## F I L E D United States Court of Appeals Tenth Circuit 

### FEB 25 1998 

### PATRICK FISHER Clerk PUBLISH
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. FRANK ANTHONY OBERLE, Defendant-Appellant. No. 96-2275

Appeal from the United States District Court for the District of New Mexico (D.C. No. CR-96-149-1)

John V. Butcher, Assistant Federal Public Defender, Albuquerque, New Mexico, for Defendant-Appellant. Tara C. Neda, Assistant United States Attorney, Alb uquerque, New Mexico (John J. Kelly, United States Attorney for the District o f New Mexico, with her on the briefs), for Plaintiff-Appellee.

Before ANDERSON , EBEL and LUCERO , Circuit Judges.

EBEL , Circuit Judge. Frank Oberle appeals his conviction for bank robbery and his resulting sentence. He contends that the district court erre d in admitting evidence regarding his prior criminal history and in refusin g to admit testimony that- 2 -

supported his defense; that the prosecutor committe d misconduct by arguing that he was a professional bank robber; that the jury wa s instructed incorrectly; and that he was unconstitutionally sentenced to life imprisonment under the federal “Three Strikes” law, 18 U.S.C. § 3559(c) (1994). W e affirm.
BACKGROUND Between November 1995 and February 1996 four Albuq uerque banks were robbed late on Friday afternoons by a man wearing aski mask who carried a gun in his left hand and a bag in his right, asked for $20, $50 and $100 bills, and left after warning witnesses that there was a bomb at th e door. After the fourth robbery a witness reported the robber’s license plate number to police. The owner of the car told police he had loaned his car to Frank Oberle (“Oberle”). After investigation, Oberle was charged with one co unt of armed bank robbery, in violation of 18 U.S.C. §§ 2113(a) & (d) and 18 U.S .C. § 2. The charge related to the last bank robbery, which took place February 23, 1996. Oberle was tried before a jury. He did not testify . However, Christopher Jensen (“Jensen”), who drove the getaway car, testi fied against Oberle pursuant to a plea agreement. He identified Oberle as the robb er who entered the banks and described how Oberle prepared for the robberies. O berle’s brother, Gary Oberle (“Gary”), testified under a grant of immunity for t he bank robberies. Gary said that he saw Oberle and Jensen counting the robbery proceeds and that he- 3 -

overheard Oberle talking about robbing banks. He f urther testified about his own expenses and recent purchases, which greatly exceed ed his monthly income, but claimed that Oberle had helped him financially. Ga ry also admitted to having a heroin addiction and being in a methadone treatmentprogram. During trial the government sought to introduce a l etter written by Oberle to Gary while Oberle was in jail awaiting trial. T he letter stated, “Just tell her I’m going back to prison on a violation. Don’ttell her that I have a new case” (emphasis in original). Oberle objected to the adm ission of this evidence under Federal Rules of Evidence 404, 403, and 609. The c ourt allowed the admission of the evidence as a party’s admission under Federal Rule of Evidence 801(d). Also during trial an FBI agent testified that when he interviewed Oberle, Oberle had stated that he was surprised that the FB I had not come to him earlier because “the bank robberies were his MO,” meaning m odus operandi. Oberle objected and moved for a mistrial on the grounds th at the jury had effectively been informed that Oberle had previously been convi cted of bank robbery. The district court overruled Oberle’s objection and den ied his motion for a mistrial. During opening statement and closing argument the p rosecutor referred to Oberle as a seasoned bank robber and a professional who sh owed knowledge of the justice system. Oberle objected to only one of the se references.- 4 -

Oberle’s theory of defense was that there was one r obber of all four banks, and it was his brother Gary. As part of his defens e, Oberle sought to introduce evidence from a methadone treatment clinic of the d rug treatment Gary had received to show that Gary had a motive to commit r obbery because he had an extensive heroin addiction and to undermine Gary’s credibility regarding his claims to have stopped using drugs. After the drug treatment clinic moved to quash Oberle’s subpoena to it, the district court f ound that Oberle had not yet shown good cause for introducing the clinic’s recor ds, which were confidential under 42 U.S.C. § 290dd-2(a) (1992). The court lef t open the possibility of introducing the records, depending on Gary’s testim ony, but ultimately denied Oberle’s motion to admit them. The court also quas hed a subpoena issued to Oberle’s probation officer, who was to testify in O berle’s defense that Oberle never showed signs of drug use, that he had been employed at the relevant times, and that he could reasonably have expected to be pu t back in prison for a parole violation if he picked up a new charge even if he w ere acquitted of the new charge. That would explain why his statement about“Just tell her I’m going back to prison on a violation” was not necessarily an ad mission of guilt on the new charge of bank robbery. At the close of trial, Oberle objected to the court ’s instruction directing jurors not to be concerned about the guilt of any p erson other than Oberle,- 5 -

because it contradicted the defense theory that Gary was the guilty party. He also objected to the court’s aiding and abetting instruc tion, because, he asserted, first the instruction contradicted the government’s theory of liability, and second the particular instruction did not adequately inform ju rors that Oberle could not be guilty of aiding and abetting merely by associating with the robbers. The jury found Oberle guilty. At sentencing the di strict court found that Oberle was subject to mandatory life imprisonment u nder the “Three Strikes” law, 18 U.S.C. § 3559(c) (1994), because he had previous ly been convicted of at least two serious violent felonies. Oberle argued that h e was entitled to a hearing at which the government was required to prove beyond areasonable doubt that he had previously been convicted of at least two serio us violent felonies. Based on the government’s presentation of certified copies o f the judgments of conviction, the district court rejected Oberle’s argument and f ound that Oberle had two prior bank robbery convictions and two prior aggravated r obbery convictions. Oberle was sentenced to life imprisonment, and he now appe als his conviction and

sentence. DISCUSSION
A. Admission of Evidence Oberle appeals the district court’s decision to all ow the admission of Oberle’s letter to Gary, in which Oberle wrote “Jus t tell her I’m going back to- 6 -

prison on a violation. Don’ttell her that I have a new case.” He also objects to the introduction of his statement to the FBI agent that “the bank robberies were his MO.” We review the district court’s decision to admit ev idence for an abuse of discretion. See United States v. Segien , 114 F.3d 1014, 1022 (10th Cir.), petition for cert. filed(U.S. Aug. 26, 1997) (No. 97-6568). Although the statements are party admissions under Rule 801(d) and thus not hearsay, they must nevertheless also be analyzed for admissibility under Rule 404(b ) because they reveal or suggest prior criminal conduct. See United States v. Maden , 114 F.3d 155, 157 (10th Cir.), cert. denied , 118 S. Ct. 226 (1997). Under Rule 404(b), we exa mine whether: (1) the prosecution offered the evidence for a prop er purpose under Rule 404(b); (2) the evidence is relevant under Fed . R. Evid. 401; (3) the evidence’s probative value is not substantially outweighed by its potential for unfair prejudice under Fed. R. Evid. 403; and (4) the district court, upon request, gave a proper instruc tion limiting the jury’s consideration of the evidence to the purpose for which it was admitted. Segien , 114 F.3d at 1022-23. 1. Statement about going back to prison Oberle contends that his statement “Just tell her I ’m going back to prison on a violation. Don’ttell her that I have a new case,” was erroneously allowed as evidence of his prior criminal record. The governm ent, on the other hand, argues- 7 -

that this statement is an acknowledgment of guilt o f the charged offense because it is a prediction by Oberle that he will ultimatel y be found guilty and sent to prison on his “new case.” This statement is quite equivocal. Although it cou ld be read as the government suggests, it is not a clear admission of guilt of the charged bank robbery. Because a natural reading of the statemen t is not particularly inculpatory on the crime charged and because the statement effe ctively informs the jury that Oberle has been in prison previously, it may have b een an abuse of discretion to conclude that the statement’s probative value outwe ighed its prejudice, as required by the Rule 404(b) analysis. However, eve n if the court erred in allowing the statement, such error does not require reversal in light of the substantial evidence against Oberle and the limitin g instruction given to the jury in the final jury instructions. See United States v. Birch , 39 F.3d 1089, 1094-95 (10th Cir. 1994) (harmless error where record “reve als substantial evidence of defendant’s guilt”); see also United States v. Olivo , 80 F.3d 1466, 1469 (10th Cir.), cert. denied , 117 S. Ct. 265 (1996) (error would be harmless wh ere considerable evidence linked defendant to crime and court “cautioned the jury” about the limited purpose of the evidence). Furthe r, the jury was made aware of Oberle’s prior history of robbing banks through the admission of his “MO” statement, and, as discussed below, the admission o f that statement was not- 8 -

erroneous. Consequently, we do not believe that th e statement had a “substantial influence” on the outcome of the case. See United States v. Flanagan , 34 F.3d 949, 955 (10th Cir. 1994).
2. Statement about Oberle’s MO Over Oberle’s objection, the district court admitte d the FBI agent’s testimony that Oberle acknowledged to him that “the robberies were his MO.” Oberle argues the statement was “unadulterated prop ensity evidence” that “was relevant for no proper purpose.” Where a district court fails to “precisely articulate the purpose of this evidence under Rule 404(b), this is subject to a harmless error analysis.” United States v. Kimball , 73 F.3d 269, 272 (10th Cir. 1995). The error is harmless “if the purpose for a dmitting the evidence is apparent from the record and its admission is prope r.” Id. At least one proper Rule 404(b) purpose for admitti ng the statement is apparent from the record, as it helps establish the identity of the bank robber. Information that Oberle had committed bank robberie s in a similar manner was relevant in this case, where the main issue was the identity of the robber. See United States v. Morgan , 936 F.2d 1561, 1572 (10th Cir. 1991); United Stat es v. Porter , 881 F.2d 878, 887 (10th Cir. 1989). Although the statement was prejudicial, its probative value outweighed the pre judice, and the district court gave an instruction regarding the limited purposes for which evidence of other- 9 -

acts may be considered. Consequently, the districtcourt did not abuse its discretion in allowing the statement to be admitted

. B. Refusal to Admit Evidence Oberle challenges the district court’s quashing of two subpoenas, one to the clinic that treated Gary’s heroin addiction and the other to Oberle’s probation officer. Generally we review a district court’s de cision to exclude evidence for an abuse of discretion, see United States v. Patterson , 20 F.3d 809, 812 (10th Cir. 1994), but the question of whether to admit confide ntial records of substance abuse treatment is a mixed question of law and factto be reviewed de novo, see United States v. Corona , 849 F.2d 562, 565 (11th Cir. 1988). 1. Drug Treatment Records Oberle subpoenaed the Silver Street Clinic, where G ary allegedly had been receiving methadone treatment for his heroin addict ion. He sought access to Gary’s treatment records to show the extent of his heroin addiction, whether he was using heroin or other drugs during treatment, and the extent of the payments Gary made to the clinic. The clinic moved to quash the subpoena. The district court ruled that it had not yet found good cause fo r admitting the confidential records, as required by 42 U.S.C. § 290dd-2 (1992), and that it would reconsider its decision when Gary testified. The evidence was never admitted.- 10 -

42 U.S.C. § 290dd-2(a) (1992) requires that drug tr eatment records in programs receiving federal funds be kept confidenti al. Disclosure is permitted, however, “[i]f authorized by an appropriate order o f a court of competent jurisdiction granted after application showing good cause therefor, including the need to avert a substantial risk of death or seriou s bodily harm.” 42 U.S.C. § 290dd-2(b)(2)(C) (1992). “In assessing good caus e the court shall weigh the public interest and the need for disclosure againstthe injury to the patient, to the physician-patient relationship, and to the treatmen t services.” Id. ; see also 42 C.F.R. § 2.64(d) (1997) (to find good cause, there must be no other adequate way of obtaining the information, and the public intere st and the need for disclosure must outweigh the potential injury to the patient, the physician-patient relationship, and the treatment services). Oberle argues that he established good cause for disclosing Gary’s records because there w as no alternative means of acquiring the information; the public interest and need for disclosure, in the form of assuring a fair trial to a criminal defendant, o utweighed injury to Gary; and there was no harm to Gary’s relationship with clini c staff or to the course of his treatment because he had already left the program. The district court did not abuse its discretion in quashing the Silver Street subpoena. The Silver Street Clinic was not the onl y source of the information Oberle sought. In fact, the jury was presented wit h the facts that Gary was- 11 -

addicted to heroin and entered methadone treatment. Given that the basic information was available, even if not in Oberle’s most preferred form, Oberle’s need for the information did not outweigh section 2 90dd-2’s emphasis on keeping treatment records confidential.
2. Probation Officer Oberle also challenges the district court’s decisio n to quash the subpoena issued to his probation officer. He contends that the probation officer’s testimony would have established that Oberle showed no signs of drug use, that he was employed at the time of the bank robberies, and that he had reason to believe his parole could be violated even without his being gui lty of the instant charge of bank robbery, thus explaining the statement in his letter “Just tell her I’m going back to prison on a violation.” The district courtheld that confidentiality concerns inherent in the work of the Probation Depa rtment urged against allowing the probation officer to testify, and that it was u nnecessary for him to testify for the purposes presented by the defense. At least two circuit courts have acknowledged that a defendant may subpoena a probation officer. See United States v. Lanterman , 76 F.3d 158, 161 (7th Cir. 1996); United States v. $2,500 in United States Currency , 689 F.2d 10, 16 (2d Cir. 1982). We agree with the Second Circui t that a defendant seeking to subpoena a probation officer must show a special ne ed for the testimony. See- 12 -

$2,500 in United States Currency , 689 F.2d at 16 (“Absent some showing of special need by [defendant], we see no reason to br each the confidentiality of the Probation Department’s post-sentencing supervisory reports.”). Of the three reasons Oberle presents for allowing the admission of the evidence, the strongest is that the probation offic er’s testimony would have explained that Oberle’s statement about returning t o prison on a violation did not necessarily indicate that Oberle believed he was gu ilty of a crime. Given the countervailing concerns about the supervisory proce ss, however, we do not believe that this factor is enough to find that the district court abused its discretion in refusing to admit the evidence. Simi larly, Oberle’s desire to have the probation officer testify that he never showed signs of drug use and that he had been employed were of marginal relevance. Thos e reasons are insufficient to justify calling the probation officer, especially s ince the jury was informed about Oberle’s employment through other testimony.1 During opening statement, the prosecutor stated that Jensen would testify about

“his association with Frank Oberle and the tricks o f the trade that he learned from Frank Oberle. And he will tell you that Frank Oberle is a seasoned bank robber.” During closing argument, she stated, “Who is in command? Who is in control? Who is the pro?”; “Who is showing ownership and control of the money? Who is in command? Who is the pro?”; that Oberle tried to get Jensen a“Fifth Amendment plea arrangement, showing some wherewithal, some knowledge of the cri minal system, I would say.”; “[Jensen] gave you details about things about which , you know, he wouldn’t know unless he was dealing with a pro.”; “And the Fifth Amendment, isn’t he a pro? Telling Chris how to get a lawyer, what to plead.”; and “Th is man has been around the block. This man is in control. This man feels cocky.” Ob erle also complains that the prosecutor stated that Gary was not the sort of manto commit bank robbery, implying that Oberle was the sort of man who would. - 13 - C. Prosecutorial Misconduct Oberle argues that the prosecutor committed miscond uct when she repeatedly argued that Oberle was a professional ba nk robber. 1 We recently stated:We use a two-step process when evaluating claims of prosecutorial misconduct. First, we examine whether the conduct was, in fact, improper. If we answer that question in the affirm ative, we must then determine whether it warrants reversal. United States v. Ivy , 83 F.3d 1266, 1288 (10th Cir.), cert. denied , 117 S. Ct. 253 (1996) (internal quotation marks and citations omitted). Defense counsel objected to only one of the challenged comments, one in whic h the prosecutor stated that Oberle tried to get Jensen a “Fifth Amendment plea arrangement, showing some wherewithal, some knowledge of the criminal system, I would say.” This comment is reviewed de novo. See Ivy , 83 F.3d at 1288. Because defense counsel did not object to the remaining comments, w e review them for plain error.- 14 -

See United States v. Sands , 968 F.2d 1058, 1063 (10th Cir. 1992). Under a pl ain error analysis, “reversal is appropriate only if, a fter reviewing the entire record, we conclude that the error is obvious and one that would undermine the fairness of the trial and result in a miscarriage of justice .” Id. (citing Fed.R.Crim.P. 52(b) and United States v. Young , 470 U.S. 1, 16 (1985)). “When evaluating alleged ly inappropriate remarks of counsel for plain error, w e must view the remarks in the context of the entire trial.” Id. at 1063-64 (citing Young , 470 U.S. at 11-12). The government argues that it merely highlighted ad missible evidence for proper purposes -- to show Oberle’s knowledge, control and consciousness of guilt -- and to rebut the defense’s argument that G ary was the bank robber. The transcript reveals, however, that in making these a rguments the prosecutor exceeded the boundaries of commenting upon the evid ence. She moved from arguing that the evidence showed Oberle was in cont rol of the operation (a permissible inference) to arguing that he was a “pr o” who “had been around the block” and who showed “some knowledge” of the crimi nal system. This is more akin to arguing propensity than it is focusing the jury’s attention on the evidence, and it was improper to the extent that it suggested that the jury could make its decision based partly on the fact that Oberle had c ommitted other bank robberies or was experienced with the criminal justice system . See United States v. Peña , 930 F.2d 1486, 1490-91 (10th Cir. 1991).- 15 -

The ultimate question, however, is whether Oberle w as deprived of a fair trial. See id. at 1491. “[W]e will not overturn a conviction on account of improper argument by the prosecutor unless the pros ecutor’s misconduct was enough to influence the jury to render a conviction on grounds beyond the admissible evidence presented.” Id. (internal quotation marks and citations omitted). “In assessing whether the misconduct hadsuch an impact, we consider the trial as a whole, including the curative acts o f the district court, the extent of the misconduct, and the role of the misconduct with in the case.” United States v. Ramirez , 63 F.3d 937, 944 (10th Cir. 1995) (internal quotation marks and citation omitted). Thus, factors relevant to determining w hether the improper commentary affected the fairness of the trial inclu de whether the instance was singular and isolated, whether the district court i nstructed the jury that the attorneys’ argument was not evidence, and whether t here was substantial evidence of the defendant’s guilt. See Ivy , 83 F.3d at 1288; Ramirez , 63 F.3d at 944; Peña , 930 F.2d at 1491. “When evaluating errors claimed by appellate counsel which were not raised by trial counsel, we must be cautio us of a tendency to seize upon errors which, removed from context, take on an aspe ct of seriousness which they never had below.” Sands , 968 F.2d at 1064 (internal quotation marks and citations omitted).- 16 -

Oberle was not deprived of a fair trial by the pros ecutor’s improper remarks. The prosecutor’s remarks focussed on asce rtaining ownership and control of the bank robbery proceeds and establishi ng the identity of the bank robber by arguing that only Oberle of the three pri ncipal suspects had the force of personality and sophistication to pull off the robb eries. When taken in context of the entire trial and the lengthy closing arguments and rebuttal, the objectionable references did not significantly detract from the p roper focus of the argument. In addition, the district court instructed the jury th at counsel’s argument was not evidence. Our conclusion is buttressed by the fact that we mu st review the majority of the comments for plain error. “[T]he plain-error e xception to the contemporaneous-objection rule is to be ‘used spari ngly, solely in those circumstances in which a miscarriage of justice wou ld otherwise result.’” Young , 470 U.S. at 15 (quoting United States v. Frady , 456 U.S. 152, 163 n.14 (1982)). Though the statements were improper, this is not su ch an egregious case as to warrant reversal, particularly considering the tria l as a whole and the force of the evidence against Oberle. See, e.g, United States v. Nichols , 21 F.3d 1016, 1019 (10th Cir. 1994); Sands , 968 F.2d at 1064.- 17 -

D. Jury Instructions We review the adequacy of jury instructions de novo , examining the challenged instruction in light of the instructions as a whole. See United States v. Russell , 109 F.3d 1503, 1513 (10th Cir.), cert. denied , 117 S. Ct. 2525 (1997). 1. Aiding and abetting instruction Oberle challenges the district court’s decision to give an aiding and abetting instruction on two grounds: first, that i t contradicted both the evidence and the government’s theory of the case that Oberle was the principal actor, and second, that the district court refused to give the defense’s requested instruction regarding “mere presence” as insufficient to aid an d abet a crime. Oberle first suggests that during trial the govern ment proceeded on the theory that he was the principal bank robber and th at to give an aiding and abetting instruction at the conclusion of the evide nce impermissibly changed the focus of the case. In United States v. Cueto , 628 F.2d 1273, 1275 (10th Cir. 1980), however, this court held that “[e]ven though the Government’s theory of the case was that [defendant], and not [accomplice] , was the one who actually robbed the bank, it was nevertheless, under the cir cumstances, quite proper to give the jury an instruction on aiding and abetting .” Oberle seeks to distinguish
Cueto by arguing that the evidence here, unlike in Cueto , does not support an inference that he aided and abetted the robbery. C ueto , however, is almost- 18 -

identical to this case factually. There, the courtnoted that even if the jury did not believe that Cueto was the bank robber, the testimo ny of the getaway car driver established Cueto’s preparations for the robbery, w hich would support his conviction as an aider or abettor. See id. Here, Jensen testified about Oberle’s preparations for the robbery. Taken in the light m ost favorable to the government, this evidence is sufficient for convict ion and could support an alternative aiding and abetting charge. See United States v. Scroger , 98 F.3d 1256, 1262 (10th Cir. 1996) (“[Defendant] knew, or should have known, that when more than one person is involved in a criminal act, the district court may properly submit an aiding and abetting instruction to the jury, even though it was not charged in the indictment . . . .”), cert. deni ed , 117 S. Ct. 1324 (1997). The district court did not err in giving the aiding and abetting instruction. Oberle also argues that the district court should h ave given his requested instruction that mere association with the robbers did not constitute aiding and abetting and that he had to have the intent to part icipate in the robbery. The instruction tendered to the jury, however, included those concepts, and thus the district court did not err. See United States v. McKneely , 69 F.3d 1067, 1077-78 (10th Cir. 1995).- 19 -

2. Instruction regarding guilt of other persons The district court also instructed the members of t he jury not to concern themselves with the guilt of anyone except Oberle. Oberle contends that this instruction directed jurors to ignore his defense, which was based on establishing Gary Oberle’s guilt. This instruction did not direct jurors to ignore Ob erle’s defense. Read in combination with the instruction requiring the juryto find guilt “beyond a reasonable doubt,” it focused jurors on the task athand: determining whether Oberle was guilty of the February 23, 1996 robbery.
E. Combination of errors Oberle argues that he was prejudiced by the combination of errors that allegedly infected his trial. “The cumulative effe ct of two or more individually harmless errors has the potential to prejudice a de fendant to the same extent as a single reversible error.” United States v. Rivera , 900 F.2d 1462, 1469 (10th Cir. 1990) (en banc). “A cumulative-error analysis mere ly aggregates all the errors that individually have been found to be harmless, a nd therefore not reversible, and it analyzes whether their cumulative effect on the outcome of the trial is such that collectively they can no longer be determined to be harmless.” Id. at 1470. The analysis, however, “should evaluate only the effectof matters determined to be error, not the cumulative effect of non-errors.” I d. at 1471.- 20 -

Assuming that the statement “Just tell her I’m goin g back to prison on a violation” was improperly admitted, we have identif ied two errors (the other being the improper prosecutorial argument). We do not believe that the combination of the two, however, rises to the level of reversible error.
F. “Three Strikes” Statute The district court found Oberle subject to mandatory life imprisonment pursuant to the “Three Strikes” enhanced sentencing statute, 18 U.S.C. § 3559(c) (1994). Oberle argues that the district court impr operly sentenced him under section 3559(c) because it did not conduct a hearin g on his prior record. Instead, the district court found that Oberle had committed four prior violent felonies (two previous Albuquerque bank robberies and two Ohio ag gravated robberies) based solely on the certified copies of conviction. We r eview questions of statutory construction de novo. See United States v. Diaz , 989 F.2d 391, 392 (10th Cir. 1993). 18 U.S.C. § 3559(c)(1) provides that a person convi cted of a third serious violent felony or serious drug offense shall be sen tenced to life imprisonment. The term “serious violent felony” generally include s robbery under 18 U.S.C. § 2113. See 18 U.S.C. § 3559(c)(2)(F) (1994). Section 3559(c)(4) explicitly incorporates the prov isions of 21 U.S.C. § 851(a) (part of the Controlled Substances Act), w hich requires the government- 21 -

to inform the court and the defendant of the convic tions on which it intends to rely in seeking a sentencing enhancement. Oberle a rgues that the provisions of 21 U.S.C. § 851(b) and 21 U.S.C. § 851(c), which requi re the court to conduct an evidentiary hearing if the defendant denies the con victions and require the government to prove the prior convictions beyond a reasonable doubt, should likewise apply to proceedings under 18 U.S.C. § 355 9(c). See United States v. Kennedy , 952 F. Supp. 5, 8 n.2 (D.D.C. 1997) (acknowledgin g that the safeguards provided by sections 851(b) and 851(c) may apply un der 18 U.S.C. § 3559), remanded, 133 F.3d 53, 1998 WL 11780 (D.C. Cir. Jan . 16, 1998). Oberle seeks support from the fact that section 3559(c)(3)(A) al lows a defendant to escape the sentencing enhancement by proving with clear and co nvincing evidence that a prior robbery did not involve a firearm or dangerou s weapon and did not result in bodily injury, and hence does not satisfy the defin ition of a “serious violent felony.” This subsection would be meaningless, he contends, if the defendant has no right to a hearing. No federal court has held that the provisions of se ctions 851(b) and 851(c) should apply in section 3559(c) proceedings; the on ly case addressing the issue that we have found, Kennedy , simply acknowledged the possibility. Further, th e legislative history mentions only section 851(a), n ot sections 851(b) or (c). See H.R. Rep. 103-463, 1994 WL 107574 (1994). In the a bsence of a contrary- 22 -

legislative intent or purpose, the maxim of statuto ry construction “expressio unius est exclusio alterius” (the expression of one exclu des others) tends to indicate that had Congress intended to incorporate the provisions of sections 851(b) and (c) into section 3559, it would have done so rather tha n specify only section 851(a).
See 2A Sutherland Statutory Construction§ 47.23 (5th ed. 1992). The fact that the defendant does not concede the ex istence or seriousness of former convictions does not automatically require aseparate section 3559 hearing. Rather, it is only when a defendant tende rs evidence to deny the seriousness of the former convictions or to deny th at the prior convictions pertained to him or her that the district court mus t conduct a hearing. Here, at his sentencing hearing Oberle tendered neither his own testimony nor any other evidence that the prior convictions were not his orthat they did not satisfy section 3559(c)(3)’s definition of “serious violent felony. ” All that he did was to put the government to its proof. The district court was no t required to conduct a separate section 3559 hearing under these circumstances give n the evidence that the government did offer. Oberle argues that under section 3559(c) the govern ment should have to prove his prior convictions beyond a reasonable dou bt. Section 3559(c), however, is a sentencing enhancement statute. See United States v. Wicks , 132 F.3d 383, 385 (7th Cir. 1997); cf. Segien , 114 F.3d at 1018-20 (differing between an- 23 -

element of the offense and a sentencing enhancement ). The government’s burden of proof at sentencing generally does not reach the level of “beyond a reasonable doubt.” See Segien , 114 F.3d at 1019-20; see also McMillan v. Pennsylvania , 477 U.S. 79, 91-92 (1986) (preponderance standard usual ly satisfies the Due Process Clause at sentencing). In fact, we have declined t o impose a “beyond a reasonable doubt” standard in cases involving othersentencing enhancements.
See Segien , 114 F.3d at 1020 (18 U.S.C. § 111(b)); United States v. McMahon , 91 F.3d 1394, 1397 (10th Cir.) (Armed Career Criminal Act, 18 U.S.C. § 924(e)), cert. denied , 117 S. Ct. 533 (1996). We also decline to impose a “beyond a reasonable doubt” standard in this section 3559(c) case. The government introduced certified copies of Oberl e’s four previous convictions. Oberle offered no evidence to contrad ict those certified copies. Consequently, the government fulfilled its burden o f proving Oberle had at least two prior serious violent felony convictions, and O berle was correctly sentenced to life imprisonment under the “Three Strikes” law.
CONCLUSION For the reasons outlined above, Frank Oberle’s conv iction and sentence are
AFFIRMED.