Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-12-2006

USA v. Hedgepeth
Precedential or Non-Precedential: Precedential

Docket No. 04-4564




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"USA v. Hedgepeth" (2006). 2006 Decisions. Paper 1680.
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                                            PRECEDENTIAL

         UNITED STATES COURT OF APPEALS
              FOR THE THIRD CIRCUIT


                        No. 04-4564


             UNITED STATES OF AMERICA

                              v.

                 DARIN L. HEDGEPETH,

                                          Appellant


        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


         Submitted Under Third Circuit LAR 34.1(a)
                    September 26, 2005

  Before: ALITO, AMBRO, and LOURIE,* Circuit Judges

       * Honorable Alan D. Lourie, Circuit Judge for the United
States Court of Appeals for the Federal Circuit, sitting by
designation.
              (Opinion filed January 12, 2006)

Daniel M Myshin, Esquire
4800 Linglestown Road, Suite 305
Harrisburg, PA 17112

       Counsel for Appellant

Thomas A. Marino
  United States Attorney
James T. Clancy, Esquire
  Assistant U.S. Attorney
Office of United States Attorney
228 Walnut Street, P.O. Box 11754
220 Federal Building and Courthouse
Harrisburg, PA 17108

       Counsel for Appellee




                 OPINION OF THE COURT


AMBRO, Circuit Judge

       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


                               2
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

                               3
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, 

, 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, 

, 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, 

, 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

                                4
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.1

                        II. Discussion

A.     Standard of Review

       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, 

,
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, 

, 317 (D.N.J.
2003); see also United States v. Pharis, 

, 248 (3d
Cir. 2002) (Cowen, J., dissenting) (“[T]he scope of a district
court’s discretion to strike material from an indictment is


 1
  The District Court had subject matter jurisdiction pursuant to
18 U.S.C. § 3231. We have appellate jurisdiction under 28
U.S.C. § 1291 and 18 U.S.C. § 3742.

                               5
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, 

, 663 (3d Cir. 1993); Waldorf v.
Shuta, 

, 740 (3d Cir. 1990).

B.     Notice of Special Findings in the Indictment

       An indictment must contain “the elements of the offense
charged” and enable the defendant “to plead an acquittal or
conviction in bar of future prosecutions for the same offense.”
Hamling v. United States, 

, 117 (1974) (citation
omitted); United States v. Olatunji, 

, 1168 (3d Cir.
1989). “As long as the crime and the elements of the offense
that sustain the conviction are fully and clearly set out in the
indictment, the right to a grand jury is not normally violated by
the fact that the indictment alleges more crimes or other means
of committing the same crime.” United States v. Miller, 

, 136 (1985). However, upon the defendant’s motion,
the court may strike surplusage from the indictment or
information. Fed. R. Crim. P. 7(d). “This rule introduces a
means of protecting the defendant against immaterial or
irrelevant allegations in an indictment or information, which
may, however, be prejudicial.” Fed. R. Crim. P. 7(d) Advisory
Committee’s Note.

       Hedgepeth asserts that our Court has not determined

                               6
whether the test for striking surplusage is “irrelevant or
prejudicial” or “irrelevant and prejudicial.” Indeed, the only
Third Circuit reference to this test is Judge Cowen’s dissent in
United States v. Pharis, suggesting that surplus material “‘may
only be stricken if it is irrelevant and 

(quoting United States v. Oakar, 

, 157 (D.C.
Cir. 1997)). District courts in our Circuit have not applied a
consistent test. Compare United States v. Ali, 

, at *1 (E.D. Pa. Aug. 16, 2005) (motion to strike
surplusage should only be granted where it is clear that
information in indictment “not relevant, and the surplusage is
prejudicial or inflammatory in nature”), with United States v.
Yeaman, 

, 376 (E.D. Pa. 1997) (motion to
strike should be granted if allegations irrelevant or prejudicial),
and United States v. Gatto, 

, 455 (D.N.J. 1990)
(same).

        We hold that, upon the defendant’s timely motion, the
court may strike surplusage from the indictment or information
when it is both irrelevant (or immaterial) and prejudicial. Logic
demands the conjunctive standard: information that is
prejudicial, yet relevant to the indictment, must be included for
any future conviction to stand and information that is irrelevant
need not be struck if there is no evidence that the defendant was
prejudiced by its inclusion. Application of the conjunctive test
is also in keeping with the Advisory Committee’s Note to Fed.
R. Crim. P. 7(d) (referencing “immaterial or irrelevant
allegations . . . which may . . . be prejudicial”) and the decisions

                                 7
of our sister courts. See, e.g., United States v. Rezaq, 

, 1134 (D.C. Cir. 1998); United States v. Scarpa, 

, 1013 (2d Cir. 1990); United States v. Poore, 

,
41 (4th Cir. 1979); United States v. Anderson, 

. 457
n.2 (8th Cir. 1978), cert. denied, 

(1978); United
States v. Bullock, 

, 888 (5th Cir. 1971); see also 1
Charles Alan Wright & Arthur R. Miller, Federal Practice and
Procedure § 127, at 634. (3d ed. 1999) (the “purpose of [Fed.
R. Crim. P. 7(d)] is to protect the defendant against prejudicial
allegations of irrelevant or immaterial facts”).

       Here, we need not address whether the sentencing factors
were relevant to the charged offense because the Government
claims that the third superseding indictment was neither shown
nor read to the jury and Hedgepeth does not contest this
assertion. In the absence of any evidence that the jury was
exposed to the third superseding indictment, Hedgepeth’s claim
of prejudice fails before it leaves the gate, as information never
revealed to the jury could not have prejudiced its deliberations.

        In this context, the District Court did not abuse its
discretion in denying Hedgepeth’s motion to strike portions of
the third superseding indictment.

C.     Special Verdict Form

      “Although special interrogatories are disfavored in
criminal trials, this court has established no per se rule against

                                8
them.” United States v. Palmeri, 

, 202 (3d Cir.
1980), cert. denied, 

(1981) (citations omitted).
“Nevertheless, there are circumstances where the use of special
findings may be necessary,” including “where a determination
of certain facts will be crucial to the sentence . . . .” United
States v. Desmond, 

, 418 (3d Cir. 1982); see also
United States v. Barrett, 

, 955 (3d Cir. 1989)
(“sharply contrast[ing]” use of special interrogatories “to assist
in sentencing” with their impermissible use “to clarify an
ambiguous verdict”).

       The “disfavor with which courts view special
interrogatories in criminal cases results from interrogatories that
lead the jury in a step-by-step progression to a verdict of guilty.”

. Therefore, our Court has held that,
when special findings are necessary for sentencing purposes,
“the appropriate information may be obtained by submitting
special interrogatories to the jury after a guilty verdict has been
returned.” 

.2


  2
    A special interrogatory has been submitted “after” a guilty
verdict has been returned when jurors are instructed on a single
form to answer the special interrogatory only after filling out a
verdict of guilty or not guilty. See generally Kate H. Nepveu,
Beyond “Guilty” or “Not Guilty:” Giving Special Verdicts in
Criminal Jury Trials, 21 Yale L. & Pol'y Rev. 263, 294 (Winter
2003) (contrasting “extreme” practice of handing jury special
findings forms only after they state they have come to a verdict

                                 9
       In this case the verdict slip was structured so that the jury
was first instructed to determine whether Hedgepeth was guilty
of possession of a firearm by a felon and only then move to
consideration of the special findings.3 The danger of prejudice
to Hedgepeth was thus alleviated, as we cannot say that the jury
was led step-by-step to a guilty verdict when the special findings
followed the guilt determination.4 See 

;
see also United States v. Ruggiero, 

, 929 (2d Cir.
1983) (Newman, J., concurring in part and dissenting in part)
(“an instruction to the jury . . . that the interrogatory . . . is to be
answered only in the event that the jury has agreed upon a
general verdict of guilty. . . . enables the jury to perform its
generalized task first, responding to the interrogatory thereafter



with standard practice of using a single form).
   3
    At the top of the relevant page of the verdict slip was the
following statement: “As to the charge of knowing possession
of firearms by a previously convicted felon, we find the
defendant [Guilty or Not Guilty ].” The next line on the verdict
slip instructed the jury as follows: “If you found the defendant
Guilty, go to [the special finding questions]; if you found the
defendant Not Guilty, go to [the next charged count].”
  4
    Although an argument could be made that the jurors could
have looked down the page at the special findings before
rendering a guilty verdict, “we must assume that the jury
understood and followed the court's instructions.” Loughman v.
Consol-Pennsylvania Coal Co., 

, 105 (3d Cir. 1993).

                                  10
only if a guilty verdict reflects that the jury has found all the
elements of an offense established.”). Further, the jury found
that one of the special findings had not been proven, and that
Hedgepeth was not guilty on one of the charges, suggesting that
the jurors were not so swayed by the inclusion of the sentencing
factors on the verdict slip that they could not engage in careful
deliberation. See 

(citing jury’s
acquittal of defendants on some counts and not others as
evidence that jury understood the verdict form). As we have
held that special interrogatories are appropriate in the sentencing
context when they are considered by the jury after a guilty
verdict has been rendered, it was not an abuse of discretion for
the District Court to allow the Government to submit the special
verdict form to the jury.

                         *   *   *    *   *

       As we conclude that the District Court did not abuse its
discretion either by denying the pretrial motion to strike or
submitting the special verdict slip to the jury, its judgment of
conviction and sentence is affirmed.




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