21 U.S.C. § 851 — Proceedings to establish prior convictions

Page 859 TITLE 21—FOOD AND DRUGS § 851 1 See References in Text note below. Editorial Notes PRIOR PROVISIONS A prior section 849, Pub. L. 91–513, title II, § 409, Oct. 27, 1970, 84 Stat. 1266; Pub. L. 99–514, § 2, Oct. 22, 1986, 100 Stat. 2095, related to dangerous special drug offender sentencing, prior to repeal by Pub. L. 98–473, title II, §§ 219(a), 235(a)(1), Oct. 12, 1984, 98 Stat. 2027, 2031, eff. Nov. 1, 1987, and applicable only to offenses committed after the taking effect of such repeal. § 850. Information for sentencing Except as otherwise provided in this sub- chapter or section 242a(a) 1 of title 42, no limita- tion shall be placed on the information con- cerning the background, character, and conduct of a person convicted of an offense which a court of the United States may receive and consider for the purpose of imposing an appropriate sen- tence under this subchapter or subchapter II. (Pub. L. 91–513, title II, § 410, Oct. 27, 1970, 84 Stat. 1269.) Editorial Notes REFERENCES IN TEXT Section 242a of title 42, referred to in text, was re- pealed by Pub. L. 106–310, div. B, title XXXII, § 3201(b)(1), Oct. 17, 2000, 114 Stat. 1190. Statutory Notes and Related Subsidiaries EFFECTIVE DATE Section effective on first day of seventh calendar month that begins after Oct. 26, 1970, see section 704 of Pub. L. 91–513, set out as a note under section 801 of this title. § 851. Proceedings to establish prior convictions (a) Information filed by United States Attorney (1) No person who stands convicted of an of- fense under this part shall be sentenced to in- creased punishment by reason of one or more prior convictions, unless before trial, or before entry of a plea of guilty, the United States at- torney files an information with the court (and serves a copy of such information on the person or counsel for the person) stating in writing the previous convictions to be relied upon. Upon a showing by the United States attorney that facts regarding prior convictions could not with due diligence be obtained prior to trial or before entry of a plea of guilty, the court may postpone the trial or the taking of the plea of guilty for a reasonable period for the purpose of obtaining such facts. Clerical mistakes in the information may be amended at any time prior to the pro- nouncement of sentence. (2) An information may not be filed under this section if the increased punishment which may be imposed is imprisonment for a term in excess of three years unless the person either waived or was afforded prosecution by indictment for the offense for which such increased punishment may be imposed. (b) Affirmation or denial of previous conviction If the United States attorney files an informa- tion under this section, the court shall after conviction but before pronouncement of sen- tence inquire of the person with respect to whom the information was filed whether he af- firms or denies that he has been previously con- victed as alleged in the information, and shall inform him that any challenge to a prior convic- tion which is not made before sentence is im- posed may not thereafter be raised to attack the sentence. (c) Denial; written response; hearing (1) If the person denies any allegation of the information of prior conviction, or claims that any conviction alleged is invalid, he shall file a written response to the information. A copy of the response shall be served upon the United States attorney. The court shall hold a hearing to determine any issues raised by the response which would except the person from increased punishment. The failure of the United States at- torney to include in the information the com- plete criminal record of the person or any facts in addition to the convictions to be relied upon shall not constitute grounds for invalidating the notice given in the information required by sub- section (a)(1). The hearing shall be before the court without a jury and either party may intro- duce evidence. Except as otherwise provided in paragraph (2) of this subsection, the United States attorney shall have the burden of proof beyond a reasonable doubt on any issue of fact. At the request of either party, the court shall enter findings of fact and conclusions of law. (2) A person claiming that a conviction alleged in the information was obtained in violation of the Constitution of the United States shall set forth his claim, and the factual basis therefor, with particularity in his response to the infor- mation. The person shall have the burden of proof by a preponderance of the evidence on any issue of fact raised by the response. Any chal- lenge to a prior conviction, not raised by re- sponse to the information before an increased sentence is imposed in reliance thereon, shall be waived unless good cause be shown for failure to make a timely challenge. (d) Imposition of sentence (1) If the person files no response to the infor- mation, or if the court determines, after hear- ing, that the person is subject to increased pun- ishment by reason of prior convictions, the court shall proceed to impose sentence upon him as provided by this part. (2) If the court determines that the person has not been convicted as alleged in the informa- tion, that a conviction alleged in the informa- tion is invalid, or that the person is otherwise not subject to an increased sentence as a matter of law, the court shall, at the request of the United States attorney, postpone sentence to allow an appeal from that determination. If no such request is made, the court shall impose sentence as provided by this part. The person may appeal from an order postponing sentence as if sentence had been pronounced and a final judgment of conviction entered. (e) Statute of limitations No person who stands convicted of an offense under this part may challenge the validity of any prior conviction alleged under this section Page 860 TITLE 21—FOOD AND DRUGS § 852 which occurred more than five years before the date of the information alleging such prior con- viction. (Pub. L. 91–513, title II, § 411, Oct. 27, 1970, 84 Stat. 1269.) Statutory Notes and Related Subsidiaries EFFECTIVE DATE Section effective on first day of seventh calendar month that begins after Oct. 26, 1970, see section 704 of Pub. L. 91–513, set out as a note under section 801 of this title. § 852. Application of treaties and other inter- national agreements Nothing in the Single Convention on Narcotic Drugs, the Convention on Psychotropic Sub- stances, or other treaties or international agree- ments shall be construed to limit the provision of treatment, education, or rehabilitation as al- ternatives to conviction or criminal penalty for offenses involving any drug or other substance subject to control under any such treaty or agreement. (Pub. L. 91–513, title II, § 412, as added Pub. L. 95–633, title I, § 107(a), Nov. 10, 1978, 92 Stat. 3773.) Statutory Notes and Related Subsidiaries EFFECTIVE DATE Section effective on date the Convention on Psycho- tropic Substances enters into force in the United States [July 15, 1980], see section 112 of Pub. L. 95–633, set out as a note under section 801a of this title. § 853. Criminal forfeitures (a) Property subject to criminal forfeiture Any person convicted of a violation of this subchapter or subchapter II punishable by im- prisonment for more than one year shall forfeit to the United States, irrespective of any provi- sion of State law— (1) any property constituting, or derived from, any proceeds the person obtained, di- rectly or indirectly, as the result of such vio- lation; (2) any of the person’s property used, or in- tended to be used, in any manner or part, to commit, or to facilitate the commission of, such violation; and (3) in the case of a person convicted of en- gaging in a continuing criminal enterprise in violation of section 848 of this title, the person shall forfeit, in addition to any property de- scribed in paragraph (1) or (2), any of his inter- est in, claims against, and property or con- tractual rights affording a source of control over, the continuing criminal enterprise. The court, in imposing sentence on such person, shall order, in addition to any other sentence imposed pursuant to this subchapter or sub- chapter II, that the person forfeit to the United States all property described in this subsection. In lieu of a fine otherwise authorized by this part, a defendant who derives profits or other proceeds from an offense may be fined not more than twice the gross profits or other proceeds. (b) Meaning of term ‘‘property’’ Property subject to criminal forfeiture under this section includes— (1) real property, including things growing on, affixed to, and found in land; and (2) tangible and intangible personal prop- erty, including rights, privileges, interests, claims, and securities. (c) Third party transfers All right, title, and interest in property de- scribed in subsection (a) vests in the United States upon the commission of the act giving rise to forfeiture under this section. Any such property that is subsequently transferred to a person other than the defendant may be the sub- ject of a special verdict of forfeiture and there- after shall be ordered forfeited to the United States, unless the transferee establishes in a hearing pursuant to subsection (n) that he is a bona fide purchaser for value of such property who at the time of purchase was reasonably without cause to believe that the property was subject to forfeiture under this section. (d) Rebuttable presumption There is a rebuttable presumption at trial that any property of a person convicted of a felony under this subchapter or subchapter II is subject to forfeiture under this section if the United States establishes by a preponderance of the evi- dence that— (1) such property was acquired by such per- son during the period of the violation of this subchapter or subchapter II or within a rea- sonable time after such period; and (2) there was no likely source for such prop- erty other than the violation of this sub- chapter or subchapter II. (e) Protective orders (1) Upon application of the United States, the court may enter a restraining order or injunc- tion, require the execution of a satisfactory per- formance bond, or take any other action to pre- serve the availability of property described in subsection (a) for forfeiture under this section— (A) upon the filing of an indictment or infor- mation charging a violation of this subchapter or subchapter II for which criminal forfeiture may be ordered under this section and alleging that the property with respect to which the order is sought would, in the event of convic- tion, be subject to forfeiture under this sec- tion; or (B) prior to the filing of such an indictment or information, if, after notice to persons ap- pearing to have an interest in the property and opportunity for a hearing, the court deter- mines that— (i) there is a substantial probability that the United States will prevail on the issue of forfeiture and that failure to enter the order will result in the property being destroyed, removed from the jurisdiction of the court, or otherwise made unavailable for forfeiture; and (ii) the need to preserve the availability of the property through the entry of the re- quested order outweighs the hardship on any party against whom the order is to be en- tered: Provided, however, That an order entered pursu- ant to subparagraph (B) shall be effective for not more than ninety days, unless extended by the