US v. Mayfirld
No. 02-50381(8-10-05). Sometimes if you didn't have bad luck you'd have no luck at all. Defendant won a significant severance case a few years ago (inconsistent defenses because both codefendants pointed at one another as being the drug trafficker). The case went back, and now defendant is up on appeal again. He also got socked with an enhancement for a prior drug conviction under a 21 USC 851 notice (prior drug conviction) which had a 20 year mandatory minimum. The 851 notice was filed in the first trial, but not before the retrial. Defendant argues that the formal notice had to be refiled, as the notice triggers the mandatory, and failure to file means it is not applicable. The argument is quasi-jurisidictional. Alas, the 9th finds that filing it once is all that is required. The statute state that it has to be filed before trial, and it was here. This gives notice, and on retrial there is no need to give notice again This aligns with other circuits.