Soon after I posted that Mrs. Gilg, the United States Attorney for the District of Nebraska, had assured me that § 851 enhancements would never be used to coerce a guilty plea, I heard grumbling from two highly regarded members of the defense bar. Condensed and summarized, that grumbling went something like this:
Hogwash! Mrs. Gilg must be out of the loop. She apparently does not know that her assistants use the threat of a § 851 enhancement to dissuade defendants from filing motions to suppress let alone from insisting on jury trials.
I take it as a given that not everyone who could be sentenced under § 851 should be sentenced under § 851. That being true, it is one thing for a prosecutor to seek or threaten to seek a § 851 enhancement because the defendant fits within written policies rationally related to the statutory goals of sentencing and the filing or threat of filing the notice provides an additional incentive for the defendant to accept responsibility for his or her unlawful conduct. But, it is an entirely different thing to use the existence of a potential § 851 enhancement to secure a litigation advantage or to punish a defendant for exercising his or her Constitutional right to proof beyond a reasonable doubt and a jury trial when the existence of a potential § 851 enhancement does not further the statutory goals of sentencing.*
To be precise, when the statutory goals of sentencing do not demand it, the prosecutor ought not file or threaten to file § 851 notices even if that means the prosecutor must defend against a motion to suppress or must prove the underlying offense beyond a reasonable doubt to a jury. More simply, the “‘prosecutor, like the defendant, should be required to turn square corners.’” United States v. Johnson, 652 F.3d 918, 922 n.2 (8th Cir. 2011) (reversing a conviction for receiving child pornography) (quoting Justice Stevens, concurring in part and dissenting in part, in United States v. Jimenez Recio, 537 U.S. 270, 279 (2003)).
If the concerns of the defense bar regarding § 851 enhancements are real, I am all ears.
*Admittedly, this is a fine distinction, but it is an important one. Moreover, it is a distinction that experienced federal prosecutors intuitively understand.