F I L E D United States Court of Appeals Tenth Circuit UNITED STATES CO URT O F APPEALS June 13, 2006 TENTH CIRCUIT Elisabeth A. Shumaker Clerk of Court
U N ITED STA TES O F A M ER ICA,
Plaintiff - Appellee, No. 05-1275 v. (D. Colorado) D W A Y NE WILSO N , (D.C. No. 03-CR-36-RPM )
Defendant - Appellant.
OR D ER AND JUDGM ENT *
Before M U RPH Y, A ND ER SO N, and TYM KOVICH, Circuit Judges.
Dwayne W ilson was convicted, following a jury trial, of thirteen counts
relating to his participation in a drug distribution conspiracy and was sentenced to
240 months’ imprisonment, followed by ten years of supervised release, and
assessed a special assessment of $1300. He appeals, challenging the district
court’s denial of his motion to suppress wiretap evidence and its refusal to order
the government to produce polygraph data, and raising several sentencing issues.
For the reasons set forth below, we affirm.
* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. BACKGROUND
W ilson and eighteen alleged coconspirators w ere first indicted in January
2003. The charges resulted from an investigation initiated by the D enver,
Colorado, M etropolitan Gang Task Force, working with agents of the Federal
Bureau of Investigation (“FBI”) (collectively referred to as the “Task Force”), in
August 2001, after hearing from an informant that members of the Crenshaw
M afia Gangster (“CM G”) Blood street gang, including Donovan Stallings, were
involved in the distribution of large quantities of cocaine and crack cocaine.
Stallings w as the initial focus of the Task Force’s investigation. Beginning in
October 2001, the Task Force sought and obtained court authorization to utilize
pen registers and trap and trace devices on Stallings’ cellular telephone. 1
Through these mechanisms, the Task Force identified and interviewed a second
informant in January 2002 who then cooperated with the Task Force in carrying
out a number of controlled buys of cocaine from Stallings. The Task Force used
these occasions to conduct further surveillance of Stallings’ movements. The
second informant also introduced an undercover officer to Stallings. In August
2002, the Task Force also obtained court authorization to place a GPS tracking
1 According to a Task Force investigator, “[a] pen register is an electromechanical device which registers and records the date and time of both incoming and outgoing calls and records the telephone numbers called from that particular telephone.” Aff. in Support of [W iretap] Application at 19, R. Vol. II ex. 1-B. A trap and trace device “identifies the origin of telephone calls made to a particular telephone number.” Id.
-2- device on Stallings’ vehicle. W hen the vehicle was towed for the purpose of
installing the GPS device, a dog trained in narcotics detection alerted on the
vehicle, a search warrant was obtained, and a search was conducted.
By this time, the Task Force had identified Brian Quintana as another
individual involved in the distribution conspiracy. In August 2002, the Task
Force obtained court authorization to install a pen register and trap and trace
device on Quintana’s cellular telephone, and in O ctober 2002, it obtained court
authorization to install a GPS tracking device on Quintana’s vehicle. On three
occasions, the Task Force also conducted searches of Quintana’s trash.
On October 24, 2002, the Task Force submitted an application for a court
order authorizing a wiretap on Stallings’ cellular telephone. The application
stated that there was probable cause to believe that a group which it called the
Denver, Colorado CM B Blood Drug Distribution Organization— including
Stallings, Quintana, twelve other named individuals and others “as yet
unknown”— were engaged in a cocaine distribution conspiracy and that the w ire
comm unications occurring through Stallings’ telephone would reveal “the manner
and means of distributing and delivering quantities of cocaine and cocaine base
for profit.” A pplication at 5, R . Vol. II ex. 1-A.
In a supporting affidavit, Special Agent Todd W ilcox described the
information the Task Force had obtained using other investigative techniques and
explained the limitations of those techniques. In regard to GPS tracking, the
-3- affidavit stated that “the GPS data does not indicate who is driving the [vehicle]
or if the driver actually meets with anyone,” nor could it indicate “the exact
address where the vehicle stops.” Aff. in Support of [Wiretap] Application at
129-30, R. Vol. II ex. 1-B. In regard to pen registers and trap and trace devices,
the affidavit explained that those methods “do not record the identity of the
parties to the conversation, or differentiate between legitimate calls and calls for
criminal purposes.” Id. at 144. M oreover, the data that had been obtained
indicated that the calls often involved cellular telephones which, in Special Agent
W ilcox’s experience, were often registered under false names.
In regard to visual surveillance, the affidavit stated that this method had
failed to show “where and how often the delivery of the narcotics occurs or when
and where the money ‘pooling’ takes place,” nor had it “identified all of the
suppliers of cocaine” to Stallings or other CM G Blood gang members. Id. at 131.
Furthermore, the Task Force had not been able to determine through surveillance
“where the drug proceeds are being kept, or where the drugs are currently being
stored.” Id. at 132. In regard to confidential sources, the affidavit indicated that
although the Task Force had used an informant to conduct controlled buys from
Stallings, those occasions had not revealed any information about Stallings’
suppliers. The affidavit indicated Special Agent W ilcox’s opinion that the
undercover agent introduced to Stallings would also be unlikely to receive any
information about suppliers. It also explained that possible w itnesses or suspects
-4- would likely be unwilling to reveal any useful information during interviews and
that such interview s could compromise the ongoing investigation. Similarly, it
was considered unlikely that searches of various locations where Stallings was
known to spend time could be conducted without alerting Stallings and his
coconspirators to the investigation, “thereby possibly causing them to flee,
destroy evidence, or halt their business.” Id. at 144.
As for the trash searches, they had confirmed that Quintana was involved in
drug distribution but had not provided any further information. The affidavit also
indicated that a variety of investigative techniques involving Postal Service
checks of names associated with certain addresses and other checks of various
types of records, including wages, tax returns, property taxes, and financial wire
transfers, had “not provided concrete evidence involving the nature and scope” of
the distribution conspiracy. Id. at 147.
The affidavit then listed the information that the Task Force hoped to learn
through the requested wiretap, including the identification of members of the
distribution organization that were not yet known, the roles played by all
members, the identification of the organization’s suppliers, and the identification
of when and where meetings and deliveries took place. The application requested
that the w iretap be allow ed to continue for at least thirty days.
The district court issued an order authorizing a thirty-day wiretap on
October 24, 2002. It agreed there was probable cause to believe Stallings and
-5- others were engaged in a drug distribution conspiracy and that the interception of
his telephone communications would reveal “the specifics” of the conspiracy and
related offenses, “including the manner and means of the commission of the
offenses.” Order at 3, R. Vol. II ex. 1-C. The court further concluded that “it has
been established that normal investigative procedures have been tried and have
failed, reasonably appear to be unlikely to succeed if tried, or are too dangerous
to employ.” Id.
The Task Force applied for, and the district court granted, extensions of the
wiretap authorization on November 22, 2002, and January 9, 2003. Pursuant to
the court’s orders, during the period that the wiretap was in place, the United
States Attorney’s office filed periodic reports with the court containing updates
on the information obtained through the wiretap. A number of telephone calls
between Stallings and W ilson were monitored through the wiretap during this
period.
A grand jury indicted Stallings, W ilson, and nineteen others on January 31,
2003. The indictment contained sixty-eight counts, five of which applied to
W ilson. Stallings, W ilson, and several other codefendants were arrested on
February 7, 2003. W ilson filed a motion to suppress the wiretap evidence on
April 14, 2003. A number of W ilson’s codefendants also filed motions to
suppress. Following a hearing, the district court issued an order on November 12,
2003, denying the suppression motions of eight codefendants, including W ilson.
-6- In doing so, the court stated that the judge issuing the wiretap authorization and
its extensions was justified in concluding that the wiretap was necessary based on
the government’s affidavit explaining the use and limitations of other
investigative techniques.
After Stallings’ arrest, he was interview ed by FBI investigators about his
contacts with W ilson. During an interview on M ay 15, 2003, Stallings implicated
a number of his and W ilson’s codefendants in cocaine distribution activities, but
he stated that W ilson had only been involved in selling marijuana. On August 5,
2003, Stallings again stated that W ilson had never purchased cocaine from him.
The government refused to enter a plea agreement with Stallings after these
interviews. At Stallings’ request, he was given a polygraph examination, during
which he again denied W ilson’s involvement with cocaine distribution. The FBI
agent conducting the exam told Stallings that the polygraph indicated he was
being untruthful. W hen Stallings was interviewed again, on January 23, 2004, he
told the FBI investigators that W ilson had in fact been involved in cocaine as w ell
as marijuana distribution.
Stallings entered into a plea agreement on February 21, 2004, pled guilty
two days later, and was sentenced to 141 months’ imprisonment, later reduced to
129 months. W ilson’s other codefendants in the original indictment also pled
guilty. A superseding indictment was issued on February 25, 2004, charging
-7- W ilson alone with eighteen counts related to marijuana and cocaine distribution
and conspiracy to distribute cocaine, along with one forfeiture count.
On December 7, 2004, W ilson filed a motion requesting the court to order
the United States “to produce full, true and correct copies of hard data results
from all polygraph machine examinations of Donovan Stallings . . . carried out in
connection with statements Stallings made in this case,” together with “all notes,
records, and memorand[a] made by the polygraph examiner” and the questions the
examiner asked during the examination. R. Vol. I, doc. 946, at 2. W ilson’s
motion indicated that the purpose of the request was “so that an independent
polygraph expert can [juxtapose] specific questions asked . . . against the specific
resulting polygraph readings . . . [and thereby] form an opinion as to truthfulness
or lack of truthfulness of [Stallings’] answers.” Id. The motion further stated
that if the expert’s analysis of the polygraph results demonstrated that Stallings
had not been untruthful when he stated W ilson was involved only in marijuana
distribution, “and if the prosecution misle[]d Stallings on this issue, then
appropriate M otions would be warranted.” Id. at 3.
The district court heard arguments on this motion at a status conference on
January 7, 2005. In response to the court’s question regarding what use W ilson
would make of the polygraph results, W ilson indicated that if the results showed
that the polygraph examiner had lied to Stallings, “that is misconduct to the point
that would entail further motions to be presented the Court.” Tr. of Status
-8- Conference at 15, R. Vol. VIII. The court denied W ilson’s motion, stating that
established law allowed the government to “lie under these interrogation
circumstances.” Id. W ilson then entered an objection on the record to the court’s
ruling.
A jury trial was held from February 7 to 16, 2005. W ilson was found not
guilty on five counts and guilty on the remaining counts, which included one
count of conspiracy to distribute more than fifty grams of crack cocaine, in
violation of 21 U.S.C. §§ 841(a)(1) and 846, and two counts of manufacturing,
distributing, or possessing with intent to distribute more than fifty grams of crack
cocaine, in violation of 21 U.S.C. § 841(a)(1). Each of these three counts
subjected W ilson to a mandatory minimum sentence as set forth in 21 U.S.C.
§ 841(b)(1)(A)(iii). On February 23, 2004, two days before the government
issued the superseding indictment naming W ilson as the sole defendant, the
government had filed an amended information indicating that W ilson had a prior
conviction for a felony drug offense. The mandatory minimum sentence under
§ 841(b)(1)(A)(iii) for an individual with such a prior conviction is twenty years’
imprisonment. The presentence report (“PSR”) prepared by the United States
Probation Office calculated an advisory sentencing range of 262 to 327 months
-9- based on the United States Sentencing Commission, Guidelines M anual. 2 The
government recommended a sentence of 262 months.
W ilson objected to the application of the twenty-year statutory minimum
because the fact of his prior conviction had not been found by a jury and because
21 U.S.C. § 851, the statute requiring the government to file an information
indicating a prior conviction, does not allow a defendant to challenge the validity
of the prior conviction if it occurred more than five years before the date of the
information. The court overruled those objections and applied the statutory
mandatory minimum of twenty years to each of the three counts under
§ 841(a)(1), to run concurrently. 3 Noting the disproportionate nature of W ilson’s
mandatory minimum sentence when compared to the sentence received by
Stallings, and exercising its discretion to sentence below the advisory Guidelines
range, the court declined to increase W ilson’s sentence beyond the statutory
minimum. W ilson now appeals his conviction and sentence.
2 W e note that the PSR was not included in the record on appeal. W e therefore rely on the information contained in the Judgment regarding the PSR’s calculations. 3 The court also imposed lesser sentences on the other counts of W ilson’s conviction. Because it ordered that all sentences w ere to run concurrently, those sentences did not affect W ilson’s term of imprisonment.
-10- D ISC USSIO N
I. M otion to Suppress W iretap Evidence
W ilson first challenges the district court’s determination that the initial
authorization for a wiretap on Stallings’ cellular telephone and the two extensions
met the necessity requirement of the federal wiretap statute, 4 and argues that the
district court therefore erred in denying his motion to suppress the evidence
obtained through the wiretaps. “‘W e review for an abuse of discretion a district
court’s determination that a wiretap was necessary,’” placing the burden of
proving the wiretap invalid on the defendant. United States v. Cline, 349 F.3d
1276, 1280 (10th Cir. 2003) (quoting United States v. Ramirez-Encarnacion, 291
F.3d 1219, 1222 (10th Cir. 2002)). If the defendant does succeed in meeting this
burden, “evidence seized pursuant to the wiretap must be suppressed.” Id.; see 18
U.S.C. § 2518(10).
The federal wiretap statute sets forth “special procedures for obtaining
wiretap authorization” for law enforcement or investigative purposes, “including
presenting a written application to a judge,” as described in 18 U.S.C. § 2518(1).
United States v. Green, 175 F.3d 822, 828 (10th Cir. 1999). “Before granting the
application, the judge must find that the affidavit establishes necessity by
4 Federal wiretaps, or electronic eavesdropping, by law enforcement are governed by Title III of the Omnibus Crime Control and Safe Streets Act of 1968, as amended, 18 U.S.C. §§ 2510-2522.
-11- showing that ‘normal investigative procedures have been tried and have failed or
reasonably appear to be unlikely to succeed if tried or to be too dangerous.’”
United States v. Small, 423 F.3d 1164, 1172 (10th Cir. 2005) (quoting 18 U.S.C.
§ 2518(3)(c)). If any traditional investigative techniques were not tried, “the
government must explain why with particularity.” Ramirez-Encarnacion, 291
F.3d at 1222. W e must consider “all the facts and circumstances in order to
determine whether the government’s showing of necessity is sufficient to justify a
wiretap,” id. (internal quotation omitted), keeping in mind the purpose of the
necessity requirement “to insure that wiretapping is not used in situations where
traditional investigative techniques would suffice to expose the crime.” United
States v. Castillo-Garcia, 117 F.3d 1179, 1187 (10th Cir. 1997) (internal
quotation omitted), overruled on other grounds by Ramirez-Encarnacion, 291 F.3d
at 1222 n.1; see United States v. Giordano, 416 U.S. 505, 515 (1974) (recognizing
Congress’s “clear intent” in imposing the necessity requirement was “to make
doubly sure that the statutory authority [for employing wiretaps] be used with
restraint and only where the circumstances warrant”).
Here, W ilson argues that the wiretaps were not necessary because “the
primary goals of the investigation had been accomplished or were well on the
road to being accomplished by other traditional investigative techniques at the
time the [initial] intercept order w as entered.” Appellant’s Op. Br. at 13.
According to W ilson, at the time the first w iretap application was filed, “most if
-12- not all members of the” alleged conspiracy had been identified, together with
their roles, including one of Stallings’ suppliers, Clinton Perry. Id. at 15.
The original affidavit in support of the wiretap application did identify
Perry as a suspected associate of Stallings, based on surveillance observation of
him engaging in what Special Agent W ilcox suspected was a drug transaction and
a subsequent traffic stop during which money was found in Perry’s possession
that was later identified as having been used by an undercover officer to purchase
drugs from Stallings. However, this description also illustrates the limitations of
traditional investigative techniques, as surveillance was unable to observe what
was actually occurring during the suspected drug transaction and could only
speculate regarding the relationship between Perry and Stallings. The
government argues that identifying by name individuals that are suspected of
some connection with a drug distribution conspiracy “is not the same thing as
determining their role” in the conspiracy, “much less does it substitute for
developing cases suitable for prosecution.” Appellee’s Br. at 9.
Below, the district court considered extensive arguments along the same
lines as those W ilson asserts here. The court concluded that, “[w]hile it is true
that many of the traditional methods of investigation were successful, the
information was incomplete when measured against the broad objectives of the
investigation,” and these methods “stopped short of revealing Stallings’
suppliers.” Order at 5, R. Vol. I, doc. 648.
-13- It thus upheld the wiretap authorization, stating that the affidavit had set
forth sufficient details in its application to provide a basis for believing there was
a “criminal organization” of some kind, and that Stallings “was a common link
whose telephone communications would provide information about the
interdependence of co-conspirators.” Id. at 4. The district court also held that the
government’s applications for two extensions of the w iretap authorization were
also adequately supported, “incorporating information gleaned from the earlier
wiretap or wiretaps” to show “how continued wiretapping is necessary.” Id. at 5.
Having thoroughly reviewed the record, we agree with the district court
that the government’s affidavits in support of the initial wiretap and the two
extensions persuasively demonstrated that the wiretaps were necessary to achieve
the objectives of the Task Force investigation. See United States v. Newman, 733
F.2d 1395, 1399 (10th Cir. 1984) (upholding necessity determination where
traditional techniques “had failed to reveal the source of the drugs[] [or] the
extent of the drug conspiracy”); United States v. Johnson, 645 F.2d 865, 867
(10th Cir. 1981) (upholding necessity determination where the government was
“properly concerned . . . with identifying all of the members of the conspiracy, as
well as the precise nature and scope of the illegal activity”); see also United
States v. M cLee, 436 F.3d 751, 763 (7th Cir. 2006) (“The government’s
demonstrated need for a wiretap as a means of identifying all coconspirators and
the roles they occupied in the structure of the conspiracy is sufficient for a
-14- finding of ‘necessity’ under the statute.”). W e therefore conclude that the district
court did not abuse its discretion in determining the necessity requirement was
met.
II. Production of Polygraph Graphs
W ilson next argues that the district court erred in refusing to order the
government to hand over the actual graph results from Stallings’ polygraph
examination. W ilson contends that the government was obligated to provide
these results under Rule 16, which mandates that a defendant be allowed to
inspect “the results or reports of any physical or mental examination and of any
scientific test or experiment if . . . the item is material to preparing the defense or
the government intends to use the item in its case-in-chief at trial.” Fed. R. Crim.
P. 16(a)(1)(F)(iii). W here the issue has been preserved, we review the court’s
refusal to order the government to produce such results or reports for an abuse of
discretion. United States v. Price, 75 F.3d 1440, 1445 (10th Cir. 1996).
As the government points out, however, W ilson did not argue below that he
was entitled to the polygraph data under Rule 16. Rather, as indicated above, his
stated reason for requesting the polygraph data was to determine whether the FBI
investigators w ho examined Stallings had engaged in “misconduct” by telling him
he had failed the polygraph when he actually had not. Tr. of Status Conference at
15, R. Vol. VIII. W ilson suggested below that such misconduct would provide a
-15- basis for “further motions” to the court, presumably in order to request sanctions
of some kind. Id. 5 W ilson did not cite Rule 16 in his written motion requesting
the graph results or while arguing the point at the status conference, nor did he
argue that the graph results were material to his defense. Because W ilson did not
raise a Rule 16 issue below in regard to the polygraph data, w e review his claim
here for plain error. 6 See United States v. Teague, 443 F.3d 1310, 1314 (10th Cir.
2006) (discussing plain error review under Fed. R. Crim. P. 52(b)); see also
United States v. M aniktala, 934 F.2d 25, 28 (2d Cir. 1992).
Under plain error review , “w e will reverse the judgment below only if
‘there is (1) error, (2) that is plain, which (3) affects substantial rights, and which
(4) seriously affects the fairness, integrity, or public reputation of judicial
5 W ilson’s reply brief suggests that his intention was to file a “motion to dismiss for outrageous governmental conduct.” Appellant’s Reply Br. at 3-4. 6 W ilson contends that he did make a Rule 16 argument below because “if Stallings was tricked into giving incriminating statements against W ilson, such a fact is material to the defense.” Reply Br. at 3. However, he points to no place in the record, and we have found none, where he argued, as he does here, that the polygraph graphs would allow him to present “evidence of Government trickery” at trial as a means of impeaching Stallings’ testimony. See id. at 4. W hile W ilson did refer to impeachment evidence at the status conference, he made this reference when discussing his need for more complete information regarding the questions that were asked during the polygraph examination, not when discussing his need for the graphs. The court directed that the prosecution provide further information regarding “what those questions w ere, and what happened during this time.” Tr. of Status Conference at 20, R. Vol. VIII. Notably, although at the time of the status conference the government was uncertain whether Stallings would be called to testify, W ilson failed to seek reconsideration of the court’s ruling regarding the polygraph data after the government decided to call Stallings as a witness.
-16- proceedings.’” Teague, 443 F.3d at 1314 (quoting United States v. Gonzalez-
Huerta, 403 F.3d 727, 732 (10th Cir. 2005) (en banc)). That standard is not met
here. W ilson’s argument on appeal is that, assuming W ilson’s expert interpreted
the polygraph data as showing Stallings’ statement during the examination, that
W ilson had only been involved in marijuana distribution, was true, W ilson would
have been able to present this expert’s testimony to show Stallings’ contrary
testimony at trial was false. This impeachment tactic essentially rests on the
claim that the polygraph data and W ilson’s expert’s interpretation of the data are
accurate. W ilson’s attempt to introduce such expert testimony at trial would
therefore be subject to a hearing pursuant to Daubert v. M errell D ow Parm., Inc.,
509 U.S. 579 (1993), to determine “whether the proffered evidence is reliable”
under Fed. R. Evid. 702. United States v. Call, 129 F.3d 1402, 1404-05 (10th Cir.
1997). Such evidence would also be subject to Fed. R. Evid. 403. See Call, 129
F.3d at 1405.
Here, it appears likely that impeachment testimony of the type W ilson
suggests would have been excluded under Rule 403. At trial, where Stallings
testified that W ilson had been involved in cocaine distribution, W ilson’s counsel
cross-examined both Stallings and Special Agent W ilcox regarding Stallings’
prior inconsistent statements that W ilson had only been involved in marijuana
distribution, raising the implication that Stallings may have been influenced to
change his story by his desire to obtain a plea agreement. See Trial Tr. at 425, R.
-17- Vol. X; id. at 873, R. Vol. XII. Any further attempt to impeach Stallings’
testimony using an expert’s interpretation of the polygraph data would have been
largely cumulative. M oreover, this court observed in Call that “[t]he credibility
of witnesses is generally not an appropriate subject for expert testimony,”
including testimony regarding polygraph data, because such testimony “usurps a
critical function of the jury . . . , which is capable of making its own
determination regarding credibility.” 129 F.3d at 1406. W e therefore conclude
the district court did not commit plain error in failing to order the government to
produce the polygraph data.
III. Sentencing issues
W ilson raises a number of arguments regarding the twenty-year mandatory
minimum sentence that was triggered under 21 U.S.C. § 841(b) based on his prior
felony drug conviction. 7 He first argues that the existence of a prior drug felony
conviction was an element of the offense with which he was charged, and the
government’s failure to plead that element in his indictment or prove it to a jury
beyond a reasonable doubt was in violation of his Sixth Amendment right to a
jury trial as interpreted by the Supreme Court in Apprendi v. United States, 530
7 Section 841(b) provides, in relevant part, that an individual who violates § 841(a) “after a prior conviction for a felony drug offense has become final, such person shall be sentenced to a term of imprisonment which may not be less than 20 years and not more than life imprisonment.” 21 U.S.C. § 841(b)(1)(A).
-18- U.S. 466 (2000), and United States v. Booker, 543 U.S. 220 (2005). W ilson’s
argument on this point is precluded by our prior holding to the contrary in United
States v. M oore, 401 F.3d 1220, 1224 (10th Cir. 2005). See United States v.
Brothers, 438 F.3d 1068, 1074 (10th Cir. 2006) (observing that we cannot
overturn a prior decision of a panel of this circuit “barring en banc
reconsideration, a superseding contrary Supreme Court decision, or authorization
of all currently active judges on the court” (internal quotation omitted)).
W ilson next argues that the district court’s application of the statutory
twenty-year minimum under 21 U.S.C. § 841(b) was in error because the
government filed the information required by 21 U.S.C. § 851, citing W ilson’s
prior felony drug conviction, before the date of W ilson’s superseding indictment.
Because W ilson did not raise this issue below , we review for plain error. 8
8 In his opening brief, W ilson argued that the district court lacked jurisdiction to apply the statutory minimum because the information required under § 851 was untimely. In his reply brief, however, W ilson acknowledged that this argument was foreclosed by United States v. Flowers, 441 F.3d 900, 903 (10th Cir. 2006), which held that the requirements of § 851, including those related to timing of the government’s filing, were not jurisdictional in nature. W e therefore need not address W ilson’s jurisdictional argument further. W e note that the government cites Flowers for the proposition that Wilson forfeited his right to raise this issue at all because he did not raise it below. As the government acknowledges, however, Flowers came before the court on collateral review. See Sapia v. United States, 433 F.3d 212, 217 (2d Cir. 2005). On direct appeal, the proper standard of review is plain error. Fed. R. Crim. P. 52(b); see United States v. Brow n, 316 F.3d 1151, 1155 & n.1 (10th Cir. 2003).
-19- Section 851 requires that, in order for the government to apply “increased
punishment by reason of one or more prior convictions,” it must, “before trial, or
before entry of a plea of guilty, . . . file[] an information with the court . . .
stating in writing the previous convictions to be relied upon.” 21 U.S.C.
§ 851(a)(1). W ilson cites no authority for the proposition that the information
required under § 851, having been filed after the original indictment, must be
refiled if the government, as it did here, subsequently files a superseding
indictment in the same case. M oreover, the plain language of § 851 does not
support such a reading. W e therefore conclude that the district court did not
comm it plain error in relying on the information filed before the superseding
indictment as satisfying § 851(a).
W ilson also argues that the requirement set forth in 21 U.S.C. § 851(c), that
a defendant “file a written response to the information” filed by the government
in order to object to the alleged prior conviction, violates his Fifth Amendment
right against self-incrimination. He acknowledges that he did not raise this issue
below and that we therefore review it for plain error.
Essentially, W ilson argues that the information that the government must
file under § 851 is subject to Fed. R. Crim. P. 7 and 11 and therefore, the silence
of a defendant who fails to file a response challenging the information must be
construed as a plea of “not guilty” rather than an admission that the alleged prior
conviction is accurate. See Fed. R. Crim. P. 11(a)(4) (“If a defendant refuses to
-20- enter a plea . . . , the court must enter a plea of not guilty.”). Courts have
considered the information filed for purposes of § 851 to be subject to Rule 7,
which sets forth general requirements for the nature and contents of indictments
and informations. See, e.g., United States v. Garcia, 954 F.2d 273, 276 (5th Cir.
1992) (“Rule 7(c)(3) . . . does not distinguish between . . . informations used to
charge a defendant with a crime and informations used for sentencing
enhancement purposes.”). Rule 11, on the other hand, which governs the
procedures for entering pleas to criminal charges, does not refer to informations
at all and is clearly concerned with pre-conviction charges, not with notices of
sentencing enhancements based on prior convictions.
W ilson cites no authority, and we have found none, to the contrary. Rather,
he cites Boykin v. Alabama, 395 U.S. 238 (1969), which held that a court’s
acceptance of a guilty plea without determining the plea was knowingly and
voluntarily entered was in violation of the Fifth Amendment. Id. at 243. W ilson
again appears to rely on an unsupported assumption that an allegation of a prior
conviction is analogous to an original criminal charge. However, the
constitutional protections accorded an accused prior to conviction are clearly
distinct from any that might apply where a conviction has become final. At the
same time, as the government points out, W ilson is incorrect in his assertion that
§ 851 shifts the burden of proving the existence of a prior conviction from the
government to the defendant. W hile § 851 provides a procedure for a defendant
-21- to contest a prior conviction, the burden to prove the prior conviction by a
preponderance of the evidence remains with the government. See United States v.
Cooper, 375 F.3d 1041, 1052 (10th Cir.), cert. denied, 543 U.S. 1011 (2004). W e
reject W ilson’s claim of plain error on this issue.
W ilson finally argues that the district court erred by failing to follow
§ 851(b) by making “specific inquiry . . . as to whether [Wilson] admitted or
denied the existence of [the alleged prior] conviction.” 21 U.S.C. § 851(b). A s
W ilson does not claim to have preserved this issue below, we again review for
plain error. Our review of the transcript of W ilson’s sentencing hearing indicates
that the district court did not make a specific inquiry regarding the prior
conviction alleged in the government’s § 851 information. However, W ilson did
make a statement objecting to the state convictions indicated in his PSR as having
been obtained in violation of his constitutional rights. Tr. of Sentencing Hr’g at
1813, R. Vol. XVIII. W ilson’s counsel also challenged the five-year statute of
limitations in 21 U.S.C. § 851(e), which prevented Wilson from challenging the
validity of the prior conviction alleged in the information. The court denied that
challenge, and W ilson did not raise the issue on appeal. W hile W ilson argues the
district court failed to make a finding regarding the existence of the prior
conviction, the court did adopt the findings of the PSR, which included that
conviction. W e conclude that the court’s failure to engage in a specific inquiry
did not amount to plain error in this case. See United States v. Thomas, 348 F.3d
-22- 78, 87 (5th Cir. 2003) (holding “a district court’s failure to give the § 851(b)
colloquy does not affect the defendant’s substantial rights where the defendant
failed to . . . challenge the conviction[] [alleged in the filed information] and
never revealed what challenges he was prepared to level” (internal quotation
omitted).
C ON CLU SIO N
For the foregoing reasons, the judgment of the district court is AFFIRM E D.
ENTERED FOR THE COURT
Stephen H. Anderson Circuit Judge
-23-