dissenting.
The purpose of section 851 is to provide a defendant with reasonable notice of the government’s intent to rely on a particular prior conviction for sentencing purposes, thereby providing the defendant time to plan trial strategy with full knowledge of the consequences of a guilty verdict. Although section 851 “does not specify the particular form which notice of enhancement must take ... ”, United States v. Belanger, 970 F.2d 416, 419 (7th Cir.1992), reason dictates that the section does not contemplate notices that, in practice, defeat its primary objective.
In direct contravention of the purpose of § 851, the government failed to provide King with reasonable notice of its intention to rely upon his prior conviction. The first Information contained an admitted mistake and it was filed only minutes before trial, potentially compounding the prejudice of the erroneous date. The law is clear that the only way for the government to prevail is for it to establish that the error in the first Information was a clerical mistake. Yet, the government chose to rely on other circuits’ definitions of a clerical mistake rather than offering any explanation or proof that the mistake was inadvertent. Although the government did explain that it corrected the Information when, on the first day of trial, it received a certified copy of the conviction described, it failed to explain why it did not already have a copy of the conviction or where it obtained the facts about the conviction that it included in its initial Information. Given the circumstances, the district court was correct in demanding strict compliance with section 851.
I would also reverse the district court’s denial of King’s motion to continue the trial. The district court judge gave only one-half business day’s notice of the new trial date, even though Kewin King’s conviction could result in a sentence in excess of twenty years. Both King’s counsel and the government filed timely motions for continuance, yet the district court summarily denied the motions without giving any reason for the new trial date or for why King’s trial could not be held at a later time. King and his counsel had been expecting trial to begin on February 6 when they suddenly learned, on Friday, January 19, that trial would begin on Monday, January 22.
There is ample evidence to suggest that the district court abused its discretion in denying Kang’s motion for continuance. The decision to move up the trial date was arbitrary; the judge neither explained why King could not retain his original trial date nor why he saw fit to accelerate past two weeks of his docket. The decision was also unreasonable. Such a dramatic change made at a moment’s notice misled King and his counsel to believe that they would have an additional two weeks to prepare for trial. Finally, King was prejudiced by the alteration to the calendar. King’s counsel did not, by his own admission, prepare adequate voir dire questions, jury instructions, legal research, or client consultations. Because continuance would have allowed King’s counsel to make necessary preparations for trial, it seems clear that King has satisfied the standards set in United States v. Frost, 914 F.2d 756, 765 (6th Cir.1990) and other relevant decisions of this court.