§851 Proceedings to Establish Prior Convictions

Summary

Before a federal defendant can get a tougher sentence because of past convictions, the U.S. attorney must file a written notice with the court and give a copy to the defendant or their lawyer before trial or before a guilty plea. The court can delay trial or a plea for a short time if the prosecutor could not get the needed facts in time. Minor clerical errors in that notice can be fixed any time before sentence. If the tougher sentence would add more than three years, the notice cannot be used unless the person waived indictment or was indicted. After a guilty verdict but before the judge sentences the person, the judge will ask whether the defendant admits or denies the prior convictions and warn that objections not made before sentence may be lost. If the defendant denies or says a past conviction was unconstitutional, they must file a written answer and a judge (no jury) will hold a hearing. The prosecutor normally must prove the past convictions beyond a reasonable doubt, except when the defendant claims a constitutional defect in a past conviction, in which case the defendant must prove it by a preponderance of the evidence. A challenge cannot be made for a prior conviction that happened more than five years before the prosecutor’s notice.