The US Attorney for the District of Nebraska responds regarding § 851 enhancements

Recall my earlier post laboriously titled Judge Bennett skewers DOJ like a shish kebab of little lamb , prompting me to ask: What in the name of bloody blue hell is going on at the US Attorney’s office in Nebraska that allows for the disparity that Judge Bennett writes about?  In that post I highlighted Judge Bennett’s remarkable opinion that found that a defendant in the Northern District of Iowa (N.D. of Iowa) who is eligible for a § 851 enhancement is 2,532% more likely to receive it than a similarly eligible defendant in the bordering District of Nebraska.  Among other things, I also sought an explanation from Deb Gilg, our very able United States Attorney,

Mrs. Gilg came to my office last week to give me her response. Without intending to quote her, she essentially had two things to say that she hoped I would consider. First, Judge Bennett’s statistics showed that the District of Nebraska was using the § 851 enhancement like a scalpel rather than a butcher knife. In other words, if I had a legitimate concern, it ought to be directed not at the USA for Nebraska but elsewhere. Second, the US Attorney for the District of Nebraska has written procedures that govern when the government will seek such an enhancement. She asserted that those procedures were rationally related to such things as the nature of the offense and the personal characteristics of the offender including especially criminal history and the age and nature of the prior convictions. She assured me that the enhancement would never be employed to coerce a guilty plea.

I appreciate Mrs. Gilg taking the time to respond to my concerns. As a side note, I particularly enjoy her candor and sense of humor.


13 responses

  1. I applaud the U.S. Attorney in Nebraska for her superb use of discretion in applying the 851 enhancements. This is exactly how the system is supposed to work. As usual, Nebraska is a national leader in common sense and fairness in the delievery oof justice.

  2. Marc,

    Excellent point. For now, the saying that Ronnie popularized is applicable here: “Trust but verify.” At our next judges’ meeting, I have placed on our agenda, for discussion with all our judges plus the USA, FPD and CJA panel attorney, recent directives from DOJ in Washington regarding local procedures US Attorneys should follow.

    All the best.


  3. Eric,

    Perceptive question as usual. Please remember that the Nebraska USA is representing the Executive and the Judicial branch has only limited authority when it comes to charging decisions. So, as a practical matter, these types of things are best worked out with an extra dollop of good faith and common sense when the judiciary pushes for fairness in charging practices. I could go on, but I think you get the drift.

    All the best.


  4. Eric,

    The simple answer is: I don’t know.

    I do understand that each USA’s office is “audited” from time to time by folks sent out from main Justice to see whether the local USA is following DOJ’s procedures. How searching that audit is, and whether there are any real sanctions if the policies are not followed, are subjects about which I have no knowledge.

    All the best.


  5. Thanks. I ask because obviously, the meaning has implications. In the USAF, a headquarters “should” wasn’t binding, but we needed a really good reason for not doing it.

    On the other hand, the FRG’s AFSBw (their FAA), with which I had extensive dealings, considered “should” to be binding, which required interesting negotiations to arrive at an acceptable agreement that achieved what we both needed.

    The meaning would need pinning down within DoJ, too (which it may be, from their perspective). But that outcome impacts their dealings with the judiciary, of course.

    Your answer also implies that DoJ audits don’t often involve the judiciary as “customers” of some sort–a common business practice when a private sector company sets out to assess, internally, its performance.

    Eric Hines

  6. BTW, in every other district I know of 851’s, especially 2nd ones, but often the first one, is taken off the table if the defendant pleads, so Ms. Gilg’s statement that the 851 is not used to coerce a plea strikes me as at best peculiar, unless she is thinking persuading is not coercing. Actually, and probably surprising to some, that seems like a perfectly permissible use of an 851 to me whether it’s either.

  7. Pingback: Grumbling about the Nebraska USA’s assurances regarding § 851 enhancements « Hercules and the umpire.

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