United States v. Boudreau

CLAY, Circuit Judge,

dissenting.

It should be noted at the outset that this case is somewhat unusual in that the district court judge below acted both as a witness to the events in question and as the factfinder who assessed his own credibility and the reliability of his own memory (after a lapse of more than five years)— notwithstanding that any impartial observer would likely describe the district judge’s version of events as entirely baseless. Indeed, there is a troubling aspect to the district judge’s willingness to engage in factual assertions with such certainty in the complete absence of any indication that the events he describes ever occurred. It is unfortunate that the district judge did not refer this matter to another district judge who could have viewed the events in question with the benefit of a fresh set of eyes.1

The sole issue on appeal is whether the district court erred in finding that the government “filed” the information, as 21 U.S.C. § 851(a) requires the government to do before the court can enhance a defendant’s sentence based on a prior drug conviction. Notwithstanding the narrow issue presented, the majority devotes much of its opinion to a discussion of unrelated cases that involve facts very different from those presented in this case. Further, in its analysis of the central issue, the majority makes only a conclusory assertion that the government filed the information. Despite the majority’s unsupported conclusions, the record indicates that the government failed to file the information, and the district court’s finding to the contrary was clearly erroneous. Because the district court lacked authority to impose the sentencing enhancement in question, I respectfully dissent from the majority opinion affirming Boudreau’s sentence.

The majority first makes the erroneous assumption that because Boudreau had actual notice of the information and its content, the government complied with “all that due process and Section 851(a) require.” Maj. Op. at 438. However, as other courts have recognized, “[ejven when the defendant is not surprised by the en*440hanced sentence [and] was aware from the outset that his previous conviction could lead to an enhanced sentence, ... the statute prohibits an enhanced sentence unless the government first seeks it by properly filing an information.... ” United States v. Weaver, 905 F.2d 1466, 1481 (11th Cir.1990). Consequently, contrary to the majority’s suggestion, even if Boudreau had actual notice of the government’s intent to seek a sentencing enhancement, the government did not comply with § 851(a) unless it “filed” the information.

Further demonstrating the mistaken nature of the majority’s analysis, the cases the majority relies on do not involve a dispute concerning whether an original information was “filed,” and therefore do not address the specific question at issue in this case — whether the government “filed” the information. For example, in United States v. King, 127 F.3d 483 (6th Cir.1997), the government filed the information, but the information set forth an incorrect date of conviction with respect to the prior conviction on which the government sought to rely. Id. at 488. In addressing whether the government complied with § 851(a) despite this error, the court conducted a detailed review of two circuit cases addressing defective content — a lack of specificity of the prior conviction in United States v. Gonzalez-Lerma, 14 F.3d 1479, 1482 (10th Cir.1994), and a failure to identify the correct enhancement provision in United States v. Campbell, 980 F.2d 245, 247 (4th Cir.1992). The court reasoned that, under such circumstances, the “proper inquiry is whether the government’s information provided the defendant ‘reasonable notice of [its] intent to rely on a particular conviction and a meaningful opportunity to be heard.’ ” King, 127 F.3d at 488-89 (alteration in original) (quoting Gonzalez-Lerma, 14 F.3d at 1485). The court in King determined that the district court erred in finding the information deficient because the defendant had reasonable notice regarding the possibility of an enhanced sentence. Id. at 489.

However, the reasoning employed by the court in King is inapplicable to the circumstances presented in this case. Boudreau does not argue that the government’s information was deficient based on its content, or that the information failed to set forth with sufficient specificity the prior conviction invoked to enhance his sentence. Instead, Boudreau challenges an entirely separate requirement set forth in § 851(a) — that the government “file” the information. Consequently, whether the government provided Boudreau with “reasonable notice” is not the “proper inquiry” in determining whether the government complied with § 851(a).

The majority’s reliance on United States v. Pritchett, 496 F.3d 537 (6th Cir.2007), and Weaver is also misplaced. In both Weaver and Pritchett, the court excused an untimely filing of an information based on the fact that the defendants had actual notice of the information. In neither case, however, was there a dispute concerning whether the government had, in fact, “filed” the information. Similarly, in United States v. Butler, 137 Fed.Appx. 813 (6th Cir.2005), although the government did not file the information until the day after the trial had started, the information appeared on the court’s docket, and neither party contested that the government had “filed” the information. Id. at 815. Accordingly, the majority’s invocation of these cases is inappropriate and does not support the conclusion that the government complied with § 851(a)’s requirements in this case.

More significantly, the majority blithely ignores the lack of support for the district court’s conclusion that the government “filed” the information. In reviewing the transcript of the pretrial hearing, it is *441evident that the district court’s finding is clearly erroneous.

Section 851(a) does not define the term “file.” Federal Rule of Criminal Procedure 49(d), however, defines filing for purposes of criminal cases. Cf. United, States v. Severino, 316 F.3d 939, 945 (9th Cir.2003) (noting that § 851(a) does not define service, but assuming that the definition of service in Rule 49(b) controlled). Rule 49(d) states that filing in criminal actions must “be made in a manner provided for in a civil action.” Fed.R.Crim.P. 49(d). Under the civil rules relevant at the time, Rule 5(e) provided that filing of papers “shall be made by filing ... with the clerk of court, except that the judge may permit the papers to be filed with the judge, in which event the judge shall note thereon the filing date and forthwith transmit them to the office of the clerk.... ” Fed.R.Civ.P. 5(e). Relying on Rule 5(e), the government argued that it “filed” the information by providing an original to the deputy clerk in open court. Boudreau acknowledges that “tendering the original § 851 [sic] Notice to the courtroom deputy or the district court might have been sufficient filing.” (Def.’s Reply Br. 8.) However, Boudreau appropriately argues, and I agree, that “there is no evidence that the Government tendered the original notice to the courtroom clerk or the district court for filing at all.” (Id. at 5.)

Contrary to the majority’s unsupported conclusion, there is no factual basis for the district court’s finding that the information was filed. To conclude that the government filed the information, the district judge purported to rely on his own recollection and that of the assistant United States Attorney (“AUSA”)' — more than five years after the pretrial hearing — regarding the AUSA’s actions and intentions during the pretrial hearing. However, neither the transcript of the pretrial hearing nor the testimony of Ms. Beauchemin, the deputy clerk present during the pretrial hearing, provide any factual support for the alleged recollection of the AUSA and the district judge that the AUSA handed the original information to the deputy clerk in open court.

Although the transcript from the pretrial hearing reveals that the AUSA provided a copy of the information to Boudreau, it does not indicate that the AUSA in fact provided an original information to the deputy clerk present in the courtroom. The AUSA’s statements during the pretrial hearing do not indicate that the government presented an original information to the deputy clerk. In fact, the only relevant facts direct a finding that the AUSA’s actions during the pretrial hearing did not constitute a “filing” of the information. Ms. Beauchemin testified that, had the AUSA provided her with an original information during the pretrial hearing, she would have delivered it to the clerk’s office for filing. She also stated that if the AUSA had handed her only a copy rather than an original of the document, she would not have believed that the government intended for the copy to be filed. It is undisputed that the clerk’s office never docketed the filing of the information, and that the court’s file did not contain an original information. Accordingly, the record cannot support the finding that the government filed the information through its actions during the pretrial hearing.

Perhaps recognizing the lack of any evidence that would corroborate the government’s assertion that the information was filed, the district court relied on the absence of any evidence of filing to conclude that the government filed the information. The district court emphasized that Boudreau could not show that the government did not provide the deputy clerk with an original information. In addition, the dis*442trict judge noted that documents are sometimes lost by deputy clerks or the court, thereby speculating that such an error might have been the cause of the missing original information in this case. Because the record lacks any evidence beyond the district court’s unsupported assumption that the government provided an original information to the deputy clerk, the district court clearly erred in finding that the government “filed” the information. The government obviously failed to comply with § 851(a)’s requirements, meaning that the district court lacked the authority to impose the enhanced sentence. I therefore respectfully dissent from the majority’s decision affirming Boudreau’s sentence.

. In footnote 3 of its opinion, the majority misconstrues the dissent's argument regarding the inappropriateness — under the rather unusual circumstances of this case — of the district judge's actions. Although it is not even clear from the record that the judge looked at the pertinent document during the hearing in question, the judge nonetheless acted as a factfinder on the issue of whether he remembered a specific document being handed to a deputy clerk during a hearing conducted in his courtroom over five years ago. Thus, contrary to the majority’s assertions, the point being made here is not that it is inappropriate for a judge to rely on his own memory, but that there was no basis for the judge to do so under the circumstances of this case. Similarly, the majority's reliance on Smith v. United States, 348 F.3d 545 (6th Cir.2003), is misplaced. Smith noted that a "habeas judge may rely on his or her memory of the trial when relevant to the issues on collateral review.” Id. at 554. However, nothing in Smith or similar cases allows a district judge to rely upon his own recollection when there is no factual foundation for that recollection.