Harris v. United States
149 F.3d 1304
11th Cir.
1998
Check Treatment

*1 judge supervise ecutor. And the district will torneys almost prosecutors who federal surely example, have more information —for throughout this Circuit renew their efforts off discussions the record —available to him high to maintain the level conduct that has making dealing when decisions about traditionally characterized the office Also, already such conduct. as we have men Modica, United States Attorney.” tioned, judge is in district “[t]he [the best] prosecutors at 1186. And expect must position to control the overall tenor of the support this court will judges who trial. can the offending He order statements take steps prosecutorial reasonable to correct jury to cease and can instruct in such a conduct that not right. manner improper erase the taint of AFFIRMED. Id.; Thomas, remarks that are made.” see (curative F.3d at 1343 instruction harmless). prejudicial render remark Fur

thermore, prosecutor’s where a transgres “ excessive, judge sions ‘the trial has an

obligation in the interests fairness and justice stop delivering greatly prejudicial argument sua sponte.”’ Garza, 608 F.2d at 666 n. 7 (quoting United Roy Anthony HARRIS, Petitioner- Corona, 1391 n. 5 Appellee, (5th Cir.1977)).

But, aside from these corrective measures, district courts must also consider America, UNITED STATES prosecutorial “more direct sanctions deter Respondent-Appellant. Butera, misconduct.” 677 F.2d at 1383 No. 97-6788. dica, 1182-86). 663 F.2d at The dis Mo trict many potential courts have remedies of Appeals, (1) (2) contempt citations; fines; available: Eleventh Circuit. (3) (4) reprimands; suspension from the bar; court’s disqualification removal or Aug. 13, 1998. office; from recommendations to bar disciplinary associations to take action. See Gershman,

generally Bennett L. Prosecutori al Misconduct Ch. 13 “We encour age the in district courts this circuit to re vigilant main ... and [fully consider more these persistent sanctions] in cases of .flagrant Butera, misconduct.” 677 F.2d at say

We do prosecutor’s words in this ease warranted more action than what was taken the district court. We know the trial of a criminal case is not a dainty And, affair. this case is no means the worst we prosecutors. from .seen Also, we recognize prosecutors that most completely most trials act consistently professional with their obligations. But, we want to make clear that improper future, remarks and conduct

especially persistent, ought to result against prose sanctions offending cutor individually. expect ‘We the able at- *2 AL, Pitt,

Redding Atty.,' Montgomery, for United States. MARCUS, DUBINA and Before Circuit HILL, Judge.

Judges, and Senior Circuit ' MARCUS, Judge: Circuit in the Appellant Harris was sentenced District for Court the Middle pleading guilty after District Alabama marijuana and co- charges distribution petition argues in this caine. Harris holding district court erred challenge he defaulted his had to the court’s en- a conviction. hanced sentence based on reverse and remand agree We and therefore n re-sentencing. for

I. 4,1993, August Harris was indicted for

On possess with in- conspiracy to distribute (Count I), distribu- tent to distribute cocaine (Count II), marijuana and distribution tion of (Count III). thereafter, on Soon cocaine September appeared Harris plea to II and guilty court to enter a Counts During the course of III the indictment.1 hearing, prosecutor stated that plea going was he not know Mr. Harris “did plea morning.” When asked to enter any objections plea, he re- he had “No, Honor, I sponded, don’t. Howev- Your er, to file intention it was United States’ Harris, on conviction Mr. opportunity had and I have not responded, “Okay. The court that.” file accept you it when it.” The will accepted plea of The then filed the informa- guilty. The shortly pursuant U.S.C. tion thereafter,- plea hearing, after applied November sentencing Harris enhancement Harris not take imprisonment. months Rather, appeal from the conviction. to va- he filed motion August cate, sentence under or correct his aside set (1) 2255, alleging his counsel Defender, 28 U.S.C. King, R. Pub. William Fed. appeal she failed AL, was ineffective because for Harris. Montgomery, agreed I. dismiss Count request; pursuant to his sentence tained to trial or before file plea an information to guilty, may postpone en- establish his taking or the guilty plea, required by tered his period purpose reasonable for the 851(a)(1); IbS.C. he did not receive *3 obtaining such facts.... sentence that his would be enhanced. motion, adopt- The district court denied that (b) If attorney the United files ing magistrate judge’s report and recom- section, under this information the court finding mendation that Harris shall pro- after conviction but before claims, defaulted his and that the failure inquire nouncement of per- sentence of the appeal regarding his counsel to file a direct respect son with to whom the information § issue resulted no be- was filed he whether affirms or that denies cause he on full was record notice of the previously been alleged convicted as government’s to prior intention use his con- information, in the inform him shall consequences. viction and its Harris then any challenge that to a appealed § the denial of to motion his which is not made before sentence is im- this Court. We remanded the case to the posed may not thereafter raised to at- evidentiary hearing district court for an tack the sentence. allegation requested that he prede Eleventh Circuit and its counsel to file direct appeal. Harris v. unambiguously cessor court have and re 96-6165, op. No. slip at 5 peatedly jur held that a district lacks (11th 1997). April Thereafter, Cir. isdiction to enhance sentence unless the hearing district court held such a and found government strictly complies proce with the that he did not so. Harris then filed this 851(a).2 requirements § dural As we ob § appeal of the 851 issue.

served in United States Olson: II. An special enhanced remedy sentence is a prescribed by Congress; prosecutorial We review the district court’s conclusion of discretion is vested in the executive branch law de novo. Singletary, See Macklin v. government, and the district court Cir.1994), F.3d 1312-13 cert. de nied, authority has no pretermit to exercise it or out, pointed it. weAs Congress ad- L.Ed.2d 1085 visedly prose- this discretion in the vested Title Section 851 of the United States cutor. until prosecutorial Unless and dis- provides: Code is cretion invoked and the files (a)(1) person No who stands convicted of serves an required information as part an offense under this shall be sen- Sec. the district court has no punishment by tenced increased reason sentence; act respect with to an enhanced convictions, one or more unless it can no more enhance sentence than trial, before or before impose it imprisonment could under stat- guilty, the attorney files an prescribes ute a fine. Harmless (and information with the court serves a give error cannot the district court author- copy of such information person on the or ity possess. that it does not person) counsel for the stating writing Cir.1983). the previous convictions to be upon. relied Upon showing by explicitly the United holdings States at- reaffirmed the torney that regarding prior facts former Fifth convic- Circuit in United States v. Cev tions diligence allos, could not with Cir.1976) due be ob- 1125 n. During argument, 2. Appellee Noland, oral pointed mandatory, see id. at 1481 Weaver, Cevallos, 1126-27), F.2d at 533 and 538 F.2d at (11th Cir.1990), proposition gov- government strictly and then concluded strictly ernment is comply not with complied with 851 because it served procedural requirements In Weav- defense counsel with the information er, purport the Court to hold that strict trial and notified to the com- Indeed, compliance required. 851 is not jury mencement of selection. the Court compliance reaffirmed that strict imposed in find- was violation of the holding in Noland as sentence Con- (describing prior or stitution laws the United to file the information “the failure ing that without deprived the was prior to trial previous conviction sentence, or such that the sentence was jurisdiction to court of sentence”)3 of the maximum authorized law.” excess and United States Cir.1974) Court, According Supreme “[T]o to the ob- 529, 533 tain collateral relief based trial errors language of (holding mandatory contemporaneous objection no which was authority to im- the court’s 851 “restricts] made, a convicted must show both defendant pose cases where enhanced sentences excusing procedural ‘cause’ double court and served is filed with the default, trial”).4 resulting Thus, prejudice’ ‘actual even on the *4 errors, complains.” the from of which actual notice that a defendant receives where 152, 167, Frady, v. 456 previous United States a U.S. rely to on government the intends (1982). 1584, 71 sentence, 102 816 The S.Ct. L.Ed.2d the dis- to enhance his government therefore contends that Harris jurisdiction lacks to trict court jurisdictional proeedurally defaulted his ob- government files until the enhanced sentence jection by failing at trial to raise it or on § 851. See information as under an appeal, consequently he must and Congress at could not 495 F.2d 533. collaterally at- show cause and to clearly purpose evinced its in have more the tack error. under enhanced sentence providing for an government it only when the seeks 851 applicability eause-and-preju- of the plea. trial or

filing prior an information juris- to a collateral attack on dice standard to file an the failed grounds impres- Because is an issue of first dictional prior convic- concerning Harris’s information sion in Circuit. In collateral attacks acceptance plea, of his the non-jurisdictional grounds tion the that a before based on jurisdiction plainly defaulted, lacked proeedurally district court we Harris, cause-and-preju- sentence.5 impose regularly applied the enhanced the object however, example, to the enhancement diee standard. For a defendant may many at trial or on direct his consti- jurisdictional grounds proeedurally default of See, e.g., Instead, rights.6 he filed a motion under 28 tutional Levine appeal. 610, 619-20, 1038, 2255, 4 362 80 attack U.S. S.Ct. which allows collateral

U.S.C. (Sixth right ground 989 Amendment “upon the the L.Ed.2d on a sentence 1206, Prichard, impose jurisdiction an 661 1207 the district v. F.2d 3. Bonner sentence.”). Cir.1981) (en banc), (11th adopted binding as precedent all of the former Fifth Cir- decisions could have 5. We note that the 1, prior to October cuit rendered 851(a): provided sought postponement attorney showing by “Upon a the United States First, appeals courts of 4. Four other circuit —the regarding facts convictions could Seventh, Sixth, like Tenth —have diligence or due obtained with be 851(a) imposes jurisdictional wise found that guilty, Hill, requirement. 142 F.3d United States v. See taking plea of postpone or the the trial 305, Cir.1998) (“Section 851(a)(1) (6th im 312 period purpose for the a reasonable granting poses requirement obtaining such facts jurisdiction to a defen district court enhance at when United States concepts procedur- dant’s sentence 6. Courts often conflate court, torney stating forfeiture, default, files information with waiver. "Whereas al writing previous relied timely convictions asser- the failure make forfeiture is Romero-Carrion, on.”); v. 54 F.3d right, 'intentional relin- waiver tion ” ("It 15, (1st Cir.1995) ... right.' 17-18 is clear quishment or abandonment of known 725, 733, Olano, required by section failure to file the information U.S. 113 507 United 851(a) jurisdiction 1770, deprives (quoting court of 508 S.Ct. 123 L.Ed.2d sentence.”); Zerbst, United 58 S.Ct. an enhanced U.S. Johnson v. 304 416, 1019, (1938)). Rights Belanger, 418 Cir. that can be v. 970 F.2d 82 1461 States L.Ed. 1992) (“Failure Freytag necessarily v. to file to trial can be waived. forfeited 2, 868, Commissioner, jurisdiction 894 111 S.Ct. deprives to im 501 U.S. n. the district court of J„ sentence."); 2631, (1991) (Scalia, 764 concur- pose United States v. 115 L.Ed.2d an enhanced 868, (10th Cir.1991) ("Fail part concurring judgment). Some ring in Wright, F.2d 882 however, but not forfeited. deprives rights, can be waived to trial ure to file the trial); Owens, R.R., public v. Sys. 1249, to a Riner 764 F.2d v. Seaboard 760 F.2d (7th Cir.1985) (Sixth (“It Cir.1985) 1256-57 Amend- ais well known fact right parties jurisdiction ment to be confronted one’s accus- cannot confer ers), denied, courts.”); cert. 475 U.S. 106 S.Ct. the federal Turlington, Love v. (1986); (11th Cir.1984) (“It 89 L.Ed.2d 589 v. is an 1365(11th Bascan, Cir.1984) principle established subject law that mat- (Fifth jurisdiction protection Amendment from double ter cannot be created or waived jeopardy), by agreement parties.”); cert. denied sub nom. Hobson Eagerton 3476, Valuations, Inc., U.S. 105 S.Ct. Cir.1983) (“[I]t Upon 87 L.Ed.2d 613 collateral at is well established that sub- (and tack, resulting prej ject he must show cause jurisdiction matter cannot be waived or udice) procedural justify for his default to his par- conferred a court consent of the ties.”). Furthermore, failure assert constitutional we are bound to as- See, rights. e.g., Herring, Coulter v. sure ourselves of par- even if the Cir.1995) (finding 1505-06 defen ties fail to raise the issue. See Insurance Ir., Ltd., excusing proce Corp. (“[A] dant failed to show cause at protection dural default jeopardy), from ... subject-matter double will raise lack of jurisdic- denied, rt. motion.”); tion on its Fitzgerald, own ce *5 (1996). 934, 133 (“A L.Ed.2d 860 F.2d at 1251 only federal court not power obligation the but also the any at time defects, Notably, jurisdictional by inquire jurisdiction pos- into whenever the contrast, proeedurally cannot be defaulted. sibility jurisdiction does not exist courts, As federal we are courts limited arises.”) (citing v. Glodgett, Philbrook 421 jurisdiction, our deriving power solely from 707, 1893, U.S., 95 S.Ct. 44 L.Ed.2d 525 Article III the Constitution arid from the (1975); Bruno, City Kenosha v. 412 U.S. legislative Congress. acts See Insurance 507, 2222, (1973)). 93 37 S.Ct. L.Ed.2d 109 Ir., Corp. Compagnie v. Ltd. des Bauxites Guinee, 694, 701, 2099, short, de 456 U.S. 102 S.Ct. jurisdictional In because claims 72 defaulted, L.Ed.2d 492 We therefore cannot not be a defendant need not derive to act from the actions justify show “caüSe” to his failure to raise parties before us. at See id. Conse such claim. The Seventh Circuit reached a quently, parties incapable States, are Kelly confer similar result in 29 upon jurisdictional ring Cir.1994).7 us a Kelly, here, foundation we F.3d 1107 In as simply by procedur otherwise lack waiver or the court considered 2255 collateral at al Griffin, default. See United States v. 303 tack on a sentence where enhancement 226, 229, 58 82 S.Ct. L.Ed. 764 faded to file the informa (1938) (“Since lack of of a federal tion. Kelly The court concluded that was not subject touching matter of the liti show cause and to ex gation cannot parties, be waived we challenge cuse his failure to upon appeal must this examine the jurisdiction, conten court’s explaining, point “The tion.”); Corp. Rent-A-Car, Hertz v. Alamo prejudice, cause repeat, we is to over Inc., (11th Cir.1994) 16 F.3d come the analysis waiver. But this of course (“Subject-matter jurisdiction can never be assumes question that the error in is a waiva- waived or conferred the consent of the ble one. jurisdictional And defects are not.” parties.”) (quoting Property Latin Am. concluded, & at Id. 1112. .The court “Because Marina, Cas. Ins. Co. v. jurisdictional nonwaivable, Kelly defects Hi-Lift Cir.1989)); Fitzgerald (‘cause provide need not us with an excuse Zerbst, id. See v. Johnson 304 U.S. 7.' agreed unpub The Ninth Circuit also in an (right S.Ct. 82 L.Ed. 1461 opinion, stating lished [the error] "because counsel); Patton v. United 28 L U.S. jurisdictional, [the defendant] need not show (1930) (right S.Ct. L.Ed. 854 prejudice.” cause and United States v. Broad by jury), grounds, to trial overruled on other well, (9th Cir.1992). 959 F.2d 242 Florida, v. Williams (1970)).

26 L.Ed.2d cause-and-preju- applies only dice standard to collateral attacks involving rights. forfeited necessary filing. make the us to ernment would adequate to convince prejudice’) deprived of no information. Pro- Harris was Id. at 1114. forgive his waiver.” no cedurally, one was misled. No one was that two courts reveals Our research prejudiced. prejudice” stan “cause applied the have said, however, being prece- our circuit This challenges to enhance jurisdictional dard jurisdictional concepts upon dent is based First, Suveges v. § 851. ments under binding upon panel. this See United and is First held Circuit Cir.1983); 716 F.2d 850 jur procedurally defaulted had defendant Cevallos, super challenge to his enhanced isdictional Cir.1976); after the had vised release term (5th Cir.1974). opinion, In my it allows a about his file cleverly dangle prospect guilty plea. See convictions before eliminating lengthy and burdensome trial Cir.1993). (1st 6, 10 simply stated: The court (if busy judge before a sure, object below Suveges To be immediately accepted can be de- term of imposition of the enhanced mind). jurisdic- changes his fendant Such appeal he did not release and supervised undercut, leverage by a defendant can tional in the first instance. The his sentence here, properly an otherwise seen consti objection earlier failure to raise sentence. procedural default. tutes a analysis prefer cause-and-prejudice I vis- for a then remanded cases Id. The court jurisdictional concepts. a-vis one based analysis. See id. cause-and-prejudice Nevertheless, opinion I of then endorse claim could concluding that Judge Chief Olson who stated Godbold defaulted, cit- decisions not to our [are] that “even these previous Eighth opinion, Ford ed to a Circuit *6 tastes, they court binding this and (8th Cir.1993), States, 983 F.2d 897 circuit courts of this until altered district without reached the same conclusion which this court en banc.” See persuaded because any analysis. are not We reason, I at 854. For this concur. entertain a district court lacks failed 851 enhancement procedural requirement comply with the plea trial. prior to And is not waivable.

defect case, sum, In on the facts of this plainly lacked ENDO-SURGERY, ETHICON sentence, and Har- INC., Plaintiff/counterclaim ris need not show cause Defendant-Appellant, be- collaterally attack the enhanced sentence proce-, jurisdictional claims cannot be cause Accordingly, we RE- Ethicon, durally defaulted. Counterclaim re-sentencing and REMAND Defendant-Appellant, VERSE opinion. consistent with this CORPORATION, UNITED STATES SURGICAL HILL, Judge, specially Senior Circuit nt/Counterc Defenda

concurring: laimant-Appellee. Appellant busy found Here a district court No. 97-1574. and, by plead guilty so willing Harris effort. time and doing, save it much Appeals, court, made it clear to the Federal Circuit. to.Harris, that, on the basis 30, 1998. June convictions, file for an en- it intended to sentence. order document hanced trial,

plea and eliminate gov- took the assurance