United States Court of Appeals
For the First Circuit
No. 00-2416
UNITED STATES OF AMERICA,
Appellee,
v.
JOSEPH BRADSHAW,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Douglas P. Woodlock, U.S. District Judge]
Before
Selya, Circuit Judge,
Campbell, Senior Circuit Judge,
and Lynch, Circuit Judge.
Juliane Balliro, with whom Perkins, Smith & Cohen, LLP was
on brief, for appellant.
Sangita K. Rao, Attorney, U.S. Dep't of Justice, with whom
Michael J. Sullivan, United States Attorney, was on brief, for
appellee.
February 25, 2002
SELYA, Circuit Judge. The poetess Nikki Giovanni once
commented that: "Mistakes are a fact of life. It is the
response to the error that counts." Elaine Partnow, The
Quotable Woman: 1800-1981 453 (1983). Defendant-appellant
Joseph Bradshaw, a recidivist robber, would have done well to
heed the message inherent in these words of wisdom. The tale
follows.
In the court below, the government charged that the
appellant repeated and compounded the error of his ways. A jury
agreed, convicting him on an array of charges, including armed
robbery and attempted murder. Invoking the "Three Strikes Law,"
18 U.S.C. § 3559(c), the district court sentenced the appellant
to life imprisonment. In this appeal, Bradshaw — vigorously
represented by able counsel — raises a substantial claim of jury
taint. He also challenges various evidentiary rulings and the
constitutionality of the Three Strikes Law. Although the
government has offered us surprisingly little help, our
perscrutation of the record and the case law persuades us that
the conviction and sentence must stand.
I. BACKGROUND
We recount the relevant facts as the jury might have
found them, consistent with record support. In that exercise,
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we paint with a broad brush, reserving more extensive detail for
our ensuing discussion of the appellant's specific claims.
The charges against the appellant stem from separate,
but related, incidents. Our chronological narrative begins in
the spring of 1995, at which time the appellant's circle of
friends included Thomas Sutherland and the DeSimone brothers,
Ronald and Donald (colloquially known as "Ronny" and "Donny").
Ronny DeSimone told the appellant that, five mornings a week, a
mail carrier transported large sums of money from the Lynn,
Massachusetts post office to a nearby financial institution.
The two men repaired to Lynn and scouted the layout of the bank.
The appellant thereafter described the situation to Sutherland,
telling him that Ronny DeSimone had stumbled upon "a good
score." The pair decided to rob the mail carrier and reward
Ronny by giving him ten percent of the take.
Sutherland and the appellant executed the robbery on
June 5, 1995. When the mail carrier, Timothy Bogart, drove up
to the bank, Sutherland commandeered the postal truck and
ordered Bogart, at gunpoint, to drive away. After Bogart had
gone a few blocks, Sutherland directed him to stop. Sutherland
then snatched a mail tub containing more than $122,000 in cash
and checks that had been sent by registered mail, and joined the
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appellant (who was waiting nearby in a rented station wagon).
The men departed in haste.
Later that same month, Sutherland and the appellant
came to suspect that the DeSimone brothers were cooperating in
the investigation of the robbery. They decided that Donny
DeSimone had to be killed. The appellant recruited Paul
Courteau to assist in this grisly business.
On July 12, 1995, Courteau and the appellant, employing
a pretext, inveigled Donny DeSimone into accompanying them on a
ride. The trio drove to various locations, eventually winding
up at an unoccupied baseball field. There, the appellant pulled
out a handgun and attempted to test-fire it. The gun jammed.
Nonplussed, he herded his companions back into the car and the
three men continued their meanderings.
In the early hours of the morning, they drove to a
wooded area. Courteau and the appellant exited the vehicle,
told Donny to stay put, and walked into the woods. A few
moments later, Donny heard a gunshot. When the others returned,
the appellant pointed the gun at Donny and ordered him out of
the vehicle. Charging that Donny was "cooperating with the
feds," the appellant forced him to his knees, handed the gun to
Courteau, and instructed Courteau to shoot. Courteau pulled the
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trigger, but the gun jammed once again. Donny lost little time
in fleeing from the scene.
On July 8, 1998, a federal grand jury returned a nine-
count indictment against the appellant. The indictment charged
conspiracy to commit armed robbery, 18 U.S.C. § 371 (count 1);
robbery of a postal employee by use of a dangerous weapon, id.
§ 2114 (count 2); using and carrying a firearm during and in
relation to a crime of violence, namely, the robbery, id. §
924(c)(1) (count 3); conspiracy to tamper with a witness, id.
§ 371 (count 4); witness tampering by means of attempted murder,
id. § 1512(a)(1)(A) (count 5); using and carrying a firearm
during and in relation to a crime of violence, namely, the
attempted murder, id. § 924(c)(1) (count 6); obstruction of
justice, id. § 1503 (count 7); conspiracy to obstruct justice,
id. § 371 (count 8); and another incident of witness tampering
by means of attempted murder, id. § 1512(a)(1)(A) (count 9).
Twenty days later, the government filed an amended information
pursuant to the Three Strikes Law, 18 U.S.C. § 3559(c),
notifying the appellant that he was subject to a mandatory
sentence of life imprisonment based upon an array of previous
convictions for "serious violent felonies." The qualifying
convictions, all obtained in the Massachusetts courts, included
a 1981 conviction for armed robbery, a 1987 conviction for
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robbery and assault with a dangerous weapon, three 1988
convictions for armed robbery, and a 1989 conviction for armed
robbery.
Prior to the commencement of trial, the district court
severed counts 7 through 9 — a series of charges that revolved
around an incident separate and apart from the robbery of the
postal truck and the attempted murder of Donny DeSimone.1 Trial
commenced on the first six counts on April 3, 2000.
At trial, the court, relying on Fed. R. Evid.
801(d)(2)(E), conditionally admitted third-party testimony anent
two sets of statements allegedly made by Sutherland. Citing
Fed. R. Evid. 403, the court later reversed its field and struck
that testimony. In a separate ruling, the court denied the
appellant's attempt, pursuant to Fed. R. Evid. 804(b)(3), to
introduce evidence concerning other statements allegedly made by
Sutherland.
The court gave the case to the jury on April 24, 2000.
The next day, the foreman informed the judge that an extraneous
document — an unredacted copy of a second superseding indictment
1Those three counts (which figure prominently in the claim
of jury taint, see infra Part III) revolve around allegations
that, subsequent to his indictment and pretrial detention, the
appellant enlisted the aid of a fellow inmate, William Niditch,
to obstruct justice by committing perjury, and then tried to
kill Niditch when Niditch became a government informant.
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containing the text of the three severed counts — had found its
way into the jury room. After conducting a thorough
investigation, the trial court dismissed one juror, denied the
appellant's motion for a mistrial, and instructed the eleven
remaining jurors to resume deliberations.2 On April 27, 2000,
the jury found the appellant guilty on all six counts.
At the disposition hearing, the appellant conceded the
existence of the prior convictions enumerated in the amended
information, but asserted that he could not constitutionally be
sentenced to life imprisonment under the Three Strikes Law. The
district court rejected these importunings and sentenced the
appellant to four concurrent terms of life imprisonment on
counts 1, 2, 4, and 5, to be followed by mandatory consecutive
terms of five and twenty years, respectively, on counts 3 and 6.
This timely appeal followed.
We tackle the appellant's arguments in the order in
which the underlying issues arose in the proceedings below.
Thus, we begin with the evidentiary rulings and then address the
2
The Criminal Rules sanction verdicts by eleven-person
juries in certain circumstances. See Fed. R. Crim. P. 23(b)
(authorizing rendition of verdict by a jury of eleven if the
trial judge concludes, after deliberations have begun, that it
is "necessary" to excuse a juror for "just cause"). Although
the appellant insists that the district court ought to have
declared a mistrial because of jury taint, see infra Part III,
he does not challenge the verdict on the ground that it was
returned by a jury of fewer than twelve.
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appellant's principal claim: that the presence of a copy of the
unredacted indictment in the jury room necessitated the
declaration of a mistrial. Finally, we consider the appellant's
assault on the constitutionality of the Three Strikes Law.
II. EVIDENTIARY RULINGS
We divide this aspect of our discussion into two
segments, corresponding to the appellant's assignments of error.
A. Conditionally Admitted Coconspirator Hearsay Statements.
The appellant maintains that the district court
committed reversible error by initially admitting the DeSimones'
testimony about two sets of statements allegedly made by
Sutherland and then failing to declare a mistrial when it
subsequently struck the conditionally admitted evidence.
According to the witnesses, Sutherland and the
appellant arrived at the DeSimones' apartment shortly after the
robbery, boasted about their commission of the crime, and
distributed a portion of the swag to the DeSimones. The
government introduced testimony concerning the statements
uttered while all four men were present, and the introduction of
that evidence is not contested on appeal. After receiving his
share of the proceeds, Ronny DeSimone left the apartment to
purchase drugs. In Ronny's absence Sutherland and the appellant
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made several statements to Donny DeSimone involving the details
of the robbery. The admission of this testimony is also
uncontested.
This brings us to the subject of the assigned error.
By the time that Ronny had returned to the apartment, the
appellant had departed. Over objection, Ronny testified that
Sutherland then related that he had been armed with a handgun,
that he had forced the mail carrier to drive away from the bank,
and that a brown station wagon had been used as the getaway car.
The second set of statements dates back to August of
1995 — a period during which both Sutherland and Donny DeSimone
were incarcerated at the Plymouth House of Corrections. Over
objection, Donny testified that Sutherland acknowledged knowing
about the appellant's attempt to murder him, and, indeed,
bragged about ordering the appellant to kill both of the
DeSimone brothers.
The district court provisionally admitted both sets of
statements under Fed. R. Evid. 801(d)(2)(E). That rule permits
the introduction of a statement offered against a party if the
statement is made "by a coconspirator of a party during the
course and in furtherance of the conspiracy." Id. The
proponent of the statement bears the burden of establishing, by
a preponderance of the evidence, "that a conspiracy embracing
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both the declarant and the defendant existed, and that the
declarant uttered the statement during and in furtherance of the
conspiracy." United States v. Sepulveda, 15 F.3d 1161, 1180
(1st Cir. 1993); accord United States v. Petrozziello, 548 F.2d
20, 23 (1st Cir. 1977). If these conditions are met, and if
there is corroboration in the form of extrinsic evidence of the
declarant's involvement in the conspiracy, then the hearsay
barrier is avoided and the statement may be admitted.
Sepulveda, 15 F.3d at 1182.
This court has constructed a model for the handling of
evidence proffered under Rule 801(d)(2)(E). That model
authorizes the trial court to admit conditionally alleged
coconspirator statements. See United States v. Ciampaglia, 628
F.2d 632, 638 (1st Cir. 1980). At the close of all the
evidence, the court then makes a final determination as to the
admissibility of the evidence. Id. If the court ultimately
concludes that the provisionally admitted evidence does not
satisfy the applicable standard, it must "give a cautionary
instruction to the jury, or, upon an appropriate motion, declare
a mistrial if the instruction will not suffice to cure any
prejudice." Id.
The appellant launches a two-pronged attack against the
trial court's treatment of the challenged statements. First, he
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argues that the foundational requirements for admissibility were
not satisfied. Second, he asseverates that the contingent
admission of the statements irretrievably poisoned the well, and
that, when it became apparent that the evidence was not properly
in the case, the trial court abused its discretion in eschewing
a mistrial. We consider each foray separately.
1. Foundational Requirements. Although the parties
expend considerable energy in disputing the correctness vel non
of the district court's decision to admit the proffered
testimony conditionally, we need not determine whether the court
had an adequate foundational basis for doing so. After all, the
court struck the testimony at the close of all the evidence and
instructed the jurors to disregard it without telling them the
rationale behind either its conditional admission or its
ultimate exclusion.3 Because the jury never learned about the
court's specific determination that the statements met the
foundational requirements of Rule 801(d)(2)(E), it stands to
reason that the jury could not have been prejudiced by that
determination. Accordingly, we turn without further ado to the
appellant's contention that the district court improvidently
3
The court merely told the jury that "[t]he reasons [for
striking the evidence] are several-fold and I don't think I
really need to get into them too deeply, except to say that the
evidence seems to me to be far too attenuated for you to look to
it or rely upon it."
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denied his motion for a mistrial — a motion premised on the
notion that the statements, once admitted, engendered
irretrievable and unfair prejudice (notwithstanding the fact
that the jury was subsequently instructed to disregard them).
2. The Motion for Mistrial. At the close of all the
evidence, the trial court excluded the disputed statements
pursuant to Fed. R. Evid. 403 (which provides for the exclusion
of relevant evidence "if its probative value is substantially
outweighed by the danger of unfair prejudice, confusion of the
issues, or misleading the jury"). In itself, this is a rather
unconventional use of the Ciampaglia model. Typically, as
Ciampaglia itself illustrates, 628 F.2d at 638, the district
court will provisionally admit evidence offered under Rule
801(d)(2)(E), evaluate at the close of the evidence whether the
government has proven the prerequisites for admissibility by a
preponderance of the evidence, and strike the evidence if it has
not. Here, however, the trial court explicitly concluded that
the government had satisfied the requirements of Fed. R. Evid.
801(d)(2)(E), yet nonetheless struck the disputed evidence
because of Rule 403 concerns. Although this was a somewhat
unorthodox use of the Rule 801(d)(2)(E) model, we think that, as
a theoretical matter, it was within the court's authority. Cf.
United States v. Van Nuys, 707 F. Supp. 465, 468 (D. Colo. 1989)
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(concluding, after trial, that a significant amount of testimony
admitted under Rule 801(d)(2)(E) should have been excluded
pursuant to Rule 403).
As to the standard of review, all roads lead to Rome.
We review a trial court's balancing under Rule 403 for abuse of
discretion. United States v. Marrero-Ortiz, 160 F.3d 768, 774
(1st Cir. 1998). We likewise review decisions to deny motions
for mistrial for abuse of discretion. United States v. Pierro,
32 F.3d 611, 617 (1st Cir. 1994). We discern no abuse here.
The trial court found that the challenged statements
were tangential to the core conspiracies of robbery and
attempted murder alleged in the indictment. Concerned that the
unfairly prejudicial effect of the statements might outweigh
their probative value, the court struck the evidence and
instructed the jury to disregard it. The appellant argues that
this palliative was insufficient because the court could not
unring the bell — the evidence was so inflammatory that, once
it was aired, no reasonable juror could be expected to disregard
it.
Whether or not a jury can be expected, under proper
instructions, to disregard particular evidence is a judgment
call, and one as to which appellate courts typically cede a high
degree of deference to the trial court. E.g., United States v.
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Freeman, 208 F.3d 332, 344 (1st Cir. 2000) (upholding district
court's determination that curative instruction regarding
evidence provisionally admitted but later stricken sufficiently
shielded defendant from unfair prejudice). We do not think that
the limits of that deference were tested here.
To be sure, the statements attributed to Sutherland
were unhelpful to the appellant, but their content was not
shocking when measured against the rough-and-tumble evidence
properly admitted in the case. Moreover, it is routinely
presumed that jurors will follow curative instructions and put
aside matters that the trial court determines have been
improperly admitted. United States v. Olano, 507 U.S. 725, 740
(1993); United States v. Houlihan, 92 F.3d 1271, 1287 (1st Cir.
1996); Sepulveda, 15 F.3d at 1185. This presumption may be
overcome only by showing that it is probable that: (1)
responsible jurors will be unable to disregard the testimony;
and (2) the testimony likely will have a seriously prejudicial
effect on the aggrieved party. Sepulveda, 15 F.3d at 1185;
United States v. Paiva, 892 F.2d 148, 160 (1st Cir. 1989). This
inquiry is not conducted in a vacuum, but, rather, calls for an
assessment of the impact of the stricken evidence in light of
all the other evidence presented in the case.
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Sepulveda illustrates the point. There, a police
commander was permitted to testify as an expert witness over the
defendant's objection. 15 F.3d at 1182. When cross-examination
revealed that several of the opinions expressed by the witness
lacked an adequate foundation, the defense moved midstream to
strike the whole of the testimony. The trial court obliged.
Id. at 1183. Even though the district judge instructed the jury
to disregard the stricken testimony, the defendant moved for a
mistrial on the ground that it had so prejudiced the jury that
no curative instruction could put the genie back into the
bottle. Id. at 1183-84.
On appeal, we upheld the trial court's denial of the
motion. We did not find the stricken testimony to be so
compelling that it threatened to sway the jury notwithstanding
the court's explicit instructions to disregard it. Id. at 1185.
In reaching this conclusion, we stressed that the cumulative
nature of the stricken testimony completely undercut the
defendants' plaint that the testimony carried the specter of
lingering prejudice. Id.
So it is here. Both sets of statements were cumulative
in nature. Sutherland's declarations to Ronny were largely
duplicative of testimony offered by numerous witnesses and
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admitted without opposition.4 Similarly, the central theme of
the second set of statements — the plot to kill Donny — was
fleshed out by a mass of evidence including, inter alia, the
appellant's own admissions and the introduction of the gun that
had malfunctioned. To cinch matters, the district court
explicitly admonished the jury to disregard both sets of
statements, and gave a clear, concise curative instruction to
that effect. In these circumstances, the appellant has not
successfully rebutted the presumption that the jury would follow
the judge's instructions.
That ends this leg of our journey. We conclude,
without serious question, that the lower court's refusal to
grant the appellant's motion for a mistrial fell well within the
wide encincture of its discretion.
B. Statements Against Penal Interest.
The appellant next calumnizes the district court's
refusal to admit the testimony of two witnesses to the effect
that Sutherland had stated (in two separate conversations) that
he and Donny DeSimone had collogued to rob the robbers, that is,
to steal the loot from the group that actually had hijacked the
4
For example, Donny testified that, on the day of the
robbery, Sutherland and the appellant collectively related
details of the crime that were nearly identical to those that
Sutherland trumpeted after the appellant had left the apartment.
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postal truck. The appellant proffered this testimony under Fed.
R. Evid. 804(b)(3), which carves out a hearsay exception for,
inter alia, "[a] statement which . . . at the time of its making
. . . so far tended to subject the declarant to . . . criminal
liability . . . that a reasonable person in the declarant's
position would not have made the statement unless believing it
to be true." Id. Such third-party testimony may only be
admitted when the declarant is unavailable to testify. Id.
Furthermore, an inculpatory statement "tending to expose the
declarant to criminal liability and offered to exculpate the
accused" will not be admitted "unless corroborating
circumstances clearly indicate the trustworthiness of the
statement." Id.
The district court refused to admit the testimony anent
Sutherland's statements on two grounds, holding that the
statements were not against Sutherland's penal interest and, in
all events, were not sufficiently corroborated. We review the
trial court's application of Rule 804(b)(3) for abuse of
discretion. United States v. Patrick, 248 F.3d 11, 20, 23-24
(1st Cir.), cert. denied, 122 S. Ct. 620 (2001).
The determination of whether a statement is against a
declarant's penal interest depends on the outcome of a fact-
intensive inquiry into the surrounding circumstances.
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Williamson v. United States, 512 U.S. 594, 603-04 (1994); United
States v. Costa, 31 F.3d 1073, 1077 (11th Cir. 1994). Our
review of the record compels the conclusion that the court below
adequately evaluated the context in which the alleged statements
were made. In the course of that endeavor, the court concluded
that the tendered statements limned an alternative theory of the
crime not pursued by the government, and represented a
"sophisticated and subtle" effort by Sutherland and the
appellant to avoid criminal responsibility on the precise
charges lodged against them. On that basis, the court ruled
that the statements were not against Sutherland's penal
interest. That plausible rendition of the record was not an
abuse of discretion.
At any rate, the district court's alternate ground for
barring the statements is rock-solid. The court concluded that
the corroborating evidence tendered by the appellant — that
Sutherland allegedly told the same story to two different
individuals on two separate occasions (hence, the two proffered
statements) and that Donny DeSimone admitted at trial that he
had told at least one other person that he had participated in
the robbery — was insufficient to establish the trustworthiness
of the statements. The strictures of Rule 804(b)(3) cannot be
satisfied by a showing of speculative possibilities, but,
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rather, demand meaningful corroboration of proffered testimony.
See United States v. Mackey, 117 F.3d 24, 29 (1st Cir. 1997)
("[T]he requirement for corroboration is not unrealistically
severe but does go beyond minimal corroboration.") (citation and
internal quotation marks omitted). Measured by that yardstick,
we cannot say that the district court's refusal to accept these
minimally corroborative evidentiary fragments as sufficient
indicia of trustworthiness constituted an abuse of discretion.
III. JURY TAINT
The appellant's cardinal claim is that the jurors'
brief exposure to the text of the three severed counts
necessitated a new trial. In approaching this claim, we first
examine the appellant's assertion that the introduction of the
unredacted indictment into the jury room, although accidental,
triggered a presumption of prejudice. Rejecting that
proposition, we proceed to assess the trial court's handling of
the discovery that a deliberating jury had been exposed to
information that carried the potential to do substantive damage.
In the end, we conclude that the district court did not misuse
its discretion in concluding that the jury's ability to render
an impartial verdict remained intact (and that, therefore, the
appellant's due process rights had not been infringed).
A. The Presumption of Prejudice.
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The appellant's claim that the facts of this case
demand a presumption of prejudice derives from the Supreme
Court's decision in Remmer v. United States, 347 U.S. 227
(1954). There, as trial proceeded, a third party offered a
bribe in exchange for a verdict favorable to the defendant. Id.
at 228. The solicited juror informed the trial judge about the
attempted bribery. Id. Instead of informing defense counsel,
the judge asked the Federal Bureau of Investigation to look into
the matter. Id. The jury found Remmer guilty. When he later
learned about the attempted bribery, he moved unsuccessfully for
a new trial. The court of appeals affirmed the district court's
denial of this motion. 205 F.2d 277 (9th Cir. 1953). The
Supreme Court reversed, declaring that:
In a criminal case, any private
communication, contact, or tampering
directly or indirectly, with a juror during
a trial about the matter pending before the
jury is, for obvious reasons, deemed
presumptively prejudicial . . . . The
presumption is not conclusive, but the
burden rests heavily upon the Government to
establish, after notice to and hearing of
the defendant, that such contact with the
juror was harmless to the defendant.
347 U.S. at 229.
Although the Remmer Court spoke in expansive terms, the
Court's holding has been cabined by two subsequent decisions.
In Smith v. Phillips, 455 U.S. 209 (1982), a sitting juror
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submitted an application for employment as an investigator for
the district attorney's office. Id. at 212. The district
attorney revealed this information only after the jury on which
the job-seeker sat had convicted the defendant. Id. at 213.
The trial court held a post-verdict hearing in which it
determined that the pending application had not influenced the
juror and denied the defendant's motion for a new trial. Id. at
213-14. The matter eventually reached the Supreme Court, which
rejected the defendant's argument that the undisclosed
application triggered Remmer's rebuttable presumption of
prejudice. Id. at 217 (explaining that "due process does not
require a new trial every time a juror has been placed in a
potentially compromising situation"). The Smith Court then
ruled that the hearing held by the trial court after the
employment application had surfaced was sufficient under the
circumstances. See id. at 217-18.
More recently, the Court declined to apply the Remmer
presumption in a situation in which alternate jurors were
present during jury deliberations. See Olano, 507 U.S. at 737-
39. The Court held that the post-verdict inquiry into the
facts, which showed that the irregularity had occurred but that
the alternate jurors did not participate in the deliberations,
afforded the defendant due process. See id. at 739-41.
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This court, too, has hesitated to apply the Remmer
presumption indiscriminately. The leading case is Boylan v.
United States, 898 F.2d 230 (1st Cir. 1990). There, a magazine
left fortuitously in the jury room contained an article
suggesting that counsel for one of the defendants was the
attorney of choice for "[e]very troubled mobster" in Boston.
Id. at 258 & n.17. After guilty verdicts had been returned, the
circulation of this literature in the jury room was brought to
light. The district court held a comprehensive post-verdict
hearing but found that the defendants' due process rights had
not been infringed and denied their motions to set aside the
verdict. We affirmed, rejecting a claim that the Remmer
presumption applied. Id. at 260-62. We wrote:
[T]he [Remmer] presumption is applicable
only where there is an egregious tampering
or third party communication which directly
injects itself into the jury process. Put
another way, the Remmer standard should be
limited to cases of significant ex parte
contacts with sitting jurors or those
involving aggravated circumstances . . . .
Id. at 261.
We built upon this foundation in United States v.
Gomes, 177 F.3d 76 (1st Cir. 1999). There, a juror at the
defendant's second trial discovered a copy of the indictment
that apparently had been left in the jury room after the first
trial. Id. at 82. The indictment included, inter alia, a
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charge on which the defendant had been acquitted at the first
trial. Id. The district court undertook an appropriate inquiry
but refused to apply the Remmer presumption. We upheld that
determination, noting that while other aggravating circumstances
might justify the application of a Remmer-type presumption, such
a presumption was unavailable here because Remmer involved
deliberate misconduct attributable to a party and that, in all
events, the Gomes jurors were not exposed to substantively
damaging information. Id.
In the wake of Smith and Olano, one court has concluded
that Remmer is a dead letter. See United States v. Sylvester,
143 F.3d 923, 934 (5th Cir. 1998). Although we too have
questioned Remmer's continuing vitality, see Gomes, 177 F.3d at
83, we need not decide today whether, or to what extent, it
remains good law. Here, as in Boylan, the facts simply do not
warrant the application of a Remmer presumption. Remmer
involved an apparent attempt deliberately to influence the
outcome of the case through corrupt machinations. In contrast,
the record here is reasonably clear that the presence of the
unredacted indictment in the jury room was due to an inadvertent
error by court personnel, and the appellant has not claimed that
the document was insinuated into the jury room for some
nefarious purpose.
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Moreover, the Remmer Court was especially troubled by
the trial court's decision to request an FBI investigation based
on scanty information obtained during an ex parte meeting with
the prosecution. Remmer, 347 U.S. at 228. That element, too,
is missing from the instant case. Here, the trial judge kept
all counsel apprised and engaged throughout his in-depth
investigation into the matter, and diligently fleshed out the
circumstances of the taint-producing incident. Given the
absence of any egregious circumstances, we conclude that Remmer
is inapposite and decline to apply it here.5
In an effort to keep Remmer in play, the appellant
cites two cases previously decided by this court. The first
such case, United States v. Santana, 175 F.3d 57 (1st Cir.
1999), is clearly inapposite. That case turned on the trial
court's decision to permit the jury to consider, as evidence of
guilt, information — a view of the defendant's ears — presented
to it for the first time during deliberations. See id. at 63-
64. Here, unlike in Santana, the information that the jury
improperly acquired during its deliberations (the unredacted
5
We leave for another day the question of whether a jury's
exposure to substantively damaging information may sometimes
occur under circumstances so aggravated as to warrant the
application of the Remmer presumption even without deliberate
misconduct (and if so, what those circumstances might comprise).
That question simply is not presented here.
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indictment) was not received as evidence, and the court told the
jury, in no uncertain terms, to disregard it.
The appellant's reliance on United States v. Maguire,
918 F.2d 254 (1st Cir. 1990), is similarly misplaced. There,
the trial judge erroneously instructed the venire during jury
empanelment about a count that had been severed. See id. at
266. The court denied the defendant's motion for a mistrial,
but told the jury to disregard the reference to the severed
count. Id. The jury convicted the defendant. We upheld the
conviction, concluding that the error was harmless beyond a
reasonable doubt. Id. at 266-68. Although the panel did
observe, in dictum, that the "reference to the severed count was
presumptively prejudicial," id. at 267, we reject the
appellant's effort to attach talismanic significance to that
allusion. The panel neither cited Remmer nor conducted any
analysis suggesting that it was undertaking a Remmer-based
inquiry.
To conclude, we abjure any extension of the Remmer
presumption to these facts. The appellant's claim of jury taint
must be judged by more conventional standards. It is to that
task that we now turn.
B. The Merits of the Appellant's Claim.
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We start this phase of our inquiry by revisiting
certain generally applicable legal principles. We then describe
the trial court's investigation into the possibility of jury
taint, its findings, and its resolution of the matter. Finally,
we evaluate the court's handling of the situation.
1. The Legal Landscape. Where, as here, a colorable
claim of jury taint surfaces during jury deliberations,6 the
trial court has a duty to investigate the allegation promptly.
United States v. Hunnewell, 891 F.2d 955, 961 (1st Cir. 1989).
The purpose of that inquiry is twofold: to ascertain whether
some taint-producing event actually occurred, and if so, to
assess the magnitude of the event and the extent of any
resultant prejudice. Boylan, 898 F.2d at 258. If the court
finds both a taint-producing event and a significant potential
for prejudice, the court must then consider the extent to which
6The case at bar involves a trial court's pre-verdict
handling of an allegation that a deliberating jury was
accidentally exposed to substantively damaging information. The
timing of the court's inquiry distinguishes it from the vast
majority of the reported cases, most of which deal with claims
of jury taint raised after the jury has returned a verdict.
E.g., Smith, 455 U.S. at 213-14; Boylan, 898 F.2d at 262. In
that situation, appellate courts frequently have framed the
inquiry in terms of harmless error, asking, in effect, whether
the trial court's determination that an improper outside
influence did not taint the jury verdict was supportable. Where
the claim of jury taint surfaces before the jury has completed
its deliberations, the harmless-error test is a poor fit (and,
therefore, of scant utility).
-27-
prophylactic measures (such as the discharge of particular
jurors or the pronouncement of curative instructions) will
suffice to alleviate that prejudice. See Gomes, 177 F.3d at 82.
In some instances, a likelihood of residual prejudice may remain
despite the court's best efforts. In that event, the court must
grant a timely motion for a mistrial (if one is made). The
objective of this painstaking process is to ensure that the
parties "receive[] the trial by an unbiased jury to which the
Constitution entitles them." United States v. Anello, 765 F.2d
253, 258 (1st Cir. 1985).
Conducting an inquiry into a colorable question of jury
taint is a delicate matter, and there is no pat procedure for
such an inquiry. Evans v. Young, 854 F.2d 1081, 1083-84 (7th
Cir. 1988) (explaining that trial courts have wide discretion to
evaluate pre-verdict claims of alleged jury misconduct as they
deem appropriate); Hunnewell, 891 F.2d at 961 (stating that the
trial court has "considerable leeway" in determining how to
structure its investigation); see also Boylan, 898 F.2d at 258
(noting that "the kaleidoscopic variety of possible problems
counsels in favor of flexibility"). Consequently, the trial
court has wide discretion to fashion an appropriate procedure
for assessing whether the jury has been exposed to substantively
-28-
damaging information, and if so, whether cognizable prejudice is
an inevitable and ineradicable concomitant of that exposure.
2. The Proceedings Below. This brings us to the
proceedings below. The introduction of an extraneous document
into the jury room during deliberations is always a cause for
concern. The intrusion was effected in this instance by an
indictment — an official document bearing the government's
imprimatur. That document contained three counts that were not
before the jury, and those counts charged the appellant with
serious malefactions (of which the jury had no other knowledge).
Thus, the acknowledged presence of the unredacted indictment in
the jury room gave rise to a colorable claim of actual prejudice
and posed a significant threat to the jurors' ability to render
an impartial verdict. The question, then, reduces to whether
the trial court investigated the claim appropriately and
resolved it in a satisfactory manner.
The lower court recognized these realities. Upon
learning that the unredacted indictment had infiltrated the jury
room, the court immediately alerted counsel and solicited
suggestions about the most advisable way to handle the
situation. Adopting defense counsel's recommendation, the court
assembled the jurors, informed them of the need for an inquiry,
and instructed them not to discuss the matter amongst
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themselves. The court then proceeded to interview the jurors
one by one.
Although the individual voir dire examinations revealed
some slight discrepancies in the jurors' accounts concerning
their exposure to the text of the unredacted indictment, the
differences are not material here. For the most part, a
consistent picture emerged. The jurors agreed that, at the
start of the second day of deliberations, one of their number
noticed a copy of the indictment that contained some "extra"
counts. He mentioned this oddity to his fellow venirepersons,
and, at the urging of some of them, read aloud the text of count
7 (an obstruction of justice charge). After a brief discussion,
the jurors concluded that the document did not belong in the
jury room, and the jury foreman brought it to the court security
officer. He told the officer that: "We found this document in
the group of materials and it doesn't seem to belong there. It
has more counts than are in the verdict slip."
After concluding this initial round of voir dire
examinations, the trial court made the following finding (out of
the jurors' earshot):
There are inconsistencies among the
recollections. . . . None of them seem to
be material. There is a core quality to
this: First, a recognition that there was
something unusual; second, a recognition
that there was something that was not
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properly before them; number three, their
recognition that they should put it out of
their deliberations, certain facts and
circumstances . . . . In fact, they
responded — from my perspective — precisely
the way jurors are supposed to respond . . .
if they were exposed to extraneous
information, including bringing it to my
attention . . . .
The court then reassembled the jurors, instructed them that it
was their duty to decide the case based on their "evaluation
only of the evidence that's presented to you here in trial and
not by consideration of other extraneous matters," and launched
into a strongly-worded curative instruction.7 At that juncture,
the court undertook a second round of individual voir dire
examinations, this time focusing on each individual juror's
ability to "put out of [his or her] mind[] entirely the facts
and circumstances of the extraneous document" so that he or she
might decide the case solely on the evidence introduced at
trial. Eleven of the twelve jurors expressed confidence that
7The court stated in pertinent part:
[T]hroughout, I've been telling you that you decide
this case solely on the basis of evidence that's
actually presented to you. . . . [T]his extraneous
document to which you were unfortunately and
inadvertently exposed which has nothing to do with the
charges in this case, should not be considered a part
of the charges in this case. Your responsibility, as
I said, is to decide this case solely on the basis of
evidence that was presented to you as to Counts 1
through 6.
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they could function in that pristine fashion and satisfied the
court of their ability to do so. Without objection, the court
dismissed the lone dissenter. After rejecting the appellant's
challenges to three additional jurors, the judge directed the
remaining jurors to resume deliberations with a view toward
reaching a verdict. See Fed. R. Crim. P. 23(b).
3. The Adequacy of the Trial Court's Handiwork. We
now test the trial court's handiwork against the abuse-of-
discretion benchmark. See Boylan, 898 F.2d at 262; Hunnewell,
891 F.2d at 961. In this context, however, review for abuse of
discretion connotes a certain rigor.
As we use the term, the abuse-of-discretion standard
encompasses multiple layers of inquiry. See Koon v. United
States, 518 U.S. 81, 98-100 (1996). Under it, we accept the
trial court's factual findings only to the extent that they are
not clearly erroneous. United States v. Castro, 129 F.3d 226,
229 (1st Cir. 1997). We next examine the legal principles on
which the court premised its decision, mindful that an error of
law invariably constitutes an abuse of discretion. In re Grand
Jury Subpoena, 138 F.3d 442, 444 (1st Cir. 1998). This
particular inquiry is conducted without any special deference to
the trial court's views, United States v. Snyder, 136 F.3d 65,
67 (1st Cir. 1998), and extends to the court's application of
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the law to the facts as found. Only then do we ask whether,
given the totality of the circumstances then and there
obtaining, the sum of the trial court's acts and omissions
constituted a misuse of its discretion.
Starting from this vantage point, we turn first to the
procedure employed below. For all practical purposes, the lower
court replicated the Boylan model — a model that we previously
have deemed "methodologically sound." 898 F.2d at 259. The
court engaged counsel for both sides in an ongoing dialogue
about the most appropriate way in which to handle the needed
investigation, examined each juror twice, and pursued no fewer
than eight lines of questioning proposed by defense counsel.
The court's probing into the extent of the jurors' exposure to
the extraneous information and its potential impact on their
ability to render an impartial verdict was thorough and
incisive. The court gave the jury clear and emphatic curative
instructions. Last — but surely not least — the court made
explicit findings that are amply rooted in the transcript of the
two rounds of voir dire examinations and that make considerable
sense when scrutinized against the record of the trial as a
whole.
The appellant raises two specific objections to the
trial court's findings. First, the appellant takes aim at a
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statement made by a retained juror during the second round of
questioning. When pressed by the judge to expound upon his
comment that "the gravity of the discussion weighs some," the
juror responded that: "I believe that the outcome of the trial
and the verdict turns on the very unexpected and serious change
in the evidence presented." Considered in isolation, that
comment might raise a reader's eyebrow — but the colloquy that
ensued between the judge and the juror makes manifest that the
juror's remark was not a cause for concern. In that colloquy,
the juror assured the judge that he would not consider the
extraneous material and characterized his earlier statement as
"a poor choice of words." Viewed in that light, we do not
believe that the court's decision to retain the juror
constituted an abuse of discretion.
Second, the appellant argues that the court's finding
that the incident yielded no residuum of unfair prejudice failed
to take into account that the jury's exposure to the severed
counts undermined his principal trial strategy. In this regard,
defense counsel credibly claimed that she had made a conscious
decision to avoid any reference to the Niditch incident (which
comprised the subject matter of the three severed counts, see
supra note 1) in order to preclude "opening the door" to the
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government's introduction of "highly charged" evidence related
to that topic.
The problem with this argument is that the inadvertent
exposure of the jury to the unredacted indictment did not lead
to the introduction of any evidence concerning the Niditch
incident, and the court found as a fact that the retained jurors
were fully able to put aside their brief encounter with the
allegations contained in the severed counts. The fact that the
exposure was to an indictment, rather than to information of
evidentiary quality, weighs in the government's favor. Before
deliberations commenced (and, thus, before any exposure to the
extraneous information occurred), the court had clearly
explained that "[t]he indictment is the document that frames the
issues, the charges, the criminal violations that the Government
believes it can prove. But . . . the indictment isn't evidence
. . . . It's simply the document that you look to to understand
what it is that the Government is undertaking to prove in this
case." The court reinforced this instruction by telling the
jurors, after the unredacted indictment surfaced, to "[p]ut
entirely out of your mind any exposure any of you may have had
to earlier forms of the kinds of charges the Government was
thinking about here." Appellate courts ordinarily presume that
a jury will follow the trial judge's specific instructions in a
-35-
criminal case, e.g., Olano, 507 U.S. at 740; Houlihan, 92 F.3d
at 1287; Sepulveda, 15 F.3d at 1185, and there is no reason to
abandon that presumption here.
In sum, the record reflects that the lower court
handled its investigation into the "jury taint" question with
consummate care. Its detailed findings and its conclusion that
the jurors' accidental exposure to the unredacted indictment
caused no ineradicable prejudice are fully supportable. In
words that resonate here, the Smith Court observed that "[d]ue
process means a jury capable and willing to decide the case
solely on the evidence before it, and a trial judge ever
watchful to prevent prejudicial occurrences and to determine the
effect of such occurrences when they happen." 455 U.S. at 217.
The court below carried out this mandate to the letter.
Consequently, we hold that the court acted well within the scope
of its discretion in structuring the inquiry into the question
of jury taint, in excusing a single juror, and in concluding
that the remaining jurors' ability to render an impartial
-36-
verdict had not been compromised.8 The appellant received all
the process that was due.
IV. THE THREE STRIKES LAW
In this case, the district court invoked the Three
Strikes Law, 18 U.S.C. § 3559(c), to sentence the appellant to
multiple terms of life imprisonment. The appellant challenges
that determination on constitutional grounds. Before addressing
this challenge, we describe the statutory scheme.
The Three Strikes Law is of relatively recent vintage.
It dictates mandatory life imprisonment for any person convicted
in a federal court of a "serious violent felony" if, inter alia,
that person has been convicted on two or more prior occasions of
"serious violent felonies." Id. § 3559(c)(1)(A)(i). The
statute characterizes various federal and state offenses as
8
Citing Santana, 175 F.3d at 65, and Lacy v. Gardino, 791
F.2d 980, 982-83 (1st Cir. 1986), the appellant posits that
where, as here, extrinsic information is considered by the jury,
harmless error analysis must apply. But those cases involved
the jury's consideration of information of evidentiary quality,
and the claim of jury taint arose after trial (when any harm
could not be undone). Here, however, the harmless-error test is
a poor fit. See supra note 6. The matter came to the trial
judge's attention before the jury reached a verdict, and the
judge, after due investigation, gave a timely curative
instruction. Furthermore, the information to which the jury was
exposed was not evidence; the retained jurors warranted that
they would not consider it; and they added that, in all events,
what they had seen or heard would not influence their judgment.
Under these vastly different circumstances, there is no
constitutional error and, hence, no need for harmless error
analysis.
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serious violent felonies. It places three federal robbery
statutes in this category, and, pertinently, adds a generic
definition that encompasses:
[A]ny other offense punishable by a maximum
term of imprisonment of 10 years or more
that has as an element the use, attempted
use, or threatened use of physical force
against the person of another or that, by
its nature, involves a substantial risk that
physical force against the person of another
may be used in the course of committing the
offense.
Id. § 3559(c)(2)(F)(ii).
The Three Strikes Law also includes a disqualification
provision that offers a criminal defendant the opportunity to
remove some crimes that otherwise would qualify as serious
violent felonies (and, therefore, count as "strikes") from the
"three strikes" calculation. The disqualification provision
states, in relevant part, that:
(A) Robbery, an attempt, conspiracy, or
solicitation to commit robbery . . . shall
not serve as a basis for sentencing under
this subsection if the 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.
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Id. § 3559(c)(3)(A)(i)-(ii). The disqualification provision
places the burden of proof squarely on the defendant to prove by
clear and convincing evidence that, notwithstanding the
government's allegations, his prior felony convictions do not
constitute qualifying offenses. See id.
In this venue, the appellant does not quarrel with the
district court's finding that, on their face, the six prior
convictions catalogued by the government constitute "strikes"
under the Three Strikes Law. He does, however, advance two
arguments that implicate the law's constitutionality. We
consider these arguments sequentially.
A. Apprendi.
The appellant contests the power of the court to take
the prior convictions into account, noting that they had neither
been referenced in the indictment nor proven to a jury beyond a
reasonable doubt. Thus, his thesis runs, the Supreme Court's
recent decision in Apprendi v. New Jersey, 530 U.S. 466 (2000),
prohibits the imposition of an enhanced sentence.
This argument is a non-starter. The core holding of
Apprendi is that "[o]ther than the fact of a prior conviction,
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 (emphasis
-39-
supplied). We think the Court meant exactly that — and we have
said so.
We recently considered and rejected a materially
indistinguishable argument in United States v. Gomez-Estrada,
273 F.3d 400, 401 (1st Cir. 2001). We noted there that the
Apprendi Court explicitly exempted sentence-enhancement
provisions based upon prior criminal convictions from the scope
of its holding. Id. at 402 (citing Apprendi, 530 U.S. at 490);
see also Almendarez-Torres v. United States, 523 U.S. 224, 226-
27, 247 (1998) (upholding Congress's decision to treat prior
convictions as a sentencing factor rather than an element of a
federal criminal offense). Because we have ruled unequivocally
that the strictures of Apprendi do not apply to sentence-
enhancement provisions based upon prior criminal convictions,
see Gomez-Estrada, 273 F.3d at 401-02; United States v. Terry,
240 F.3d 65, 73-74 (1st Cir.), cert. denied, 121 S. Ct. 1965
(2001), we reject the appellant's Apprendi-based challenge.
B. Shifting of the Burden of Proof.
The appellant's second argument is more sophisticated.
He says that 18 U.S.C. § 3559(c)(3)(A) violates constitutional
due process guarantees because it shifts the burden of proof to
the defendant and requires him to establish by "clear and
convincing" evidence that his prior convictions are
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nonqualifying (and, hence, not countable as "strikes" under the
Three Strikes Law). Refined to bare essence, the appellant's
thesis is that the disqualification provision violates due
process in two related ways: (1) by requiring the defendant to
prove that previous offenses are nonqualifying, and (2) by
requiring that he do so under a heightened standard. These
constitutional claims engender de novo review. United States v.
Zorrilla, 93 F.3d 7, 8 (1st Cir. 1996); United States v.
Gifford, 17 F.3d 462, 471-72 (1st Cir. 1994).
Our starting point is the Court's decision in Patterson
v. New York, 432 U.S. 197 (1977). There, the defendant
challenged a New York law that permitted a person accused of
murder to invoke the affirmative defense of "extreme emotional
disturbance" to mitigate the charged crime to manslaughter. Id.
at 198-99 & nn.2-3. The New York criminal code assigned to the
defendant the burden of establishing the "extreme emotional
disturbance" defense by a preponderance of the evidence. Id. at
200. The defendant failed in his effort to mitigate the charge
against him, and appealed his murder conviction on the ground
that the burden-shifting component contravened due process.
Noting that it was well within the state's power to
criminalize intentional killings and mete out substantial
punishment to individuals convicted of such crimes, the Supreme
-41-
Court emphasized that, incident thereto, the state had the power
to recognize factors that mitigated the degree of criminality or
punishment. Id. at 209. As a logical consequence, the state
was entitled to "assure itself that the [mitigating] fact has
been established with reasonable certainty" by requiring the
defendant to prove such a fact by a preponderance of the
evidence. Id. Thus, as long as the state has proven all
elements of the crime beyond a reasonable doubt, its
reallocation of the burden of proof in an affirmative defense
did not violate due process. See id. at 205-06.
Whereas Patterson raised his affirmative defense at
trial, the Three Strikes Law comes into play at the sentencing
stage of a criminal proceeding. But this is a distinction
without a difference: the sentencing process is surely no more
exacting than the process of establishing guilt. It therefore
stands to reason that Patterson applies with equal force to
burden-shifting affirmative defenses made available at the
sentencing stage of criminal proceedings — and that such a
paradigm does not offend the Constitution. Accord United States
v. Wicks, 132 F.2d 383, 389 (7th Cir. 1997) ("If Patterson
allows such a result even at the stage of the trial where guilt
or innocence is decided, it follows that due process does not
-42-
prohibit the kind of affirmative defense at the sentencing stage
found in § 3559(c)(3)(A).").
An equally germane consideration is that antecedent
"strikes" that factor into the Three Strikes calculation take
the form of prior convictions. The Supreme Court has upheld a
state sentence enhancement provision requiring a recidivist
defendant to shoulder the burden of proof of establishing the
invalidity of prior convictions. Parke v. Raley, 506 U.S. 20,
34 (1992). The Court reasoned that the "'presumption of
regularity' that attaches to final judgments" made it
appropriate to assign a proof burden to the defendant. Id. at
29. Like the contested state statute in Parke, the Three
Strikes Law initially presumes that prior convictions falling
under one of the statutorily enumerated definitions are valid,
18 U.S.C. § 3559(c)(1)-(2), and then provides the defendant with
the opportunity to disqualify the convictions, id. § 3559(c)(3).
Taken together, Patterson and Parke convince us that
a paradigm that allows the defendant to raise an affirmative
defense during the sentencing phase of criminal proceedings, but
then shifts the burden of proof to him to establish the defense,
does not violate due process. Nor is this an eccentric view of
the law: several other courts have reached this same
conclusion. See United States v. Gatewood, 230 F.3d 186, 189-90
-43-
(6th Cir. 2000) (en banc), cert. denied, 70 U.S.L.W. 3443 (No.
01-7283) (Jan. 14, 2002); United States v. Ferguson, 211 F.3d
878, 887 (5th Cir.), cert. denied, 531 U.S. 909 (2000); United
States v. Smith, 208 F.3d 1187, 1190 (10th Cir. 2000); United
States v. Kaluna, 192 F.3d 1188, 1196 (9th Cir. 1999) (en banc);
Wicks, 132 F.2d at 389.
The appellant's related asseveration is that section
3559(c)(3)(A)'s placement of a heightened evidentiary burden on
criminal defendants — clear and convincing evidence —
contravenes their right to due process.9 This asseveration also
lacks force.
It is transparently clear that Congress had the power
to enact a law that mandated life imprisonment for recidivist
felons who committed a series of serious violent felonies or
drug offenses. Although it was not constitutionally required to
do so, Congress thought it efficacious to include a provision
that exempted a particular subset of offenses from consideration
as "strikes." Given that Congress was under no obligation to
provide defendants with such a dispensation in the first place,
there is no principled reason why Congress could not craft such
a provision in the manner that it deemed appropriate. See
9Interestingly, the appellant offers no enlightenment as to
how, if a heightened standard did not obtain, he might be able
to "disqualify" any or all of his six prior convictions.
-44-
Gatewood, 230 F.3d at 191. As the Sixth Circuit astutely
observed:
If Congress can choose whether or not to
provide a defense, it follows that the
burden of proof Congress places on such a
defense cannot be unconstitutional. . . .
It is the prerogative of the legislative
branch to determine whether a recidivist
defendant is subject to an enhanced
statutory punishment and what, if any,
affirmative defense applies after a
defendant has previously been adjudged
guilty.
Id.
The appellant avers that Cooper v. Oklahoma, 517 U.S.
348 (1996), compels a different conclusion. We do not agree.
Cooper involved a constitutional challenge to an Oklahoma law
that presumed a criminal defendant competent to stand trial
unless she mustered clear and convincing proof of her
incompetence. Id. at 350. A unanimous Supreme Court struck
down the law on the ground that the heightened evidentiary
standard violated due process. Id. at 369. Starting with the
bedrock principle that the state can try only a competent
criminal defendant, the Court ruled that this principle trumped
the state's interest in ensuring the efficient operation of its
criminal justice system through the application of a heightened
standard of proof. Id. at 367.
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The competency statute that the Cooper Court annulled
is clearly distinguishable from the disqualification provision
in the Three Strikes Law. The crux of the matter is that a
criminal defendant has a fundamental constitutional right not to
be forced to stand trial while incompetent — but he has no
comparable right to a statutorily created affirmative defense.
See Gatewood, 230 F.3d at 191 ("There is no fundamental
constitutional right to avoid an enhanced sentence based on
prior convictions simply because the prior convictions were
nonviolent."). The Cooper Court drove home that precise point
by expressly distinguishing the Oklahoma competency provision
from the statutorily created affirmative defense addressed and
approved in Patterson. See Cooper, 517 U.S. at 367-68 ("Unlike
Patterson, which concerned procedures for providing a statutory
defense, we consider here whether a State's procedures for
guaranteeing a fundamental constitutional right are sufficiently
protective of that right.").
That gets the grease from the goose. Since the
disqualification provision in the Three Strikes Law is
functionally equivalent to the statutory affirmative defense
discussed in Patterson, the holding in Cooper is inapposite
here. It follows inexorably that the burden placed upon
criminal defendants to establish by clear and convincing
-46-
evidence that their prior convictions are nonqualifying offenses
pursuant to 18 U.S.C. § 3559(c)(3) is not incompatible with due
process. Accord Gatewood, 230 F.3d at 191; Ferguson, 211 F.3d
at 887.
V. CONCLUSION
We need go no further. Having canvassed the
appellant's asseverational array and rejected his sundry claims
of error, we affirm the judgment below.
Affirmed.
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