. While continually

emphasizing the need for strict compliance with

S 851(a)(1)'s filing and service requirements, e.g., Harris v.

United States, 149 F.3d 1304, 1307 (11th Cir. 1998)

("[E]ven where a defendant receives actual notice that the

government intends to rely on a previous conviction to

enhance his sentence, the district court lacks jurisdiction

to impose an enhanced sentence until the government files

an information as required under S 851."), those courts

requiring strict compliance have drawn a distinction

between the strict procedural requirements regarding the

giving of notice, such as service and filing, which are

explicit in the statute, and the precise information that

must be included in an information, which the statute does

not specify. Courts have often found that the statute

permits more flexibility with respect to the latter. E.g.,

United States v. Hamilton, 208 F.3d 1165, 1168-69 (9th Cir.

2000) (finding that though the Ninth Circuit requires strict

compliance with "the procedural aspects of section 851(b),

. . . an apparent typographical mistake in a section 851(a)

sentencing information that otherwise satisfies due process

notice requirements does not render the information

invalid."); United States v. Lawuary, 211 F.3d 371, 376 (7th

Cir. 2000) ("The statute itself . . . does not specify the form

the filing must take, and we have . . . been flexible with

regard to what the government must do in order to comply

with section 851.").

22

Rather than focusing on exactly what information the

government must provide in a S 851(a)(1) information,

courts have instead analyzed whether the purpose of

S 851(a)(1) -- providing a defendant with sufficient notice to

comply with due process -- has been satisfied. Accordingly,

"[o]ur inquiry must be whether the information which was

filed provided [the defendant] reasonable notice of the

government's intent to rely on a particular conviction and a

meaningful opportunity to be heard," Perez v. United States,

249 F.3d 1261, 1266 (11th Cir. 2001), and we must be

careful not to "elevat[e] form over substance" in doing so.

King, 127 F.3d at 489. Hence, the question is whether any

of the government's errors rendered the notice

constitutionally lacking. United States v. Steen , 55 F.3d

1022, 1027 (5th Cir. 1995) ("[A] district court may enhance

a defendant's sentence, as long as the government provides

constitutionally sufficient notice of the previous convictions

through an information filed prior to trial."). We note, also,

that S 851(a)(1) specifically provides that"[c]lerical mistakes

in the information may be amended at any time prior to the

pronouncement of sentence." We will address each of the

claimed errors.

(a) Voluntary Manslaughter

Weaver contends that the notice wrongly indicated he

had been previously convicted of involuntary manslaughter.

More than two weeks before sentencing, the government

filed an amended notice, correcting the error by listing

Weaver's July 3, 1975 conviction as being for voluntary

manslaughter. The District Court determined that this error

was a clerical mistake that could be amended pursuant to

the plain language of the statute.

We agree with the District Court that the government's

error in listing Weaver's past crime as being for

"involuntary manslaughter," when it was actually for

"voluntary manslaughter," was a clerical mistake and

therefore capable of being corrected by amendment under

S 851(a)(1). See King, 127 F.3d at 489 (determining that

incorrect date of prior conviction included in information is

clerical mistake as referenced in S 851(a)(1)). Although

Section 851 does not define "clerical error," we conclude

that the weight of authority discussing clerical errors in

23

other contexts indicates that the government's error

qualifies as such. See Fed. R. Civ. P. 60(a) ("Clerical

mistakes in judgments, orders or other parts of the record

and errors therein arising from oversight or omission may

be corrected . . . ."); Fed. R. Crim. P. 36 ("Clerical mistakes

in judgments, orders or other parts of the record and errors

in the record arising from oversight or omission may be

corrected . . . .") (emphasis added); see also American

Trucking Ass'ns v. Frisco Transp. Co., 358 U.S. 133, 145

(1958) ("It is axiomatic that courts have the power and the

duty to correct judgments which contain clerical errors or

judgments which have issued due to inadvertence or

mistake."); Jones v. Anderson-Tully Co., 722 F.2d 211, 212

(5th Cir. 1984) (holding that clerical errors "must be in the

nature of recitation" and "not errors of substantive

judgment"). Because the government's amended

information complied with S 851(a)(1)'s requirements for the

amendment of clerical errors, we affirm the District Court's

holding that the government listing Weaver's offense as

"involuntary manslaughter" instead of "voluntary

manslaughter" did not render the S 851 notice inadequate.

(b) November 21, 1977 Conviction for Armed Robbery

With regard to the listing of Weaver's November 21, 1977

conviction as being for armed robbery, the District Court

correctly noted that Pennsylvania did not have an offense

titled "armed robbery" in 1977. Weaver was actually

convicted of two counts of robbery, one of which involved a

"prohibited offensive weapon."

First, Weaver argues that because the government's

original notice stated that it was relying on a conviction on

November 21, 1977 (singular), instead of on two convictions

(plural), the notice did not comply with S 851(a)(1).

However, the government did in fact correct this error in

the amended notice, changing a single conviction for armed

robbery on November 21, 1977 to a "November 21, 1977

conviction for robbery" and a "November 21, 1977

conviction for armed robbery." App. at 948. We agree with

the District Court that this mistake can be classified as

clerical, and due to the fact that the amended notice

accurately reflected that the government was relying on two

24

robbery convictions, rather than one, Weaver's argument is

unpersuasive.

Weaver's second contention is that he was prejudiced by

the incorrect notice17 because he could not identify upon

which of the two 1977 robbery convictions the government

was relying. He bases this argument on the fact that under

S 3559(c)(3), a robbery conviction can not constitute one of

his "strikes" for sentencing purposes if a defendant

"establishes by clear and convincing evidence that (i) no

firearm or other dangerous weapon was used in the offense

and no threat of use of a firearm or other dangerous

weapon was involved in the offense; and (ii) the offense did

not result in death or serious bodily injury . . . to any

person." He asserts that if the government had given him

proper notice, he could have attempted to prove that an

offensive weapon was not used in one of the robberies.

We are not swayed by Weaver's argument. We have

already stated that the amended notice clarified that the

government was relying upon both convictions entered on

November 21, 1977. And though the amended notice still

listed "armed robbery," instead of robbery and use of

prohibited weapon, as a relied-upon conviction, given that

the government listed the correct date on the amended

notice and attached copies of his certified convictions, we

cannot see how Weaver's supposed confusion renders the

notice insufficient. Weaver was alerted to the convictions

_________________________________________________________________

17. We agree with Weaver that a S 851(a) violation is not subject to

harmless error analysis. See United States v. Olson, 716 F.2d 850, 852

(11th Cir. 1983) (holding that if government fails to provide notice, it

cannot seek enhancement; there is no room to argue that error was

harmless). But that is not the aim of our prejudice inquiry. Rather, as

discussed earlier, we are asking whether Weaver was prejudiced in order

to determine whether he was given adequate notice, as required by due

process, of the previous convictions upon which the government would

rely. See Steen, 55 F.3d at 1027 (emphasis added) ("[A] district court

may enhance a defendant's sentence, as long as the government provides

constitutionally sufficient notice of the previous convictions through an

information filed prior to trial."); United States v. Belanger, 970 F.2d

416,

419 (7th Cir. 1992) ("Section 851 does not specify the particular form

which notice of enhancement must take and the government's filings

provided Belanger reasonable notice and an opportunity to be heard.").

25

the government would rely on as strikes, and he had the

ability to challenge the use of both robbery convictions. He

could have argued that a weapon was not used in one of

his robberies, thereby attempting to avail himself of

S 3559(c)(3)'s exception. He did not do so, and we do not

believe that technical errors such as the ones here give him

the opportunity to revisit the issue on remand.

In addition, prior to his trial, Weaver filed two in limine

motions to exclude his prior convictions for bank robbery,

armed robbery and manslaughter. Hence, the pretrial

proceedings clearly indicate that he was well aware of the

prior convictions that the government was relying upon,

further weakening his claim that he lacked sufficient

information to put him on notice. See United States v.

Mack, 229 F.3d 226, 231-32 (3d Cir. 2000) (considering

actual notice as indicative of constitutionally adequate

notice in context of different statute).

Some element of confusion or lack of specificity has not

rendered notices deficient in previous cases. E.g., United

States v. Gonzalez-Lerma, 14 F.3d 1479, 1485 (10th Cir.

1994) (upholding information with no prior case number,

date or specific place of conviction); United States v.

Campbell, 980 F.2d 245, 251 (4th Cir. 1992) (upholding

enhancement despite error in statutory section of previous

conviction). Thus, we hold that the government's

information regarding Weaver's November 21, 1977

conviction was sufficient to "signal[ ] the government's

intention to rely upon a particular prior conviction."

Gonzalez-Lerma, 14 F.3d at 1486.

(c) 1989 Armed Robbery Conviction

Finally, Weaver contends that because his convictions for

armed robbery and criminal conspiracy on June 19, 1989

were later vacated, the government listed nullified

convictions. However, the convictions were vacated July 2,

1997 and were re-entered, after a guilty plea, under the

same criminal docket number on July 2, 1997. Hence, the

only error is listing the wrong date of conviction. We

classify this as nothing more than a clerical mistake that,

like the other errors we have addressed, was corrected in

the amended notice. Thus, we apply the same reasoning,

and find that this mistake does not entitle Weaver to relief.

26

Weaver also argues that the notice was inadequate

because he was not convicted of armed robbery on that

date, but rather of two separate charges -- robbery and

criminal conspiracy -- relating to the robbery of two banks

on the same day. Here, our analysis is the same as it was

with the second mistake regarding the armed robbery

convictions, that is, we are persuaded that the

government's information was sufficient to "signal[ ] the

government's intention to rely upon a particular prior

conviction." Gonzalez-Lerma, 14 F.3d at 1486. Thus, we

find that Weaver received adequate notice that the

government would rely on his July 2, 1997 robbery

conviction.

Therefore, we find that the notice was sufficiently

complete to provide Weaver with satisfactory notice under

the statute, and that the District Court was correct in not

permitting Weaver, in effect, to take advantage of technical

or clerical errors in the notice provided. Therefore, we hold

that the District Court did not err in finding Weaver

received adequate notice as per 18 U.S.C. S 851.

3. Increasing Sentence Based on Prior Convictions Not

Charged in Indictment nor Proven to the Jury

Beyond a Reasonable Doubt

Weaver contends that the failure to include his prior

convictions for serious violent felonies in the indictment

and to charge the jury that it must find beyond a

reasonable doubt that Weaver committed those prior

offenses violated his right to due process or trial by jury.

Our review of this issue is plenary. Mack, 229 F.3d at 231

("This Court reviews de novo Mack's assertion that his due

process rights were violated.").

In Almendarez-Torres v. United States, 523 U.S. 224

(1998), the Supreme Court addressed this precise issue.

There, the Court decided that no due process violation

occurs when prior convictions are used to increase a

statutory maximum without being charged in an indictment

and proved to a jury beyond a reasonable doubt. Id. at 239-

41. Recently, in Apprendi v. New Jersey, 530 U.S. 466

(2000), the Court upheld the validity of Almendarez-Torres,

singling out "the fact of a prior conviction" as the exception

27

to the rule that "any fact that increases the penalty for a

crime beyond the prescribed statutory maximum must be

submitted to a jury, and proved beyond a reasonable

doubt." Id. at 490.

Despite speculation about the future of Almendarez-

Torres,18 we heed the words of the Supreme Court in

Rodriguez de Quijas v. Shearson/Am. Express, Inc. , 490

U.S. 477, 484 (1989): "If a precedent of this Court has

direct application in a case, yet appears to rest on reasons

rejected in some other line of decisions, the Court of

Appeals should follow the case which directly controls,

leaving to this Court the prerogative of overruling its own

decisions." Nor do we find, as Weaver argues, that the

"Three Strikes" requirement of a mandatory minimum

sentence is distinguishable, for due process purposes, from

the increased permissive maximum penalty discussed in

Almendarez-Torres. Both have the effect of increasing the

_________________________________________________________________

18. We note Chief Judge Becker's concurrence in Mack, which

highlighted the shaky ground on which Almendarez-Torres stands:

[T]he Apprendi majority went out of its way to cast the future

viability of Almendarez-Torres into question. See id. at 2362

("Even

though it is arguable that Almendarez-Torres was incorrectly

decided, and that a logical application of our reasoning today

should

apply if the recidivist issue were contested, Apprendi does not

contest the decision's validity and we need not revisit it for

purposes

of our decision today to treat the case as a narrow exception to

the

general rule we recalled at the outset."). Moreover, as

commentators

have noted, five sitting Justices are now on record as saying that

Almendarez-Torres was wrongly decided. See Apprendi, 120 S.Ct. at

2379 (Thomas, J., concurring); Almendarez-Torres, 523 U.S. at 248,

118 S.Ct. 1219 (Scalia, J., joined by Stevens, Souter, and

Ginsburg,

dissenting). I do not suggest that we should predict that the Court

will overturn Almendarez-Torres. Cf. State Oil Co. v. Khan, 522

U.S.

3, 20, 118 S.Ct. 275, 139 L.Ed. 2d 199 (1997) ("Despite what Chief

Judge Posner aptly described as Albrecht's `infirmities, [and] its

increasingly wobbly, moth-eaten foundations,' there remains the

question whether Albrecht deserves continuing respect under the

doctrine of stare decisis. The Court of Appeals was correct in

applying that principle despite disagreement with Albrecht, for it

is

this Court's prerogative alone to overrule one of its precedents.")

(emphasis added) (citation omitted). But the apprehension remains.

Mack, 229 F.3d at 239 n.5.

28

sentence, based on findings not charged or made by the

jury, beyond what would otherwise be the statutory

maximum. Therefore, we find that the District Court

properly rejected Weaver's claim that the failure to include

his prior convictions for serious violent felonies in the

indictment, and to charge the jury that it must find beyond

a reasonable doubt that Weaver committed those prior

offenses, violated his right to due process or trial by jury.

CONCLUSION

For all the foregoing reasons, we will AFFIRM the District

Court's Judgment and Conviction Order.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

29