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Court Affirms Filing of Section 851 Prior Felony Information

In United States v. Strong, No. 15-2992, the Court (Kearse, Lohier, and Droney) affirmed Strong’s conviction in a brief, per curiam opinion.  Strong was charged with conspiracy to possess with intent to distribute and to distribute cocaine base and heroin.  The government filed a 21 U.S.C. § 851 prior felony information that doubled the applicable mandatory minimum from 60 months to 120 months.  Strong did not object to the filing of the prior felony information.  He pleaded guilty to the conspiracy charge and admitted the fact of his prior state felony conviction. 

On appeal, Strong argued that the filing of the prior felony information violated 21 U.S.C. § 851 and the Constitution.  In support of the statutory challenge, Strong relied on the language of Section 851 that permits increased penalties when “the United States Attorney files an information with the court.” 21 U.S.C. § 851(a)(1) (emphasis added).  Signature by an Assistant U.S. Attorney, and not the U.S. Attorney for the Northern District of New York, Strong argued, rendered the information procedurally defective.  The Court rejected this novel argument, noting that, though an AUSA signed the prior felony information, it was, pursuant to the plain language of the statute, filed by the U.S. Attorney for the Northern District of New York.  With this holding, the Court joined at least two other Courts of Appeals to consider this issue and to conclude that U.S. Attorneys may properly delegate this type of signatory authority to AUSAs.  The Court likewise rejected Strong’s claim that filing of the prior felony information unconstitutionally contravened Department of Justice policy.  DOJ memoranda, the Court explained, constitute internal guidance and do not “confer any substantive rights upon defendants or impose a constitutional standard upon the courts.”  (Op. at 8).

There are some things that must be done by the United States Attorney herself.  For example, when the government seeks to appeal from an adverse interlocutory decision (such as a decision to suppress evidence), the United States Attorney must personally certify that “that the appeal is not taken for purpose of delay and that the evidence is a substantial proof of a fact material in the proceeding.” 18 U.S.C. § 3731.  However, this requirement of personal approval is rare.  In Strong, the Second Circuit declined to impose such a requirement on the filing of a prior felony information.

-By Susan Millenky and Harry Sandick