United States v. Rivas ( 2007 )

Opinions of the United
2007 Decisions States Court of Appeals
for the Third Circuit
6-26-2007
USA v. Rivas
Precedential or Non-Precedential: Precedential
Docket No. 05-3380
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PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 05-3380
UNITED STATES OF AMERICA
v.
JOSÉ R. RIVAS,
Appellant
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 03-cr-00599-1)
District Judge: Hon. Timothy J. Savage
Argued January 18, 2007
Panel Rehearing Granted June 8, 2007
Submitted After Panel Rehearing June 8, 2007
Before: SLOVITER, RENDELL, and CUDAHY,* Circuit
Judges
(Filed: June 26, 2007)
Patrick L. Meehan
Robert A. Zaumzer
Anne Whatley Chain [ARGUED]
Andrea B. Grace
*
Hon. Richard D. Cudahy, United States Senior Circuit
Judge for the United States Court of Appeals for the Seventh
Circuit, sitting by designation.
United States Attorney’s Office
615 Chestnut Street
Philadelphia, PA 19106
Counsel for Appellee
Peter Goldberger [ARGUED]
Pamela A. Wilk
50 Rittenhouse Place
Ardmore, PA 19003-2276
Louis T. Savino, Jr.
Louis T. Savino & Associates
15th & John F. Kennedy Boulevard
Two Penn Center
Suite 1516
Philadelphia, PA 19102
Counsels for Appellant
OPINION OF THE COURT
CUDAHY, Circuit Judge.
A jury convicted Jose Ramon Rivas of conspiring to
distribute crack cocaine in violation of 21 U.S.C. § 846. The
court, acting in part because of a prior drug offense for which
Rivas had been convicted, sentenced him to 240 months in
prison. Rivas now appeals, arguing that his conviction is flawed
by numerous alleged errors in his trial and that the district court
erred in finding that the prosecution had properly filed and
served upon Rivas an information charging the prior drug
conviction on the basis of which the government sought to
enhance Rivas’s sentence. For the reasons given below, we
affirm.
I. Background
The government indicted Rivas for conspiring with
Darrin Culler and Juan Johnson to distribute crack, and for
aiding and abetting Darrin Culler’s distribution of approximately
2
80.1 grams of crack on August 7, 2002. The government’s case
at trial can be divided into two parts: the testimony of
confidential informant Charles Mobley and his chief handler,
Philadelphia Police Officer Ronald Jones, who explained a sting
operation involving four controlled purchases of crack cocaine
near the corner of Reed and 7th Streets in Philadelphia, and the
testimony of Rivas’s alleged co-conspirators, who had pleaded
guilty and were cooperating with the government.
Mobley and Jones described a series of police-monitored
crack purchases that occurred on April 25, June 25, August 7
and September 12, 2002. Mobley purchased the crack; Jones
observed and searched Mobley and his car before and after and
observed the purchases, which were also videotaped. Most of
the transactions involved Rivas’s alleged co-conspirator Culler.
Mobley testified that on April 25 he called Culler and asked to
buy an ounce and a half of crack; he met Culler in the 700 block
of Reed Street and exchanged government-supplied buy money
for crack. (Supp. App. at 20-24.) Mobley similarly purchased
two ounces of crack from Culler on June 25, 2002.
Mobley first implicated Rivas in his testimony concerning
an August 7, 2002 purchase. Mobley testified that on that day he
called Rivas and ordered three ounces of crack. Rivas agreed to
supply it and selected the 700 block of Reed for the transaction.
When Mobley arrived, both Rivas and Culler were there. They
walked to Mobley’s car; Rivas got in and exchanged the crack
for Mobley’s buy money while Culler stood at the driver’s
window. Then Rivas and Culler left. Officer Jones testified that
from his vantage point he could see Culler go to Mobley’s
driver’s side window and see Rivas enter the car’s passenger
door, but he could not see what was going on inside the car.
(App. at 41-42.) The transaction was videotaped, but Mobley
admitted on cross-examination that due to the camera angle the
tape did not show Rivas getting into Mobley’s car. (Supp. App.
at 65-66.) Jones testified that when he met Mobley after the buy,
Mobley gave him three ounces of crack.
Mobley also testified that Rivas set up, though did not
physically participate in, a purchase on September 12, 2002.
Mobley called Rivas and asked to purchase crack. Rivas said
3
that he couldn’t meet Mobley himself, but that he would send
someone named “Voo.” Mobley found someone matching
Voo’s description at the location Mobley and Rivas had agreed
upon, and exchanged the buy money for the drugs. After the
purchase, Rivas called Mobley to ask if everything had gone
well with Voo. Rivas’s alleged co-conspirator Johnson,
nicknamed “Voo,” confirmed his and Rivas’s roles in the sale,
testifying that the crack he delivered belonged to Rivas and that
he only made a small commission on the deal. (App. at 112,
114-15; Supp. App. at 80-82.)
Rivas responded by attacking the credibility of the
government’s witnesses; Mobley, Culler and Johnson were all
heavily impeached by their prior crimes and by lies they told
about the details of those crimes while on the stand in the present
case. Rivas’s strategy made use of Culler and Johnson’s guilty
plea agreements, which Rivas introduced into evidence. The
court instructed the jury that the guilty pleas of the
coconspirators were “not evidence of the guilt of any other
person, including the defendant.” (App. at 107, 167.) The jury
acquitted Rivas of the aiding and abetting count, but convicted
him of the conspiracy count.
At sentencing, the government sought to increase Rivas’s
statutory minimum sentence on the basis of a prior felony drug
trafficking conviction. On November 6, 2004, a few weeks prior
to the trial, the government filed an information charging the
prior conviction as required by 21 U.S.C. § 851. After trial
Rivas moved to strike the information, contending that it had
been “neither filed nor served” on him or his attorney “in
accordance with the governing law and rules of procedure.”
(App. at 181.) He claimed that the information was not “filed”
within the meaning of § 851 because, among other things, it bore
no signature, “electronic or otherwise,” and had failed to comply
with a local order governing electronic filing. He also claimed
that while the government had faxed the information to his
counsel it was required to mail the information under applicable
rules, and that his lawyers had never received a copy by mail.
The government rejoined that any flaws in the information were
excusable and that it had mailed the information as required,
even if Rivas’s counsel had not received it.
4
The court denied Rivas’s motion to strike. It concluded
that the clerk had properly excused any noncompliance with the
local electronic filing order and that the government had mailed
a copy of the information to Rivas’s attorney. The court
sentenced Rivas to twenty years in prison–the statutory
minimum to which he could be sentenced, given his prior
conviction. See 21 U.S.C. § 841(b)(1)(A).
Rivas now appeals, alleging that the court erred several
times during trial: by failing to strike testimony that Rivas was a
target of a drug investigation, by allowing the prosecution to
purportedly vouch for its witnesses’ credibility, by improperly
instructing the jury on the use of the alleged co-conspirators’
guilty pleas and by failing to grant a mistrial after the prosecutor
suggested that defense counsel was attempting to distract the
jury from important issues. He also appeals the denial of his
motion to strike the information charging his prior conviction.
II. Discussion
A. Trial Errors
Rivas alleges that his conviction was so heavily tainted by
errors that it must be reversed despite his failure to timely object
to almost all of the purported errors. Generally, failure to object
forfeits claims of error. In criminal cases we may always
consider a “plain error that affects substantial rights,” Fed. R.
Crim. P. 52(b), but several hurdles must be cleared before the
judgment is reversed. The defendant must show not only that
error affected the outcome of the trial, but that the error was
clear or obvious under current law. If these requirements are
met, we may reverse, if the error “seriously affect[ed] the
fairness, integrity, or public reputation of judicial proceedings.”
Johnson v. United States, 520 U.S. 461, 476 (1997); United
States v. Olano, 507 U.S. 725, 732-35 (1993).
In the present case, none of Rivas’s claims establish
reversible error. We discuss them in turn.
1. “Target” Testimony
5
Rivas first argues that Officer Jones’s testimony that
Rivas was the target of a drug investigation was improper
hearsay and other-crimes evidence. The government called
Jones as its first witness and used him to lay out the background
of the controlled buys. Jones explained that in the spring of
2002 he was investigating crack distribution in the 700 block of
Reed Street. He was then asked:
Q: Who were the individuals or the people that
ended up being the targets of your investigation
beginning in April of 2002? What were their
names?
A: Darrin Culler, Ramon Rivas. There was one
more, Voo, Juan Johnson. (App. at 68-69.)
Rivas argues that although the government purported to
offer this evidence to help the jury understand the subsequent
controlled buys, it in fact suggested to the jury that there was
unseen evidence that Rivas had committed earlier, uncharged
drug crimes, violating the hearsay prohibition of Federal Rule of
Evidence 802 and the “other-crimes” evidence prohibition of
Rule 404(b). Prosecutors often abuse their right to show the jury
the context of police behavior by unnecessarily suggesting that
the police had evidence (not presented to the jury) that led them
to believe the defendant was involved in crime. United States v.
Price, 458 F.3d 202, 208 (3d Cir. 2006) (citing United States v.
Sallins, 993 F.2d 344, 346 (3d Cir. 1993)), cert. denied, 75
U.S.L.W. 3353 (U.S. Jan 8, 2007) (No. 06-8006). Testimony
that the police “targeted” a defendant for an investigation into a
specific type of offense is an example of such abuse. United
States v. Brown, 451 F.2d 1231, 1234-35 (5th Cir. 1971)
(holding that testimony that defendants were on a “primary
target list” of drug dealers “known to the Sheriff’s department”
was prejudicial error). But see United States v. Scarfo, 685 F.2d
842, 847-48 (3d Cir. 1982) (holding that there is no error where
the jury is not told that the defendant was being targeted or the
nature of the crime).
The testimony Rivas challenges here is quite difficult to
distinguish from the “target list” testimony held inadmissible in
6
Brown; if Rivas was targeted in April 2002 it was probably
because of information, possibly supplied by Mobley, about
earlier drug transactions. The government argues it did not ask
whom the investigation targeted in April of 2002, but rather who
“ended up being the target” of the investigation (App. at 69)
(emphasis added), and that therefore the question served only to
explain where Jones’s story was going. But the question is
ambiguous and the jury already knew where Jones was going (if
it did not already have the targets’ names in the indictment, the
prosecutor explained in its opening statement that it would hear
evidence that the three sold crack to an informant). (App. at 56-
57.) The absence of a legitimate reason for the question suggests
the testimony was offered for an illegitimate one. Sallins, 993
F.3d at 347; see also Price, 458 F.3d at 210-11 (holding that
courts must exclude evidence not legitimately needed to explain
the background of police behavior).
Nonetheless, it does not matter whether the testimony was
improper, because any error was not plain. The government at
least suggested a possible legitimate reason for the question (to
put the controlled buys in context), indicating that the error was
not plain. Further, Rivas bears the burden of demonstrating that
the purported error affected the outcome of the trial, Olano, 507
U.S. at 734-35, and he has not done so. The government never
referred back to the “target” testimony; Rivas claims that it may
have briefly suggested in its opening statement that Mobley had
told the police incriminating facts about Rivas, but any such
suggestion is obscure and unlikely. Even assuming there was a
brief suggestion of extra-record evidence against Rivas, the jury
was instructed to disregard it. (See App. at 148 (“You must
make your determination of the facts solely on the basis of the
evidence you have heard and seen and not for any reason outside
of this courtroom.”); id. at 150 (“You should confine your
considerations to the evidence presented from the witnesses and
from any exhibits that have been admitted into evidence.”).) We
are not convinced that the “target” testimony affected the
outcome of the trial, so any error cannot be a ground of reversal.
2. Vouching for Witnesses
7
Next, Rivas contends that the prosecution improperly
“vouched” for the truthfulness of its witnesses. Improper
“vouching” occurs where a prosecutor suggests that she has
reasons to believe a witness that were not presented to the jury.
United States v. Harris, 471 F.3d 507, 512 (3d Cir. 2006);
United States v. Dispoz-O-Plastics, Inc., 172 F.3d 275, 283 (3d
Cir. 1999). By contrast, a prosecutor may urge that a witness is
trustworthy by arguing from record evidence; vouching occurs
only where the prosecutor implicitly refers to information
outside the record. United States v. Walker, 155 F.3d 180, 187
(3d Cir. 1998).
In the present case the prosecution properly argued that
its witnesses were telling the truth. First, in its opening
statement the prosecution described Mobley’s decision to
cooperate with the DEA:
He decides to come forward and cooperate with
the DEA, provide the information he knows about
other drug dealers and actively participate in this
investigation. To help himself, sure. But also to
give DEA an accurate picture of what was going
on in the streets with these sales that he was
involved in. (App. at 57.)
Rivas urges that the phrase “accurate picture” improperly
vouched for Rivas’s credibility, but we cannot see why. The
prosecution discussed Mobley’s possible motives for
cooperation and suggested that one of them was a pure moral
interest in aiding law enforcement. There was no suggestion that
the police cooperate only with honest witnesses, that the
prosecution could assure the jury that Mobley’s testimony would
be accurate, or the like.
Second, Rivas argues that the prosecution vouched for
Johnson and Culler in its closing argument when it said that
“they came here and they told you the truth about what
happened.” (App. at 123.) But again, the prosecution did not
suggest it knew from extra-record evidence that Johnson and
Culler were telling the truth. The conclusion was based upon an
argument from their reluctance to speak and their “demeanor,”
8
both of which the jury could observe for itself. (Id.) The
prosecution did not improperly vouch for its witnesses.
3. Jury Instructions on Co-
Conspirator Guilty Pleas
Rivas claims that the court improperly instructed the jury
on the use of Culler’s and Johnson’s guilty pleas. The court
instructed the jury that “Darrin Culler and Juan Johnson may be
considered to be alleged accomplices in this case. The fact that
an alleged accomplice has entered a plea of guilt in this case, is
not evidence of the guilt of any other person, including the
defendant.” (App. at 167.)
Rivas argues that this instruction improperly permitted
the jury to infer his guilt from the guilty pleas. Although it is
true that a jury may not do that, see United States v. Universal
Rehabilitation Servs. (PA), Inc., 205 F.3d 657, 668 (3d Cir.
2003); United States v. Gaev, 24 F.3d 473, 478 (3d Cir. 1994),
one is hard pressed to see how the instruction was unclear on this
point given that it explicitly said the pleas were not evidence of
Rivas’s guilt. He suggests that the jury might have used this
roundabout reasoning: because the pleas are not evidence of the
guilt of “any other person,” they must be evidence of Culler and
Johnson’s guilt. But Culler and Johnson pleaded guilty to
conspiring with Rivas. Cf. Universal Rehab., 205 F.3d at 671
(Roth, J., dissenting) (“If two defendants allegedly conspired,
and one defendant has been convicted or has pleaded guilty, the
clear implication is that the other defendant is also guilty.”)
Aha, Rivas’s hypothetical jury concludes, the pleas are therefore
evidence that Rivas is guilty, despite the clear instruction stating
that they are not. To follow such reasoning the jury would have
to possess an unlikely combination of shrewdness (to invent the
argument) and obtuseness (to ignore the obvious meaning of the
instruction). We have previously held it was error to instruct the
jury that although a co-conspirator’s guilty plea was not
evidence of the defendant’s guilt, the plea could nonetheless be
used as the jury “saw fit” in accordance with “common sense,”
remaining studiously vague about what such a use would be.
United States v. Toner, 173 F.2d 140, 142 (3d Cir. 1949); see
also Universal Rehab., 205 F.3d at 670-71 (Roth, J., dissenting)
9
(discussing Toner). But that instruction clearly invited misuse of
the pleas while paying lip-service to proper evidence law; the
alleged flaw in the present instruction is much less clear.
At any rate, even assuming there was error, there was no
plain error. The parties only used the pleas appropriately, to
impeach Culler and Johnson. Having failed to object to the
instruction below, the burden is on Rivas to prove that the jury in
fact adopted the unlikely reasoning described above. He has not
done so.
4. Prosecutorial Misconduct
Finally, Rivas argues that the prosecution improperly
“impugn[ed]” the “function and integrity of defense counsel”
during its closing argument. During his own closing, Rivas’s
attorney hammered Mobley, Culler and Johnson for lies they had
told the jury about details of their prior crimes, arguing that they
were untrustworthy. During rebuttal closing, the prosecutor
said:
In his closing argument, Mr. Savino spent an awful
lot of time discussing with you discrepancies and
what he terms as mistruths and lies and differences
in plea agreements and language. I will return the
compliment to Mr. Savino, he’s a very good
advocate, he does his job well and his job is to take
your focus off the issue. (App. at 146.)
Unlike most of the errors Rivas ascribes to the district
court, he lodged a timely objection to this one, which was
sustained. He then moved for a mistrial, which was denied.
Rivas argues that the district court erred in denying his motion
for a mistrial, a decision which we review for abuse of
discretion. United States v. Hakim, 344 F.3d 324, 328 (3d Cir.
2003).
To find that the court abused its discretion in failing to
order a mistrial for prosecutorial misconduct, we must first be
convinced that the prosecution did in fact misconduct itself. We
are not; the comment that defense counsel’s “job is to take your
10
focus off the issue” was not, in this context, improper argument.
Rivas notes that no lawyer may make “unfounded and
inflammatory attacks on the opposing advocate,” Gov’t of Virgin
Islands v. Isaac, 50 F.3d 1175, 1185 n.7 (3d Cir. 1995) (quoting
United States v. Young, 470 U.S. 1, 9 (1985)). But the
government correctly rejoins that attacks on the opposing
advocate’s arguments and tactics are acceptable, and indeed that
attacking and exposing flaws in one’s opponent’s arguments is a
major purpose of closing argument. United States v. Lore, 430
F.3d 190, 213 (3d Cir. 2005) (citing United States v. Hartmann,
958 F.2d 774, 785 (7th Cir. 1992)).
If this distinction is unclear, it may be helpful to note that
the prohibition against personal attacks on attorneys is rooted
less in a sense of decorum than in the same rule underlying the
prohibition on vouching: one cannot make arguments
unsupported by the record evidence. Dispoz-O-Plastics, 172
F.3d at 285 (holding that the invited response doctrine is
triggered only when the defense attacks the prosecution “for
reasons unsupported by the evidence”); United States v. Pelullo,
964 F.2d 193 (3d Cir. 1992) (holding that attorneys may not
accuse each other of “misconduct, such as subornation of
perjury, unless there is a foundation in the record to support such
charges”). In all of the cases Rivas cites as examples of
improper attacks on counsel, the discussion of the attorney’s
character included some sort of suggestion that the attorney had
held back or hidden evidence that was not in the record, or faked
evidence that was. See Young, 470 U.S. at 4 (reporting that the
defense counsel “intimated that the prosecution deliberately
withheld exculpatory evidence”); United States v. Rios, 611 F.2d
1335, 1342 (10th Cir. 1979) (reporting that the prosecutor
suggested that the defense counsel conspired to fake exculpatory
evidence). Claims that the defendant’s lawyer is lying often fall
into this category by implying that the defense counsel has extra-
record reason to believe her client guilty, such as the defendant
confessing to her or the attorney’s being part of the crime
herself. See Berger v. United States, 295 U.S. 78, 88 (1934)
(reporting that the prosecutor stated that defense lawyers “sit up
in their offices and devise ways to pass counterfeit money”); cf.
United States v. Gross, 961 F.2d 1097, 1108 (3d Cir. 1992);
Hartmann, 958 F.2d at 785 (finding no error where “the
11
prosecution argued that certain statements were lies, not that the
attorneys were liars”). The rule can therefore be implicated even
where the prosecution refrains from intemperate language or
imputing evil motives to the defense counsel, so long as the
prosecution improperly argues from the defense counsel’s
mental state in a way not supported by record evidence. See,
e.g., United States v. Manriquez-Abrizo, 833 F.2d 244, 247 (10th
Cir. 1987); cf. United States v. Pungitore, 910 F.2d 1084, 1142
(3d Cir. 1990) (permitting a prosecutor to present evidence of a
defense counsel’s involvement in a crime where that evidence
was relevant to the charges against the defendant).
In the present case, the prosecution attacked only Rivas’s
argument, not his counsel. Stating that the defense counsel’s
“job is to take your focus off the issue” did not suggest that
Rivas’s lawyer had some mysterious reason to believe him
guilty. The comment was a fair attack on Rivas’s strategy of
impeaching the government’s witnesses and arguing for
reasonable doubt, which in fact did refocus the jury’s attention
on whether lies about other subjects rendered the witnesses’
testimony about Rivas incredible, rather than the details of their
testimony about Rivas. The prosecution made the same
legitimate argument when it said that Rivas’s counsel spent an
“inordinate amount of time” cross-examining and arguing on
those issues. (App. at 146.)
Even if we were to find prosecutorial misconduct, the
district court was still within its discretion to deny a mistrial. A
mistrial is not required where improper remarks were harmless,
considering their scope, their relation to the context of the trial,
the ameliorative effect of any curative instructions and the
strength of the evidence supporting the conviction. United
States v. Gambone, 314 F.3d 163, 179 (3d Cir. 2003) (citing
United States v. Zehrbach, 47 F.3d 1252, 1265 (3d Cir. 1995)).
Here, the remark was a single sentence in the middle of a
perfectly permissible line of argument against the defense’s
impeachment strategy. It is clear that it did not affect the
12
outcome of the trial.1 Consequently, Rivas’s conviction must
stand.
B. Motion to Strike Information Charging Prior
Conviction
We now turn to Rivas’s sentencing challenge, based on
the district court’s denial of his motion to strike an information
charging him with a prior drug felony conviction. Under 21
U.S.C. § 851(a)(1):
No person who stands convicted of an offense
under this part shall be sentenced to increased
punishment by reason of one or more prior
convictions, unless before trial . . . the United
States attorney files an information with the court
(and serves a copy of such information on the
person or counsel for the person) stating in writing
the previous conviction to be relied upon. . . .
Clerical mistakes in the information may be
amended at any time prior to the pronouncement of
sentence.
In this case, the government sought to subject Rivas to a
statutory minimum sentence of twenty years in prison based on a
prior drug trafficking conviction. Consequently, it filed an
information charging that conviction on November 6, 2004, prior
to trial. However, Rivas moved to strike the information as not
having been “file[d] . . . with the court” or “serve[d] . . . on the
person or counsel for the person” as required by the statute.
(Rivas admits that he was aware of the government’s intentions,
1
Rivas also argues in a footnote that the prosecutor
suggested facts not supported by the evidence by saying that
witnesses were afraid that Rivas had agents stationed in the
courtroom who would harm those who testified against him. This
argument fails because it is clear that the prosecutor was not
suggesting that witnesses were afraid of being harmed but that
witnesses were embarrassed by having to testify to the details of
their past crimes on cross-examination. (App. at 144-45.)
13
but we have held that compliance with § 851’s filing and service
requirements is mandatory, regardless of whether a defendant
has actual notice of the government’s plans to enhance his
sentence. United States v. Weaver, 267 F.3d 231, 247 (3d Cir.
2001) (citing Harris v. United States, 149 F.3d 1304, 1307 (11th
Cir. 1998)).)
1. Filing
Rivas’s argument that the information was not “filed” is
based on its noncompliance with a standing order of the District
Court for the Eastern District of Pennsylvania governing
electronic filing. Section 851(a)(1) does not define “file[],” but
both parties agree that it incorporates by reference federal and
local rules governing filing. See, e.g., United States v. Severino,
315 F.3d 939, 945 (9th Cir. 2003) (holding that federal rules are
incorporated by reference into § 851(a)). The standing order
states that the “user log-in and password required to submit
documents . . serve as the Filing User’s signature” for any court
purpose, but goes on to state that each document filed
electronically must, if possible, indicate that it has been
electronically filed, must include a signature block and must
include the name of the Filing User preceded by the characters
“s/” in the space where a written signature would normally
appear. Electronic Case Filing Procedural Order ¶8.a, available
at
http://www.paed.uscourts.gov/documents/CMECF/locrules/cvor
d14.pdf. Although a government attorney properly logged in to
submit the information and thus signed it, the document fails to
comply with the order’s other requirements–it does not indicate
that it has been electronically filed, and so forth.
Despite the clerk’s acceptance of the information as filed
(the reason why Rivas had to bring a motion to strike rather than
merely note the absence of any information in the record), Rivas
claims that the information’s shortcomings render it not “filed”
within the meaning of § 851. But if § 851 incorporates by
reference local rules and orders governing filing, it should also
incorporate the law governing those rules and orders, and we
have recognized that a district court has discretion to “depart
from the strictures of its own procedural rules where (1) it has a
14
sound rationale for doing so, and (2) doing so does not unfairly
prejudice” a party who has relied on the rule. United States v.
Eleven Vehicles, Their Equipment & Accessories, 200 F.3d 203,
215 (3d Cir. 2000); see also Prof’l Programs Group v. Dept. of
Commerce, 29 F.3d 1349, 1353 (9th Cir. 1994) (holding that a
violation of local rules can be excused where it is “so slight and
unimportant that the sensible treatment is to overlook it.”);
Braxton v. Bi-State Dev. Agency, 728 F.2d 1105, 1107 (8th Cir.
1984) (same). Here, the clerk accepted the information despite
its shortcomings. When the issue was brought to the court’s
attention, it indicated that it was not concerned with the failure to
comply with the order. We find that the signature requirement
alone creates an incentive for responsible litigation, see
Scarborough v. Principi, 541 U.S. 401, 416 (2004), and
therefore that the district court had a sound rationale to excuse
the other, minor violations of the formatting rules. See Phoenix
Global Ventures, LLC v. Phoenix Hotel Assocs., Ltd., 442 F.3d
72, 76 (2d Cir. 2005) (per curiam) (holding that a district court
did not abuse its discretion by excusing the inclusion of too-large
exhibits and an invalid hearing date in violation of electronic
filing requirements); Somlyo v. J. Lu-Rob Enters., Inc., 932 F.2d
1043, 1049 (2d Cir. 1991) (holding that a district court did not
err by excusing noncompliance with certain local rules, in part
because the rules were “technical” and “designed to regulate, for
convenience sake, how papers look”). Further, Rivas admits he
has not suffered prejudice. Consequently, the court’s decision to
permit the information to stand was entirely proper.
Rivas argues that although § 851 generally incorporates
local rules, it implicitly precludes normal discretionary
exceptions to them. It states that “[c]lerical mistakes in the
information may be amended at any time prior to the
pronouncement of sentence.” 21 U.S.C. § 851(a)(1). Rivas
contends that Congress’s provision for correction of clerical
errors suggests that Congress intended that clerical errors not be
simply ignored or excused. Consequently, he urges, if the
failures to comply with the local order on electronic filing were
“clerical mistakes,” they were never corrected and thus cannot
be excused. Cf. Weaver, 267 F.3d at 247-50 (discussing the
correction of erroneous descriptions of prior convictions by an
amended information).
15
Whatever other faults this argument might have, see
United States v. Hamilton, 208 F.3d 1165 (9th Cir. 2000)
(excusing a clerical error despite the failure to file a correct
amended information); United States v. Steen, 55 F.3d 1022 (5th
Cir. 1995) (same), we need only address one: the failures to fully
comply with the local order were not “clerical mistakes”; these
are limited to erroneous descriptions of “the previous
convictions to be relied upon.” Section 851 is focused on the
facts to be included in the information, not on the specific
procedures to be used in filing and service (which both parties
agree it simply leaves to the general federal procedural rules),
and the phrase “clerical mistakes in the information” is best read
to refer only to errors in those facts. Different readings would
produce awkward inconsistencies, as there seems to be no good
reason to excuse certain filing or service errors that are not part
of the information itself (and hence not “in the information”),
but to forbid any excuse for those that are. We are aware of no
cases where the “clerical mistake” provision was addressed to
anything other than inaccurate descriptions of prior convictions;
indeed, most courts (including this one) strongly distinguish
between the procedural filing and service requirements and
errors of description, amenable to amendment through § 851’s
clerical mistakes provision. See Weaver, 267 F.3d at 247; Perez
v. United States, 249 F.3d 1261, 1265-66 (11th Cir. 2001).
Consequently we limit the “clerical mistakes” provision to
inaccurate descriptions of prior convictions, and hold that the
district court properly excused the government’s minor
deviations from the electronic filing order and treated the
information as filed within the meaning of § 851.
2. Service
Rivas also argued below that there was insufficient
evidence to permit the court to conclude that the government had
“serve[d] a copy of [the] information” on him or his counsel. 21
U.S.C. § 851(a)(1). Again, both parties agree that § 851
incorporates the normal rules governing service. Further, Rivas
claims that the government had the duty to prove beyond a
reasonable doubt that it complied with the service rules. See id.
§ 851(c)(1). This seems doubtful, but the government does not
16
contest it, and at any rate, even assuming Rivas is correct, the
court was within its rights to conclude that the government had
proved its compliance beyond a reasonable doubt.
The government complied with the service requirements
if it mailed a copy to the last known address of Rivas’s attorney.
Fed. R. Crim. P. 49(b); Fed. R. Civ. P. 5(b)(2)(B). The record
contains a certificate of service, signed by Assistant United
States Attorney Andrea Grace, stating that she served the
information by “first class mail, postage prepaid.” (App. at 204.)
Rivas argues that this certificate must be read in light of Grace’s
unsworn representations before the court that she put the
information in an envelope, addressed the envelope, and put it in
the United States Attorney’s Office’s mail room’s bin for service
by U.S. mail, but did not herself deliver the letter to a U.S. Postal
Service mailbox. But even if that is so, the record still supports
finding beyond a reasonable doubt that the information was
served. To prove mailing through a mail room, the government
must present testimony about how the mail room works. United
States v. Cohen, 171 F.3d 796, 800 (3d Cir. 1999) (citing United
States v. Hannigan, 27 F.3d 890, 892-94 (3d Cir. 1994)). It is
not necessary to produce someone who actually works in the
mail room so long as the witness has personal knowledge of the
mail room’s practices. Hannigan, 27 F.3d at 893-94. Grace
testified that she had personal knowledge of how the mail room
worked: she was familiar with the bin into which she dropped
the letter, which was used for letters requiring service by U.S.
mail. This was sufficient personal knowledge of the mail room’s
practices. It would have been pointless to require the
government to produce a mail room employee to testify to what
is already implicit in Grace’s statement; when letters go into the
mail room’s box for U.S. mail service, the mail room generally
sends those letters by U.S. mail–that’s why they call it the “mail
room.” Cf. Hannigan, 27 F.3d at 894 (finding that mail room
testimony was required when a witness was uncertain whether
her company sent checks by U.S. mail or private carrier). The
district court did not err by concluding that the information was
properly served on Rivas’s attorney.
III. Conclusion
17
For the foregoing reasons, we affirm Rivas’s conviction
and his sentence.
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