United States v. Sperow ( 2007 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 05-30483
Plaintiff-Appellee,
v.  D.C. No.
CR-96-00058-REJ
GREGORY FRANK SPEROW,
OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the District of Oregon
Robert E. Jones, District Judge, Presiding
Argued and Submitted
November 14, 2006—Portland, Oregon
Filed July 26, 2007
Before: Warren J. Ferguson, Diarmuid F. O’Scannlain and
Raymond C. Fisher, Circuit Judges.
Opinion by Judge Fisher;
Dissent by Judge O’Scannlain
9097
9100 UNITED STATES v. SPEROW
COUNSEL
Doron Weinberg, Weinberg & Wilder, San Francisco, Cali-
fornia, for the defendant-appellant.
Karin J. Immergut, United States Attorney, Jonathan S. Haub
(argued), Assistant United States Attorney, Portland, Oregon,
for the plaintiff-appellee.
OPINION
FISHER, Circuit Judge:
Gregory Sperow appeals his conviction for possession of
marijuana with intent to distribute, asserting that the post-
indictment delay in his arrest amounted to a violation of his
Sixth Amendment right to a speedy trial. Sperow also appeals
an enhancement of his sentence, arguing that it was improp-
erly based on a prior conviction not proven to the jury or
admitted by the defendant, and that the government did not
give him proper notice of its intent to seek such an enhance-
ment. We affirm Sperow’s conviction. However, we agree
UNITED STATES v. SPEROW 9101
that the government fatally compromised its notice of a pro-
posed sentence enhancement and therefore vacate Sperow’s
sentence and remand for resentencing without the enhance-
ment.
I. Background
Gregory Sperow was indicted in February 1996 on one
count of possession of marijuana with intent to distribute, in
violation of 21 U.S.C. §§ 841(a)(1) & 846. Sperow was ulti-
mately arrested in California in May 2004, and proceedings
on the indictment began in July 2004. The district court
denied Sperow’s timely pre-trial motion to dismiss his indict-
ment due to a violation of his Sixth Amendment right to a
speedy trial.
On August 12, 2004, the government filed a Notice of Fil-
ing of Enhanced Punishment Notice Pursuant to 21 U.S.C.
§§ 851 and 841(b)(1)(B)(vii). This notice stated that the gov-
ernment sought an enhanced mandatory minimum sentence
“since this offense involves more than 100 kilograms of mari-
huana and because defendant has a prior conviction in United
States District Court for the Southern District of California.”
The government attached a copy of the judgment in Sperow’s
previous conviction to the notice. In June 2005, the govern-
ment determined that the marijuana involved in the offense
weighed 98.5 kilograms, not over 100 kilograms as previously
asserted. The government therefore filed a motion stating that
it “hereby moves to strike the second paragraph of the grand
jury indictment, which allegation established an enhanced
penalty, on grounds subsequent investigation revealed that the
amount of marijuana seized weighed no more than 98.5 kilo-
grams of marijuana.”
During Sperow’s trial, in response to the court’s inquiry
about whether the drug amount could “affect any sentencing
aspect,” the government referred to its motion to strike and
9102 UNITED STATES v. SPEROW
asserted that Sperow was facing a “sentence of no more than
20 years.” On June 22, 2005, a jury found Sperow guilty.
The probation office provided the parties with a presen-
tence report on August 8, 2005. In an addendum, the proba-
tion office explained that:
[T]he probation office posed a question to the gov-
ernment specifically asking about the validity of the
notice of enhanced penalty after the statute to which
it was tied, 21 USC 841(b)(1)(B), was stricken from
the Indictment. At that time, the government com-
municated via email that the enhancement was gone.
Based primarily on this assertion by the government
and it’s [sic] failure to mention the notice of
enhanced penalty at trial, the probation office believe
the enhancement was gone . . . .
The probation office later concluded that there had been a
“mis-communication with the government regarding the
notice of enhanced penalty” and recalculated its sentence rec-
ommendation in line with the government’s “conten[tion that]
the notice of enhanced penalty . . . is still valid.” During sen-
tencing Sperow argued that the government’s § 851 notice
was no longer valid in light of the government’s subsequent
motion to strike. The district court rejected this argument,
concluding that a “pragmatic reading” and a “common sense
interpretation[ ] shows that the Government did not withdraw
or otherwise invalidate its notice to seek an enhanced penalty
to 21 U.S.C. § 851” based on Sperow’s prior conviction. The
district court sentenced Sperow under the penalty provisions
of § 841(b)(1)(D) and enhanced Sperow’s sentence from five
to 10 years based on his prior conviction for a felony drug
offense.
II. Sixth Amendment Right to a Speedy Trial
[1] We hold that the delay between Sperow’s indictment in
1996 and his arrest in 2004 did not violate Sperow’s right to
UNITED STATES v. SPEROW 9103
a speedy trial. We consider four factors in assessing a defen-
dant’s claim that his Sixth Amendment right to a speedy trial
has been violated: (1) the length of the delay; (2) the reason
for the delay; (3) the defendant’s assertion of his right; and (4)
prejudice to the defendant. See Barker v. Wingo, 407 U.S.
514, 530-32 (1972); United States v. Tanh Huu Lam, 251 F.3d
852, 855 (9th Cir. 2001). These are “ ‘related factors and must
be considered together with such other circumstances as may
be relevant’ ”; none of the four alone is either “ ‘necessary or
sufficient’ ” to finding a Sixth Amendment violation. Tanh
Huu Lam, 251 F.3d at 856 (quoting Barker, 407 U.S. at 533).
[2] The government concedes that the delay between Spe-
row’s indictment and his arrest was more than sufficient to
trigger a speedy trial inquiry. See Barker, 407 U.S. at 530-31.
[3] The district court found that Sperow deliberately evaded
the authorities after being linked to a shipment of marijuana
in Oregon, specifically that Sperow “knew he was in trouble
and intended to evade justice.” The court further found that
the government was reasonably diligent in attempting to
locate and arrest Sperow. We review these findings of fact for
clear error. See United States v. Beamon, 992 F.2d 1009, 1013
(9th Cir. 1993). Neither finding is clearly erroneous. Contrary
to government counsel’s exaggerated assertion at oral argu-
ment, Sperow did not “vanish[ ] from the face of the earth.”
Sperow used his real name in some business transactions and
to pay taxes. Nonetheless, there is sufficient evidence support-
ing the district court’s finding that Sperow deliberately con-
cealed his whereabouts. Sperow adopted an alias, and an
officer investigating other charges against Sperow testified
that he informed the defendant’s brother that Sperow was
wanted and warned him against harboring a fugitive. Simi-
larly, although Sperow’s use of his real name in some
instances cuts against a finding of governmental diligence,
there is evidence to support the district court’s finding, includ-
ing the government’s periodic credit and criminal history
checks between 1996 and 2003, and Oregon officials’ practice
9104 UNITED STATES v. SPEROW
of sending leads to counterpart agents in California who were
also attempting to locate Sperow. Given the findings that Spe-
row deliberately evaded authorities and the government was
reasonably diligent in attempting to locate him, the district
court correctly found that Sperow himself was the reason for
the delay in his arrest.
[4] Accordingly, the other two Barker factors also cut
against Sperow’s Sixth Amendment claim. When a suspect
knows the authorities are looking for him and he seeks to
avoid them, “Barker’s third factor, concerning invocation of
the right to a speedy trial, . . . weigh[s] heavily against him.”
Doggett v. United States, 505 U.S. 647, 653 (1992). More-
over, because Sperow caused the delay in his arrest, he has to
show actual prejudice in order to prevail on Barker’s final
factor. See United States v. Manning, 56 F.3d 1188, 1194-95
(9th Cir. 1995). Sperow does not assert that he suffered actual
prejudice as a result of the delay. In sum, we hold that Spe-
row’s Sixth Amendment right to a speedy trial was not vio-
lated and affirm his conviction.
III. Sentence Enhancement
United States v. Weiland, 420 F.3d 1062, 1079-80 n.16 (9th
Cir. 2005), forecloses Sperow’s argument that raising the stat-
utory maximum penalty from five to 10 years under 21 U.S.C.
§ 841(b)(1)(D) was unconstitutionally based on a prior con-
viction that had not been established by a jury verdict or his
own admission. See also United States v. Torres-Hernandez,
447 F.3d 699, 706 (9th Cir. 2006).
[5] However, we agree with Sperow that the government’s
notice of its intent to seek an increased sentence due to a prior
conviction was insufficient under 21 U.S.C. § 851(a). It is
well established that one of the purposes of § 851 is to “en-
sure[ ] proper notice so a defendant is able to challenge the
information . . . [and] make an informed decision about
whether or not to plead guilty.” United States v. Hamilton,
UNITED STATES v. SPEROW 9105
208 F.3d 1165, 1168 (9th Cir. 2000) (citations omitted); see
also Vadas v. United States, ___ F.3d ___, 2007 WL
1288335, *5 (2d Cir. 2007) (noting one of the purposes of
§ 851 is “to allow defendant to have ample time to determine
whether to enter a plea or go to trial and plan his trial strategy
with full knowledge of the consequences of a potential guilty
verdict”) (quoting United States v. Williams, 59 F.3d 1180,
1185 (11th Cir. 1995)); United States v. Cooper, 461 F.3d
850, 854 (7th Cir. 2006) (“The two purposes of the Section
851 notice provision are: (1) to allow the defendant to contest
the accuracy of the prior conviction . . . and (2) to ensure the
defendant has full knowledge of a potential guilty verdict.”).
This purpose was frustrated by the government’s ambiguous
motion to strike the second paragraph of the indictment.
The § 851 notice stated that it sought “a mandatory mini-
mum term of imprisonment of ten (10) years imprisonment
since this offense involves more than 100 kilograms of mari-
huana and because defendant has a prior conviction in United
States District Court for the Southern District of California,”
and attached a copy of the judgment in the prior conviction.
Subsequently, after determining that the weight of the mari-
juana involved was less than 100 kilograms, the government
“move[d] to strike the second paragraph of the grand jury
indictment, which allegation established an enhanced penal-
ty.” (Emphasis added).
[6] The effect the government’s motion to strike had on the
§ 851 notice is susceptible to two interpretations. As the gov-
ernment now argues, the notice could be read as setting forth
two alternative grounds for the enhancement: (1) that the
amount of marijuana exceeded 100 kilograms and (2) that
Sperow had a prior conviction. Under this reading, either
ground would support an enhancement and the motion to
strike negated only the drug quantity ground. As Sperow
argues, however, an equally (if not more) plausible reading is
that the motion intended to drop the enhancement altogether
— an understanding the government itself initially adopted.
9106 UNITED STATES v. SPEROW
The drug quantity and prior conviction grounds in the § 851
notice can be read conjunctively. That is, the government pur-
sued the enhancement because “this offense involves more
than 100 kilograms of marihuana and because defendant has
a prior conviction.” (Emphasis added). So read, the failure of
either of these predicates would revoke the entire notice of
enhancement. This reading is all the more reasonable given
the language of the motion to strike, which specified that the
allegation to be struck was that “which . . . established an
enhanced penalty,” without any mention of a continuing
intent to seek an enhanced penalty on an alternative ground.
[7] Most persuasive, the government itself acted as if its
motion to strike invalidated the sentence enhancement. First,
the prosecutor stated at trial, “The sentence of the defendant
can be no more than 20 years. I’ve moved to strike, and I pre-
sume you allowed the motion to strike, the mandatory mini-
mum language.” Twenty years is the maximum penalty
allowed under 21 U.S.C. § 841(b)(1)(C) for a conviction
involving between 50 and 100 kilograms of marijuana where
no prior conviction is alleged. The maximum if the defendant
has a prior conviction for a felony drug offense is 30 years.
See § 841(b)(1)(C). Second, when the probation office
inquired about the status of the notice of enhancement in light
of the stricken paragraph of the indictment, the government
responded that “the enhancement was gone.” In its presen-
tence report, the probation office stated that “[b]ased primar-
ily on this assertion by the government and [its] failure to
mention the notice of enhanced penalty at trial, the probation
office believed the enhancement was gone.”
The government’s reliance on United States v. Severino,
316 F.3d 939 (9th Cir. 2003) (en banc), embraced by the dis-
sent, for the proposition that a § 851 notice is sufficient where
the defendant “will have no trouble understanding which prior
conviction the prosecutor means to identify” is misplaced. Id.
at 943-44. Severino addressed a challenge to the accuracy of
the prosecutor’s description of the previous crime, and, in
UNITED STATES v. SPEROW 9107
contrast to this case, we explicitly noted that the defendant
could not “reasonably assert that he was blindsided by the
government” or “reasonably assert that he entered his plea
expecting anything less than a 10-year mandatory minimum
sentence.” Id. at 945. That obviously was not the case here
given the motion to strike, which rendered the § 851 notice
fatally defective. See Hamilton, 208 F.3d at 1168.
[8] We disagree with the dissent’s implication that initial
compliance with § 851(a)’s four procedural requirements
makes the government’s notice to seek a sentence enhance-
ment immune from challenge if later modified or withdrawn.
Here, after properly filing its § 851 notice, the government’s
own ambiguous filings created the plainly reasonable impres-
sion — evidenced by the government’s own later statements
— that the notice had been withdrawn and was no longer
effective. There is no doubt that Sperow was on notice that
the government initially intended to seek a sentence enhance-
ment based on a particular prior conviction. The question here
is whether a reasonable person in Sperow’s position would
have known that the government continued with that intention
despite its apparent withdrawal of the § 851 notice — knowl-
edge that § 851 requires a defendant to have and that could
have affected Sperow’s plea bargain or trial strategies. We do
not suggest that Sperow’s purely subjective belief regarding
the government’s abandonment of the sentence enhancement
governs the outcome here. Rather, it is the government’s own
actions and statements that would have led an objectively rea-
sonable person to conclude that the government no longer
intended to seek a sentence enhancement on any basis, and in
fact did lead the probation office to so inquire and be told that
“the enhancement was gone.”1
1
Whatever the merits of the dissent’s suggestion that prosecutors might
include a disclaimer in their § 851 notices advising defendants that only
explicit, signed written withdrawal statements are binding, see Dissent at
9111 n.4, we do agree that clarity of expression is to be encouraged. We
doubt, however, that a “wise” prosecutor would erroneously state in court
that the defendant was subject to a maximum penalty that did not include
an enhancement, lead the probation office to believe the “enhancement
was gone” but then seek the very enhancement it had previously dis-
claimed.
9108 UNITED STATES v. SPEROW
[9] We therefore vacate Sperow’s sentence and remand for
resentencing without the enhancement.
Conviction AFFIRMED; sentence VACATED and
REMANDED for resentencing.
O’SCANNLAIN, Circuit Judge, dissenting in part:
I must respectfully dissent from the majority’s conclusion
that the government’s notice under 21 U.S.C. § 851(a) was
insufficient.
I
A federal grand jury indicted Gregory Sperow, the
defendant-appellant, on one count of possession of marijuana
with intent to distribute, in violation of 21 U.S.C. §§ 841(a)
& 846. The second paragraph of the indictment stated: “It is
further alleged that the amount of marihuana involved
exceeded 100 kilograms in violation of penalty provision 21
U.S.C. § 841(b)(1)(B)(vii).”
Before trial, the government filed the required information
(the “§ 851 notice”) giving Sperow “notice of its intent to
seek enhanced punishment pursuant to Title 21 U.S.C. Sec-
tions 851 & 841(b)(1)(B)(vii).” The § 851 notice further pro-
vided that “[t]he government seeks a mandatory minimum
term of imprisonment of ten (10) years imprisonment since
this offense involves more than 100 kilograms of marihuana
and because defendant has a prior conviction in United States
District Court for the Southern District of California, Case
Number 80-0639-E.” The government attached a copy of the
judgment, which indicated that Sperow was convicted for
conspiracy to import a controlled substance, conspiracy to
possess a controlled substance with intent to distribute, illegal
UNITED STATES v. SPEROW 9109
importation of a controlled substance, and conspiracy to vio-
late currency reporting requirements.
The government subsequently filed a motion to strike the
second paragraph of the grand jury indictment after determin-
ing that the weight of marijuana involved was less than 100
kilograms. The motion to strike stated that the government
“moves to strike the second paragraph of the grand jury
indictment, which allegation established an enhanced penalty,
on grounds subsequent investigation revealed that the amount
of marijuana seized weighed no more than 98.5 kilograms of
marijuana, exclusive of packaging material.” The government
never amended or withdrew the § 851 enhancement notice.
II
Sperow argues on appeal that the district court erred by
increasing his sentence based on the prior conviction because
the government withdrew the § 851 notice, or, in the alterna-
tive, because the government did not provide actual or fair
notice.
A
Pursuant to 21 U.S.C. § 841(b)(1)(D), a defendant who
commits a federal drug violation involving less than 50 kilo-
grams of marijuana, after a prior conviction for another drug
offense, is subject to a maximum term of imprisonment of ten
years. To enhance a sentence based on a prior conviction,
however, the government must give notice before trial, or
before entry of the plea of guilty, of the conviction to be
relied upon. Section 851(a) states in relevant part:
No person who stands convicted of an offense
under [21 U.S.C. § 841 et seq.] shall be sentenced to
increased punishment by reason of one or more prior
convictions, unless before trial, or before entry of a
plea of guilty, the United States attorney files an
9110 UNITED STATES v. SPEROW
information with the court (and serves a copy of
such information on the person or counsel for the
person) stating in writing the previous convictions to
be relied upon.
21 U.S.C. § 851(a).
In United States v. Severino, 316 F.3d 939 (9th Cir. 2003)
(en banc), we explained that this section “is a procedural stat-
ute.” Id. at 943. And there we held that “[t]hese procedures
take form in four requirements”: (1) “[t]he information must
be in writing;” (2) “it must be filed with the court and served
on the defendant or his counsel;” (3) “it must be filed and
served before trial or before a guilty plea;” and (4) “the sub-
stance of the information must identify the previous convic-
tion(s).” Id. With respect to the fourth requirement, we further
held that “[i]f the defendant, reading the information in con-
text, will have no trouble understanding which prior convic-
tion the prosecutor means to identify, the information then has
‘stat[ed] . . . the previous convictions,’ and the statutory pur-
pose of providing defendant notice has been satisfied.” Id. at
943-44 (alterations and omissions in original) (emphasis
added).
B
The majority does not contend, nor can it, that the govern-
ment’s § 851 notice failed to satisfy these requirements. The
government filed a written information with the court and
served it on the defendant before trial. Moreover, Sperow
would “have no trouble understanding which prior conviction
the government meant to identify.” The § 851 notice clearly
stated that the “defendant has a prior conviction in United
States District Court for the Southern District of California,
Case Number 8-0639-E” and attached a copy of the underly-
ing judgment and commitment order. Therefore, the govern-
ment satisfied the statutory requirements.
UNITED STATES v. SPEROW 9111
Straying from the requirements we set forth in Severino, the
majority now concludes that the § 851 notice was defective by
effectively focusing on which subsection rather than which
prior conviction serves to enhance Sperow’s sentence. The
majority reasons that the § 851 notice sought an enhancement
only if two predicates were satisfied: (1) the offense involved
more than 100 kilograms of marijuana as described in 21
U.S.C. § 841(b)(1)(B)(vii), and (2) Sperow had a prior con-
viction. Because the government filed a motion to strike the
allegation in the indictment that the weight of marijuana
exceeded 100 kilograms, the majority concludes that the
entire § 851 notice was revoked, because 21 U.S.C.
§ 841(b)(1)(B)(vii)2 no longer served as a potential enhance-
ment, but rather 21 U.S.C. § 841(b)(1)(D).3 In effect, the
majority’s reasoning depends upon the irrelevant circum-
stance that the government identified the larger quantity sub-
section to give notice of its intent,4 not that the government
specified the incorrect prior conviction. Such reasoning turns
§ 851(a) on its head and elevates form over substance, some-
thing we have long cautioned against. Severino, 316 F.3d at
944. Nowhere in § 851(a) is the government required to spec-
ify which subsection of § 841 it is relying on for an enhance-
ment. Instead, the statute, and our decision in Severino,
2
Section 841(b)(1)(B)(vii) provides in relevant part that in a case
involving 100 kilograms or more of marijuana, such person convicted of
violating 21 U.S.C. § 841(a) shall be sentenced to a term of imprisonment
of no less than five years and no more than 40 years, unless that person
commits such violation after a prior felony drug conviction, in which case
the term of imprisonment shall be no less than 10 years and no more than
life imprisonment.
3
Section 841(b)(1)(D) provides in relevant part that in a case involving
less than 50 kilograms of marijuana, such person convicted of violating 21
U.S.C. § 841(a) shall be sentenced to a term of imprisonment of no more
than five years, unless that person commits such violation after a prior fel-
ony drug conviction, in which case the term of imprisonment shall be no
more than 10 years.
4
Indeed, the majority acknowledges that the § 851 notice in this case
was properly filed. See ante, at 9107.
9112 UNITED STATES v. SPEROW
simply require the government to identify which prior convic-
tion it is relying on for an enhancement. Accordingly, because
the § 851 notice in this case fulfilled the statutory require-
ments by providing Sperow with knowledge before trial that
he faced an enhancement based upon his prior conviction, I
cannot join the majority in rendering such notice inoperative.
Moreover, the majority places too much weight on two
statements by the government. First, the majority refers to the
government’s statement well into the trial that “[t]he sentence
of the defendant can be no more than 20 years.” Unlike the
majority, I do not believe such a misstatement during trial as
to the maximum possible sentence revokes a § 851 notice that
satisfies the statutory requirements. Second, the majority
refers to the government’s incorrect statement to the probation
officer after trial that “the enhancement was gone.” The
majority’s position in this case ultimately rests on the premise
that “one of the purposes of § 851 is to ensure[ ] proper notice
so a defendant is able to challenge the information . . . [and]
make an informed decision about whether or not to plead
guilty.” Ante, at 9104 (alterations in original) (internal quota-
tion marks omitted). While I believe the majority imprudently
relies on that purported purpose of the statute to trump the
plain meaning of its language, even under such approach the
government’s statement after trial is irrelevant because it
surely could not influence Sperow’s decision to plead guilty
or to proceed to trial.
Finally, contrary to the majority’s assertion, I do not take
the position that once the government files § 851 notice that
satisfies the statutory requirements, it cannot later amend or
withdraw that notice. But I simply cannot accept the majori-
ty’s “apparent withdrawal” doctrine in this case, which has no
basis in our precedents. Ante, at 9107. The majority’s novel
contraption, with little explanation or justification, places a
new burden on the government of ensuring until the end of
the proceedings that an objectively reasonable person would
conclude that the government continues to seek an enhanced
UNITED STATES v. SPEROW 9113
sentence based on a prior conviction. But such notion cannot
be found in the statute.5 Section 851 requires notice, “before
trial, or before entry of a plea of guilty,” of “the previous con-
viction to be relied upon” for the sentencing enhancement.
And Sperow got it. The government’s later amendment to the
indictment (but not the § 851 notice) and its misstatement dur-
ing trial were simply insufficient to operate as a withdrawal
of the statutorily sufficient § 851 notice in this case.
III
In sum, I would affirm the district court’s determination
that the government’s § 851 notice satisfied the statutory
requirements. The government gave Sperow “fair notice of
which prior conviction the government had in mind for seek-
ing a sentence enhancement” and it did not withdraw that
notice. Severino, 316 F.3d at 944. Accordingly, I must
respectfully dissent.
5
In light of the majority’s “apparent withdrawal” invention, a prosecutor
may be wise in the future to file a terse notice containing only two sen-
tences: (1) “The government seeks an enhanced sentence for the defen-
dant’s prior conviction for [identify prior conviction]”; and (2) “This
notice is effective unless and until the government expressly amends or
withdraws such notice in writing and signed by [name].” With such provi-
sion, no defendant could maintain a reasonable belief that the government
apparently withdrew the previously filed § 851 notice based on a later
amendment to the indictment or a slip of the tongue during the trial.