D.C. No. CR 91-00142-OWW. D.C. No. 91-00142-OWW Appeals from the United States District Court for the Eastern District of California. Oliver W. Wanger, District Judge, Presiding.
Before: Betty B. Fletcher, Cynthia Holcomb Hall and Charles Wiggins, Circuit Judges. Opinion by Judge Wiggins; Partial Dissent by Judge Hall.
Dennis Keith McChristian and John Berry Ingram were convicted of conspiracy to possess with intent to distribute methamphetamine, possession with intent to distribute that drug, and aiding and abetting. They appeal from several of the district court's trial and sentencing rulings.*fn1
Ingram was convicted in 1982 in state court. The district court, relying on this prior conviction, sentenced Ingram to life without parole pursuant to 21 U.S.C. § 841(b). Ingram attempted to challenge the constitutionality of the 1982 conviction on the ground that his guilty plea was not knowing and voluntary. Ingram also tried to show that, after he had been indicted in federal court on the current charge, a state trial court had held the 1982 conviction invalid. The district court rejected Ingram's arguments, relying on 21 U.S.C. § 851(e), which provides that the validity of a prior conviction that "occurred more than five years before the date of the information alleging such prior conviction" cannot be challenged.
Ingram argues that 21 U.S.C. § 851(e) is unconstitutional. This argument must fail, however, in light of recent Supreme Court and Ninth Circuit precedent. Although this circuit originally held 21 U.S.C. § 851(e) unconstitutional, in United States v. Davis, 15 F.3d 902 (9th Cir. 1994), that opinion was subsequently withdrawn and reversed in light of a new Supreme Court case, Custis v. United States, 128 L. Ed. 2d 517, 114 S. Ct. 1732 (1994).
The Court in Custis ruled that a defendant does not have a constitutional right to challenge a prior conviction which is otherwise proscribed by the Armed Career Criminal Act, 18 U.S.C. § 924(e)(1) (ACCA). The Court held that, except in the limited circumstance in which the prior conviction was obtained in violation of the right to have counsel appointed, see Gideon v. Wainwright, 372 U.S. 335, 9 L. Ed. 2d 799, 83 S. Ct. 792 (1963), a defendant has no constitutional right to challenge prior convictions used to enhance a currently imposed sentence. 114 S. Ct. at 1737-39. Because Custis's arguments against his prior convictions did not include allegations that he was without counsel and that none was appointed for him, Custis was not allowed to attack the prior convictions. Id. at 1738.
This circuit, following Custis, recently withdrew its original Davis decision, and ruled that § 851(e)'s provisions are constitutional. United States v. Davis, 36 F.3d 1424, 1438-39 (9th Cir. 1994). Therefore, because Ingram does not allege that his 1982 conviction is invalid for lack of having counsel appointed for him, he has no constitutional right to attack the 1982 conviction.
Ingram presents another argument that the district court erred in relying on the 1982 conviction, however. After Ingram was indicted in federal court and became aware that the government would attempt to rely on the 1982 conviction, Ingram went back to Kern County Superior Court, the court that convicted him in 1982, and moved that his case be reopened and his conviction be stricken. The Kern County Superior Court, Judge Rebecca A. Wiseman, reopened Ingram's case on July 7, 1992, and granted Ingram's motion to strike the prior conviction. Thus, at the time Ingram was sentenced in federal court in October 1992, the 1982 conviction had been declared invalid by the court of conviction. Ingram contends that the district court erred in relying on this invalid conviction and that § 851(e) does not preclude Ingram from showing the court that the conviction has been invalidated. We agree.
At issue is whether the phrase "challenge the validity" in § 851(e) includes a showing that a prior conviction has been invalidated in a proceeding in state court. Ordinarily, Ingram could make such a showing under § 851(c)(1), which allows defendants to "claim[ ] that any conviction alleged is invalid." However, if § 851(e), which bars any "challenge [to] the validity" of a five-year-old conviction, precludes such a showing, then the district court did not err. On the other hand, if "challenge the validity" does not include a simple showing that a prior conviction has been invalidated in a state court proceeding, then the district court erred in failing to accept Ingram's showing, and Ingram's sentence should be vacated.
Though we have found no case law on point on this question, we are persuaded by several reasons that "challenge the validity" does not include the type of showing Ingram attempted. First, after Ingram's conviction was invalidated by the Kern County Superior Court, Ingram's 1982 conviction had no "validity" that could be challenged. The court that convicted Ingram struck the conviction. Thus, any challenge in federal court to the validity of that conviction would have been moot.
Second, a careful reading of the statute convinces us that § 851(e)'s purpose was to exclude from federal court only collateral challenges to convictions and not reports of successful collateral challenges completed in state court. Section 851(e) prevents only a "challenge [to] the validity of [the] prior conviction." The word "challenge" is used only three other times in § 851, once in § 851(b) and twice in § 851(c)(2). Section 851(b) is ambiguous as to whether "challenge" includes the submission of evidence that a prior conviction has been invalidated by a state court. Section 851(c)(2) is not ambiguous, however. Section 851(c)(2) outlines what steps a defendant must take to mount in federal court a full-blown, collateral attack on a prior conviction. The section sets forth the burden of proof necessary and imposes time limits within which such an attack must be made. "Challenge" in § 851(c)(2) clearly refers to a collateral attack in federal court. Because "challenge" to a prior conviction, as used in § 851(c)(2), means only a full-blown, collateral attack in federal court on the prior conviction, we conclude that "challenge" means the same in § 851(e). See King v. St. Vincent's Hospital, 502 U.S. 215, 112 S. Ct. 570, ___, 116 L. Ed. 2d 578 (1991) ("[A] statute is to be read as a whole . . . since the meaning of statutory language . . . depends on context.").
Third, our interpretation of the statute is fair to the government. The government has various interests that § 851(e) serves by excluding collateral challenges to old convictions (expense of keeping court records indefinitely, concerns about evidence being lost over time, and "thorny procedural difficulties" at sentencing hearings, Davis, 36 F.3d at 1438). In Ingram's case, however, in which a prior conviction was held invalid by a state court before Ingram's sentence was imposed, these interests in the finality of sentences are inapposite. We can think of no government interest in enhancing a defendant's sentence based on a prior conviction that has already been shown to be obtained in violation of the Constitution. For these reasons, we think § 851(e) would not preclude Ingram showing, hypothetically, that the 1982 conviction was invalidated in a 1988 habeas proceeding. The 1992 collateral proceeding in state court was substantively no different than a 1988 habeas proceeding. The mere fact that the invalidation occurred shortly after Ingram was indicted in federal court, rather than shortly before, makes no difference. For the foregoing reasons, we conclude that Ingram may "claim that [his 1982] conviction [was] invalid," as § 851(c)(1) allows, even though § 851(e) precludes a "challenge [to] the validity of" that conviction under § 851(c)(2). Section 851(e) does not preclude Ingram from claiming that his 1982 conviction was invalid, even though Ingram may not mount in federal court a collateral attack on that conviction. The district court therefore erred in relying on § 851(e).
Ingram's successful collateral attack on his 1982 conviction was on appeal at the time Ingram was sentenced. Along with § 851(e), the district court cited this fact in relying on the 1982 conviction. We conclude that this reliance was also error. Williams v. United States, 651 F.2d 648 (9th Cir. 1981), which held that a prior conviction is not "final" for enhancement purposes while certiorari before the Supreme Court is pending, indicates that no reliance should be placed on a conviction while direct appeal is pending. Considerations that guided Williams guide our decision. Both the "orderly administration of Justice" and the "possib[ility of] conflicting results [between state and federal court decisions], with all their attendant complications and embarrassments," 651 F.2d at 650 (internal quotations omitted), suggest that the district court should refrain from relying on a conviction that has been held invalid by a state court, while the appeal of that invalidation is pending. We therefore conclude that the district court erred in precluding Ingram from showing that his 1982 conviction had been invalidated.
The superseding indictment in this case was returned before a federal magistrate Judge, as the record reflects:
THE COURT: The record should reflect we're in session in chambers to receive indictments. Mr. Richter is present, Ms. Kalmanir is present, and the court staff.
In the matter of the United States . . . v. . . . Ingram, . . . I have received a Superseding Indictment alleging [various crimes].
The record of proceedings indicates twenty of the Grand Jurors concurred. I'll accept the indictment, order it filed.
Ingram claims that the indictment was not returned "publicly" and that this defect is fatal to the indictment and violates the Fifth (grand jury) and Sixth (public trial) Amendments. In support, Ingram cites Renigar v. United States, 172 F. 646, 650 (4th Cir. 1909) ("It is essential to the validity of an indictment that it be presented in open court and in the presence of the grand jury."); Fed. R. Crim. P. 6(f) ("The indictment shall be returned by the grand jury to a federal magistrate Judge in open court."); and Fed. R. Crim. P. 31(a) (requiring that verdicts also be "returned by the jury to the Judge in open court"). Ingram also contends that the failure to return the indictment in open court is jurisdictional. Renigar, 172 F. at 658 (holding such defect to be jurisdictional).
We must reject Ingram's arguments. United States v. Lennick, 18 F.3d 814 (9th Cir.), cert. denied, 130 L. Ed. 2d 100, 115 S. Ct. 162 (1994), controls this issue. In Lennick, the indictment was "not physically handed to a federal magistrate in open court[, but] . . . the prosecuting attorney handed it to a court clerk when the court was not in session." Id. at 817. The court reasoned:
We agree that Fed.R.Crim.P. 6(f) requires indictments to be returned in open court . . . . However, . . . errors in the grand jury indictment procedure are subject to harmless error analysis unless the structural protections of the grand jury have been so compromised as to render the proceedings fundamentally unfair. Dismissal of an indictment is considered a drastic step and is generally ...