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United States v. Ackies

United States District Court, D. Maine

May 2, 2018

UNITED STATES OF AMERICA
v.
CAREY ACKIES, Defendant.

          ORDER ON DEFENDANT'S OBJECTION TO INFORMATION CHARGING PRIOR CONVICTIONS

          George Z. Singal United States District Judge.

         Before the Court is Defendant's Objection to the Government's Information Charging Prior Convictions (ECF No. 182). After careful consideration, the Motion is DENIED.

         I. BACKGROUND

         On February 9, 2016, Defendant Carey Ackies was charged in a two-count Indictment with conspiracy to distribute heroin and cocaine base and possession with intent to distribute heroin and cocaine base on or about January 18, 2016, in the District of Maine and elsewhere. (ECF No. 9.) His initial appearance and arraignment occurred on February 11, 2016; the Court appointed counsel and Defendant entered not guilty pleas on the two-count Indictment. (ECF No. 19.) A detention hearing was held on February 26, 2016, and Defendant was ordered detained. (ECF Nos. 24, 40.) On March 14, 2016, retained local counsel entered an appearance on Defendant's behalf followed a few weeks later by a certification for admission pro hac vice for retained counsel from New York. (ECF Nos. 48, 53.) Defendant subsequently filed four unopposed motions to continue based on Defendant's appearance in the Eastern District of New York on a related criminal matter, ongoing negotiations to reach a global resolution of all pending charges against Defendant in New York and Maine, and, eventually, Defendant's termination of his retained counsel in the New York matter. (ECF Nos. 54, 60, 69, 76.) These continuances moved the trial date from May 2016 to January 2017.

         On October 7, 2016, and November 15, 2016, retained counsel filed motions to withdraw (ECF Nos. 78, 86), which the Court granted after Defendant's newly retained counsel entered an appearance (ECF Nos. 95, 97). The Court also granted Defendant's unopposed motion to continue trial to April 2017. (ECF Nos. 96, 99.) On March 9, 2017, Defendant filed an unopposed motion to extend the time for filing pretrial motions (ECF No. 105), which the Court granted (ECF No. 110). On March 14, 2017, Defendant filed three motions to suppress. (ECF Nos. 107-109.) On March 23, 2017, after the filing of a second unopposed motion to extend time to file pretrial motions (ECF No. 114), which the Court granted (ECF No. 115), Defendant filed three additional motions to suppress (ECF Nos. 116-118). After a hearing on June 29 and 30, 2017, the Court denied five of the suppression motions on July 26, 2017, reserving ruling on a single motion.[1](ECF No. 146.) The matter was then scheduled for trial in October 2017, but Defendant filed an unopposed motion to continue on September 11, 2017 (ECF No. 154), and the Court continued the matter to November 2017 for trial (ECF No. 157).

         On October 31, 2017, the Government filed an Information Charging Prior Convictions pursuant to 21 U.S.C. § 851(a)(1) alleging that Defendant has two prior drug offense convictions that qualify him for a sentencing enhancement. (ECF No. 177.) Specifically, the Information stated that the Government intended to rely upon the following prior convictions in seeking the imposition of enhanced penalties at sentencing:

1. Criminal Possession of a Controlled Substance 3rd Degree in the Kings County Supreme Court, State of New York, Case Number 00587-2008, judgment having entered on about December 3, 2012; and
2. Criminal Possession of a Controlled Substance 3rd Degree in the Kings County Supreme Court, State of New York, Case Number 10116-2007, judgment having entered on about December 3, 2012.

(ECF No. 177, PageID # 948.) On November 6, 2017, Defendant filed a Challenge to Information Charging Prior Convictions (“the Objection”), in which he asserts that the prior convictions charged in the Information “were obtained in violation of the Constitution of the United States” because (1) he “did not make a knowing, voluntary, and intelligent waiver of his rights when he entered guilty pleas to the two charges on July 18, 2012” and (2) he received ineffective assistance of counsel relative to entry of the guilty pleas. (ECF No. 182, PageID #s 972-73.) On November 13, 2017, the Government responded to Defendant's Objection. (ECF No. 185.) In its brief Response, the Government discussed 21 U.S.C. § 851, the statute governing the charging of prior convictions, and stated as follows:

The government acknowledges that, upon conviction but before the imposition of sentence, the [D]efendant is entitled to a hearing where the parties may introduce evidence, and further argument, on the issues he has raised. At the hearing, the government will submit documentation establishing the prior felony drug offense convictions, further argument relating to [D]efendant's constitutional and ineffective assistance claims, and contend that the convictions are valid. Such a hearing, however, should not be held unless and until a conviction is obtained.

(ECF No. 185, PageID # 985.) After a jury trial on November 27-30, 2017, a jury convicted Defendant on both counts. The Court subsequently requested an update from the parties on the status of the dispute over the prior convictions. Defendant submitted a Status Report requesting an evidentiary hearing on the merits of his claims that his prior convictions were obtained in violation of the Constitution (ECF No. 225), and an evidentiary hearing was scheduled.

         On March 28, 2018, the Court directed the parties to submit briefing on the following issues: (1) whether Defendant is barred from challenging the prior convictions pursuant to 21 U.S.C. § 851(e), and (2) whether the Government had waived or forfeited the applicability of that provision. (ECF No. 227.) The Court also provided the parties with Certificates of Disposition from the New York court stating that the date of the two prior convictions was July 18, 2012. (ECF No. 227-1, PageID #s 1099-1100.) Oral argument on the legal issues raised by the Court was scheduled, and the parties subsequently submitted briefing on these issues. (ECF Nos. 233, 234.) On April 12, 2018, Defendant submitted an “Update” informing the Court that he was withdrawing the ineffective assistance of counsel claim and stating that an evidentiary hearing was no longer necessary. (ECF No. 235.) Defendant separately submitted an unopposed motion to consolidate the scheduled hearings. (ECF No. 236.) The Court granted the motion to consolidate the hearings and requested additional briefing on the merits of Defendant's remaining claim regarding the prior convictions. (ECF No. 238.) The parties submitted briefs on the merits (ECF Nos. 243, 244), and the Court held a hearing on Defendant's Challenge to Information Charging Prior Convictions on April 26, 2018. At the hearing, the Court heard oral argument and received in evidence documents from the state court record (Gov't Hr'g Exs. 1-4).

         II. DISCUSSION

         A. Bar to Challenging Prior Convictions (21 ...


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