APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA (D.C. Crim. No. 76-218-1)
Before: GIBBONS and WEIS, Circuit Judges, and STEEL,*fn* District Judge
John Brett Allen and two others were convicted of conspiracy to possess marijuana, with intent to distribute it, in violation of 21 U.S.C. §§ 841(a)(1) and 846.*fn1 Before the trial, the government had filed an information charging that Allen was a second offender under the federal Controlled Substances Act and therefore liable to increased punishment. After a non-jury trial held on stipulated facts, the district court sentenced him to imprisonment for eight years, a fine of $20,000, and a special parole term of four years. The prison term is three years longer, and the fine $5,000 higher, than the statutory maximum for the offense of which he was convicted. 21 U.S.C. §§ 841(b) (1)(B) and 846. Allen contends that his conviction should be set aside because the court erred both in refusing to suppress evidence seized at the time of his arrest and in refusing to compel the government to produce an informant. He also urges that the court erred in imposing an enhanced sentence based upon a prior conviction which had not become final. We affirm his conviction but remand for resentencing.
This case involves a shipment of marijuana from Boulder, Colorado, to Pottsville, Pennsylvania. A Drug Enforcement Administration agent in Phoenix, Arizona, had received a tip that the shipment was to be made, that Allen was to meet it in Pottsville, and that it was to be delivered to Connecticut purchasers. He notified his counterpart in Pennsylvania, who located a Ryder rental truck at a Pottsville motel where two men, giving Colorado addresses, had registered. The agent learned that the two men remained at the motel while a third man drove away in the Ryder truck, accompanied by a station wagon bearing Connecticut license plates. Both vehicles were later located at a hunting cabin near Pottsville occupied by Allen, who was there arrested. The Ryder truck was seized, and a later search revealed approximately 1100 lbs. of marijuana. After an evidentiary hearing the district court concluded that the seizure was justified by exigent circumstances and that the search, although conducted with a defective warrant, was justified by the rule in South Dakota v. Opperman, 428 U.S. 364, 49 L. Ed. 2d 1000, 96 S. Ct. 3092 (1976). We find no error in this ruling.
At the hearing on the suppression of evidence, the defendants moved for the production of the confidential informant who had tipped the Phoenix agent. The defendants contended that the informant's testimony bore on the reasonableness of Allen's arrest and the seizure of the truck. The district court ruled that reasonable cause was established when the informant's tip was verified by the arrival of the Ryder rental truck, by Allen's presence in Pottsville, and by the presence of the station wagon bearing Connecticut license plates. We conclude that the lower court did not err in finding that the informant's testimony was not necessary to the defense. See United States v. Roviaro, 353 U.S. 53, 77 S. Ct. 623, 1 L. Ed. 2d 639 (1957) and United States v. Jackson, 384 F.2d 825 (3d Cir. 1967), cert. denied, 392 U.S. 932, 933, 88 S. Ct. 2292, 20 L. Ed. 2d 1390 (1968).
Turning to Allen's contention that he should not have been subjected to an enhanced sentence, we must begin with 21 U.S.C. § 841(b)(1)(B) which provides for recidivists as follows:
If any person commits such a violation after one or more prior convictions of him for an offense punishable under this paragraph, or for a felony under any other provision of this subchapter or subchapter II of this chapter or other law of the United States relating to narcotic drugs, marijuana, or depressant or stimulant substances, have become final, such person shall be sentenced to a term of imprisonment of not more than 10 years, a fine of not more than $30,000, or both.
(Emphasis added.) The procedure for establishing a prior conviction is set forth in 21 U.S.C. § 851. Before trial the United States Attorney must file an information stating the previous conviction. 21 U.S.C. § 851(a)(1). After conviction the court must inquire whether the defendant affirms or denies the information. 21 U.S.C. § 851(b). If the defendant denies a conviction or contests its validity, the court must hold an evidentiary hearing on any issues raised by the defendant's response. 21 U.S.C. § 851(c)(1).
In this case Allen admitted that he had been convicted in the United States District Court for the District of Colorado on June 25, 1975, for conspiracy to import marijuana and that he had been sentenced for that offense on August 8, 1975. He urged, however, that the Colorado conviction was not, either prior to his trial or at the time of his conviction, final within the meaning of § 841(b)(1)(B) because an appeal was still pending before the Tenth Circuit.*fn2 The district court rejected this argument and imposed the enhanced sentence because it construed the words "have become final" to refer only to proceedings at the trial level. United States v. Allen, 425 F. Supp. 78 (E.D. Pa. 1977).
As the district court acknowledged, there is no case law interpreting the statute in its present form, and the legislative history of the Comprehensive Drug Abuse Prevention and Control Act of 1970, Pub. L. No. 91-513, Title II, § 401, 84 Stat. 1260, which introduced the "have become final" language, is inconclusive. Prior to 1970, 26 U.S.C. § 7237 had included the phrase "previously been convicted." The lower court, finding no clue as to why that language had been replaced, looked instead to what was perceived to be the overall congressional intent in the Act of 1970: to deal harshly with recidivists.
One obvious difficulty with that analysis is that the prior statute also treated recidivists harshly. There is no hint in the legislative history of the 1970 Act that Congress contemplated more harshness toward them than theretofore. Another difficulty is that Congress must have been aware that several federal courts had interpreted the language "previously been convicted" to mean convicted in the lower court. See Rogers v. United States, 325 F.2d 485 (10th Cir. 1963), vacated and remanded for resentencing, 378 U.S. 54, 984 S. Ct 1932, 12 L. Ed. 2d 1041 (1964) and Gonzalez v. United States, 224 F.2d 431 (1st Cir. 1955). Thus Congress omitted language which had been interpreted as permitting sentencing under the recidivist provision despite the fact that the first conviction was pending on appeal.
The Rogers case illustrates the problem Congress probably had in mind when it substituted the words "has become final" for the words "previously been convicted." In Rogers the first conviction was ultimately reversed, and the Supreme Court had to send the defendant back for resentencing on the second conviction. It seems likely that Congress intended to avoid that problem by limiting recidivist sentencing to cases in which the conviction has become final, in the sense that the time for appeal has expired or a pending appeal has been disposed of. We can speak only of likelihood and probability, for the word "final" can have different meanings in different contexts, and - on the particular usage involved in this case - there is no enlightening legislative history. Nonetheless, we can find some guidance in a well-known rule of construction: penal statutes must be strictly construed.
Considering that rule of construction, the ambiguity of the term "final", the alteration of the earlier language which had been held to include convictions on appeal, and the probable congressional awareness of the Rogers problem, we construe § 841(b)(1)(B) to mean that a prior conviction is not final for purposes of recidivist sentencing while that conviction is subject to direct appellate review. We are reinforced in our position by the weight of authority among state courts that, while an appeal is pending, the defendant cannot be considered as ...