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UNITED STATES v. KENNEDY

January 16, 1997

UNITED STATES OF AMERICA
v.
JIMMIE LEE KENNEDY, Defendant.



The opinion of the court was delivered by: OBERDORFER

 On January 15, 1997, defendant Jimmie Lee Kennedy was sentenced in open court to a term of life imprisonment pursuant to 18 U.S.C. § 3559(c). This Memorandum serves to confirm that sentence.

 I.

 Kennedy was originally tried before Judge Robertson and convicted by a jury of Hobbs Act robbery and related weapons and assault charges. He was convicted for holding up, on two separate occasions, the same Roy Rogers restaurant. After trial, Judge Robertson recused himself, and the case was transferred here for sentencing. In accordance with the "three-strikes" statute, 18 U.S.C. § 3559, the Presentence Investigation Report (prepared by Probation Officer Gennine A. Hagar) recommended that Kennedy be sentenced to a term of life imprisonment. Although Kennedy proffered numerous arguments in opposition, none of them were meritorious.

 II.

 First, Kennedy contended that the Government did not provide him with sufficient pretrial notice of the fact that he faced a possible life sentence. In support of this claim, Kennedy relied on the notice requirements contained in both the three-strikes statute and the Due Process Clause of the Fifth Amendment.

 The record indicates that on August 10, 1995, prior to trial, the Government filed an information giving notice that it would seek a sentence of life imprisonment pursuant to the three-strikes statute. The government information alleged that Kennedy had been previously convicted of two serious violent felonies. According to the Government, a copy of that information was served via first-class mail on Kennedy's attorney, Mona Asiner. The information bears a certificate of service to that effect signed by an Assistant United States Attorney. At a presentence hearing held on June 21, 1996, two Assistant United States Attorneys testified under oath that they informed Asiner, both over the telephone and in writing, of the Government's intention to seek a life sentence.

 Although Asiner claims that she never received the information in the mail, and Kennedy contends that he had no actual notice, the Government points out that, in addition to the foregoing, prior to trial, Judge Robertson twice mentioned the three-strikes information in open court. During a pretrial hearing on November 2, 1995, at which both Kennedy and Asiner were present, Judge Robertson stated, "None of us is blind to the implications of this case. Mr. Kennedy's freedom, it's a Section 3559 case... ." Tr. of 11/2/95, at 6. Later, Judge Robertson stated, "This is a third strike case the government is bringing here." Id. at 18.

 A.

 Under the three-strikes provision, the Government is required to serve a copy of the information "on the [defendant] or counsel for the [defendant]." See 18 U.S.C. § 3559 (incorporating by reference 21 U.S.C. § 851(a)). In this case, the Government satisfied that requirement by mailing a copy of the information to Asiner. Service was effected pursuant to Fed. R. Crim. P. 49(b), which incorporates by reference Fed. R. Civ. P. 5(b), and allows service to be made by mailing a copy "to the attorney... at the attorney's... last known address...." See Fed. R. Crim. P. 49(b) (1994); see also Fed. R. Civ. P.5(b)(1994). Moreover, since "service by mail is complete upon mailing," id., non-receipt generally does not affect the validity of service. This is particularly true where, as here, the evidence supports a finding, beyond a reasonable doubt, that Kennedy and his attorney also received actual notice from the prosecutors and in open court from the trial judge. Therefore, the Government will be deemed to have complied with the notice requirement of section 3559. See United States v. White, 980 F.2d 836, 840 n.8 (2d Cir. 1992) (service by mail found sufficient even where defense attorney did not receive three-strikes information until after jury selection).

 B.

 Kennedy also contended that the Government failed to provide sufficient notice under the Due Process Clause of the Fifth Amendment, which allegedly requires service of the three-strikes information to be in open court and on the defendant, not the defendant's attorney. The Supreme Court has recognized that a criminal defendant has the right to be present during certain proceedings -- "whenever his presence has a relation, reasonably substantial, to the fullness of his opportunity to defend against the charge...." Snyder v. Massachusetts, 291 U.S. 97, 105-06, 78 L. Ed. 674, 54 S. Ct. 330 (1934) (Cardozo, J.); see id. at 108 ("The presence of a defendant is a condition of due process to the extent that a fair and just hearing would be thwarted by his absence."); see also Kentucky v. Stincer, 482 U.S. 730, 745, 96 L. Ed. 2d 631, 107 S. Ct. 2658 (1987); United States v. Gagnon, 470 U.S. 522, 526, 84 L. Ed. 2d 486, 105 S. Ct. 1482 (1985).

 Snyder and its progeny are typically invoked where the defendant has been excluded from a particular in-court proceeding. Thus, the application of that line of cases here is slightly inapposite, since this case involves an essentially out-of-court filing. Nonetheless, due process may require that certain out-of-court procedures be re-created in open court in the presence of the defendant, such as where the filing of an indictment is "re-enacted" at arraignment. Cf. United States v. Reiter, 897 F.2d 639, 642-44 (2d Cir. 1990) (defendant entitled to arraignment on twelfth superseding indictment). The indictment analogy receives further support from the Supreme Court's decision in Oyler v. Boles, 368 U.S. 448, 7 L. Ed. 2d 446, 82 S. Ct. 501 (1962), where the Court ruled that a sentencing proceeding to determine habitual offender status is distinct from a defendant's underlying trial on guilt or innocence. Id. at 452. Thus, to the extent that the filing of a three-strikes information is tantamount to the initiation of a "new" stage of criminal proceedings against the defendant, Oyler seems to indicate that such an event is sufficiently critical to entitle the defendant to an in-court "arraignment" on the information.

 Even assuming that the Due Process Clause requires an "arraignment" on the three-strikes information, however, it is not so clear that such an event must occur prior to trial, rather than merely prior to sentencing. Due process is satisfied so long as there is "reasonable notice and an opportunity to be heard." Id. As the Supreme Court held in Oyler, "due process does not require that notice be given prior to the trial on the substantive offense." Id. (emphasis added); see also United States v. Hardy, 52 F.3d 147, 150 (7th Cir.) (due process does not require formal pretrial notice that defendant could be sentenced as armed career criminal), cert. denied, 133 L. Ed. ...


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