United States v. Sperow

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,  No. 05-30483

Plaintiff-Appellee,

v.  D.C. No.

CR-96-00058-REJ

GREGORY FRANK SPEROW,

OPINION

Defendant-Appellant.



Appeal from the United States District Court

for the District of Oregon

Robert E. Jones, District Judge, Presiding

Argued and Submitted

November 14, 2006—Portland, Oregon

Filed July 26, 2007

Before: Warren J. Ferguson, Diarmuid F. O’Scannlain and

Raymond C. Fisher, Circuit Judges.

Opinion by Judge Fisher;

Dissent by Judge O’Scannlain

9097

9100 UNITED STATES v. SPEROW

COUNSEL

Doron Weinberg, Weinberg & Wilder, San Francisco, Cali-

fornia, for the defendant-appellant.

Karin J. Immergut, United States Attorney, Jonathan S. Haub

(argued), Assistant United States Attorney, Portland, Oregon,

for the plaintiff-appellee.

OPINION

FISHER, Circuit Judge:

Gregory Sperow appeals his conviction for possession of

marijuana with intent to distribute, asserting that the post-

indictment delay in his arrest amounted to a violation of his

Sixth Amendment right to a speedy trial. Sperow also appeals

an enhancement of his sentence, arguing that it was improp-

erly based on a prior conviction not proven to the jury or

admitted by the defendant, and that the government did not

give him proper notice of its intent to seek such an enhance-

ment. We affirm Sperow’s conviction. However, we agree

UNITED STATES v. SPEROW 9101

that the government fatally compromised its notice of a pro-

posed sentence enhancement and therefore vacate Sperow’s

sentence and remand for resentencing without the enhance-

ment.

I. Background

Gregory Sperow was indicted in February 1996 on one

count of possession of marijuana with intent to distribute, in

violation of 21 U.S.C. §§ 841(a)(1) & 846. Sperow was ulti-

mately arrested in California in May 2004, and proceedings

on the indictment began in July 2004. The district court

denied Sperow’s timely pre-trial motion to dismiss his indict-

ment due to a violation of his Sixth Amendment right to a

speedy trial.

On August 12, 2004, the government filed a Notice of Fil-

ing of Enhanced Punishment Notice Pursuant to 21 U.S.C.

§§ 851 and 841(b)(1)(B)(vii). This notice stated that the gov-

ernment sought an enhanced mandatory minimum sentence

“since this offense involves more than 100 kilograms of mari-

huana and because defendant has a prior conviction in United

States District Court for the Southern District of California.”

The government attached a copy of the judgment in Sperow’s

previous conviction to the notice. In June 2005, the govern-

ment determined that the marijuana involved in the offense

weighed 98.5 kilograms, not over 100 kilograms as previously

asserted. The government therefore filed a motion stating that

it “hereby moves to strike the second paragraph of the grand

jury indictment, which allegation established an enhanced

penalty, on grounds subsequent investigation revealed that the

amount of marijuana seized weighed no more than 98.5 kilo-

grams of marijuana.”

During Sperow’s trial, in response to the court’s inquiry

about whether the drug amount could “affect any sentencing

aspect,” the government referred to its motion to strike and

9102 UNITED STATES v. SPEROW

asserted that Sperow was facing a “sentence of no more than

20 years.” On June 22, 2005, a jury found Sperow guilty.

The probation office provided the parties with a presen-

tence report on August 8, 2005. In an addendum, the proba-

tion office explained that:

[T]he probation office posed a question to the gov-

ernment specifically asking about the validity of the

notice of enhanced penalty after the statute to which

it was tied, 21 USC 841(b)(1)(B), was stricken from

the Indictment. At that time, the government com-

municated via email that the enhancement was gone.

Based primarily on this assertion by the government

and it’s [sic] failure to mention the notice of

enhanced penalty at trial, the probation office believe

the enhancement was gone . . . .

The probation office later concluded that there had been a

“mis-communication with the government regarding the

notice of enhanced penalty” and recalculated its sentence rec-

ommendation in line with the government’s “conten[tion that]

the notice of enhanced penalty . . . is still valid.” During sen-

tencing Sperow argued that the government’s § 851 notice

was no longer valid in light of the government’s subsequent

motion to strike. The district court rejected this argument,

concluding that a “pragmatic reading” and a “common sense

interpretation[ ] shows that the Government did not withdraw

or otherwise invalidate its notice to seek an enhanced penalty

to 21 U.S.C. § 851” based on Sperow’s prior conviction. The

district court sentenced Sperow under the penalty provisions

of § 841(b)(1)(D) and enhanced Sperow’s sentence from five

to 10 years based on his prior conviction for a felony drug

offense.

II. Sixth Amendment Right to a Speedy Trial

[1] We hold that the delay between Sperow’s indictment in

1996 and his arrest in 2004 did not violate Sperow’s right to

UNITED STATES v. SPEROW 9103

a speedy trial. We consider four factors in assessing a defen-

dant’s claim that his Sixth Amendment right to a speedy trial

has been violated: (1) the length of the delay; (2) the reason

for the delay; (3) the defendant’s assertion of his right; and (4)

prejudice to the defendant. See Barker v. Wingo, 407 U.S.

514, 530-32 (1972); United States v. Tanh Huu Lam, 251 F.3d

852, 855 (9th Cir. 2001). These are “ ‘related factors and must

be considered together with such other circumstances as may

be relevant’ ”; none of the four alone is either “ ‘necessary or

sufficient’ ” to finding a Sixth Amendment violation. Tanh

Huu Lam, 251 F.3d at 856 (quoting Barker, 407 U.S. at 533).

[2] The government concedes that the delay between Spe-

row’s indictment and his arrest was more than sufficient to

trigger a speedy trial inquiry. See Barker, 407 U.S. at 530-31.

[3] The district court found that Sperow deliberately evaded

the authorities after being linked to a shipment of marijuana

in Oregon, specifically that Sperow “knew he was in trouble

and intended to evade justice.” The court further found that

the government was reasonably diligent in attempting to

locate and arrest Sperow. We review these findings of fact for

clear error. See United States v. Beamon, 992 F.2d 1009, 1013

(9th Cir. 1993). Neither finding is clearly erroneous. Contrary

to government counsel’s exaggerated assertion at oral argu-

ment, Sperow did not “vanish[ ] from the face of the earth.”

Sperow used his real name in some business transactions and

to pay taxes. Nonetheless, there is sufficient evidence support-

ing the district court’s finding that Sperow deliberately con-

cealed his whereabouts. Sperow adopted an alias, and an

officer investigating other charges against Sperow testified

that he informed the defendant’s brother that Sperow was

wanted and warned him against harboring a fugitive. Simi-

larly, although Sperow’s use of his real name in some

instances cuts against a finding of governmental diligence,

there is evidence to support the district court’s finding, includ-

ing the government’s periodic credit and criminal history

checks between 1996 and 2003, and Oregon officials’ practice

9104 UNITED STATES v. SPEROW

of sending leads to counterpart agents in California who were

also attempting to locate Sperow. Given the findings that Spe-

row deliberately evaded authorities and the government was

reasonably diligent in attempting to locate him, the district

court correctly found that Sperow himself was the reason for

the delay in his arrest.

[4] Accordingly, the other two Barker factors also cut

against Sperow’s Sixth Amendment claim. When a suspect

knows the authorities are looking for him and he seeks to

avoid them, “Barker’s third factor, concerning invocation of

the right to a speedy trial, . . . weigh[s] heavily against him.”

Doggett v. United States, 505 U.S. 647, 653 (1992). More-

over, because Sperow caused the delay in his arrest, he has to

show actual prejudice in order to prevail on Barker’s final

factor. See United States v. Manning, 56 F.3d 1188, 1194-95

(9th Cir. 1995). Sperow does not assert that he suffered actual

prejudice as a result of the delay. In sum, we hold that Spe-

row’s Sixth Amendment right to a speedy trial was not vio-

lated and affirm his conviction.

III. Sentence Enhancement

United States v. Weiland, 420 F.3d 1062, 1079-80 n.16 (9th

Cir. 2005), forecloses Sperow’s argument that raising the stat-

utory maximum penalty from five to 10 years under 21 U.S.C.

§ 841(b)(1)(D) was unconstitutionally based on a prior con-

viction that had not been established by a jury verdict or his

own admission. See also United States v. Torres-Hernandez,

447 F.3d 699, 706 (9th Cir. 2006).

[5] However, we agree with Sperow that the government’s

notice of its intent to seek an increased sentence due to a prior

conviction was insufficient under 21 U.S.C. § 851(a). It is

well established that one of the purposes of § 851 is to “en-

sure[ ] proper notice so a defendant is able to challenge the

information . . . [and] make an informed decision about

whether or not to plead guilty.” United States v. Hamilton,

UNITED STATES v. SPEROW 9105

208 F.3d 1165, 1168 (9th Cir. 2000) (citations omitted); see

also Vadas v. United States, ___ F.3d ___, 2007 WL

1288335, *5 (2d Cir. 2007) (noting one of the purposes of

§ 851 is “to allow defendant to have ample time to determine

whether to enter a plea or go to trial and plan his trial strategy

with full knowledge of the consequences of a potential guilty

verdict”) (quoting United States v. Williams, 59 F.3d 1180,

1185 (11th Cir. 1995)); United States v. Cooper, 461 F.3d

850, 854 (7th Cir. 2006) (“The two purposes of the Section

851 notice provision are: (1) to allow the defendant to contest

the accuracy of the prior conviction . . . and (2) to ensure the

defendant has full knowledge of a potential guilty verdict.”).

This purpose was frustrated by the government’s ambiguous

motion to strike the second paragraph of the indictment.

The § 851 notice stated that it sought “a mandatory mini-

mum term of imprisonment of ten (10) years imprisonment

since this offense involves more than 100 kilograms of mari-

huana and because defendant has a prior conviction in United

States District Court for the Southern District of California,”

and attached a copy of the judgment in the prior conviction.

Subsequently, after determining that the weight of the mari-

juana involved was less than 100 kilograms, the government

“move[d] to strike the second paragraph of the grand jury

indictment, which allegation established an enhanced penal-

ty.” (Emphasis added).

[6] The effect the government’s motion to strike had on the

§ 851 notice is susceptible to two interpretations. As the gov-

ernment now argues, the notice could be read as setting forth

two alternative grounds for the enhancement: (1) that the

amount of marijuana exceeded 100 kilograms and (2) that

Sperow had a prior conviction. Under this reading, either

ground would support an enhancement and the motion to

strike negated only the drug quantity ground. As Sperow

argues, however, an equally (if not more) plausible reading is

that the motion intended to drop the enhancement altogether

— an understanding the government itself initially adopted.

9106 UNITED STATES v. SPEROW

The drug quantity and prior conviction grounds in the § 851

notice can be read conjunctively. That is, the government pur-

sued the enhancement because “this offense involves more

than 100 kilograms of marihuana and because defendant has

a prior conviction.” (Emphasis added). So read, the failure of

either of these predicates would revoke the entire notice of

enhancement. This reading is all the more reasonable given

the language of the motion to strike, which specified that the

allegation to be struck was that “which . . . established an

enhanced penalty,” without any mention of a continuing

intent to seek an enhanced penalty on an alternative ground.

[7] Most persuasive, the government itself acted as if its

motion to strike invalidated the sentence enhancement. First,

the prosecutor stated at trial, “The sentence of the defendant

can be no more than 20 years. I’ve moved to strike, and I pre-

sume you allowed the motion to strike, the mandatory mini-

mum language.” Twenty years is the maximum penalty

allowed under 21 U.S.C. § 841(b)(1)(C) for a conviction

involving between 50 and 100 kilograms of marijuana where

no prior conviction is alleged. The maximum if the defendant

has a prior conviction for a felony drug offense is 30 years.

See § 841(b)(1)(C). Second, when the probation office

inquired about the status of the notice of enhancement in light

of the stricken paragraph of the indictment, the government

responded that “the enhancement was gone.” In its presen-

tence report, the probation office stated that “[b]ased primar-

ily on this assertion by the government and [its] failure to

mention the notice of enhanced penalty at trial, the probation

office believed the enhancement was gone.”

The government’s reliance on United States v. Severino,

316 F.3d 939 (9th Cir. 2003) (en banc), embraced by the dis-

sent, for the proposition that a § 851 notice is sufficient where

the defendant “will have no trouble understanding which prior

conviction the prosecutor means to identify” is misplaced. Id.

at 943-44. Severino addressed a challenge to the accuracy of

the prosecutor’s description of the previous crime, and, in

UNITED STATES v. SPEROW 9107

contrast to this case, we explicitly noted that the defendant

could not “reasonably assert that he was blindsided by the

government” or “reasonably assert that he entered his plea

expecting anything less than a 10-year mandatory minimum

sentence.” Id. at 945. That obviously was not the case here

given the motion to strike, which rendered the § 851 notice

fatally defective. See Hamilton, 208 F.3d at 1168.

[8] We disagree with the dissent’s implication that initial

compliance with § 851(a)’s four procedural requirements

makes the government’s notice to seek a sentence enhance-

ment immune from challenge if later modified or withdrawn.

Here, after properly filing its § 851 notice, the government’s

own ambiguous filings created the plainly reasonable impres-

sion — evidenced by the government’s own later statements

— that the notice had been withdrawn and was no longer

effective. There is no doubt that Sperow was on notice that

the government initially intended to seek a sentence enhance-

ment based on a particular prior conviction. The question here

is whether a reasonable person in Sperow’s position would

have known that the government continued with that intention

despite its apparent withdrawal of the § 851 notice — knowl-

edge that § 851 requires a defendant to have and that could

have affected Sperow’s plea bargain or trial strategies. We do

not suggest that Sperow’s purely subjective belief regarding

the government’s abandonment of the sentence enhancement

governs the outcome here. Rather, it is the government’s own

actions and statements that would have led an objectively rea-

sonable person to conclude that the government no longer

intended to seek a sentence enhancement on any basis, and in

fact did lead the probation office to so inquire and be told that

“the enhancement was gone.”1

1

Whatever the merits of the dissent’s suggestion that prosecutors might

include a disclaimer in their § 851 notices advising defendants that only

explicit, signed written withdrawal statements are binding, see Dissent at

9111 n.4, we do agree that clarity of expression is to be encouraged. We

doubt, however, that a “wise” prosecutor would erroneously state in court

that the defendant was subject to a maximum penalty that did not include

an enhancement, lead the probation office to believe the “enhancement

was gone” but then seek the very enhancement it had previously dis-

claimed.

9108 UNITED STATES v. SPEROW

[9] We therefore vacate Sperow’s sentence and remand for

resentencing without the enhancement.

Conviction AFFIRMED; sentence VACATED and

REMANDED for resentencing.

O’SCANNLAIN, Circuit Judge, dissenting in part:

I must respectfully dissent from the majority’s conclusion

that the government’s notice under 21 U.S.C. § 851(a) was

insufficient.

I

A federal grand jury indicted Gregory Sperow, the

defendant-appellant, on one count of possession of marijuana

with intent to distribute, in violation of 21 U.S.C. §§ 841(a)

& 846. The second paragraph of the indictment stated: “It is

further alleged that the amount of marihuana involved

exceeded 100 kilograms in violation of penalty provision 21

U.S.C. § 841(b)(1)(B)(vii).”

Before trial, the government filed the required information

(the “§ 851 notice”) giving Sperow “notice of its intent to

seek enhanced punishment pursuant to Title 21 U.S.C. Sec-

tions 851 & 841(b)(1)(B)(vii).” The § 851 notice further pro-

vided that “[t]he government seeks a mandatory minimum

term of imprisonment of ten (10) years imprisonment since

this offense involves more than 100 kilograms of marihuana

and because defendant has a prior conviction in United States

District Court for the Southern District of California, Case

Number 80-0639-E.” The government attached a copy of the

judgment, which indicated that Sperow was convicted for

conspiracy to import a controlled substance, conspiracy to

possess a controlled substance with intent to distribute, illegal

UNITED STATES v. SPEROW 9109

importation of a controlled substance, and conspiracy to vio-

late currency reporting requirements.

The government subsequently filed a motion to strike the

second paragraph of the grand jury indictment after determin-

ing that the weight of marijuana involved was less than 100

kilograms. The motion to strike stated that the government

“moves to strike the second paragraph of the grand jury

indictment, which allegation established an enhanced penalty,

on grounds subsequent investigation revealed that the amount

of marijuana seized weighed no more than 98.5 kilograms of

marijuana, exclusive of packaging material.” The government

never amended or withdrew the § 851 enhancement notice.

II

Sperow argues on appeal that the district court erred by

increasing his sentence based on the prior conviction because

the government withdrew the § 851 notice, or, in the alterna-

tive, because the government did not provide actual or fair

notice.

A

Pursuant to 21 U.S.C. § 841(b)(1)(D), a defendant who

commits a federal drug violation involving less than 50 kilo-

grams of marijuana, after a prior conviction for another drug

offense, is subject to a maximum term of imprisonment of ten

years. To enhance a sentence based on a prior conviction,

however, the government must give notice before trial, or

before entry of the plea of guilty, of the conviction to be

relied upon. Section 851(a) states in relevant part:

No person who stands convicted of an offense

under [21 U.S.C. § 841 et seq.] 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

9110 UNITED STATES v. SPEROW

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).

In United States v. Severino, 316 F.3d 939 (9th Cir. 2003)

(en banc), we explained that this section “is a procedural stat-

ute.” Id. at 943. And there we held that “[t]hese procedures

take form in four requirements”: (1) “[t]he information must

be in writing;” (2) “it must be filed with the court and served

on the defendant or his counsel;” (3) “it must be filed and

served before trial or before a guilty plea;” and (4) “the sub-

stance of the information must identify the previous convic-

tion(s).” Id. With respect to the fourth requirement, we further

held that “[i]f the defendant, reading the information in con-

text, will have no trouble understanding which prior convic-

tion the prosecutor means to identify, the information then has

‘stat[ed] . . . the previous convictions,’ and the statutory pur-

pose of providing defendant notice has been satisfied.” Id. at

943-44 (alterations and omissions in original) (emphasis

added).

B

The majority does not contend, nor can it, that the govern-

ment’s § 851 notice failed to satisfy these requirements. The

government filed a written information with the court and

served it on the defendant before trial. Moreover, Sperow

would “have no trouble understanding which prior conviction

the government meant to identify.” The § 851 notice clearly

stated that the “defendant has a prior conviction in United

States District Court for the Southern District of California,

Case Number 8-0639-E” and attached a copy of the underly-

ing judgment and commitment order. Therefore, the govern-

ment satisfied the statutory requirements.

UNITED STATES v. SPEROW 9111

Straying from the requirements we set forth in Severino, the

majority now concludes that the § 851 notice was defective by

effectively focusing on which subsection rather than which

prior conviction serves to enhance Sperow’s sentence. The

majority reasons that the § 851 notice sought an enhancement

only if two predicates were satisfied: (1) the offense involved

more than 100 kilograms of marijuana as described in 21

U.S.C. § 841(b)(1)(B)(vii), and (2) Sperow had a prior con-

viction. Because the government filed a motion to strike the

allegation in the indictment that the weight of marijuana

exceeded 100 kilograms, the majority concludes that the

entire § 851 notice was revoked, because 21 U.S.C.

§ 841(b)(1)(B)(vii)2 no longer served as a potential enhance-

ment, but rather 21 U.S.C. § 841(b)(1)(D).3 In effect, the

majority’s reasoning depends upon the irrelevant circum-

stance that the government identified the larger quantity sub-

section to give notice of its intent,4 not that the government

specified the incorrect prior conviction. Such reasoning turns

§ 851(a) on its head and elevates form over substance, some-

thing we have long cautioned against. Severino, 316 F.3d at

944. Nowhere in § 851(a) is the government required to spec-

ify which subsection of § 841 it is relying on for an enhance-

ment. Instead, the statute, and our decision in Severino,

2

Section 841(b)(1)(B)(vii) provides in relevant part that in a case

involving 100 kilograms or more of marijuana, such person convicted of

violating 21 U.S.C. § 841(a) shall be sentenced to a term of imprisonment

of no less than five years and no more than 40 years, unless that person

commits such violation after a prior felony drug conviction, in which case

the term of imprisonment shall be no less than 10 years and no more than

life imprisonment.

3

Section 841(b)(1)(D) provides in relevant part that in a case involving

less than 50 kilograms of marijuana, such person convicted of violating 21

U.S.C. § 841(a) shall be sentenced to a term of imprisonment of no more

than five years, unless that person commits such violation after a prior fel-

ony drug conviction, in which case the term of imprisonment shall be no

more than 10 years.

4

Indeed, the majority acknowledges that the § 851 notice in this case

was properly filed. See ante, at 9107.

9112 UNITED STATES v. SPEROW

simply require the government to identify which prior convic-

tion it is relying on for an enhancement. Accordingly, because

the § 851 notice in this case fulfilled the statutory require-

ments by providing Sperow with knowledge before trial that

he faced an enhancement based upon his prior conviction, I

cannot join the majority in rendering such notice inoperative.

Moreover, the majority places too much weight on two

statements by the government. First, the majority refers to the

government’s statement well into the trial that “[t]he sentence

of the defendant can be no more than 20 years.” Unlike the

majority, I do not believe such a misstatement during trial as

to the maximum possible sentence revokes a § 851 notice that

satisfies the statutory requirements. Second, the majority

refers to the government’s incorrect statement to the probation

officer after trial that “the enhancement was gone.” The

majority’s position in this case ultimately rests on the premise

that “one of the purposes of § 851 is to ensure[ ] proper notice

so a defendant is able to challenge the information . . . [and]

make an informed decision about whether or not to plead

guilty.” Ante, at 9104 (alterations in original) (internal quota-

tion marks omitted). While I believe the majority imprudently

relies on that purported purpose of the statute to trump the

plain meaning of its language, even under such approach the

government’s statement after trial is irrelevant because it

surely could not influence Sperow’s decision to plead guilty

or to proceed to trial.

Finally, contrary to the majority’s assertion, I do not take

the position that once the government files § 851 notice that

satisfies the statutory requirements, it cannot later amend or

withdraw that notice. But I simply cannot accept the majori-

ty’s “apparent withdrawal” doctrine in this case, which has no

basis in our precedents. Ante, at 9107. The majority’s novel

contraption, with little explanation or justification, places a

new burden on the government of ensuring until the end of

the proceedings that an objectively reasonable person would

conclude that the government continues to seek an enhanced

UNITED STATES v. SPEROW 9113

sentence based on a prior conviction. But such notion cannot

be found in the statute.5 Section 851 requires notice, “before

trial, or before entry of a plea of guilty,” of “the previous con-

viction to be relied upon” for the sentencing enhancement.

And Sperow got it. The government’s later amendment to the

indictment (but not the § 851 notice) and its misstatement dur-

ing trial were simply insufficient to operate as a withdrawal

of the statutorily sufficient § 851 notice in this case.

III

In sum, I would affirm the district court’s determination

that the government’s § 851 notice satisfied the statutory

requirements. The government gave Sperow “fair notice of

which prior conviction the government had in mind for seek-

ing a sentence enhancement” and it did not withdraw that

notice. Severino, 316 F.3d at 944. Accordingly, I must

respectfully dissent.

5

In light of the majority’s “apparent withdrawal” invention, a prosecutor

may be wise in the future to file a terse notice containing only two sen-

tences: (1) “The government seeks an enhanced sentence for the defen-

dant’s prior conviction for [identify prior conviction]”; and (2) “This

notice is effective unless and until the government expressly amends or

withdraws such notice in writing and signed by [name].” With such provi-

sion, no defendant could maintain a reasonable belief that the government

apparently withdrew the previously filed § 851 notice based on a later

amendment to the indictment or a slip of the tongue during the trial.