Grumbling about the Nebraska USA’s assurances regarding § 851 enhancements

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.

10 responses

  1. Taking down a criminal is a difficult task. doing so while functioning within legal and ethical bounds is that much more difficult. prosecutors cannot be given a free pass ever if caught acting incorrectly. the entire system is predicated on the credibility of the actors involved. a prosecutor should never be allowed to get away with one. never. i suspect more transgressions occur than you and your brethern care to admit. be mindful of this

  2. for the sake of intellectual honesty and personal integrity, judges should never allow themselves to become vested enough in the institution of justice that they cannot grow suspicious of the weaknesses within it.

  3. Marc,

    Thanks for your advice. I will think some about it.

    Frankly, I don’t know how to respond in an intellectually honest way, and, from your perspective, perhaps that’s the entire point. Have I completely drank the cool aid? As I say, I will think some about it.

    All the best.


  4. It occurs to me that nearly all judges and prosecutors, when they’re starting out, have a clear view of what is a bright line between proper and improper use of § 851 enhancements. It’s all clear to the new kids), often justifiably so (even if a judge or a prosecutor isn’t new to the law; he’s a rookie in the new position at the start, and that’s emotionally refreshing.

    Where the problem often starts is when the players have become old heads, with a career of seeing folks at their worst (and often, though not always that worst is all the defendant has), the crush of deadlines, the accumulating physical and emotional fatigue. And the siren call of cutting corners works its wile. And a corner gets cut, just this once. Then again. Then….

    As with anything demanding precision, it’s when we’re most tired that we most need focus and clarity of thought.

    Eric Hines

  5. Pingback: Double Your Pleasure, Double Your Fun, with 21 U.S.C. § 851 | Simple Justice

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