Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. Criminal Action No. 03-cr-00294) District Judge: Honorable William W. Caldwell.
The opinion of the court was delivered by: Ambro, Circuit Judge
Submitted Under Third Circuit LAR 34.1(a) September 26, 2005
Before: ALITO, AMBRO, and LOURIE,*fn1 Circuit Judges.
Darin L. Hedgepeth appeals from his conviction and sentence for possession of a firearm by a convicted felon, 18 U.S.C. § 922(g)(1) and 18 U.S.C. § 924(a)(2), possession of crack cocaine, 21 U.S.C. § 844, and possession of crack cocaine while on pre-trial release, 18 U.S.C. § 3147 and 21 U.S.C. § 844. He alleges that the District Court abused its discretion by (a) denying his pretrial motion to strike portions of a superseding indictment that included factors relevant to sentencing and (b) submitting, over Hedgepeth's objection, a special verdict slip to the jury that included the contested sentencing factors. For the reasons provided below, we affirm.
I. Factual and Procedural History
Hedgepeth was indicted in October 2003 on charges of manufacturing counterfeit currency in violation of 18 U.S.C. § 471 and possession of a firearm by a previously convicted felon in violation of 18 U.S.C. § 922(g)(1). The Government subsequently filed three superseding indictments, the first two of which added charges for possession of a sawed-off shotgun in violation of 26 U.S.C. §§ 5841, 5861(d) and 5871, possession of crack cocaine in violation of 21 U.S.C. § 844, and possession of crack cocaine while on pre-trial release in violation of 21 U.S.C. § 844 and 18 U.S.C. § 3147. The third superseding indictment added a Notice of Special Findings containing factors that would affect sentencing if they were found to exist by a jury beyond a reasonable doubt, including: (a) whether Hedgepeth possessed a shotgun with a barrel length of less than eighteen inches; (b) whether the offense involved three or more firearms; and (c) whether one or more of the firearms involved in the offense was stolen. Hedgepeth filed a motion to strike the sentencing factors as surplusage and the District Court denied the motion. At the August 2004 trial, a Special Verdict Form was submitted to the jury, over Hedgepeth's objection, that included the three sentencing factors added by the third superseding indictment.
Central to this case is that the Government's decisions to file the third superseding indictment and submit the special verdict form were prompted by the Supreme Court's decision in Blakely v. Washington, 542 U.S. 296, 304 (2004) (holding that any fact, other than a prior conviction, that increased a sentence beyond the maximum a judge could impose based on admitted conduct must be pled and proven to a jury beyond a reasonable doubt). Seven months after Blakely, the Supreme Court struck the Federal Sentencing Guidelines insofar as they were mandatory. United States v. Booker, 125 S.Ct. 738, 766 (2005). Thus, "mandatory enhancement of a sentence under the Guidelines, based on facts found by the court alone," is constitutionally impermissible. United States v. Davis, 407 F.3d 162, 163 (3d Cir. 2005). In Hedgepeth's case the Government chose to respond to the post-Blakely, pre-Booker context by pleading and proving the sentence enhancements to the jury.
The jury found Hedgepeth guilty of possession of a firearm by a previously convicted felon, possession of crack cocaine, and possession of crack cocaine while on pre-trial release. (He was found not guilty of possession of a sawed-off shotgun and a mistrial was granted as to the counterfeiting charge because the jury could not reach a verdict.) With respect to the felon in possession of a firearm offense, the jury found two of the three sentencing factors beyond a reasonable doubt (that the offense involved three or more firearms and that at least one of the firearms was stolen). Hedgepeth appeals, alleging that the District Court unfairly prejudiced him and committed reversible error by denying his pretrial motion to strike portions of the third superseding indictment and submitting, over his objection, the special verdict slip to the jury.*fn2
We review for abuse of discretion the District Court's decision to deny a motion to strike surplusage from an indictment. See, e.g., United States v. Rezaq, 134 F.3d 1121, 1134 (D.C. Cir. 1998); 1 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 127, at 277--78 (3d ed. 1999). Motions to strike surplusage are rarely granted. United States v. Alsugair, 256 F. Supp. 2d 306, 317 (D.N.J. 2003); see also United States v. Pharis, 298 F.3d 228, 248 (3d Cir. 2002) (Cowen, J., dissenting) ("[T]he scope of a district court's discretion to strike material from an indictment is narrow." (internal quotation marks omitted)).
The District Court's decision to submit a special verdict form to the jury is also reviewed for abuse of discretion. United States v. Console, 13 F.3d 641, 663 (3d Cir. 1993); ...