ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY Civil Action No. 93-cr-00426-1 (District Judge: Honorable John C. Lifland)
Before: Greenberg, Alito and Mckee, Circuit Judges.
The opinion of the court was delivered by: McKEE, Circuit Judge.
Agnes Kole pled guilty to violating 21 U.S.C. §§ 952(a), 960(a)(1), and 963 based upon her involvement in a conspiracy to import heroin into the United States from Thailand. Thereafter, the government filed an enhanced penalty information under 21 U.S.C. § 851(a) in an effort to enhance Kole's sentence based upon a prior felony drug conviction in the Philippines. The district court granted the requested enhancement, and Kole appeals. She claims that the enhancement was improper because she was denied effective assistance of counsel in the Philippines, and because the Philippine legal system does not recognize the right to a jury trial. For the reasons that follow, we will affirm.
A. The Prior Conviction in the Philippines
On December 8, 1991, Kole, four other females, and a male named Lazarus Iwuchukwu ("Ike") were arrested in an apartment in a city in the Philippines. Ike was Kole's fiance. Kole and Ike lived in the apartment, but all six were charged with conspiracy to prepare, package and repackage heroin in violation of Philippine law. Police made the arrest after a drug courier named Jamie Williams lead them to Kole's apartment. Williams had been arrested in Manila as she was boarding a flight bound for Chicago with a falsebottomed suitcase containing approximately five kilograms of heroin.
When police and Williams arrived at the condominium complex where Kole and Ike lived, the owner of the complex consented to a search and police entered Kole's apartment along with Williams. Once inside, the police discovered a blue suitcase containing heroin. Kole and Ike were captured after they tried to escape by jumping from a second story terrace. Several women who were present in the apartment were also arrested and all were charged with violating Philippine law.
The defendants, who were represented by the same attorney, entered pleas of not guilty and proceeded to trial before a Judge in accordance with Philippine law. At that trial the police testified that the women who were arrested with Kole were all squatting around a suitcase and filling it with heroin when police entered. Kole testified in her own behalf. She stated that she and Ike had been awakened by a loud noise coming from the living room. According to Kole, Ike had peered from behind the door of the bedroom to find out what was going on when he saw a man with a gun who Ike claimed was trying to kill them. Kole testified that she and Ike attempted to escape by jumping from the second-floor terrace, but they were apprehended and placed under arrest. She insisted that she had never seen Williams before, and that the suitcase with the heroin had never been in her possession. The defendants also offered testimony that police had told them that they had to pay a bribe of $100,000 or the police would have Williams testify that the heroin was found in Kole and Ike's apartment.
Despite the defense testimony, Judge Felix of the Regional Trial Court of the Philippines found both Ike and Kole guilty as charged though he acquitted everyone else.
B. The Current Conviction, and Sentence
In the instant case, Kole and a coconspirator were apprehended in New Jersey and charged with attempting to import heroin. Kole subsequently pled guilty to one count of conspiring to import 3.5 kilograms of heroin into the United States in violation of 21 U.S.C. § 942(a). Following the change of plea proceeding, the government filed an information under 21 U.S.C. § 851(a) in an effort to enhance Kole's sentence to a term of imprisonment of at least 20 years based upon her drug conviction in the Philippines.
Kole argued that 21 U.S.C. § 851(c)(2) precluded the court from using the Philippine conviction to enhance her sentence because she had been denied a jury trial in the Philippines, and because her defense counsel there labored under a conflict of interest that caused her to be denied effective assistance of counsel. Since § 851(c)(2) expressly bars consideration of any prior conviction that "was obtained in violation of the Constitution of the United States," Kole asserted that the sentencing court could not apply the mandatory minimum for repeat felony drug offenders contained in 21 U.S.C. § 960(b)(1)(A).
The district court held a sentencing hearing, and scrutinized Judge Felix's opinion. The district court concluded that both of Kole's assertions were within the scope of the collateral attack allowed under 21 U.S.C. § 851(c)(2), but that Kole had not satisfied her burden of proof as to either claim. Accordingly, the court ruled that the Philippine conviction was a prior drug felony for purposes of sentencing, and sentenced Kole to the mandatory minimum period of incarceration (20 years) under 21 U.S.C. § 960(b)(1).*fn1 This appeal followed.
We have appellate jurisdiction pursuant to 28 U.S.C. § 1291. Our standard of review is plenary. See United States v. Murray, 144 F.3d 270 (3d Cir. 1998) (citing United States v. Woods, 986 F.2d 669, 673 (3d Cir. 1993).
A. The Statutory Framework
21 U.S.C. § 960(b)(1)(A) provides in part:
If any person commits any of the prohibited acts set forth [in § 960] after a prior conviction for a felony drug offense has become final, such person shall be sentenced to a term of imprisonment of not less than 20 years and not more than life imprisonment . . . .
This enhancement is, however, subject to the limitations set forth in 21 U.S.C. § 851(c)(2) which provides:
A person claiming that a [prior felony drug] conviction . . . was obtained in violation of the Constitution of the United States shall set forth his claim, and the factual basis therefor . . . . The person shall have the burden of proof by a preponderance of the evidence on any issue of fact raised by the response.
Here, it is not disputed that Kole's conviction in the Philippines was for a "felony drug offense" as that term is used in § 960. Nor is it disputed that she was not entitled to a jury trial under the law of the Philippines, or that her defense attorney there also represented all of her co-defendants.*fn2 The district court ruled that, although Kole was not entitled to a jury trial, her Philippine conviction could still be used to enhance her sentence under § 960 because the conviction was obtained in a manner that was consistent with notions of fundamental fairness embodied in the Constitution, and was therefore "not obtained in violation of the Constitution" as that phrase is used in § 851. The court also ruled that Kole had not met her burden of showing that her defense attorney's joint representation of herself and Ike deprived her of effective assistance of counsel.
B. The District Court's Analysis
In rejecting Kole's claim, the district court relied upon a series of cases known as the "Insular Cases."*fn3 The district court also relied in part upon Custis v. United States, 511 U.S. 485 (1994), but the court rejected the government's argument that Custis limited the scope of attack allowed under § 851(c)(2). See Dist. Ct. Op. at 5.
In Custis, the defendant was convicted of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). Prior to trial the government notified him that it would seek to enhance his sentence under the Armed Career Criminal Act of 1984, 18 U.S.C. § 924(e) ("ACCA"). That provision
"raises the penalty for possession of a firearm by a felon from a maximum of 10 years . . . to a mandatory minimum sentence of 15 years and a maximum of life in prison . . . if the defendant has three previous convictions . . . for a violent felony or serious drug offense." Custis, 511 U.S. at 487 (internal quotation marks omitted).
The defendant had a prior state court conviction for robbery, and two prior state court convictions for burglary. However, at his sentencing hearing in federal court, he challenged the use of two prior state court convictions arguing that he had been denied his Sixth Amendment right to effective assistance of counsel in those prosecutions. He asserted that his attorney in those two cases had not advised him of a possible defense of voluntary intoxication, and that he would have gone to trial rather than plead guilty had he known of that defense. Id. at 488.
The sentencing Judge denied the challenge, and the court of appeals affirmed. The court of appeals reasoned that § 924(e) did not expressly provide for collateral attack of the predicate enhancement convictions. The court stated that considerations of comity and federalism weighed against such collateral attacks on state convictions in federal proceedings and that it was impractical to allow the "fact intensive inquiries" necessary to resolve such a collateral attack. Id. at 490. The court did, however, recognize "the right of a defendant who had been completely deprived of counsel to assert a collateral attack on his prior convictions." Id. at 489. The Supreme Court affirmed. It reasoned that Congress did not intend to allow a collateral attack of the predicate enhancement convictions under § 924(c) because it had omitted any language allowing a defendant to do so. The Court viewed that omission in context with the specific grant of such a right in 21 U.S.C. § 851(c)(2). The Court stated:
"The language of § 851(c) shows that when Congress intended to authorize collateral attacks on prior convictions at the time of sentencing, it knew how to do so. Congress' omission of similar language in § 924(e) indicates that it did not intend to give defendants the right to ...