United States v. Oberle

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
FEB 25 1998
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,
v.
No. 96-2275
FRANK ANTHONY OBERLE,

Defendant-Appellant.

Appeal from the United States District Court
for the District of New Mexico
(D.C. No. CR-96-149-1)

John V. Butcher, Assistant Federal Public Defender, Albuquerque, New Mexico,
for Defendant-Appellant.

Tara C. Neda, Assistant United States Attorney, Albuquerque, New Mexico (John
J. Kelly, United States Attorney for the District of New Mexico, with her on the
briefs), for Plaintiff-Appellee.

Before ANDERSON, EBEL and LUCERO, Circuit Judges.

EBEL, Circuit Judge.

Frank Oberle appeals his conviction for bank robbery and his resulting

sentence. He contends that the district court erred in admitting evidence

regarding his prior criminal history and in refusing to admit testimony that
supported his defense; that the prosecutor committed misconduct by arguing that

he was a professional bank robber; that the jury was instructed incorrectly; and

that he was unconstitutionally sentenced to life imprisonment under the federal

“Three Strikes” law, 18 U.S.C. § 3559(c) (1994). We affirm.

BACKGROUND

Between November 1995 and February 1996 four Albuquerque banks were

robbed late on Friday afternoons by a man wearing a ski mask who carried a gun

in his left hand and a bag in his right, asked for $20, $50 and $100 bills, and left

after warning witnesses that there was a bomb at the door. After the fourth

robbery a witness reported the robber’s license plate number to police. The

owner of the car told police he had loaned his car to Frank Oberle (“Oberle”).

After investigation, Oberle was charged with one count of armed bank robbery, in

violation of 18 U.S.C. §§ 2113(a) & (d) and 18 U.S.C. § 2. The charge related

to the last bank robbery, which took place February 23, 1996.

Oberle was tried before a jury. He did not testify. However, Christopher

Jensen (“Jensen”), who drove the getaway car, testified against Oberle pursuant to

a plea agreement. He identified Oberle as the robber who entered the banks and

described how Oberle prepared for the robberies. Oberle’s brother, Gary Oberle

(“Gary”), testified under a grant of immunity for the bank robberies. Gary said

that he saw Oberle and Jensen counting the robbery proceeds and that he

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overheard Oberle talking about robbing banks. He further testified about his own

expenses and recent purchases, which greatly exceeded his monthly income, but

claimed that Oberle had helped him financially. Gary also admitted to having a

heroin addiction and being in a methadone treatment program.

During trial the government sought to introduce a letter written by Oberle

to Gary while Oberle was in jail awaiting trial. The letter stated, “Just tell her

I’m going back to prison on a violation. Don’t tell her that I have a new case”

(emphasis in original). Oberle objected to the admission of this evidence under

Federal Rules of Evidence 404, 403, and 609. The court allowed the admission of

the evidence as a party’s admission under Federal Rule of Evidence 801(d).

Also during trial an FBI agent testified that when he interviewed Oberle,

Oberle had stated that he was surprised that the FBI had not come to him earlier

because “the bank robberies were his MO,” meaning modus operandi. Oberle

objected and moved for a mistrial on the grounds that the jury had effectively

been informed that Oberle had previously been convicted of bank robbery. The

district court overruled Oberle’s objection and denied his motion for a mistrial.

During opening statement and closing argument the prosecutor referred to Oberle

as a seasoned bank robber and a professional who showed knowledge of the

justice system. Oberle objected to only one of these references.

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 Oberle’s theory of defense was that there was one robber of all four banks,

and it was his brother Gary. As part of his defense, Oberle sought to introduce

evidence from a methadone treatment clinic of the drug treatment Gary had

received to show that Gary had a motive to commit robbery because he had an

extensive heroin addiction and to undermine Gary’s credibility regarding his

claims to have stopped using drugs. After the drug treatment clinic moved to

quash Oberle’s subpoena to it, the district court found that Oberle had not yet

shown good cause for introducing the clinic’s records, which were confidential

under 42 U.S.C. § 290dd-2(a) (1992). The court left open the possibility of

introducing the records, depending on Gary’s testimony, but ultimately denied

Oberle’s motion to admit them. The court also quashed a subpoena issued to

Oberle’s probation officer, who was to testify in Oberle’s defense that Oberle

never showed signs of drug use, that he had been employed at the relevant times,

and that he could reasonably have expected to be put back in prison for a parole

violation if he picked up a new charge even if he were acquitted of the new

charge. That would explain why his statement about “Just tell her I’m going back

to prison on a violation” was not necessarily an admission of guilt on the new

charge of bank robbery.

At the close of trial, Oberle objected to the court’s instruction directing

jurors not to be concerned about the guilt of any person other than Oberle,

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because it contradicted the defense theory that Gary was the guilty party. He also

objected to the court’s aiding and abetting instruction, because, he asserted, first

the instruction contradicted the government’s theory of liability, and second the

particular instruction did not adequately inform jurors that Oberle could not be

guilty of aiding and abetting merely by associating with the robbers.

The jury found Oberle guilty. At sentencing the district court found that

Oberle was subject to mandatory life imprisonment under the “Three Strikes” law,

18 U.S.C. § 3559(c) (1994), because he had previously been convicted of at least

two serious violent felonies. Oberle argued that he was entitled to a hearing at

which the government was required to prove beyond a reasonable doubt that he

had previously been convicted of at least two serious violent felonies. Based on

the government’s presentation of certified copies of the judgments of conviction,

the district court rejected Oberle’s argument and found that Oberle had two prior

bank robbery convictions and two prior aggravated robbery convictions. Oberle

was sentenced to life imprisonment, and he now appeals his conviction and

sentence.

DISCUSSION

A. Admission of Evidence

Oberle appeals the district court’s decision to allow the admission of

Oberle’s letter to Gary, in which Oberle wrote “Just tell her I’m going back to

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prison on a violation. Don’t tell her that I have a new case.” He also objects to

the introduction of his statement to the FBI agent that “the bank robberies were

his MO.”

We review the district court’s decision to admit evidence for an abuse of

discretion. See United States v. Segien, 114 F.3d 1014, 1022 (10th Cir.), petition

for cert. filed (U.S. Aug. 26, 1997) (No. 97-6568). Although the statements are

party admissions under Rule 801(d) and thus not hearsay, they must nevertheless

also be analyzed for admissibility under Rule 404(b) because they reveal or

suggest prior criminal conduct. See United States v. Maden, 114 F.3d 155, 157

(10th Cir.), cert. denied, 118 S. Ct. 226 (1997). Under Rule 404(b), we examine

whether:

(1) the prosecution offered the evidence for a proper purpose under
Rule 404(b); (2) the evidence is relevant under Fed. R. Evid. 401; (3)
the evidence’s probative value is not substantially outweighed by its
potential for unfair prejudice under Fed. R. Evid. 403; and (4) the
district court, upon request, gave a proper instruction limiting the
jury’s consideration of the evidence to the purpose for which it was
admitted.

Segien, 114 F.3d at 1022-23.

1. Statement about going back to prison

Oberle contends that his statement “Just tell her I’m going back to prison

on a violation. Don’t tell her that I have a new case,” was erroneously allowed as

evidence of his prior criminal record. The government, on the other hand, argues

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that this statement is an acknowledgment of guilt of the charged offense because

it is a prediction by Oberle that he will ultimately be found guilty and sent to

prison on his “new case.”

This statement is quite equivocal. Although it could be read as the

government suggests, it is not a clear admission of guilt of the charged bank

robbery. Because a natural reading of the statement is not particularly inculpatory

on the crime charged and because the statement effectively informs the jury that

Oberle has been in prison previously, it may have been an abuse of discretion to

conclude that the statement’s probative value outweighed its prejudice, as

required by the Rule 404(b) analysis. However, even if the court erred in

allowing the statement, such error does not require reversal in light of the

substantial evidence against Oberle and the limiting instruction given to the jury

in the final jury instructions. See United States v. Birch, 39 F.3d 1089, 1094-95

(10th Cir. 1994) (harmless error where record “reveals substantial evidence of

defendant’s guilt”); see also United States v. Olivo, 80 F.3d 1466, 1469 (10th

Cir.), cert. denied, 117 S. Ct. 265 (1996) (error would be harmless where

considerable evidence linked defendant to crime and court “cautioned the jury”

about the limited purpose of the evidence). Further, the jury was made aware of

Oberle’s prior history of robbing banks through the admission of his “MO”

statement, and, as discussed below, the admission of that statement was not

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erroneous. Consequently, we do not believe that the statement had a “substantial

influence” on the outcome of the case. See United States v. Flanagan, 34 F.3d

949, 955 (10th Cir. 1994).

2. Statement about Oberle’s MO

Over Oberle’s objection, the district court admitted the FBI agent’s

testimony that Oberle acknowledged to him that “the robberies were his MO.”

Oberle argues the statement was “unadulterated propensity evidence” that “was

relevant for no proper purpose.” Where a district court fails to “precisely

articulate the purpose of this evidence under Rule 404(b), this is subject to a

harmless error analysis.” United States v. Kimball, 73 F.3d 269, 272 (10th Cir.

1995). The error is harmless “if the purpose for admitting the evidence is

apparent from the record and its admission is proper.” Id.

At least one proper Rule 404(b) purpose for admitting the statement is

apparent from the record, as it helps establish the identity of the bank robber.

Information that Oberle had committed bank robberies in a similar manner was

relevant in this case, where the main issue was the identity of the robber. See

United States v. Morgan, 936 F.2d 1561, 1572 (10th Cir. 1991); United States v.

Porter, 881 F.2d 878, 887 (10th Cir. 1989). Although the statement was

prejudicial, its probative value outweighed the prejudice, and the district court

gave an instruction regarding the limited purposes for which evidence of other

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acts may be considered. Consequently, the district court did not abuse its

discretion in allowing the statement to be admitted.

B. Refusal to Admit Evidence

Oberle challenges the district court’s quashing of two subpoenas, one to the

clinic that treated Gary’s heroin addiction and the other to Oberle’s probation

officer. Generally we review a district court’s decision to exclude evidence for

an abuse of discretion, see United States v. Patterson, 20 F.3d 809, 812 (10th Cir.

1994), but the question of whether to admit confidential records of substance

abuse treatment is a mixed question of law and fact to be reviewed de novo, see

United States v. Corona, 849 F.2d 562, 565 (11th Cir. 1988).

1. Drug Treatment Records

Oberle subpoenaed the Silver Street Clinic, where Gary allegedly had been

receiving methadone treatment for his heroin addiction. He sought access to

Gary’s treatment records to show the extent of his heroin addiction, whether he

was using heroin or other drugs during treatment, and the extent of the payments

Gary made to the clinic. The clinic moved to quash the subpoena. The district

court ruled that it had not yet found good cause for admitting the confidential

records, as required by 42 U.S.C. § 290dd-2 (1992), and that it would reconsider

its decision when Gary testified. The evidence was never admitted.

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 42 U.S.C. § 290dd-2(a) (1992) requires that drug treatment records in

programs receiving federal funds be kept confidential. Disclosure is permitted,

however, “[i]f authorized by an appropriate order of a court of competent

jurisdiction granted after application showing good cause therefor, including the

need to avert a substantial risk of death or serious bodily harm.” 42 U.S.C.

§ 290dd-2(b)(2)(C) (1992). “In assessing good cause the court shall weigh the

public interest and the need for disclosure against the injury to the patient, to the

physician-patient relationship, and to the treatment services.” Id.; see also 42

C.F.R. § 2.64(d) (1997) (to find good cause, there must be no other adequate way

of obtaining the information, and the public interest and the need for disclosure

must outweigh the potential injury to the patient, the physician-patient

relationship, and the treatment services). Oberle argues that he established good

cause for disclosing Gary’s records because there was no alternative means of

acquiring the information; the public interest and need for disclosure, in the form

of assuring a fair trial to a criminal defendant, outweighed injury to Gary; and

there was no harm to Gary’s relationship with clinic staff or to the course of his

treatment because he had already left the program.

The district court did not abuse its discretion in quashing the Silver Street

subpoena. The Silver Street Clinic was not the only source of the information

Oberle sought. In fact, the jury was presented with the facts that Gary was

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addicted to heroin and entered methadone treatment. Given that the basic

information was available, even if not in Oberle’s most preferred form, Oberle’s

need for the information did not outweigh section 290dd-2’s emphasis on keeping

treatment records confidential.

2. Probation Officer

Oberle also challenges the district court’s decision to quash the subpoena

issued to his probation officer. He contends that the probation officer’s testimony

would have established that Oberle showed no signs of drug use, that he was

employed at the time of the bank robberies, and that he had reason to believe his

parole could be violated even without his being guilty of the instant charge of

bank robbery, thus explaining the statement in his letter “Just tell her I’m going

back to prison on a violation.” The district court held that confidentiality

concerns inherent in the work of the Probation Department urged against allowing

the probation officer to testify, and that it was unnecessary for him to testify for

the purposes presented by the defense.

At least two circuit courts have acknowledged that a defendant may

subpoena a probation officer. See United States v. Lanterman, 76 F.3d 158, 161

(7th Cir. 1996); United States v. $2,500 in United States Currency, 689 F.2d 10,

16 (2d Cir. 1982). We agree with the Second Circuit that a defendant seeking to

subpoena a probation officer must show a special need for the testimony. See

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$2,500 in United States Currency, 689 F.2d at 16 (“Absent some showing of

special need by [defendant], we see no reason to breach the confidentiality of the

Probation Department’s post-sentencing supervisory reports.”).

Of the three reasons Oberle presents for allowing the admission of the

evidence, the strongest is that the probation officer’s testimony would have

explained that Oberle’s statement about returning to prison on a violation did not

necessarily indicate that Oberle believed he was guilty of a crime. Given the

countervailing concerns about the supervisory process, however, we do not

believe that this factor is enough to find that the district court abused its

discretion in refusing to admit the evidence. Similarly, Oberle’s desire to have

the probation officer testify that he never showed signs of drug use and that he

had been employed were of marginal relevance. Those reasons are insufficient to

justify calling the probation officer, especially since the jury was informed about

Oberle’s employment through other testimony.

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C. Prosecutorial Misconduct

Oberle argues that the prosecutor committed misconduct when she

repeatedly argued that Oberle was a professional bank robber. 1 We recently

stated:

We use a two-step process when evaluating claims of prosecutorial
misconduct. First, we examine whether the conduct was, in fact,
improper. If we answer that question in the affirmative, we must
then determine whether it warrants reversal.

United States v. Ivy, 83 F.3d 1266, 1288 (10th Cir.), cert. denied, 117 S. Ct. 253

(1996) (internal quotation marks and citations omitted). Defense counsel objected

to only one of the challenged comments, one in which the prosecutor stated that

Oberle tried to get Jensen a “Fifth Amendment plea arrangement, showing some

wherewithal, some knowledge of the criminal system, I would say.” This

comment is reviewed de novo. See Ivy, 83 F.3d at 1288. Because defense

counsel did not object to the remaining comments, we review them for plain error.

1
During opening statement, the prosecutor stated that Jensen would testify about
“his association with Frank Oberle and the tricks of the trade that he learned from Frank
Oberle. And he will tell you that Frank Oberle is a seasoned bank robber.” During
closing argument, she stated, “Who is in command? Who is in control? Who is the
pro?”; “Who is showing ownership and control of the money? Who is in command?
Who is the pro?”; that Oberle tried to get Jensen a “Fifth Amendment plea arrangement,
showing some wherewithal, some knowledge of the criminal system, I would say.”;
“[Jensen] gave you details about things about which, you know, he wouldn’t know
unless he was dealing with a pro.”; “And the Fifth Amendment, isn’t he a pro? Telling
Chris how to get a lawyer, what to plead.”; and “This man has been around the block.
This man is in control. This man feels cocky.” Oberle also complains that the
prosecutor stated that Gary was not the sort of man to commit bank robbery, implying
that Oberle was the sort of man who would.

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See United States v. Sands, 968 F.2d 1058, 1063 (10th Cir. 1992). Under a plain

error analysis, “reversal is appropriate only if, after reviewing the entire record,

we conclude that the error is obvious and one that would undermine the fairness

of the trial and result in a miscarriage of justice.” Id. (citing Fed.R.Crim.P. 52(b)

and United States v. Young, 470 U.S. 1, 16 (1985)). “When evaluating allegedly

inappropriate remarks of counsel for plain error, we must view the remarks in the

context of the entire trial.” Id. at 1063-64 (citing Young, 470 U.S. at 11-12).

The government argues that it merely highlighted admissible evidence for

proper purposes -- to show Oberle’s knowledge, control and consciousness of

guilt -- and to rebut the defense’s argument that Gary was the bank robber. The

transcript reveals, however, that in making these arguments the prosecutor

exceeded the boundaries of commenting upon the evidence. She moved from

arguing that the evidence showed Oberle was in control of the operation (a

permissible inference) to arguing that he was a “pro” who “had been around the

block” and who showed “some knowledge” of the criminal system. This is more

akin to arguing propensity than it is focusing the jury’s attention on the evidence,

and it was improper to the extent that it suggested that the jury could make its

decision based partly on the fact that Oberle had committed other bank robberies

or was experienced with the criminal justice system. See United States v. Peña,

930 F.2d 1486, 1490-91 (10th Cir. 1991).

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 The ultimate question, however, is whether Oberle was deprived of a fair

trial. See id. at 1491. “[W]e will not overturn a conviction on account of

improper argument by the prosecutor unless the prosecutor’s misconduct was

enough to influence the jury to render a conviction on grounds beyond the

admissible evidence presented.” Id. (internal quotation marks and citations

omitted). “In assessing whether the misconduct had such an impact, we consider

the trial as a whole, including the curative acts of the district court, the extent of

the misconduct, and the role of the misconduct within the case.” United States v.

Ramirez, 63 F.3d 937, 944 (10th Cir. 1995) (internal quotation marks and citation

omitted). Thus, factors relevant to determining whether the improper

commentary affected the fairness of the trial include whether the instance was

singular and isolated, whether the district court instructed the jury that the

attorneys’ argument was not evidence, and whether there was substantial evidence

of the defendant’s guilt. See Ivy, 83 F.3d at 1288; Ramirez, 63 F.3d at 944; Peña,

930 F.2d at 1491. “When evaluating errors claimed by appellate counsel which

were not raised by trial counsel, we must be cautious of a tendency to seize upon

errors which, removed from context, take on an aspect of seriousness which they

never had below.” Sands, 968 F.2d at 1064 (internal quotation marks and

citations omitted).

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 Oberle was not deprived of a fair trial by the prosecutor’s improper

remarks. The prosecutor’s remarks focussed on ascertaining ownership and

control of the bank robbery proceeds and establishing the identity of the bank

robber by arguing that only Oberle of the three principal suspects had the force of

personality and sophistication to pull off the robberies. When taken in context of

the entire trial and the lengthy closing arguments and rebuttal, the objectionable

references did not significantly detract from the proper focus of the argument. In

addition, the district court instructed the jury that counsel’s argument was not

evidence.

Our conclusion is buttressed by the fact that we must review the majority of

the comments for plain error. “[T]he plain-error exception to the

contemporaneous-objection rule is to be ‘used sparingly, solely in those

circumstances in which a miscarriage of justice would otherwise result.’” Young,

470 U.S. at 15 (quoting United States v. Frady, 456 U.S. 152, 163 n.14 (1982)).

Though the statements were improper, this is not such an egregious case as to

warrant reversal, particularly considering the trial as a whole and the force of the

evidence against Oberle. See, e.g, United States v. Nichols, 21 F.3d 1016, 1019

(10th Cir. 1994); Sands, 968 F.2d at 1064.

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D. Jury Instructions

We review the adequacy of jury instructions de novo, examining the

challenged instruction in light of the instructions as a whole. See United States v.

Russell, 109 F.3d 1503, 1513 (10th Cir.), cert. denied, 117 S. Ct. 2525 (1997).

1. Aiding and abetting instruction

Oberle challenges the district court’s decision to give an aiding and

abetting instruction on two grounds: first, that it contradicted both the evidence

and the government’s theory of the case that Oberle was the principal actor, and

second, that the district court refused to give the defense’s requested instruction

regarding “mere presence” as insufficient to aid and abet a crime.

Oberle first suggests that during trial the government proceeded on the

theory that he was the principal bank robber and that to give an aiding and

abetting instruction at the conclusion of the evidence impermissibly changed the

focus of the case. In United States v. Cueto, 628 F.2d 1273, 1275 (10th Cir.

1980), however, this court held that “[e]ven though the Government’s theory of

the case was that [defendant], and not [accomplice], was the one who actually

robbed the bank, it was nevertheless, under the circumstances, quite proper to

give the jury an instruction on aiding and abetting.” Oberle seeks to distinguish

Cueto by arguing that the evidence here, unlike in Cueto, does not support an

inference that he aided and abetted the robbery. Cueto, however, is almost

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identical to this case factually. There, the court noted that even if the jury did not

believe that Cueto was the bank robber, the testimony of the getaway car driver

established Cueto’s preparations for the robbery, which would support his

conviction as an aider or abettor. See id. Here, Jensen testified about Oberle’s

preparations for the robbery. Taken in the light most favorable to the

government, this evidence is sufficient for conviction and could support an

alternative aiding and abetting charge. See United States v. Scroger, 98 F.3d

1256, 1262 (10th Cir. 1996) (“[Defendant] knew, or should have known, that

when more than one person is involved in a criminal act, the district court may

properly submit an aiding and abetting instruction to the jury, even though it was

not charged in the indictment . . . .”), cert. denied, 117 S. Ct. 1324 (1997). The

district court did not err in giving the aiding and abetting instruction.

Oberle also argues that the district court should have given his requested

instruction that mere association with the robbers did not constitute aiding and

abetting and that he had to have the intent to participate in the robbery. The

instruction tendered to the jury, however, included those concepts, and thus the

district court did not err. See United States v. McKneely, 69 F.3d 1067, 1077-78

(10th Cir. 1995).

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 2. Instruction regarding guilt of other persons

The district court also instructed the members of the jury not to concern

themselves with the guilt of anyone except Oberle. Oberle contends that this

instruction directed jurors to ignore his defense, which was based on establishing

Gary Oberle’s guilt.

This instruction did not direct jurors to ignore Oberle’s defense. Read in

combination with the instruction requiring the jury to find guilt “beyond a

reasonable doubt,” it focused jurors on the task at hand: determining whether

Oberle was guilty of the February 23, 1996 robbery.

E. Combination of errors

Oberle argues that he was prejudiced by the combination of errors that

allegedly infected his trial. “The cumulative effect of two or more individually

harmless errors has the potential to prejudice a defendant to the same extent as a

single reversible error.” United States v. Rivera, 900 F.2d 1462, 1469 (10th Cir.

1990) (en banc). “A cumulative-error analysis merely aggregates all the errors

that individually have been found to be harmless, and therefore not reversible, and

it analyzes whether their cumulative effect on the outcome of the trial is such that

collectively they can no longer be determined to be harmless.” Id. at 1470. The

analysis, however, “should evaluate only the effect of matters determined to be

error, not the cumulative effect of non-errors.” Id. at 1471.

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 Assuming that the statement “Just tell her I’m going back to prison on a

violation” was improperly admitted, we have identified two errors (the other

being the improper prosecutorial argument). We do not believe that the

combination of the two, however, rises to the level of reversible error.

F. “Three Strikes” Statute

The district court found Oberle subject to mandatory life imprisonment

pursuant to the “Three Strikes” enhanced sentencing statute, 18 U.S.C. § 3559(c)

(1994). Oberle argues that the district court improperly sentenced him under

section 3559(c) because it did not conduct a hearing on his prior record. Instead,

the district court found that Oberle had committed four prior violent felonies (two

previous Albuquerque bank robberies and two Ohio aggravated robberies) based

solely on the certified copies of conviction. We review questions of statutory

construction de novo. See United States v. Diaz, 989 F.2d 391, 392 (10th Cir.

1993).

18 U.S.C. § 3559(c)(1) provides that a person convicted of a third serious

violent felony or serious drug offense shall be sentenced to life imprisonment.

The term “serious violent felony” generally includes robbery under 18 U.S.C.

§ 2113. See 18 U.S.C. § 3559(c)(2)(F) (1994).

Section 3559(c)(4) explicitly incorporates the provisions of 21 U.S.C.

§ 851(a) (part of the Controlled Substances Act), which requires the government

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to inform the court and the defendant of the convictions on which it intends to

rely in seeking a sentencing enhancement. Oberle argues that the provisions of 21

U.S.C. § 851(b) and 21 U.S.C. § 851(c), which require the court to conduct an

evidentiary hearing if the defendant denies the convictions and require the

government to prove the prior convictions beyond a reasonable doubt, should

likewise apply to proceedings under 18 U.S.C. § 3559(c). See United States v.

Kennedy, 952 F. Supp. 5, 8 n.2 (D.D.C. 1997) (acknowledging that the safeguards

provided by sections 851(b) and 851(c) may apply under 18 U.S.C. § 3559),

remanded, 133 F.3d 53, 1998 WL 11780 (D.C. Cir. Jan. 16, 1998). Oberle seeks

support from the fact that section 3559(c)(3)(A) allows a defendant to escape the

sentencing enhancement by proving with clear and convincing evidence that a

prior robbery did not involve a firearm or dangerous weapon and did not result in

bodily injury, and hence does not satisfy the definition of a “serious violent

felony.” This subsection would be meaningless, he contends, if the defendant has

no right to a hearing.

No federal court has held that the provisions of sections 851(b) and 851(c)

should apply in section 3559(c) proceedings; the only case addressing the issue

that we have found, Kennedy, simply acknowledged the possibility. Further, the

legislative history mentions only section 851(a), not sections 851(b) or (c). See

H.R. Rep. 103-463, 1994 WL 107574 (1994). In the absence of a contrary

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legislative intent or purpose, the maxim of statutory construction “expressio unius

est exclusio alterius” (the expression of one excludes others) tends to indicate that

had Congress intended to incorporate the provisions of sections 851(b) and (c)

into section 3559, it would have done so rather than specify only section 851(a).

See 2A Sutherland Statutory Construction § 47.23 (5th ed. 1992).

The fact that the defendant does not concede the existence or seriousness of

former convictions does not automatically require a separate section 3559

hearing. Rather, it is only when a defendant tenders evidence to deny the

seriousness of the former convictions or to deny that the prior convictions

pertained to him or her that the district court must conduct a hearing. Here, at his

sentencing hearing Oberle tendered neither his own testimony nor any other

evidence that the prior convictions were not his or that they did not satisfy section

3559(c)(3)’s definition of “serious violent felony.” All that he did was to put the

government to its proof. The district court was not required to conduct a separate

section 3559 hearing under these circumstances given the evidence that the

government did offer.

Oberle argues that under section 3559(c) the government should have to

prove his prior convictions beyond a reasonable doubt. Section 3559(c), however,

is a sentencing enhancement statute. See United States v. Wicks, 132 F.3d 383,

385 (7th Cir. 1997); cf. Segien, 114 F.3d at 1018-20 (differing between an

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element of the offense and a sentencing enhancement). The government’s burden

of proof at sentencing generally does not reach the level of “beyond a reasonable

doubt.” See Segien, 114 F.3d at 1019-20; see also McMillan v. Pennsylvania, 477

U.S. 79, 91-92 (1986) (preponderance standard usually satisfies the Due Process

Clause at sentencing). In fact, we have declined to impose a “beyond a

reasonable doubt” standard in cases involving other sentencing enhancements.

See Segien, 114 F.3d at 1020 (18 U.S.C. § 111(b)); United States v. McMahon, 91

F.3d 1394, 1397 (10th Cir.) (Armed Career Criminal Act, 18 U.S.C. § 924(e)),

cert. denied, 117 S. Ct. 533 (1996). We also decline to impose a “beyond a

reasonable doubt” standard in this section 3559(c) case.

The government introduced certified copies of Oberle’s four previous

convictions. Oberle offered no evidence to contradict those certified copies.

Consequently, the government fulfilled its burden of proving Oberle had at least

two prior serious violent felony convictions, and Oberle was correctly sentenced

to life imprisonment under the “Three Strikes” law.

CONCLUSION

For the reasons outlined above, Frank Oberle’s conviction and sentence are

AFFIRMED.

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