2001 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

9-21-2001

USA v. Weaver

Precedential or Non-Precedential:

Docket 00-2203

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Recommended Citation

"USA v. Weaver" (2001). 2001 Decisions. Paper 214.

http://digitalcommons.law.villanova.edu/thirdcircuit_2001/214
Filed September 21, 2001 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

NO. 00-2203 

UNITED STATES OF AMERICA 

v. 

RUDOLPH WEAVER, 

 Appellant 

On Appeal from the United States District Court 

for the Western District of Pennsylvania 

(D.C. Criminal No. 99-cr-00002E) 

District Judge: Honorable Sean J. McLaughlin 

Argued March 15, 2001 

Before: RENDELL, AMBRO, and BRIGHT,* 

Circuit Judges 

(Filed: September 21, 2001) 

 Thomas W. Patton, Esq. [ARGUED] 

 Office of Federal Public Defender 

 1001 State Street 

 1111 Renaissance Centre 

 Erie, PA 16501 

Counsel for Appellant 

Rudolph Weaver 

_________________________________________________________________ 

* The Honorable Myron H. Bright, Senior Judge of the United States 

Court of Appeals for the Eighth Circuit, sitting by designation. 
 Bonnie R. Schlueter, Esq. [ARGUED] 

 Office of United States Attorney 

 633 United States Post Office 

 & Courthouse 

 Pittsburgh, PA 15219 

 Counsel for Appellee 

 United States of America 

OPINION OF THE COURT 

RENDELL, Circuit Judge. 

Rudolph Weaver appeals his armed robbery conviction on 

the grounds that the jury pool in the Erie Division of the 

Western District of Pennsylvania, from which the jury that 

convicted him was chosen, did not reflect a fair cross 

section of the community as required by the Sixth 

Amendment and the Jury Service and Selection Act. Weaver 

also challenges other rulings of the District Court based on 

the Jencks Act and procedures he claims are required in 

order to sentence him under the "Three Strikes" statute, 18 

U.S.C. S 3559 (c)(1). The District Court found no violation of 

Weaver's constitutional or statutory rights. We will affirm. 

I. FACTS AND PROCEEDINGS 

On December 21, 1998, Weaver entered the First 

National Bank in Erie, Pennsylvania, waving a gun and 

demanding the cash in the tellers' drawers. He threatened 

to shoot the tellers if they did not comply with his orders. 

The tellers emptied the contents of their drawers into 

shopping bags, and Weaver left with approximately 

$20,000. Later that day, bank surveillance photographs 

taken during the robbery were shown on news programs, 

and a former classmate of Weaver's, Mary Giulianelli, 

communicated with the F.B.I. immediately after the evening 

news to identify Weaver as the man shown in the photos. 

App. at 767-68. The following day, Agent Van Slyke showed 

a photo array to Rosalie Landon, one of the three tellers on 

duty that day. Coincidentally, Landon had helped Weaver 

open an account at the bank several months before the 

 2 
robbery. She identified Weaver as the robber. App. at 502- 

03. 

In January 1999, a grand jury returned a two-count 

indictment charging Weaver with bank robbery in violation 

of 18 U.S.C. S 2113(a) and use of a dangerous weapon in 

connection with a bank robbery in violation of 18 U.S.C. 

2113(d). Weaver was arrested on March 25, 1999. On 

February 10, 2000, as required by 18 U.S.C. S 851(a), the 

government filed notice of its intent to seek a mandatory life 

sentence pursuant to 18 U.S.C. S 3559(c). The case 

proceeded to trial on March 21, 2000. The evidence was 

overwhelming: Weaver's girlfriend, Ethel Mae Wheat,

testified that Weaver told her that he had robbed the bank 

and showed her a briefcase containing several thousand 

dollars. App. at 720. In addition, Wheat's son testified that 

he owned a gun similar to the one in the photographs, 

which had been missing since the time of the bank robbery. 

App. at 634-35. They also identified certain clothing 

belonging to Weaver, which was the clothing identified by 

witnesses as having been worn by the robber. App. at 639- 

41, 732-34. In addition, three of Weaver's acquaintances 

testified that they believed the man in the surveillance 

photographs to be Weaver. On March 24, 2000, a jury

found Weaver guilty on both counts. In an amended 

judgment of sentence entered on July 24, 2000, the District 

Court sentenced Weaver to life in prison and ordered him 

to pay restitution in the amount of $31,051.30. 

The District Court had jurisdiction over Weaver's criminal 

prosecution pursuant to 18 U.S.C. S 3231. We have 

appellate jurisdiction pursuant to 28 U.S.C.S 1291 and 

18 U.S.C. S 3742. We review the District Court's findings of 

fact for clear error, and its legal conclusions de novo. United 

States v. Scott, 223 F.3d 208, 210 (3d Cir. 2000). Whether 

a defendant has been denied his or her right to a jury 

selected from a fair cross section of the community is a 

mixed question of law and fact, and is reviewed de novo. 

United States v. Allen, 160 F.3d 1096, 1101 (6th Cir. 1998); 

United States v. Miller, 771 F.2d 1219, 1227 (9th Cir. 1985); 

see also United States v. Grisham, 63 F.3d 1074, 1077 

(11th Cir. 1995) (holding that constitutional challenges to 

jury selection process are reviewed de novo). 

 3 
II. DISCUSSION 

A. Challenge to Fair Representation in the Jury Pool 

Weaver challenges his conviction on the grounds that he 

was denied his right to a jury drawn from a fair cross 

section of the community as required by the Sixth 

Amendment's fair cross section provision1 and the Jury 

Selection and Service Act of 1968, which codifies the Sixth 

Amendment right. He argues that the pool from which his 

jury was selected underrepresented African-Americans and 

Hispanics due to its exclusive reliance on voter registration 

lists. 

"[T]he American concept of the jury trial contemplates a 

jury drawn from a fair cross section of the community. . . . 

[I]t is part of the established tradition in the use of juries as 

instruments of public justice that the jury be a body truly 

representative of the community." Taylor v. Louisiana, 419 

U.S. 522, 527 (1975) (internal quotation marks omitted). 

This requirement of a fair cross section is not without 

substantial limits -- it does not guarantee that juries be "of 

any particular composition." Id. at 538. All that is required 

is that "the jury wheels, pools of names, panels, or venires 

from which juries are drawn must not systematically

exclude distinctive groups in the community and thereby fail 

to be reasonably representative thereof." Id. (emphasis 

added). The objectives of the fair cross section requirement 

include avoiding "the possibility that the composition of the 

juries would be arbitrarily skewed in such a way as to deny 

criminal defendants the benefit of the common-sense

judgment of the community" and avoiding the "appearance 

of unfairness" that would result from excluding"large 

groups of individuals, not on the basis of their ability to 

serve as jurors, but on the basis of some immutable

characteristic such as race, gender or ethnic background." 

Lockhart v. McCree, 476 U.S. 162, 175 (1986). 

_________________________________________________________________ 

1. The Sixth Amendment provides: "In all criminal prosecutions, the 

accused shall enjoy the right to a . . . . trial[ ] by an impartial jury 

of the 

State and district wherein the crime shall have been committed . . . ." 

U.S. Const. Amend. VI. 

 4 
The Jury Selection and Service Act ("The Act") provides as 

follows: 

 [A]ll litigants in Federal courts entitled to trial by jury 

 shall have the right to grand and petit juries selected 

 at random from a fair cross section of the community 

 in the district or division wherein the court convenes. 

 It is further the policy of the United States that all 

 citizens shall have the opportunity to be considered for 

 service on grand and petit juries in the district courts 

 of the United States, and shall have an obligation to 

 serve as jurors when summoned for that purpose. 

28 U.S.C. S 1861 (West 2001). The Act "seeks to ensure 

that potential grand and petit jurors are selected at random 

from a representative cross section of the community and 

that all qualified citizens have the opportunity to be 

considered for service." United States v. Calabrese, 942 

F.2d 218, 220 (3d Cir. 1991) (internal quotation marks 

omitted). Claims under the Act are analyzed using the same 

standard as a Sixth Amendment fair cross section claim. 

See United States v. Test, 550 F.2d 577, 584-85 (10th Cir. 

1976) (en banc) (Act's fair cross section standard is 

"functional equivalent of the constitutional`reasonably 

representative' standard"). 

When enacted, the Act required "[e]ach United States 

district court [to] devise and place into operation a written 

plan for random selection of . . . petit jurors that[would] be 

designed to achieve the [above-mentioned] objectives of 

sections 1861 and 1862." 28 U.S.C. S 1863(a) (West 2001). 

Congress determined that the principal source of names for 

the random selection should be either "the voter 

registration lists or the lists of actual voters." Id. at 

S 1863(b)(2). The Act also provided: "The plan shall 

prescribe some other source or sources of names in 

addition to voter lists where necessary to foster the policy 

and protect the rights secured by sections 1861 and 1862 

. . . ." Id. 

In order to establish a prima facie violation of the fair 

cross section requirement of the Sixth Amendment and the 

Act, the defendant must demonstrate: (1) the group alleged 

to be excluded is a "distinctive" group in the community; (2) 

 5 
the representation of this group in jury venires is not "fair 

and reasonable" in relation to the number of such persons 

in the community; and (3) the underrepresentation is 

caused by the "systematic exclusion of the group in the jury 

selection process." Duren v. Missouri, 439 U.S. 357, 364 

(1979). A defendant need not show discriminatory intent. 

See id. at 368 n. 26 ("In contrast [to an Equal Protection 

claim], in Sixth Amendment fair cross-section cases, 

systematic disproportion itself demonstrates an 

infringement of the defendant's interest in a jury chosen 

from a fair community cross section.") And, "once a

defendant has made a prima facie showing of an 

infringement of his constitutional right to a jury drawn a 

fair cross section of the community, it is the State that 

bears the burden of justifying this infringement by showing 

attainment of a fair cross section to be incompatible with a 

significant state interest." Id. at 368. 

The plan approved by the Western District of 

Pennsylvania at the time of the jury selection in Weaver's 

case, and currently in effect, employs voter registration lists 

as the exclusive source from which it summons potential 

jurors for service. App. at 77. Juror names are drawn at 

random from the voter registration lists of the seven 

counties in the Erie Division and placed into a master jury 

wheel ("master wheel").2Id. At periodic intervals, the Clerk 

publicly draws names at random from the master wheel. All 

those selected are sent jury questionnaires. Id. All those 

who return questionnaires and are not disqualified, exempt 

or excused, are placed in a separate wheel called the 

"qualified wheel." App. at 87. 

To prove his claim that the venire underrepresented

African-Americans and Hispanics in violation of his

constitutional and statutory rights, Weaver introduced the 

testimony of Dr. Andrew A. Beveridge, who was recognized 

as an expert in demography. Beveridge compared the 

number of African-Americans and Hispanics in the adult 

population of seven counties comprising the Erie Division 

to the number of African-Americans and Hispanics 

represented in the master wheels used in the Erie Division 

since 1995. 

_________________________________________________________________ 

2. The master wheel is emptied and refilled every two years. App. at 83. 

 6 
The District Court found the statistical evidence offered 

for the years prior to 1999 to be too "weak" to "establish 

unfair and unreasonable representation" because the

findings were based on random samples that the District 

Court found to be inadequate (500 persons for 1995 and 

1997). App. at 16. The District Court based this 

determination in part on Beveridge's concession that a 

sample size of only 500 "weakens the power of the 

estimate," and also on his admission that he could not 

conclude within a reasonable degree of mathematical

certainty that there was underrepresentation during either 

of those years without looking at the entire pattern.3 App. 

at 251-52. In examining the 1999 evidence, the District 

Court noted, as testified to by Beveridge and argued by 

Weaver, that in contrast to 1995 and 1997, Beveridge was 

able to obtain "a complete statistical breakdown" of the 

1999 "master wheel." App. at 15, 99, Appellant Br. at 29. 

Beveridge determined that while census figures indicate 

that 3.07% of the voting population in Erie is AfricanAmerican, African-Americans comprised only 1.84% of the 

1999 master wheel. He also stated that Hispanics 

comprised .97% of the population, but only .26% of the 

wheel.4 The absolute disparity, which is calculated by 

subtracting the percentage of the group on the wheel from 

the percentage of the group in the relevant population, 

Ramseur v. Beyer, 983 F.2d 1215, 1231 (3d Cir. 1992) (en 

banc), is thus 1.23% for African-Americans, and .71% for 

Hispanics. Using a comparative disparity analysis, 5 which is 

_________________________________________________________________ 

3. Weaver does not challenge this finding on appeal, choosing instead to 

focus on the evidence Beveridge presented regarding all returned 

questionnaires from 1999. 

4. This chart represents the statistics before us: 

1999 Wheel Percentage in Percentage in Absolute Comparative 

 Population Wheel Disparity Disparity 

African- 3.07 1.84 1.23 40.01 

Americans 

Hispanics .97 .26 .71 72.98 

 

5. An example of comparative disparity is as follows: in a master wheel 

of 1000, where a group comprises 50% of the population, yet only makes 

 7 
calculated by dividing the absolute disparity by the 

percentage of the population that a particular group 

comprises, id. at 1231, the disparity for African-Americans 

was 40.01%, while it was 72.98% for Hispanics. This figure 

"measures the diminished likelihood that members of an 

underrepresented group, when compared to the population 

as a whole, will be called for jury service." Id. at 1231-32. 

Beveridge did not perform an additional calculation

normally used in fair cross section claims. Known as 

"standard deviation" analysis, this calculation is only 

utilized where the expert has performed an analysis based 

on a random sample from the voter wheel.6 Here, Beveridge 

claimed to be analyzing the entire wheel instead of taking 

a sample.7 Therefore, he stated that there was no standard 

deviation calculation. However, Beveridge did perform a 

"binomial distribution analysis," which measures the 

_________________________________________________________________ 

up 25% of the wheel, the comparative disparity is 50%, because half of 

that group is being excluded. That is, there should be 500 of that group 

on the wheel, but there are only 250. Hence, there is 50% 

underrepresentation within the group itself. 

6. Beveridge elucidated the concept by offering the following example: in 

a survey of 800 persons, where the results indicate that 46% of people 

would vote for Candidate A, and 46% for Candidate B, with a margin of 

error of 3%, the margin of error establishes the degree of confidence that 

the figures presented represent the entire voting population, even though 

the survey is based on a sample of only 800 persons. Beveridge stated 

that standard deviation is like a margin of error, because it establishes 

the probability that a sample taken from the jury wheel accurately 

reflects the composition of the entire wheel. App. at 218. 

7. As we will address in our discussion of Weaver's statistical 

presentation, despite his testimony, Beveridge did not actually analyze 

the entire master wheel. He testified that he was able to determine the 

race of nearly every juror on the master wheel based on those jurors 

indicating their race on the questionnaires sent to them. The master 

wheel consists of jurors chosen at random from the voter registration 

rolls, before any questionnaires have been mailed yet. But Beveridge 

actually examined, and testified based on, the returned questionnaires. 

For the 1999 wheel, 5,877 questionnaires were mailed. App. at 125. Yet 

only 4,753 of those were completed and returned. Id. Beveridge did not 

attempt to account for those not returned, yet consistently testified that 

he had examined the entire composition of the master wheel. 

 8 
likelihood that the underrepresentation of AfricanAmericans and Hispanics would occur by random chance. 

Beveridge stated that the likelihood for African-Americans 

was one in 6,603,384 and for Hispanics, one in 

130,337,015. 

The District Court first stated that it believed that under 

our existing precedent, Weaver's claim would fail on the 

first prong of the prima facie case because AfricanAmericans and Hispanics who do not vote are not 

cognizable groups. The Court then found that, even 

assuming that the first prong had been satisfied, Weaver's 

claim still failed on the basis of the second and third 

prongs. It held that Weaver's statistical presentation was 

too limited, and that using voter registration lists to 

generate the venire did not amount to systematic exclusion. 

We will address each of the three prongs of the prima facie 

case identified in Duren, all of which Weaver must satisfy in 

order to make out a fair cross section claim. 

1. First Prong -- Cognizable group 

The District Court here framed the issue in the same way 

we did in United States v. Lewis, 472 F.2d 252, 255 (3d Cir. 

1973), decided before the Supreme Court's opinion in 

Duren. Lewis involved a challenge to the venire selection 

process based on its alleged underrepresentation of AfricanAmericans. Without the guidance of Duren regarding the 

prima facie claim, it appears we missed the mark as to 

what a plaintiff must show in order to demonstrate that a 

cognizable group was underrepresented. In Lewis , we held 

that to successfully make out a fair cross section claim, 

"the defendant must establish that Blacks . . . . choosing 

not to register to vote were a cognizable group which were 

systematically excluded." Id. at 256. 

We agree with Weaver that Lewis has been overruled by 

Duren at least insofar as its view of the first prong is 

concerned. While it is true that persons who do not vote are 

not a cognizable group, e.g., United States v. Afflerbach, 

754 F.2d 866, 869 (10th Cir. 1985) ("Persons who choose 

not to register to vote do not comprise . . . a cognizable 

group."), this is not the relevant inquiry. Rather, when a 

specific population such as African-Americans or Hispanics 

 9 
is claimed to be underrepresented by the voter rolls, the 

relevant inquiry is simply whether African-Americans and 

Hispanics are cognizable groups. 

This is made clear by Duren, in which the defendant

challenged the underrepresentation of women, where 

Missouri had a procedure that gave women the option of 

exempting themselves from jury service. 439 U.S. at 360. 

The Supreme Court noted the proper approach to the first 

prong: 

 With respect to the first part of the prima facie test, 

 Taylor v. Louisiana, without a doubt, established that 

 women are sufficiently numerous and distinct from 

 men so that if they are systematically eliminated from 

 jury panels, the Sixth Amendment's fair cross-section 

 requirement cannot be satisfied. 

Id. at 364. Thus, we now evaluate the first prong of the 

Duren fair cross section test by making the following 

inquiry: Is the allegedly underrepresented group sufficiently 

numerous and distinct from others in the population that 

if members of the group are systematically eliminated, the 

defendant's right to a jury composed of a fair cross section 

of the community would be violated?8 

Applying this analysis to the instant case, Weaver's claim 

satisfies the first prong of the Duren test: African-Americans 

and Hispanics are "distinctive" groups for the purposes of 

a fair cross-section analysis. Castaneda v. Partida, 430 U.S. 

482, 495 (1977) ("[I]t is no longer open to dispute that 

Mexican-Americans are a clearly identifiable class."); 

Ramseur, 983 F.2d at 1230 ("African-Americans are 

unquestionably a constitutionally cognizable group."); see 

also United States v. Royal, 174 F.3d 1, 6 (1st Cir. 1999) 

_________________________________________________________________ 

8. Furthermore, if we were to adhere to Lewis 's theory of the relevant 

cognizable group, then Duren's second prong, which was not discussed 

in Lewis, could not be meaningfully applied. As we will discuss, the 

second prong requires a comparison between the representation of the 

group in jury venires and the number of such persons in the community. 

439 U.S. at 364. Were we to define the relevant group as all AfricanAmericans not registered to vote, as the District Court did, the 

representation of the group in the jury venire -- and, thus, the 

numerator in the calculation -- would always be zero. 

 10 
("There is no dispute that . . . Blacks are unquestionably a 

"distinctive" group for the purposes of a fair cross-section 

analysis."); United States v. Jackman, 46 F.3d 1240, 1246 

(2d Cir. 1995) ("There is little question that both Blacks and 

Hispanics are "distinctive" groups in the community for 

purposes of this test."). Thus, we disagree with the District 

Court's analysis of the first prong of the Duren prima facie 

case. 

2. Second Prong -- "Fair and reasonable" 

 representation 

The second prong of Duren asks whether the 

representation of the group in the jury venires is fair and 

reasonable in relation to the number of such persons in the 

community. 439 U.S. at 364. This is, at least in part, a 

mathematical exercise, and must be supported by 

statistical evidence. Id. "Initially, the defendant must 

demonstrate the percentage of the community made up of 

the group alleged to be underrepresented, for this is the 

conceptual benchmark for the Sixth Amendment fair-crosssection requirement." Id. Here, Census figures indicate that 

3.07% of the voting population in the seven counties 

comprising the Erie Division is African-American and.97% 

is Hispanic. This data has not been challenged; hence, we 

will proceed on the assumption that these figures are 

correct. 

In Ramseur, we considered a challenge to the jury 

selection process in Essex County, New Jersey, which used 

both voter registration and Department of Motor Vehicle 

lists as the source of its master wheel. 983 F.2d at 1230. 

Ramseur argued that African-Americans were being 

excluded in violation of both the Equal Protection Clause of 

the Fourteenth Amendment9 and the fair cross section 

_________________________________________________________________ 

9. No equal protection challenge is made here. It requires a different 

showing: 

 The first step is to establish that the group [alleged to be 

 underrepresented] is one that is a recognizable, distinct class, 

 singled out for different treatment under the laws, as written or 

as 

 applied. Next, the degree of underrepresentation must be proved, by 

 comparing the proportion of the group in the total population to 

the 

 11 
provision of the Sixth Amendment. We found that while the 

first prong of each test was met, Ramseur's two year-long 

study establishing 14.1% absolute disparity and 40%

comparative disparity presented "insufficient" figures to 

meet either the Equal Protection or Sixth Amendment

standards set forth in Castaneda and Duren, respectively. 

983 F.2d at 1233-35. We denied both claims, id. at 1235, 

focusing the majority of our analysis on Ramseur's Equal 

Protection challenge, id. at 1229-34. 

In our brief discussion of Ramseur's Sixth Amendment 

claim, we appear to have combined the second and the 

third prongs of Duren, and stated, generally, that our 

inquiry involved an examination of "the nature of the 

process by which jury lists are composed, the length of time 

of underrepresentation, and the strength of the evidence 

that purports to establish an `unfair and unreasonable' 

representation under Duren." Id. at 1235. We determined 

that, looking at these factors, Ramseur had not made out 

a prima facie case under the Sixth Amendment. Id. 

Ramseur presented two years of inconclusive statistical 

data and the county process was shown to be facially 

neutral and part of an ongoing process in New Jersey to 

increase the representative nature of jury lists. Id. Though 

we considered these two prongs in tandem in Ramseur, 

here we will evaluate them separately. Following Duren's 

approach, the strength of the evidence should be 

considered under the second prong, while the nature of the 

_________________________________________________________________ 

 proportion called to serve as grand jurors, over a significant 

period 

 of time. This method of proof, sometimes called the"rule of 

 exclusion," has been held to be available as a method of proving 

 discrimination in jury selection against a delineated class. 

Finally, 

 as noted above, a selection procedure that is susceptible of abuse 

or 

 is not racially neutral supports the presumption of discrimination 

 raised by the statistical showing. Once the defendant has shown 

 substantial underrepresentation of his group, he has made out a 

 prima facie case of discriminatory purpose, and the burden then 

 shifts to the State to rebut that case. 

Castaneda, 430 U.S. at 494-95 (internal quotation marks and citations 

omitted). 

 12 
process and the length of time of underrepresentation 

should be considered under the third.10 

Looking at the strength of the evidence supporting the 

second prong, we will examine the percentages of the two 

populations represented on the master wheel. The 

government does not challenge Weaver's data indicating 

that African-Americans and Hispanics comprised 1.84% 

and .97%, respectively, of the 1999 master wheel. However, 

the parties do dispute which method of statistical analysis 

should be used to determine the significance of the

disparity between the percentages on the master wheel and 

the percentages in the voting population. 

Weaver urges that we should analyze the figures using 

comparative disparity, so that the figures of 40.01% for 

African-Americans and 72.98% for Hispanics would form 

the basis for this prong. In contrast, the government argues 

that we should do as the District Court did, and determine 

whether this second prong has been fulfilled by examining 

whether the absolute disparity figures of 1.23% for AfricanAmericans and .71% for Hispanics, establish the requisite 

underrepresentation. Our precedent does not dictate that 

one method of statistical analysis should be used rather 

than another,11 and, in fact, both methods have been 

_________________________________________________________________ 

10. In Duren, the Supreme Court decided the second prong based solely 

on statistical evidence: "The second prong of the prima facie case was 

established by petitioner's statistical presentation." 439 U.S. at 364. In 

its analysis of the third prong, the Court discussed the length of time of 

the study and the nature of the process as they related to whether the 

underrepresentation was inherent in the system itself: "[Duren's] 

undisputed demonstration that a large discrepancy occurred not just 

occasionally but in every weekly venire for a period of nearly a year 

manifestly indicates that the cause of the underrepresentation was 

systematic . . . ," id. at 366, and "Petitioner demonstrated that the 

underrepresentation of women in the final pool of prospective jurors was 

due to the operation of Missouri's exemption criteria . . . ," id. at 367. 

11. In Ramseur, we did not specify which type of statistical analysis is 

preferable in these type of cases: "Thus, both the absolute and 

comparative disparity analyses present results at the margin of the range 

found acceptable by the courts." 983 F.2d at 1232. Because we did note 

the results of both calculations, Ramseur supports our determination 

that we should consider both absolute and comparative disparity, 

instead of just choosing one over the other. 

 13 
criticized. See, e.g., Thomas v. Borg, 159 F.3d 1147, 1150 

(9th Cir. 1998) (stating that "the comparative disparity test 

is strongly disfavored in the Ninth Circuit on the ground 

that it exaggerates the effect of any deviation."); United 

States v. Shinault, 147 F.3d 1266, 1273 (10th Cir. 1998) 

(pointing out that with absolute disparity, total exclusion of 

group comprising small percentage of population would 

result in figure appearing insignificant). 

The comparative disparity method has drawn a great deal 

of criticism in situations like the one before us, that is, 

where a small population is subjected to scrutiny. See 

Smith v. Yeager, 465 F.2d 272, 279 n.18 (3d Cir. 1972) 

("[T]he comparative [disparity] approach reaches absurd 

results . . . where the [African-American] population at the 

time was 4.4% of the total, and the [African-American] jury 

participation ranged as low as 2% of the jury list). Courts 

considering this analysis have said that while "these 

numbers may be more indicative of a Sixth Amendment

violation, they . . . are distorted by the small population of 

the different minority groups." Shinault, 147 F.3d at 1273. 

It has been argued that "a small variation in the figures 

used to calculate comparative disparity can produce a 

significant difference in the result, and . . . . there is reason 

to doubt the accuracy of the figures . . . ." United States v. 

Pion, 25 F.3d 18, 23 (1st Cir. 1994); see also United States 

v. Sanchez-Lopez, 879 F.2d 541, 548 (9th Cir. 1989) ("A 

comparative analysis is disfavored because it exaggerates 

the effect of any deviation."); United States v. Hafen, 726 

F.2d 21, 24 (1st Cir. 1984) ("[T]he comparative disparity 

calculation might be a useful supplement to the absolute 

disparity calculation, . . . [but] the smaller the group is, the 

more the comparative disparity figure distorts the 

proportional representation."); United States v. Whitley, 491 

F.2d 1248, 1249 (8th Cir. 1974) (stating that comparative 

disparity calculation "is ordinarily inappropriate" where a 

very small proportion of the population is involved and 

opining that it "distorts reality"). When comparative 

disparity has been used, it has been emphasized that the 

significance of the figure is directly proportional to the size 

of the group relative to the general population, and thus is 

most useful when dealing with a group that comprises a 

large percentage of the population. See, e.g. , LaRoche v. 

 14 
Perrin, 718 F.2d 500, 502-03 (1st Cir. 1983) (finding that 

prima facie violation established where comparative

disparity was 68.22% and group comprised 68.4% of 

population), overruled on other grounds by Barber v. Ponte, 

772 F.2d 982, 996 (1st Cir. 1985) (en banc). 

Although absolute disparity, which was the method 

employed in Duren, seems to be the preferred method of 

analysis in most cases, see, e.g., Shinault, 147 F.3d at 1273 

("Absolute disparity . . . is the starting place for all other 

modes of comparison."), it also has its share of critics. 

Some courts have found that the absolute disparity 

calculation "understates the systematic representative 

deficiencies" in cases such as the one before us, where, 

unlike in Duren, the groups at issue comprise small

percentages of the general population. Id.; see also id. 

(noting that "even the complete exclusion of the groups 

would result in absolute disparities of less than 6%"); 

Rogers, 73 F.3d at 777 ("[I]n this case, even if AfricanAmericans [who comprised 1.87% of population] were 

excluded entirely from the lists of potential jurors, the 

maximum disparity, under an absolute calculation, would 

be 1.87%."). Because we think that figures from both 

methods inform the degree of underrepresentation, we will 

examine and consider the results of both in order to obtain 

the most accurate picture possible. 

Looking first at the comparative disparity figures, we find 

that they are quite high -- 40.01% and 72.98%-- but that 

because African-Americans and Hispanics comprise such a 

small percentage of the population, the results of this 

analysis are of questionable probative value.12 See United 

States v. Chanthadara, 230 F.3d 1237, 1257 (10th Cir. 

2000) (finding that where African-Americans accounted for 

_________________________________________________________________ 

12. When determining if "substantial underrepresentation" had been 

established as required to make out a prima facie claim under the Equal 

Protection clause, we stated in Ramseur that a 40% comparative 

disparity was only "borderline." 983 F.2d at 1232. Though an Equal 

Protection challenge differs from a fair cross section claim, the 

reasoning 

of Ramseur suggests that, with respect to the comparative disparity for 

African-Americans, 40.1% would not necessarily weigh in Weaver's favor, 

considering that the figure is comparable to Ramseur's "borderline" 

figure of 40%. 

 15 
7.9% of population, and Hispanics, 2.74%, comparative 

disparities of 40.89% and 58.39%, respectively, did not 

establish prima facie violation); United States v. Clifford, 

640 F.2d 150, 155 (8th Cir. 1981) (holding that where 

Indians comprised 15.6% of population, 46% comparative 

disparity was insufficient underrepresentation to make out 

fair cross section claim). 

The absolute disparity figures are much lower -- 1.23% 

for African-Americans and .71% for Hispanics. These

percentages are well below those that have previously been 

found insufficient to establish unfair and unreasonable 

representation.13 See Thomas , 159 F.3d at 1151 (finding 

that where African-Americans comprised 5.135% of 

population, and there were no African-Americans on jury 

panel, absolute disparity of approximately 5% was 

insufficient to make out fair cross section claim); Pion, 25 

F.3d at 23 (relying on absolute disparity figure of 3.4% in 

finding that underrepresentation was "relatively small" for 

Hispanics representing 4.2% of the general population); 

United States v. Suttiswad, 696 F.2d 645, 649 (9th Cir. 

1982) (finding that where African-Americans comprised 

9.3% of population, Hispanics, 11.7% and Asians, 8.3%, 

absolute disparities of 2.8%, 7.7%, and 4.7%, respectively, 

were insubstantial); United States v. Armstrong , 621 F.2d 

951, 955-56 (9th Cir. 1980) (determining that absolute 

disparity of 2.83% for African-Americans comprising 4.2% 

of population was not sufficient). Accordingly, the results of 

this analysis fail to support this element of Weaver's prima 

facie case. 

Moreover, there is a fundamental weakness in the figures 

relied upon by Beveridge in his statistical presentation 

regarding the percentages on the "master wheel" -- a flaw 

that went unaddressed by both the parties and the District 

Court. As noted previously, despite his testimony, Beveridge 

did not actually analyze the entire 1999 master wheel. 

Instead, he examined and based his testimony on the

returned questionnaires. For the 1999 wheel, 5,877 

_________________________________________________________________ 

13. Like with comparative disparity, Ramseur found a 14.1% absolute 

disparity calculation in the Equal Protection context to be "borderline." 

983 F.2d at 1232. 

 16 
questionnaires were mailed. App. at 125. Yet only 4,753 of 

those were completed and returned. Id. Beveridge did not 

attempt to account for those not returned, yet consistently 

testified that he had examined the entire composition of the 

master wheel. We find that this discrepancy in Beveridge's 

statistical presentation further undermines the strength of 

the evidence. In order to support Weaver's allegation of 

underrepresentation on the master wheel, Beveridge would 

have had to either analyze the races of all 5,877 jurors on 

the master wheel (as he claimed to have done), perform 

sampling of the master wheel14 and then calculate the 

standard deviation,15 or, alternatively, account for the 

statistical impact of the unreturned questionnaires. 

Weaver's statistical evidence is, therefore, far too weak to 

support a finding of representation that is unfair and 

unreasonable. 

3. Third Prong -- Systematic Exclusion 

While we need not reach the third prong, it merits our 

attention because the District Court placed some degree of 

reliance on this aspect. The third prong of Duren requires 

that the defendant show that the underrepresentation of 

the cognizable group is due to systematic exclusion in the 

jury selection process. 439 U.S. at 366. In Duren, the 

Supreme Court held that women were systematically 

excluded where the underrepresentation of women on jury 

lists resulted from their self-exclusion under a state law 

exemption privilege. Id. at 367. The Court stated that "[t]he 

resulting disproportionate and consistent exclusion of 

women from the jury wheel and at the venire stage was 

quite obviously due to the system by which juries were 

selected." Id. In Ramseur, we found no Sixth Amendment 

_________________________________________________________________ 

14. Weaver did present studies based on samples of the 1995, 1997, and 

1999 wheels, but he did not base his appeal on this evidence, choosing 

instead to argue that the evidence based on the entire 1999 wheel was 

much more persuasive. Thus, we will not address Beveridge's studies 

based on samples from 1995, 1997 or 1999, restricting our focus to the 

statistical evidence based on all the returned questionnaires from 1999. 

15. As noted previously, Beveridge stated that standard deviation was 

unnecessary because he claimed to have done a complete statistical 

analysis of the 1999 master wheel. 

 17 
violation where the jury selection process was neutral on its 

face and was being monitored, and modified, to try to 

enhance its representative character. 983 F.2d at 1235. 

Here, the government contends, and the District Court 

agreed, that where substantial representation is traceable 

solely to the exclusive reliance on voter registration lists, 

and the underrepresented group has freely excluded itself 

quite apart from the system itself, the third prong has not 

been fulfilled. The government emphasizes that Weaver has 

shown "no evidence of any interference with the 

opportunity . . . to vote." Appellant Br. at 27. In other 

words, there has been no showing of anything in the

system that has discouraged or prevented a group from 

participating. 

We must be careful to note that intentional 

discrimination need not to be shown to prove a Sixth 

Amendment fair cross section claim. Duren, 439 U.S. at 

368 n. 26. Under Duren, "systematic exclusion" can be 

shown by a large discrepancy repeated over time such that 

the system must be said to bring about the 

underrepresentation: "[Here, petitioner's] undisputed 

demonstration that a large discrepancy occurred not just 

occasionally but in every weekly venire for a period of 

nearly a year manifestly indicates that the cause of the 

underrepresentation was systematic -- that is, inherent in 

the particular jury-selection process utilized." Id. at 366. 

Thus, while we need not determine the limits of"systematic 

exclusion" for our purposes, we note that if the use of voter 

registration lists over time did have the effect of sizeably 

underrepresenting a particular class or group on the jury 

venire, then under some circumstances, "this could 

constitute a violation of a defendant's `fair cross-section' 

rights under the [S]ixth [A]mendment." Bryant, 686 F.2d at 

1378 n.4; see also Barber, 772 F.2d at 989 ("A large 

discrepancy occurring over a sustained period of time 

where there is an opportunity for arbitrary selection is 

sufficient to demonstrate that the exclusion of the

underrepresentation is systematic -- that is, inherent in the 

particular jury selection process utilized."). However, we see 

nothing in the record before us that is demonstrative of any 

such persistent "systematic exclusion" of Blacks and 

Hispanics. 

 18 
Due to Weaver's failure to present sufficient evidence to 

satisfy the requirements of the prima facie case set forth in 

Duren, we will affirm the District Court's denial of Weaver's 

fair cross section challenge to Erie's jury selection process. 

B. Remaining Issues 

1. Failure to Grant a Mistrial Based on Non-Production 

 of Bank Teller's Written Descriptions 

Weaver also claims that the government violated the

Jencks Act, 18 U.S.C. S 3500. The Jencks Act requires that 

the government disclose prior recorded statements of its 

witnesses that are "related" to the subject matter of their 

testimony. Id. at S 3500(b); United States v. Hill, 976 F.2d 

132, 139 (3d Cir. 1992). Such disclosures must be made 

after each witness testifies on direct examination. 976 F.2d 

at 139. 

At trial, several witnesses, including bank tellers, offered 

evidence as to Weaver's identity, and as we noted, one of 

the tellers, Ms. Landon, specifically recalled Weaver from 

his having opened an account at the bank five months 

before the robbery. Weaver contends that the Jencks Act 

was violated because, after direct examination of the 

various tellers, Weaver's counsel requested copies of written 

reports prepared by each of them describing the robber. 

The government was unable to produce any such reports. 

Therefore, Weaver urges that he was entitled to a mistrial. 

We review the District Court's denial of defendant's motion 

for a mistrial for abuse of discretion. Id. 

It was conceded that it is bank policy for tellers to write 

a description of a robber immediately following the robbery. 

Indeed, shortly after the robbery, each of the three tellers 

did so and there was some evidence that they left them at 

the scene or gave them to some unidentified law 

enforcement officials who arrived on the scene. None of the 

tellers, however, could remember to whom they gave the 

descriptions and thus the District Court concluded that 

there was no evidence that the written descriptions were 

ever in the custody of federal law enforcement officials.16 

_________________________________________________________________ 

16. Although each teller testified on cross-examination that she wrote 

such a statement immediately after the robbery occurred, none of the 

 19 
Because the Jencks Act only applies to evidence in the 

possession of the United States, and not state authorities, 

see 18 U.S.C. S 3500(b) ("in the possession of the United 

States"); United States v. Bermudez, 526 F.2d 89, 100 n.9 

(2d Cir. 1975); United States v. Smith, 433 F.2d 1266, 1269 

(5th Cir. 1970); Beavers v. United States, 351 F.2d 507, 

509 (9th Cir. 1965), we conclude there was no showing of 

a Jencks Act violation. 

2. Notice of Intent to Seek Life Imprisonment Under

 the Provisions of Title 18 U.S. Code 3559 (c)(1) 

Pursuant to 18 U.S.C. S 3559(c)(1)(A)(i),"a person who is 

convicted in a court of the United States of a serious violent 

felony shall be sentenced to life imprisonment if the person 

has been convicted . . . on separate prior occasions in a 

court of the United States or of a State of 2 or more serious 

violent felonies." Id. This is routinely referred to as the 

"Three Strikes" provision. Weaver contends that the

government's February 10, 2000 notice of its intent to seek 

a sentence of life imprisonment under this statutory 

provision was defective because it failed to properly inform 

him of the nature of the prior convictions relied upon, and 

thus provided him inadequate notice. The sufficiency of 

such notice is a question of law that we review de novo. 

United States v. King, 127 F.3d 483, 487 (6th Cir. 1997). 

Notice of intent to seek life imprisonment under the 

provisions of 18 U.S.C. 3559(c)(1) requires notice under 21 

U.S.C. S 851, which states: 

 (a)(1) No person who stands convicted of an offense 

 under this part shall be sentenced to increased 

 punishment by reason of one or more prior convictions, 

 unless before trial, or before entry of a plea of guilty, 

_________________________________________________________________ 

tellers could recall to whom she gave the written description. App. at 

486-88, 525-26, 560-61. Teller Landon testified that she did not recall if 

she had given her written description form to law enforcement personnel, 

stating that "[p]erhaps they took it, I don't remember who got the form." 

Agent Curtis and Officer Emrick both testified that they did not see any 

written statements by the tellers, App. at 535-36, 691, 698, and neither 

the Erie Police Department nor the bank had any written descriptions of 

the robber by the tellers, App. at 567, 683, 868. 

 20 
 the United States attorney 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. . . . Clerical 

 mistakes in the information may be amended at any 

 time prior to the pronouncement of sentence.

 (c)(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. . . . The failure of the 

 United States attorney to include in the information 

 the complete 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 subsection (a)(1) of this 

 section. 

21 U.S.C. S 851. The requirements set out inS 851 are 

mandatory and a district court may not impose an 

enhanced sentence unless the defendant has been notified 

of the "strikes" in compliance with these provisions. United 

States v. Olson, 716 F.2d 850, 853 (11th Cir. 1983). The 

government gave notice to Weaver of its intent to rely upon 

three prior convictions: a "July 3, 1975 conviction for 

involuntary manslaughter," a "November 21, 1977 

conviction for armed robbery," and a "June 19, 1989

conviction for armed robbery." It later amended the notice 

in certain respects, as we will discuss below. Weaver 

contends that the government's notice was flawed in three 

ways. 

First, one of the previous convictions set forth in the 

notice sent to Weaver contained an error, in that it 

indicated that his July 3, 1975 conviction was for 

"involuntary manslaughter," when it was actually for 

"voluntary manslaughter." Second, the original notice sent 

to Weaver indicated that one of the prior convictions that 

the government would rely upon was his November 21,

1977 conviction for armed robbery. In fact, there was no 

crime in Pennsylvania entitled "armed robbery" in 1977. 

Rather, on November 21, 1977, Weaver was found guilty of 

two separate robberies that were consolidated for trial and, 

with respect to one of the two robbery convictions, the jury 

 21 
also convicted Weaver of using a "prohibited offensive 

weapon." 

Finally, the reference to Weaver's third conviction

improperly referred to an armed robbery conviction on 

June 19, 1989. Weaver was originally convicted on June 19, 

1989, but the conviction was not for armed robbery.

Instead, Weaver had been convicted of two separate charges 

of robbery and criminal conspiracy relating to the robbery 

of two banks on the same day, and both convictions were 

later vacated and re-entered on July 2, 1997. 

We have not had occasion to specifically address the 

sufficiency of notice under S 851. However, we are guided 

by rulings of our sister courts of appeals in assessing the 

adequacy of a S 851 information. While continually 

emphasizing the need for strict compliance with 

S 851(a)(1)'s filing and service requirements, e.g., Harris v. 

United States, 149 F.3d 1304, 1307 (11th Cir. 1998)

("[E]ven where a defendant receives actual notice that the 

government intends to rely on a previous conviction to 

enhance his sentence, the district court lacks jurisdiction 

to impose an enhanced sentence until the government files 

an information as required under S 851."), those courts 

requiring strict compliance have drawn a distinction 

between the strict procedural requirements regarding the 

giving of notice, such as service and filing, which are 

explicit in the statute, and the precise information that 

must be included in an information, which the statute does 

not specify. Courts have often found that the statute 

permits more flexibility with respect to the latter. E.g., 

United States v. Hamilton, 208 F.3d 1165, 1168-69 (9th Cir. 

2000) (finding that though the Ninth Circuit requires strict 

compliance with "the procedural aspects of section 851(b), 

. . . an apparent typographical mistake in a section 851(a) 

sentencing information that otherwise satisfies due process 

notice requirements does not render the information

invalid."); United States v. Lawuary, 211 F.3d 371, 376 (7th 

Cir. 2000) ("The statute itself . . . does not specify the form 

the filing must take, and we have . . . been flexible with 

regard to what the government must do in order to comply 

with section 851."). 

 22 
Rather than focusing on exactly what information the 

government must provide in a S 851(a)(1) information, 

courts have instead analyzed whether the purpose of

S 851(a)(1) -- providing a defendant with sufficient notice to 

comply with due process -- has been satisfied. Accordingly, 

"[o]ur inquiry must be whether the information which was 

filed provided [the defendant] reasonable notice of the 

government's intent to rely on a particular conviction and a 

meaningful opportunity to be heard," Perez v. United States, 

249 F.3d 1261, 1266 (11th Cir. 2001), and we must be 

careful not to "elevat[e] form over substance" in doing so. 

King, 127 F.3d at 489. Hence, the question is whether any 

of the government's errors rendered the notice 

constitutionally lacking. United States v. Steen , 55 F.3d 

1022, 1027 (5th Cir. 1995) ("[A] district court may enhance 

a defendant's sentence, as long as the government provides 

constitutionally sufficient notice of the previous convictions 

through an information filed prior to trial."). We note, also, 

that S 851(a)(1) specifically provides that"[c]lerical mistakes 

in the information may be amended at any time prior to the 

pronouncement of sentence." We will address each of the 

claimed errors. 

(a) Voluntary Manslaughter 

Weaver contends that the notice wrongly indicated he 

had been previously convicted of involuntary manslaughter. 

More than two weeks before sentencing, the government 

filed an amended notice, correcting the error by listing 

Weaver's July 3, 1975 conviction as being for voluntary 

manslaughter. The District Court determined that this error 

was a clerical mistake that could be amended pursuant to 

the plain language of the statute. 

We agree with the District Court that the government's 

error in listing Weaver's past crime as being for 

"involuntary manslaughter," when it was actually for 

"voluntary manslaughter," was a clerical mistake and 

therefore capable of being corrected by amendment under 

S 851(a)(1). See King, 127 F.3d at 489 (determining that 

incorrect date of prior conviction included in information is 

clerical mistake as referenced in S 851(a)(1)). Although 

Section 851 does not define "clerical error," we conclude 

that the weight of authority discussing clerical errors in 

 23 
other contexts indicates that the government's error 

qualifies as such. See Fed. R. Civ. P. 60(a) ("Clerical 

mistakes in judgments, orders or other parts of the record 

and errors therein arising from oversight or omission may 

be corrected . . . ."); Fed. R. Crim. P. 36 ("Clerical mistakes 

in judgments, orders or other parts of the record and errors 

in the record arising from oversight or omission may be 

corrected . . . .") (emphasis added); see also American 

Trucking Ass'ns v. Frisco Transp. Co., 358 U.S. 133, 145 

(1958) ("It is axiomatic that courts have the power and the 

duty to correct judgments which contain clerical errors or 

judgments which have issued due to inadvertence or 

mistake."); Jones v. Anderson-Tully Co., 722 F.2d 211, 212 

(5th Cir. 1984) (holding that clerical errors "must be in the 

nature of recitation" and "not errors of substantive 

judgment"). Because the government's amended 

information complied with S 851(a)(1)'s requirements for the 

amendment of clerical errors, we affirm the District Court's 

holding that the government listing Weaver's offense as 

"involuntary manslaughter" instead of "voluntary 

manslaughter" did not render the S 851 notice inadequate. 

(b) November 21, 1977 Conviction for Armed Robbery 

With regard to the listing of Weaver's November 21, 1977 

conviction as being for armed robbery, the District Court 

correctly noted that Pennsylvania did not have an offense 

titled "armed robbery" in 1977. Weaver was actually

convicted of two counts of robbery, one of which involved a 

"prohibited offensive weapon." 

First, Weaver argues that because the government's 

original notice stated that it was relying on a conviction on 

November 21, 1977 (singular), instead of on two convictions 

(plural), the notice did not comply with S 851(a)(1). 

However, the government did in fact correct this error in 

the amended notice, changing a single conviction for armed 

robbery on November 21, 1977 to a "November 21, 1977 

conviction for robbery" and a "November 21, 1977 

conviction for armed robbery." App. at 948. We agree with 

the District Court that this mistake can be classified as 

clerical, and due to the fact that the amended notice 

accurately reflected that the government was relying on two 

 24 
robbery convictions, rather than one, Weaver's argument is 

unpersuasive. 

Weaver's second contention is that he was prejudiced by 

the incorrect notice17 because he could not identify upon 

which of the two 1977 robbery convictions the government 

was relying. He bases this argument on the fact that under 

S 3559(c)(3), a robbery conviction can not constitute one of 

his "strikes" for sentencing purposes if a defendant 

"establishes by clear and convincing evidence that (i) no 

firearm or other dangerous weapon was used in the offense 

and no threat of use of a firearm or other dangerous 

weapon was involved in the offense; and (ii) the offense did 

not result in death or serious bodily injury . . . to any 

person." He asserts that if the government had given him 

proper notice, he could have attempted to prove that an 

offensive weapon was not used in one of the robberies. 

We are not swayed by Weaver's argument. We have 

already stated that the amended notice clarified that the 

government was relying upon both convictions entered on 

November 21, 1977. And though the amended notice still 

listed "armed robbery," instead of robbery and use of 

prohibited weapon, as a relied-upon conviction, given that 

the government listed the correct date on the amended 

notice and attached copies of his certified convictions, we 

cannot see how Weaver's supposed confusion renders the 

notice insufficient. Weaver was alerted to the convictions 

_________________________________________________________________ 

17. We agree with Weaver that a S 851(a) violation is not subject to 

harmless error analysis. See United States v. Olson, 716 F.2d 850, 852 

(11th Cir. 1983) (holding that if government fails to provide notice, it 

cannot seek enhancement; there is no room to argue that error was 

harmless). But that is not the aim of our prejudice inquiry. Rather, as 

discussed earlier, we are asking whether Weaver was prejudiced in order 

to determine whether he was given adequate notice, as required by due 

process, of the previous convictions upon which the government would 

rely. See Steen, 55 F.3d at 1027 (emphasis added) ("[A] district court 

may enhance a defendant's sentence, as long as the government provides 

constitutionally sufficient notice of the previous convictions through an 

information filed prior to trial."); United States v. Belanger, 970 F.2d 

416, 

419 (7th Cir. 1992) ("Section 851 does not specify the particular form 

which notice of enhancement must take and the government's filings 

provided Belanger reasonable notice and an opportunity to be heard."). 

 25 
the government would rely on as strikes, and he had the 

ability to challenge the use of both robbery convictions. He 

could have argued that a weapon was not used in one of 

his robberies, thereby attempting to avail himself of 

S 3559(c)(3)'s exception. He did not do so, and we do not 

believe that technical errors such as the ones here give him 

the opportunity to revisit the issue on remand. 

In addition, prior to his trial, Weaver filed two in limine 

motions to exclude his prior convictions for bank robbery, 

armed robbery and manslaughter. Hence, the pretrial

proceedings clearly indicate that he was well aware of the 

prior convictions that the government was relying upon, 

further weakening his claim that he lacked sufficient 

information to put him on notice. See United States v. 

Mack, 229 F.3d 226, 231-32 (3d Cir. 2000) (considering 

actual notice as indicative of constitutionally adequate 

notice in context of different statute). 

Some element of confusion or lack of specificity has not 

rendered notices deficient in previous cases. E.g., United 

States v. Gonzalez-Lerma, 14 F.3d 1479, 1485 (10th Cir. 

1994) (upholding information with no prior case number, 

date or specific place of conviction); United States v. 

Campbell, 980 F.2d 245, 251 (4th Cir. 1992) (upholding 

enhancement despite error in statutory section of previous 

conviction). Thus, we hold that the government's 

information regarding Weaver's November 21, 1977 

conviction was sufficient to "signal[ ] the government's 

intention to rely upon a particular prior conviction." 

Gonzalez-Lerma, 14 F.3d at 1486. 

(c) 1989 Armed Robbery Conviction 

Finally, Weaver contends that because his convictions for 

armed robbery and criminal conspiracy on June 19, 1989 

were later vacated, the government listed nullified

convictions. However, the convictions were vacated July 2, 

1997 and were re-entered, after a guilty plea, under the 

same criminal docket number on July 2, 1997. Hence, the 

only error is listing the wrong date of conviction. We 

classify this as nothing more than a clerical mistake that, 

like the other errors we have addressed, was corrected in 

the amended notice. Thus, we apply the same reasoning, 

and find that this mistake does not entitle Weaver to relief. 

 26 
Weaver also argues that the notice was inadequate 

because he was not convicted of armed robbery on that 

date, but rather of two separate charges -- robbery and 

criminal conspiracy -- relating to the robbery of two banks 

on the same day. Here, our analysis is the same as it was 

with the second mistake regarding the armed robbery

convictions, that is, we are persuaded that the 

government's information was sufficient to "signal[ ] the 

government's intention to rely upon a particular prior 

conviction." Gonzalez-Lerma, 14 F.3d at 1486. Thus, we 

find that Weaver received adequate notice that the 

government would rely on his July 2, 1997 robbery 

conviction. 

Therefore, we find that the notice was sufficiently

complete to provide Weaver with satisfactory notice under 

the statute, and that the District Court was correct in not 

permitting Weaver, in effect, to take advantage of technical 

or clerical errors in the notice provided. Therefore, we hold 

that the District Court did not err in finding Weaver 

received adequate notice as per 18 U.S.C. S 851. 

3. Increasing Sentence Based on Prior Convictions Not 

 Charged in Indictment nor Proven to the Jury

 Beyond a Reasonable Doubt 

Weaver contends that the failure to include his prior 

convictions for serious violent felonies in the indictment 

and to charge the jury that it must find beyond a 

reasonable doubt that Weaver committed those prior 

offenses violated his right to due process or trial by jury. 

Our review of this issue is plenary. Mack, 229 F.3d at 231 

("This Court reviews de novo Mack's assertion that his due 

process rights were violated."). 

In Almendarez-Torres v. United States, 523 U.S. 224

(1998), the Supreme Court addressed this precise issue. 

There, the Court decided that no due process violation 

occurs when prior convictions are used to increase a 

statutory maximum without being charged in an indictment 

and proved to a jury beyond a reasonable doubt. Id. at 239- 

41. Recently, in Apprendi v. New Jersey, 530 U.S. 466 

(2000), the Court upheld the validity of Almendarez-Torres, 

singling out "the fact of a prior conviction" as the exception 

 27 
to the rule that "any fact that increases the penalty for a 

crime beyond the prescribed statutory maximum must be 

submitted to a jury, and proved beyond a reasonable

doubt." Id. at 490. 

Despite speculation about the future of AlmendarezTorres,18 we heed the words of the Supreme Court in

Rodriguez de Quijas v. Shearson/Am. Express, Inc. , 490 

U.S. 477, 484 (1989): "If a precedent of this Court has 

direct application in a case, yet appears to rest on reasons 

rejected in some other line of decisions, the Court of 

Appeals should follow the case which directly controls, 

leaving to this Court the prerogative of overruling its own 

decisions." Nor do we find, as Weaver argues, that the 

"Three Strikes" requirement of a mandatory minimum 

sentence is distinguishable, for due process purposes, from 

the increased permissive maximum penalty discussed in 

Almendarez-Torres. Both have the effect of increasing the 

_________________________________________________________________ 

18. We note Chief Judge Becker's concurrence in Mack, which 

highlighted the shaky ground on which Almendarez-Torres stands: 

 [T]he Apprendi majority went out of its way to cast the future 

 viability of Almendarez-Torres into question. See id. at 2362 

("Even 

 though it is arguable that Almendarez-Torres was incorrectly 

 decided, and that a logical application of our reasoning today 

should 

 apply if the recidivist issue were contested, Apprendi does not 

 contest the decision's validity and we need not revisit it for 

purposes 

 of our decision today to treat the case as a narrow exception to 

the 

 general rule we recalled at the outset."). Moreover, as 

commentators 

 have noted, five sitting Justices are now on record as saying that 

 Almendarez-Torres was wrongly decided. See Apprendi, 120 S.Ct. at 

 2379 (Thomas, J., concurring); Almendarez-Torres, 523 U.S. at 248, 

 118 S.Ct. 1219 (Scalia, J., joined by Stevens, Souter, and 

Ginsburg, 

 dissenting). I do not suggest that we should predict that the Court 

 will overturn Almendarez-Torres. Cf. State Oil Co. v. Khan, 522 

U.S. 

 3, 20, 118 S.Ct. 275, 139 L.Ed. 2d 199 (1997) ("Despite what Chief 

 Judge Posner aptly described as Albrecht's `infirmities, [and] its 

 increasingly wobbly, moth-eaten foundations,' there remains the 

 question whether Albrecht deserves continuing respect under the 

 doctrine of stare decisis. The Court of Appeals was correct in 

 applying that principle despite disagreement with Albrecht, for it 

is 

 this Court's prerogative alone to overrule one of its precedents.") 
 (emphasis added) (citation omitted). But the apprehension remains. 

Mack, 229 F.3d at 239 n.5. 

 28 
sentence, based on findings not charged or made by the 

jury, beyond what would otherwise be the statutory 

maximum. Therefore, we find that the District Court

properly rejected Weaver's claim that the failure to include 

his prior convictions for serious violent felonies in the 

indictment, and to charge the jury that it must find beyond 

a reasonable doubt that Weaver committed those prior 

offenses, violated his right to due process or trial by jury. 

CONCLUSION 

For all the foregoing reasons, we will AFFIRM the District 

Court's Judgment and Conviction Order. 

A True Copy: 

Teste: 

 Clerk of the United States Court of Appeals 

 for the Third Circuit 

 29