United States Court of Appeals

For the First Circuit

No. 00-2416

UNITED STATES OF AMERICA,

Appellee,

v.

JOSEPH BRADSHAW,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Douglas P. Woodlock, U.S. District Judge]

Before

 Selya, Circuit Judge,

Campbell, Senior Circuit Judge,

and Lynch, Circuit Judge.

Juliane Balliro, with whom Perkins, Smith & Cohen, LLP was

on brief, for appellant.

Sangita K. Rao, Attorney, U.S. Dep't of Justice, with whom

Michael J. Sullivan, United States Attorney, was on brief, for

appellee.

February 25, 2002

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SELYA, Circuit Judge. The poetess Nikki Giovanni once

commented that: "Mistakes are a fact of life. It is the

response to the error that counts." Elaine Partnow, The

Quotable Woman: 1800-1981 453 (1983). Defendant-appellant

Joseph Bradshaw, a recidivist robber, would have done well to

heed the message inherent in these words of wisdom. The tale

follows.

In the court below, the government charged that the

appellant repeated and compounded the error of his ways. A jury

agreed, convicting him on an array of charges, including armed

robbery and attempted murder. Invoking the "Three Strikes Law,"

18 U.S.C. § 3559(c), the district court sentenced the appellant

to life imprisonment. In this appeal, Bradshaw — vigorously

represented by able counsel — raises a substantial claim of jury

taint. He also challenges various evidentiary rulings and the

constitutionality of the Three Strikes Law. Although the

government has offered us surprisingly little help, our

perscrutation of the record and the case law persuades us that

the conviction and sentence must stand.

I. BACKGROUND

We recount the relevant facts as the jury might have

found them, consistent with record support. In that exercise,
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we paint with a broad brush, reserving more extensive detail for

our ensuing discussion of the appellant's specific claims.

The charges against the appellant stem from separate,

but related, incidents. Our chronological narrative begins in

the spring of 1995, at which time the appellant's circle of

friends included Thomas Sutherland and the DeSimone brothers,

Ronald and Donald (colloquially known as "Ronny" and "Donny").

Ronny DeSimone told the appellant that, five mornings a week, a

mail carrier transported large sums of money from the Lynn,

Massachusetts post office to a nearby financial institution.

The two men repaired to Lynn and scouted the layout of the bank.

The appellant thereafter described the situation to Sutherland,

telling him that Ronny DeSimone had stumbled upon "a good

score." The pair decided to rob the mail carrier and reward

Ronny by giving him ten percent of the take.

Sutherland and the appellant executed the robbery on

June 5, 1995. When the mail carrier, Timothy Bogart, drove up

to the bank, Sutherland commandeered the postal truck and

ordered Bogart, at gunpoint, to drive away. After Bogart had

gone a few blocks, Sutherland directed him to stop. Sutherland

then snatched a mail tub containing more than $122,000 in cash

and checks that had been sent by registered mail, and joined the
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appellant (who was waiting nearby in a rented station wagon).

The men departed in haste.

Later that same month, Sutherland and the appellant

came to suspect that the DeSimone brothers were cooperating in

the investigation of the robbery. They decided that Donny

DeSimone had to be killed. The appellant recruited Paul

Courteau to assist in this grisly business.

On July 12, 1995, Courteau and the appellant, employing

a pretext, inveigled Donny DeSimone into accompanying them on a

ride. The trio drove to various locations, eventually winding

up at an unoccupied baseball field. There, the appellant pulled

out a handgun and attempted to test-fire it. The gun jammed.

Nonplussed, he herded his companions back into the car and the

three men continued their meanderings.

In the early hours of the morning, they drove to a

wooded area. Courteau and the appellant exited the vehicle,

told Donny to stay put, and walked into the woods. A few

moments later, Donny heard a gunshot. When the others returned,

the appellant pointed the gun at Donny and ordered him out of

the vehicle. Charging that Donny was "cooperating with the

feds," the appellant forced him to his knees, handed the gun to

Courteau, and instructed Courteau to shoot. Courteau pulled the
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trigger, but the gun jammed once again. Donny lost little time

in fleeing from the scene.

On July 8, 1998, a federal grand jury returned a ninecount indictment against the appellant. The indictment charged

conspiracy to commit armed robbery, 18 U.S.C. § 371 (count 1);

robbery of a postal employee by use of a dangerous weapon, id.

§ 2114 (count 2); using and carrying a firearm during and in

relation to a crime of violence, namely, the robbery, id. §

924(c)(1) (count 3); conspiracy to tamper with a witness, id.

§ 371 (count 4); witness tampering by means of attempted murder,

id. § 1512(a)(1)(A) (count 5); using and carrying a firearm

during and in relation to a crime of violence, namely, the

attempted murder, id. § 924(c)(1) (count 6); obstruction of

justice, id. § 1503 (count 7); conspiracy to obstruct justice,

id. § 371 (count 8); and another incident of witness tampering

by means of attempted murder, id. § 1512(a)(1)(A) (count 9).

Twenty days later, the government filed an amended information

pursuant to the Three Strikes Law, 18 U.S.C. § 3559(c),

notifying the appellant that he was subject to a mandatory

sentence of life imprisonment based upon an array of previous

convictions for "serious violent felonies." The qualifying

convictions, all obtained in the Massachusetts courts, included

a 1981 conviction for armed robbery, a 1987 conviction for
1Those three counts (which figure prominently in the claim

of jury taint, see infra Part III) revolve around allegations

that, subsequent to his indictment and pretrial detention, the

appellant enlisted the aid of a fellow inmate, William Niditch,

to obstruct justice by committing perjury, and then tried to

kill Niditch when Niditch became a government informant.

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robbery and assault with a dangerous weapon, three 1988

convictions for armed robbery, and a 1989 conviction for armed

robbery.

Prior to the commencement of trial, the district court

severed counts 7 through 9 — a series of charges that revolved

around an incident separate and apart from the robbery of the

postal truck and the attempted murder of Donny DeSimone.1 Trial

commenced on the first six counts on April 3, 2000.

At trial, the court, relying on Fed. R. Evid.

801(d)(2)(E), conditionally admitted third-party testimony anent

two sets of statements allegedly made by Sutherland. Citing

Fed. R. Evid. 403, the court later reversed its field and struck

that testimony. In a separate ruling, the court denied the

appellant's attempt, pursuant to Fed. R. Evid. 804(b)(3), to

introduce evidence concerning other statements allegedly made by

Sutherland.

The court gave the case to the jury on April 24, 2000.

The next day, the foreman informed the judge that an extraneous

document — an unredacted copy of a second superseding indictment
2The Criminal Rules sanction verdicts by eleven-person

juries in certain circumstances. See Fed. R. Crim. P. 23(b)

(authorizing rendition of verdict by a jury of eleven if the

trial judge concludes, after deliberations have begun, that it

is "necessary" to excuse a juror for "just cause"). Although

the appellant insists that the district court ought to have

declared a mistrial because of jury taint, see infra Part III,

he does not challenge the verdict on the ground that it was

returned by a jury of fewer than twelve.

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containing the text of the three severed counts — had found its

way into the jury room. After conducting a thorough

investigation, the trial court dismissed one juror, denied the

appellant's motion for a mistrial, and instructed the eleven

remaining jurors to resume deliberations.2 On April 27, 2000,

the jury found the appellant guilty on all six counts.

At the disposition hearing, the appellant conceded the

existence of the prior convictions enumerated in the amended

information, but asserted that he could not constitutionally be

sentenced to life imprisonment under the Three Strikes Law. The

district court rejected these importunings and sentenced the

appellant to four concurrent terms of life imprisonment on

counts 1, 2, 4, and 5, to be followed by mandatory consecutive

terms of five and twenty years, respectively, on counts 3 and 6.

This timely appeal followed.

We tackle the appellant's arguments in the order in

which the underlying issues arose in the proceedings below.

Thus, we begin with the evidentiary rulings and then address the
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appellant's principal claim: that the presence of a copy of the

unredacted indictment in the jury room necessitated the

declaration of a mistrial. Finally, we consider the appellant's

assault on the constitutionality of the Three Strikes Law.

II. EVIDENTIARY RULINGS

We divide this aspect of our discussion into two

segments, corresponding to the appellant's assignments of error.

A. Conditionally Admitted Coconspirator Hearsay Statements.

The appellant maintains that the district court

committed reversible error by initially admitting the DeSimones'

testimony about two sets of statements allegedly made by

Sutherland and then failing to declare a mistrial when it

subsequently struck the conditionally admitted evidence.

According to the witnesses, Sutherland and the

appellant arrived at the DeSimones' apartment shortly after the

robbery, boasted about their commission of the crime, and

distributed a portion of the swag to the DeSimones. The

government introduced testimony concerning the statements

uttered while all four men were present, and the introduction of

that evidence is not contested on appeal. After receiving his

share of the proceeds, Ronny DeSimone left the apartment to

purchase drugs. In Ronny's absence Sutherland and the appellant
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made several statements to Donny DeSimone involving the details

of the robbery. The admission of this testimony is also

uncontested.

This brings us to the subject of the assigned error.

By the time that Ronny had returned to the apartment, the

appellant had departed. Over objection, Ronny testified that

Sutherland then related that he had been armed with a handgun,

that he had forced the mail carrier to drive away from the bank,

and that a brown station wagon had been used as the getaway car.

The second set of statements dates back to August of

1995 — a period during which both Sutherland and Donny DeSimone

were incarcerated at the Plymouth House of Corrections. Over

objection, Donny testified that Sutherland acknowledged knowing

about the appellant's attempt to murder him, and, indeed,

bragged about ordering the appellant to kill both of the

DeSimone brothers.

The district court provisionally admitted both sets of

statements under Fed. R. Evid. 801(d)(2)(E). That rule permits

the introduction of a statement offered against a party if the

statement is made "by a coconspirator of a party during the

course and in furtherance of the conspiracy." Id. The

proponent of the statement bears the burden of establishing, by

a preponderance of the evidence, "that a conspiracy embracing
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both the declarant and the defendant existed, and that the

declarant uttered the statement during and in furtherance of the

conspiracy." United States v. Sepulveda, 15 F.3d 1161, 1180

(1st Cir. 1993); accord United States v. Petrozziello, 548 F.2d

20, 23 (1st Cir. 1977). If these conditions are met, and if

there is corroboration in the form of extrinsic evidence of the

declarant's involvement in the conspiracy, then the hearsay

barrier is avoided and the statement may be admitted.

Sepulveda, 15 F.3d at 1182.

This court has constructed a model for the handling of

evidence proffered under Rule 801(d)(2)(E). That model

authorizes the trial court to admit conditionally alleged

coconspirator statements. See United States v. Ciampaglia, 628

F.2d 632, 638 (1st Cir. 1980). At the close of all the

evidence, the court then makes a final determination as to the

admissibility of the evidence. Id. If the court ultimately

concludes that the provisionally admitted evidence does not

satisfy the applicable standard, it must "give a cautionary

instruction to the jury, or, upon an appropriate motion, declare

a mistrial if the instruction will not suffice to cure any

prejudice." Id.

The appellant launches a two-pronged attack against the

trial court's treatment of the challenged statements. First, he
3The court merely told the jury that "[t]he reasons [for

striking the evidence] are several-fold and I don't think I

really need to get into them too deeply, except to say that the

evidence seems to me to be far too attenuated for you to look to

it or rely upon it."

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argues that the foundational requirements for admissibility were

not satisfied. Second, he asseverates that the contingent

admission of the statements irretrievably poisoned the well, and

that, when it became apparent that the evidence was not properly

in the case, the trial court abused its discretion in eschewing

a mistrial. We consider each foray separately.

1. Foundational Requirements. Although the parties

expend considerable energy in disputing the correctness vel non

of the district court's decision to admit the proffered

testimony conditionally, we need not determine whether the court

had an adequate foundational basis for doing so. After all, the

court struck the testimony at the close of all the evidence and

instructed the jurors to disregard it without telling them the

rationale behind either its conditional admission or its

ultimate exclusion.3 Because the jury never learned about the

court's specific determination that the statements met the

foundational requirements of Rule 801(d)(2)(E), it stands to

reason that the jury could not have been prejudiced by that

determination. Accordingly, we turn without further ado to the

appellant's contention that the district court improvidently
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denied his motion for a mistrial — a motion premised on the

notion that the statements, once admitted, engendered

irretrievable and unfair prejudice (notwithstanding the fact

that the jury was subsequently instructed to disregard them).

2. The Motion for Mistrial. At the close of all the

evidence, the trial court excluded the disputed statements

pursuant to Fed. R. Evid. 403 (which provides for the exclusion

of relevant evidence "if its probative value is substantially

outweighed by the danger of unfair prejudice, confusion of the

issues, or misleading the jury"). In itself, this is a rather

unconventional use of the Ciampaglia model. Typically, as

Ciampaglia itself illustrates, 628 F.2d at 638, the district

court will provisionally admit evidence offered under Rule

801(d)(2)(E), evaluate at the close of the evidence whether the

government has proven the prerequisites for admissibility by a

preponderance of the evidence, and strike the evidence if it has

not. Here, however, the trial court explicitly concluded that

the government had satisfied the requirements of Fed. R. Evid.

801(d)(2)(E), yet nonetheless struck the disputed evidence

because of Rule 403 concerns. Although this was a somewhat

unorthodox use of the Rule 801(d)(2)(E) model, we think that, as

a theoretical matter, it was within the court's authority. Cf.

United States v. Van Nuys, 707 F. Supp. 465, 468 (D. Colo. 1989)
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(concluding, after trial, that a significant amount of testimony

admitted under Rule 801(d)(2)(E) should have been excluded

pursuant to Rule 403).

As to the standard of review, all roads lead to Rome.

We review a trial court's balancing under Rule 403 for abuse of

discretion. United States v. Marrero-Ortiz, 160 F.3d 768, 774

(1st Cir. 1998). We likewise review decisions to deny motions

for mistrial for abuse of discretion. United States v. Pierro,

32 F.3d 611, 617 (1st Cir. 1994). We discern no abuse here.

The trial court found that the challenged statements

were tangential to the core conspiracies of robbery and

attempted murder alleged in the indictment. Concerned that the

unfairly prejudicial effect of the statements might outweigh

their probative value, the court struck the evidence and

instructed the jury to disregard it. The appellant argues that

this palliative was insufficient because the court could not

unring the bell — the evidence was so inflammatory that, once

it was aired, no reasonable juror could be expected to disregard

it.

Whether or not a jury can be expected, under proper

instructions, to disregard particular evidence is a judgment

call, and one as to which appellate courts typically cede a high

degree of deference to the trial court. E.g., United States v.
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Freeman, 208 F.3d 332, 344 (1st Cir. 2000) (upholding district

court's determination that curative instruction regarding

evidence provisionally admitted but later stricken sufficiently

shielded defendant from unfair prejudice). We do not think that

the limits of that deference were tested here.

To be sure, the statements attributed to Sutherland

were unhelpful to the appellant, but their content was not

shocking when measured against the rough-and-tumble evidence

properly admitted in the case. Moreover, it is routinely

presumed that jurors will follow curative instructions and put

aside matters that the trial court determines have been

improperly admitted. United States v. Olano, 507 U.S. 725, 740

(1993); United States v. Houlihan, 92 F.3d 1271, 1287 (1st Cir.

1996); Sepulveda, 15 F.3d at 1185. This presumption may be

overcome only by showing that it is probable that: (1)

responsible jurors will be unable to disregard the testimony;

and (2) the testimony likely will have a seriously prejudicial

effect on the aggrieved party. Sepulveda, 15 F.3d at 1185;

United States v. Paiva, 892 F.2d 148, 160 (1st Cir. 1989). This

inquiry is not conducted in a vacuum, but, rather, calls for an

assessment of the impact of the stricken evidence in light of

all the other evidence presented in the case.
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Sepulveda illustrates the point. There, a police

commander was permitted to testify as an expert witness over the

defendant's objection. 15 F.3d at 1182. When cross-examination

revealed that several of the opinions expressed by the witness

lacked an adequate foundation, the defense moved midstream to

strike the whole of the testimony. The trial court obliged.

Id. at 1183. Even though the district judge instructed the jury

to disregard the stricken testimony, the defendant moved for a

mistrial on the ground that it had so prejudiced the jury that

no curative instruction could put the genie back into the

bottle. Id. at 1183-84.

On appeal, we upheld the trial court's denial of the

motion. We did not find the stricken testimony to be so

compelling that it threatened to sway the jury notwithstanding

the court's explicit instructions to disregard it. Id. at 1185.

In reaching this conclusion, we stressed that the cumulative

nature of the stricken testimony completely undercut the

defendants' plaint that the testimony carried the specter of

lingering prejudice. Id.

So it is here. Both sets of statements were cumulative

in nature. Sutherland's declarations to Ronny were largely

duplicative of testimony offered by numerous witnesses and
4For example, Donny testified that, on the day of the

robbery, Sutherland and the appellant collectively related

details of the crime that were nearly identical to those that

Sutherland trumpeted after the appellant had left the apartment.

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admitted without opposition.4 Similarly, the central theme of

the second set of statements — the plot to kill Donny — was

fleshed out by a mass of evidence including, inter alia, the

appellant's own admissions and the introduction of the gun that

had malfunctioned. To cinch matters, the district court

explicitly admonished the jury to disregard both sets of

statements, and gave a clear, concise curative instruction to

that effect. In these circumstances, the appellant has not

successfully rebutted the presumption that the jury would follow

the judge's instructions.

That ends this leg of our journey. We conclude,

without serious question, that the lower court's refusal to

grant the appellant's motion for a mistrial fell well within the

wide encincture of its discretion.

B. Statements Against Penal Interest.

The appellant next calumnizes the district court's

refusal to admit the testimony of two witnesses to the effect

that Sutherland had stated (in two separate conversations) that

he and Donny DeSimone had collogued to rob the robbers, that is,

to steal the loot from the group that actually had hijacked the
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postal truck. The appellant proffered this testimony under Fed.

R. Evid. 804(b)(3), which carves out a hearsay exception for,

inter alia, "[a] statement which . . . at the time of its making

. . . so far tended to subject the declarant to . . . criminal

liability . . . that a reasonable person in the declarant's

position would not have made the statement unless believing it

to be true." Id. Such third-party testimony may only be

admitted when the declarant is unavailable to testify. Id.

Furthermore, an inculpatory statement "tending to expose the

declarant to criminal liability and offered to exculpate the

accused" will not be admitted "unless corroborating

circumstances clearly indicate the trustworthiness of the

statement." Id.

The district court refused to admit the testimony anent

Sutherland's statements on two grounds, holding that the

statements were not against Sutherland's penal interest and, in

all events, were not sufficiently corroborated. We review the

trial court's application of Rule 804(b)(3) for abuse of

discretion. United States v. Patrick, 248 F.3d 11, 20, 23-24

(1st Cir.), cert. denied, 122 S. Ct. 620 (2001).

The determination of whether a statement is against a

declarant's penal interest depends on the outcome of a factintensive inquiry into the surrounding circumstances.
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Williamson v. United States, 512 U.S. 594, 603-04 (1994); United

States v. Costa, 31 F.3d 1073, 1077 (11th Cir. 1994). Our

review of the record compels the conclusion that the court below

adequately evaluated the context in which the alleged statements

were made. In the course of that endeavor, the court concluded

that the tendered statements limned an alternative theory of the

crime not pursued by the government, and represented a

"sophisticated and subtle" effort by Sutherland and the

appellant to avoid criminal responsibility on the precise

charges lodged against them. On that basis, the court ruled

that the statements were not against Sutherland's penal

interest. That plausible rendition of the record was not an

abuse of discretion.

At any rate, the district court's alternate ground for

barring the statements is rock-solid. The court concluded that

the corroborating evidence tendered by the appellant — that

Sutherland allegedly told the same story to two different

individuals on two separate occasions (hence, the two proffered

statements) and that Donny DeSimone admitted at trial that he

had told at least one other person that he had participated in

the robbery — was insufficient to establish the trustworthiness

of the statements. The strictures of Rule 804(b)(3) cannot be

satisfied by a showing of speculative possibilities, but,
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rather, demand meaningful corroboration of proffered testimony.

See United States v. Mackey, 117 F.3d 24, 29 (1st Cir. 1997)

("[T]he requirement for corroboration is not unrealistically

severe but does go beyond minimal corroboration.") (citation and

internal quotation marks omitted). Measured by that yardstick,

we cannot say that the district court's refusal to accept these

minimally corroborative evidentiary fragments as sufficient

indicia of trustworthiness constituted an abuse of discretion.

III. JURY TAINT

The appellant's cardinal claim is that the jurors'

brief exposure to the text of the three severed counts

necessitated a new trial. In approaching this claim, we first

examine the appellant's assertion that the introduction of the

unredacted indictment into the jury room, although accidental,

triggered a presumption of prejudice. Rejecting that

proposition, we proceed to assess the trial court's handling of

the discovery that a deliberating jury had been exposed to

information that carried the potential to do substantive damage.

In the end, we conclude that the district court did not misuse

its discretion in concluding that the jury's ability to render

an impartial verdict remained intact (and that, therefore, the

appellant's due process rights had not been infringed).

A. The Presumption of Prejudice.
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The appellant's claim that the facts of this case

demand a presumption of prejudice derives from the Supreme

Court's decision in Remmer v. United States, 347 U.S. 227

(1954). There, as trial proceeded, a third party offered a

bribe in exchange for a verdict favorable to the defendant. Id.

at 228. The solicited juror informed the trial judge about the

attempted bribery. Id. Instead of informing defense counsel,

the judge asked the Federal Bureau of Investigation to look into

the matter. Id. The jury found Remmer guilty. When he later

learned about the attempted bribery, he moved unsuccessfully for

a new trial. The court of appeals affirmed the district court's

denial of this motion. 205 F.2d 277 (9th Cir. 1953). The

Supreme Court reversed, declaring that:

In a criminal case, any private

communication, contact, or tampering

directly or indirectly, with a juror during

a trial about the matter pending before the

jury is, for obvious reasons, deemed

presumptively prejudicial . . . . The

presumption is not conclusive, but the

burden rests heavily upon the Government to

establish, after notice to and hearing of

the defendant, that such contact with the

juror was harmless to the defendant.

347 U.S. at 229.

Although the Remmer Court spoke in expansive terms, the

Court's holding has been cabined by two subsequent decisions.

In Smith v. Phillips, 455 U.S. 209 (1982), a sitting juror
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submitted an application for employment as an investigator for

the district attorney's office. Id. at 212. The district

attorney revealed this information only after the jury on which

the job-seeker sat had convicted the defendant. Id. at 213.

The trial court held a post-verdict hearing in which it

determined that the pending application had not influenced the

juror and denied the defendant's motion for a new trial. Id. at

213-14. The matter eventually reached the Supreme Court, which

rejected the defendant's argument that the undisclosed

application triggered Remmer's rebuttable presumption of

prejudice. Id. at 217 (explaining that "due process does not

require a new trial every time a juror has been placed in a

potentially compromising situation"). The Smith Court then

ruled that the hearing held by the trial court after the

employment application had surfaced was sufficient under the

circumstances. See id. at 217-18.

More recently, the Court declined to apply the Remmer

presumption in a situation in which alternate jurors were

present during jury deliberations. See Olano, 507 U.S. at 737-

39. The Court held that the post-verdict inquiry into the

facts, which showed that the irregularity had occurred but that

the alternate jurors did not participate in the deliberations,

afforded the defendant due process. See id. at 739-41.
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This court, too, has hesitated to apply the Remmer

presumption indiscriminately. The leading case is Boylan v.

United States, 898 F.2d 230 (1st Cir. 1990). There, a magazine

left fortuitously in the jury room contained an article

suggesting that counsel for one of the defendants was the

attorney of choice for "[e]very troubled mobster" in Boston.

Id. at 258 & n.17. After guilty verdicts had been returned, the

circulation of this literature in the jury room was brought to

light. The district court held a comprehensive post-verdict

hearing but found that the defendants' due process rights had

not been infringed and denied their motions to set aside the

verdict. We affirmed, rejecting a claim that the Remmer

presumption applied. Id. at 260-62. We wrote:

[T]he [Remmer] presumption is applicable

only where there is an egregious tampering

or third party communication which directly

injects itself into the jury process. Put

another way, the Remmer standard should be

limited to cases of significant ex parte

contacts with sitting jurors or those

involving aggravated circumstances . . . .

Id. at 261.

We built upon this foundation in United States v.

Gomes, 177 F.3d 76 (1st Cir. 1999). There, a juror at the

defendant's second trial discovered a copy of the indictment

that apparently had been left in the jury room after the first

trial. Id. at 82. The indictment included, inter alia, a
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charge on which the defendant had been acquitted at the first

trial. Id. The district court undertook an appropriate inquiry

but refused to apply the Remmer presumption. We upheld that

determination, noting that while other aggravating circumstances

might justify the application of a Remmer-type presumption, such

a presumption was unavailable here because Remmer involved

deliberate misconduct attributable to a party and that, in all

events, the Gomes jurors were not exposed to substantively

damaging information. Id.

In the wake of Smith and Olano, one court has concluded

that Remmer is a dead letter. See United States v. Sylvester,

143 F.3d 923, 934 (5th Cir. 1998). Although we too have

questioned Remmer's continuing vitality, see Gomes, 177 F.3d at

83, we need not decide today whether, or to what extent, it

remains good law. Here, as in Boylan, the facts simply do not

warrant the application of a Remmer presumption. Remmer

involved an apparent attempt deliberately to influence the

outcome of the case through corrupt machinations. In contrast,

the record here is reasonably clear that the presence of the

unredacted indictment in the jury room was due to an inadvertent

error by court personnel, and the appellant has not claimed that

the document was insinuated into the jury room for some

nefarious purpose.
5We leave for another day the question of whether a jury's

exposure to substantively damaging information may sometimes

occur under circumstances so aggravated as to warrant the

application of the Remmer presumption even without deliberate

misconduct (and if so, what those circumstances might comprise).

That question simply is not presented here.

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Moreover, the Remmer Court was especially troubled by

the trial court's decision to request an FBI investigation based

on scanty information obtained during an ex parte meeting with

the prosecution. Remmer, 347 U.S. at 228. That element, too,

is missing from the instant case. Here, the trial judge kept

all counsel apprised and engaged throughout his in-depth

investigation into the matter, and diligently fleshed out the

circumstances of the taint-producing incident. Given the

absence of any egregious circumstances, we conclude that Remmer

is inapposite and decline to apply it here.5

In an effort to keep Remmer in play, the appellant

cites two cases previously decided by this court. The first

such case, United States v. Santana, 175 F.3d 57 (1st Cir.

1999), is clearly inapposite. That case turned on the trial

court's decision to permit the jury to consider, as evidence of

guilt, information — a view of the defendant's ears — presented

to it for the first time during deliberations. See id. at 63-

64. Here, unlike in Santana, the information that the jury

improperly acquired during its deliberations (the unredacted
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indictment) was not received as evidence, and the court told the

jury, in no uncertain terms, to disregard it.

The appellant's reliance on United States v. Maguire,

918 F.2d 254 (1st Cir. 1990), is similarly misplaced. There,

the trial judge erroneously instructed the venire during jury

empanelment about a count that had been severed. See id. at

266. The court denied the defendant's motion for a mistrial,

but told the jury to disregard the reference to the severed

count. Id. The jury convicted the defendant. We upheld the

conviction, concluding that the error was harmless beyond a

reasonable doubt. Id. at 266-68. Although the panel did

observe, in dictum, that the "reference to the severed count was

presumptively prejudicial," id. at 267, we reject the

appellant's effort to attach talismanic significance to that

allusion. The panel neither cited Remmer nor conducted any

analysis suggesting that it was undertaking a Remmer-based

inquiry.

To conclude, we abjure any extension of the Remmer

presumption to these facts. The appellant's claim of jury taint

must be judged by more conventional standards. It is to that

task that we now turn.

B. The Merits of the Appellant's Claim.
6The case at bar involves a trial court's pre-verdict

handling of an allegation that a deliberating jury was

accidentally exposed to substantively damaging information. The

timing of the court's inquiry distinguishes it from the vast

majority of the reported cases, most of which deal with claims

of jury taint raised after the jury has returned a verdict.

E.g., Smith, 455 U.S. at 213-14; Boylan, 898 F.2d at 262. In

that situation, appellate courts frequently have framed the

inquiry in terms of harmless error, asking, in effect, whether

the trial court's determination that an improper outside

influence did not taint the jury verdict was supportable. Where

the claim of jury taint surfaces before the jury has completed

its deliberations, the harmless-error test is a poor fit (and,

therefore, of scant utility).

-27-

We start this phase of our inquiry by revisiting

certain generally applicable legal principles. We then describe

the trial court's investigation into the possibility of jury

taint, its findings, and its resolution of the matter. Finally,

we evaluate the court's handling of the situation.

1. The Legal Landscape. Where, as here, a colorable

claim of jury taint surfaces during jury deliberations,6 the

trial court has a duty to investigate the allegation promptly.

United States v. Hunnewell, 891 F.2d 955, 961 (1st Cir. 1989).

The purpose of that inquiry is twofold: to ascertain whether

some taint-producing event actually occurred, and if so, to

assess the magnitude of the event and the extent of any

resultant prejudice. Boylan, 898 F.2d at 258. If the court

finds both a taint-producing event and a significant potential

for prejudice, the court must then consider the extent to which
-28-

prophylactic measures (such as the discharge of particular

jurors or the pronouncement of curative instructions) will

suffice to alleviate that prejudice. See Gomes, 177 F.3d at 82.

In some instances, a likelihood of residual prejudice may remain

despite the court's best efforts. In that event, the court must

grant a timely motion for a mistrial (if one is made). The

objective of this painstaking process is to ensure that the

parties "receive[] the trial by an unbiased jury to which the

Constitution entitles them." United States v. Anello, 765 F.2d

253, 258 (1st Cir. 1985).

Conducting an inquiry into a colorable question of jury

taint is a delicate matter, and there is no pat procedure for

such an inquiry. Evans v. Young, 854 F.2d 1081, 1083-84 (7th

Cir. 1988) (explaining that trial courts have wide discretion to

evaluate pre-verdict claims of alleged jury misconduct as they

deem appropriate); Hunnewell, 891 F.2d at 961 (stating that the

trial court has "considerable leeway" in determining how to

structure its investigation); see also Boylan, 898 F.2d at 258

(noting that "the kaleidoscopic variety of possible problems

counsels in favor of flexibility"). Consequently, the trial

court has wide discretion to fashion an appropriate procedure

for assessing whether the jury has been exposed to substantively
-29-

damaging information, and if so, whether cognizable prejudice is

an inevitable and ineradicable concomitant of that exposure.

2. The Proceedings Below. This brings us to the

proceedings below. The introduction of an extraneous document

into the jury room during deliberations is always a cause for

concern. The intrusion was effected in this instance by an

indictment — an official document bearing the government's

imprimatur. That document contained three counts that were not

before the jury, and those counts charged the appellant with

serious malefactions (of which the jury had no other knowledge).

Thus, the acknowledged presence of the unredacted indictment in

the jury room gave rise to a colorable claim of actual prejudice

and posed a significant threat to the jurors' ability to render

an impartial verdict. The question, then, reduces to whether

the trial court investigated the claim appropriately and

resolved it in a satisfactory manner.

The lower court recognized these realities. Upon

learning that the unredacted indictment had infiltrated the jury

room, the court immediately alerted counsel and solicited

suggestions about the most advisable way to handle the

situation. Adopting defense counsel's recommendation, the court

assembled the jurors, informed them of the need for an inquiry,

and instructed them not to discuss the matter amongst
-30-

themselves. The court then proceeded to interview the jurors

one by one.

Although the individual voir dire examinations revealed

some slight discrepancies in the jurors' accounts concerning

their exposure to the text of the unredacted indictment, the

differences are not material here. For the most part, a

consistent picture emerged. The jurors agreed that, at the

start of the second day of deliberations, one of their number

noticed a copy of the indictment that contained some "extra"

counts. He mentioned this oddity to his fellow venirepersons,

and, at the urging of some of them, read aloud the text of count

7 (an obstruction of justice charge). After a brief discussion,

the jurors concluded that the document did not belong in the

jury room, and the jury foreman brought it to the court security

officer. He told the officer that: "We found this document in

the group of materials and it doesn't seem to belong there. It

has more counts than are in the verdict slip."

After concluding this initial round of voir dire

examinations, the trial court made the following finding (out of

the jurors' earshot):

There are inconsistencies among the

recollections. . . . None of them seem to

be material. There is a core quality to

this: First, a recognition that there was

something unusual; second, a recognition

that there was something that was not
7The court stated in pertinent part:

[T]hroughout, I've been telling you that you decide

this case solely on the basis of evidence that's

actually presented to you. . . . [T]his extraneous

document to which you were unfortunately and

inadvertently exposed which has nothing to do with the

charges in this case, should not be considered a part

of the charges in this case. Your responsibility, as

I said, is to decide this case solely on the basis of

evidence that was presented to you as to Counts 1

through 6.

-31-

properly before them; number three, their

recognition that they should put it out of

their deliberations, certain facts and

circumstances . . . . In fact, they

responded — from my perspective — precisely

the way jurors are supposed to respond . . .

if they were exposed to extraneous

information, including bringing it to my

attention . . . .

The court then reassembled the jurors, instructed them that it

was their duty to decide the case based on their "evaluation

only of the evidence that's presented to you here in trial and

not by consideration of other extraneous matters," and launched

into a strongly-worded curative instruction.7 At that juncture,

the court undertook a second round of individual voir dire

examinations, this time focusing on each individual juror's

ability to "put out of [his or her] mind[] entirely the facts

and circumstances of the extraneous document" so that he or she

might decide the case solely on the evidence introduced at

trial. Eleven of the twelve jurors expressed confidence that
-32-

they could function in that pristine fashion and satisfied the

court of their ability to do so. Without objection, the court

dismissed the lone dissenter. After rejecting the appellant's

challenges to three additional jurors, the judge directed the

remaining jurors to resume deliberations with a view toward

reaching a verdict. See Fed. R. Crim. P. 23(b).

3. The Adequacy of the Trial Court's Handiwork. We

now test the trial court's handiwork against the abuse-ofdiscretion benchmark. See Boylan, 898 F.2d at 262; Hunnewell,

891 F.2d at 961. In this context, however, review for abuse of

discretion connotes a certain rigor.

As we use the term, the abuse-of-discretion standard

encompasses multiple layers of inquiry. See Koon v. United

States, 518 U.S. 81, 98-100 (1996). Under it, we accept the

trial court's factual findings only to the extent that they are

not clearly erroneous. United States v. Castro, 129 F.3d 226,

229 (1st Cir. 1997). We next examine the legal principles on

which the court premised its decision, mindful that an error of

law invariably constitutes an abuse of discretion. In re Grand

Jury Subpoena, 138 F.3d 442, 444 (1st Cir. 1998). This

particular inquiry is conducted without any special deference to

the trial court's views, United States v. Snyder, 136 F.3d 65,

67 (1st Cir. 1998), and extends to the court's application of
-33-

the law to the facts as found. Only then do we ask whether,

given the totality of the circumstances then and there

obtaining, the sum of the trial court's acts and omissions

constituted a misuse of its discretion.

Starting from this vantage point, we turn first to the

procedure employed below. For all practical purposes, the lower

court replicated the Boylan model — a model that we previously

have deemed "methodologically sound." 898 F.2d at 259. The

court engaged counsel for both sides in an ongoing dialogue

about the most appropriate way in which to handle the needed

investigation, examined each juror twice, and pursued no fewer

than eight lines of questioning proposed by defense counsel.

The court's probing into the extent of the jurors' exposure to

the extraneous information and its potential impact on their

ability to render an impartial verdict was thorough and

incisive. The court gave the jury clear and emphatic curative

instructions. Last — but surely not least — the court made

explicit findings that are amply rooted in the transcript of the

two rounds of voir dire examinations and that make considerable

sense when scrutinized against the record of the trial as a

whole.

The appellant raises two specific objections to the

trial court's findings. First, the appellant takes aim at a
-34-

statement made by a retained juror during the second round of

questioning. When pressed by the judge to expound upon his

comment that "the gravity of the discussion weighs some," the

juror responded that: "I believe that the outcome of the trial

and the verdict turns on the very unexpected and serious change

in the evidence presented." Considered in isolation, that

comment might raise a reader's eyebrow — but the colloquy that

ensued between the judge and the juror makes manifest that the

juror's remark was not a cause for concern. In that colloquy,

the juror assured the judge that he would not consider the

extraneous material and characterized his earlier statement as

"a poor choice of words." Viewed in that light, we do not

believe that the court's decision to retain the juror

constituted an abuse of discretion.

Second, the appellant argues that the court's finding

that the incident yielded no residuum of unfair prejudice failed

to take into account that the jury's exposure to the severed

counts undermined his principal trial strategy. In this regard,

defense counsel credibly claimed that she had made a conscious

decision to avoid any reference to the Niditch incident (which

comprised the subject matter of the three severed counts, see

supra note 1) in order to preclude "opening the door" to the
-35-

government's introduction of "highly charged" evidence related

to that topic.

The problem with this argument is that the inadvertent

exposure of the jury to the unredacted indictment did not lead

to the introduction of any evidence concerning the Niditch

incident, and the court found as a fact that the retained jurors

were fully able to put aside their brief encounter with the

allegations contained in the severed counts. The fact that the

exposure was to an indictment, rather than to information of

evidentiary quality, weighs in the government's favor. Before

deliberations commenced (and, thus, before any exposure to the

extraneous information occurred), the court had clearly

explained that "[t]he indictment is the document that frames the

issues, the charges, the criminal violations that the Government

believes it can prove. But . . . the indictment isn't evidence

. . . . It's simply the document that you look to to understand

what it is that the Government is undertaking to prove in this

case." The court reinforced this instruction by telling the

jurors, after the unredacted indictment surfaced, to "[p]ut

entirely out of your mind any exposure any of you may have had

to earlier forms of the kinds of charges the Government was

thinking about here." Appellate courts ordinarily presume that

a jury will follow the trial judge's specific instructions in a
-36-

criminal case, e.g., Olano, 507 U.S. at 740; Houlihan, 92 F.3d

at 1287; Sepulveda, 15 F.3d at 1185, and there is no reason to

abandon that presumption here.

In sum, the record reflects that the lower court

handled its investigation into the "jury taint" question with

consummate care. Its detailed findings and its conclusion that

the jurors' accidental exposure to the unredacted indictment

caused no ineradicable prejudice are fully supportable. In

words that resonate here, the Smith Court observed that "[d]ue

process means a jury capable and willing to decide the case

solely on the evidence before it, and a trial judge ever

watchful to prevent prejudicial occurrences and to determine the

effect of such occurrences when they happen." 455 U.S. at 217.

The court below carried out this mandate to the letter.

Consequently, we hold that the court acted well within the scope

of its discretion in structuring the inquiry into the question

of jury taint, in excusing a single juror, and in concluding

that the remaining jurors' ability to render an impartial
8Citing Santana, 175 F.3d at 65, and Lacy v. Gardino, 791

F.2d 980, 982-83 (1st Cir. 1986), the appellant posits that

where, as here, extrinsic information is considered by the jury,

harmless error analysis must apply. But those cases involved

the jury's consideration of information of evidentiary quality,

and the claim of jury taint arose after trial (when any harm

could not be undone). Here, however, the harmless-error test is

a poor fit. See supra note 6. The matter came to the trial

judge's attention before the jury reached a verdict, and the

judge, after due investigation, gave a timely curative

instruction. Furthermore, the information to which the jury was

exposed was not evidence; the retained jurors warranted that

they would not consider it; and they added that, in all events,

what they had seen or heard would not influence their judgment.

Under these vastly different circumstances, there is no

constitutional error and, hence, no need for harmless error

analysis.

-37-

verdict had not been compromised.8 The appellant received all

the process that was due.

IV. THE THREE STRIKES LAW

In this case, the district court invoked the Three

Strikes Law, 18 U.S.C. § 3559(c), to sentence the appellant to

multiple terms of life imprisonment. The appellant challenges

that determination on constitutional grounds. Before addressing

this challenge, we describe the statutory scheme.

The Three Strikes Law is of relatively recent vintage.

It dictates mandatory life imprisonment for any person convicted

in a federal court of a "serious violent felony" if, inter alia,

that person has been convicted on two or more prior occasions of

"serious violent felonies." Id. § 3559(c)(1)(A)(i). The

statute characterizes various federal and state offenses as
-38-

serious violent felonies. It places three federal robbery

statutes in this category, and, pertinently, adds a generic

definition that encompasses:

[A]ny other offense punishable by a maximum

term of imprisonment of 10 years or more

that has as an element the use, attempted

use, or threatened use of physical force

against the person of another or that, by

its nature, involves a substantial risk that

physical force against the person of another

may be used in the course of committing the

offense.

Id. § 3559(c)(2)(F)(ii).

The Three Strikes Law also includes a disqualification

provision that offers a criminal defendant the opportunity to

remove some crimes that otherwise would qualify as serious

violent felonies (and, therefore, count as "strikes") from the

"three strikes" calculation. The disqualification provision

states, in relevant part, that:

(A) Robbery, an attempt, conspiracy, or

solicitation to commit robbery . . . shall

not serve as a basis for sentencing under

this subsection if the 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.
-39-

Id. § 3559(c)(3)(A)(i)-(ii). The disqualification provision

places the burden of proof squarely on the defendant to prove by

clear and convincing evidence that, notwithstanding the

government's allegations, his prior felony convictions do not

constitute qualifying offenses. See id.

In this venue, the appellant does not quarrel with the

district court's finding that, on their face, the six prior

convictions catalogued by the government constitute "strikes"

under the Three Strikes Law. He does, however, advance two

arguments that implicate the law's constitutionality. We

consider these arguments sequentially.

A. Apprendi.

The appellant contests the power of the court to take

the prior convictions into account, noting that they had neither

been referenced in the indictment nor proven to a jury beyond a

reasonable doubt. Thus, his thesis runs, the Supreme Court's

recent decision in Apprendi v. New Jersey, 530 U.S. 466 (2000),

prohibits the imposition of an enhanced sentence.

This argument is a non-starter. The core holding of

Apprendi is that "[o]ther than the fact of a prior conviction,

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 (emphasis
-40-

supplied). We think the Court meant exactly that — and we have

said so.

We recently considered and rejected a materially

indistinguishable argument in United States v. Gomez-Estrada,

273 F.3d 400, 401 (1st Cir. 2001). We noted there that the

Apprendi Court explicitly exempted sentence-enhancement

provisions based upon prior criminal convictions from the scope

of its holding. Id. at 402 (citing Apprendi, 530 U.S. at 490);

see also Almendarez-Torres v. United States, 523 U.S. 224, 226-

27, 247 (1998) (upholding Congress's decision to treat prior

convictions as a sentencing factor rather than an element of a

federal criminal offense). Because we have ruled unequivocally

that the strictures of Apprendi do not apply to sentenceenhancement provisions based upon prior criminal convictions,

see Gomez-Estrada, 273 F.3d at 401-02; United States v. Terry,

240 F.3d 65, 73-74 (1st Cir.), cert. denied, 121 S. Ct. 1965

(2001), we reject the appellant's Apprendi-based challenge.

B. Shifting of the Burden of Proof.

The appellant's second argument is more sophisticated.

He says that 18 U.S.C. § 3559(c)(3)(A) violates constitutional

due process guarantees because it shifts the burden of proof to

the defendant and requires him to establish by "clear and

convincing" evidence that his prior convictions are
-41-

nonqualifying (and, hence, not countable as "strikes" under the

Three Strikes Law). Refined to bare essence, the appellant's

thesis is that the disqualification provision violates due

process in two related ways: (1) by requiring the defendant to

prove that previous offenses are nonqualifying, and (2) by

requiring that he do so under a heightened standard. These

constitutional claims engender de novo review. United States v.

Zorrilla, 93 F.3d 7, 8 (1st Cir. 1996); United States v.

Gifford, 17 F.3d 462, 471-72 (1st Cir. 1994).

Our starting point is the Court's decision in Patterson

v. New York, 432 U.S. 197 (1977). There, the defendant

challenged a New York law that permitted a person accused of

murder to invoke the affirmative defense of "extreme emotional

disturbance" to mitigate the charged crime to manslaughter. Id.

at 198-99 & nn.2-3. The New York criminal code assigned to the

defendant the burden of establishing the "extreme emotional

disturbance" defense by a preponderance of the evidence. Id. at

200. The defendant failed in his effort to mitigate the charge

against him, and appealed his murder conviction on the ground

that the burden-shifting component contravened due process.

Noting that it was well within the state's power to

criminalize intentional killings and mete out substantial

punishment to individuals convicted of such crimes, the Supreme
-42-

Court emphasized that, incident thereto, the state had the power

to recognize factors that mitigated the degree of criminality or

punishment. Id. at 209. As a logical consequence, the state

was entitled to "assure itself that the [mitigating] fact has

been established with reasonable certainty" by requiring the

defendant to prove such a fact by a preponderance of the

evidence. Id. Thus, as long as the state has proven all

elements of the crime beyond a reasonable doubt, its

reallocation of the burden of proof in an affirmative defense

did not violate due process. See id. at 205-06.

Whereas Patterson raised his affirmative defense at

trial, the Three Strikes Law comes into play at the sentencing

stage of a criminal proceeding. But this is a distinction

without a difference: the sentencing process is surely no more

exacting than the process of establishing guilt. It therefore

stands to reason that Patterson applies with equal force to

burden-shifting affirmative defenses made available at the

sentencing stage of criminal proceedings — and that such a

paradigm does not offend the Constitution. Accord United States

v. Wicks, 132 F.2d 383, 389 (7th Cir. 1997) ("If Patterson

allows such a result even at the stage of the trial where guilt

or innocence is decided, it follows that due process does not
-43-

prohibit the kind of affirmative defense at the sentencing stage

found in § 3559(c)(3)(A).").

An equally germane consideration is that antecedent

"strikes" that factor into the Three Strikes calculation take

the form of prior convictions. The Supreme Court has upheld a

state sentence enhancement provision requiring a recidivist

defendant to shoulder the burden of proof of establishing the

invalidity of prior convictions. Parke v. Raley, 506 U.S. 20,

34 (1992). The Court reasoned that the "'presumption of

regularity' that attaches to final judgments" made it

appropriate to assign a proof burden to the defendant. Id. at

29. Like the contested state statute in Parke, the Three

Strikes Law initially presumes that prior convictions falling

under one of the statutorily enumerated definitions are valid,

18 U.S.C. § 3559(c)(1)-(2), and then provides the defendant with

the opportunity to disqualify the convictions, id. § 3559(c)(3).

Taken together, Patterson and Parke convince us that

a paradigm that allows the defendant to raise an affirmative

defense during the sentencing phase of criminal proceedings, but

then shifts the burden of proof to him to establish the defense,

does not violate due process. Nor is this an eccentric view of

the law: several other courts have reached this same

conclusion. See United States v. Gatewood, 230 F.3d 186, 189-90
9Interestingly, the appellant offers no enlightenment as to

how, if a heightened standard did not obtain, he might be able

to "disqualify" any or all of his six prior convictions.

-44-

(6th Cir. 2000) (en banc), cert. denied, 70 U.S.L.W. 3443 (No.

01-7283) (Jan. 14, 2002); United States v. Ferguson, 211 F.3d

878, 887 (5th Cir.), cert. denied, 531 U.S. 909 (2000); United

States v. Smith, 208 F.3d 1187, 1190 (10th Cir. 2000); United

States v. Kaluna, 192 F.3d 1188, 1196 (9th Cir. 1999) (en banc);

Wicks, 132 F.2d at 389.

The appellant's related asseveration is that section

3559(c)(3)(A)'s placement of a heightened evidentiary burden on

criminal defendants — clear and convincing evidence —

contravenes their right to due process.9 This asseveration also

lacks force.

It is transparently clear that Congress had the power

to enact a law that mandated life imprisonment for recidivist

felons who committed a series of serious violent felonies or

drug offenses. Although it was not constitutionally required to

do so, Congress thought it efficacious to include a provision

that exempted a particular subset of offenses from consideration

as "strikes." Given that Congress was under no obligation to

provide defendants with such a dispensation in the first place,

there is no principled reason why Congress could not craft such

a provision in the manner that it deemed appropriate. See
-45-

Gatewood, 230 F.3d at 191. As the Sixth Circuit astutely

observed:

If Congress can choose whether or not to

provide a defense, it follows that the

burden of proof Congress places on such a

defense cannot be unconstitutional. . . .

It is the prerogative of the legislative

branch to determine whether a recidivist

defendant is subject to an enhanced

statutory punishment and what, if any,

affirmative defense applies after a

defendant has previously been adjudged

guilty.

Id.

The appellant avers that Cooper v. Oklahoma, 517 U.S.

348 (1996), compels a different conclusion. We do not agree.

Cooper involved a constitutional challenge to an Oklahoma law

that presumed a criminal defendant competent to stand trial

unless she mustered clear and convincing proof of her

incompetence. Id. at 350. A unanimous Supreme Court struck

down the law on the ground that the heightened evidentiary

standard violated due process. Id. at 369. Starting with the

bedrock principle that the state can try only a competent

criminal defendant, the Court ruled that this principle trumped

the state's interest in ensuring the efficient operation of its

criminal justice system through the application of a heightened

standard of proof. Id. at 367.
-46-

The competency statute that the Cooper Court annulled

is clearly distinguishable from the disqualification provision

in the Three Strikes Law. The crux of the matter is that a

criminal defendant has a fundamental constitutional right not to

be forced to stand trial while incompetent — but he has no

comparable right to a statutorily created affirmative defense.

See Gatewood, 230 F.3d at 191 ("There is no fundamental

constitutional right to avoid an enhanced sentence based on

prior convictions simply because the prior convictions were

nonviolent."). The Cooper Court drove home that precise point

by expressly distinguishing the Oklahoma competency provision

from the statutorily created affirmative defense addressed and

approved in Patterson. See Cooper, 517 U.S. at 367-68 ("Unlike

Patterson, which concerned procedures for providing a statutory

defense, we consider here whether a State's procedures for

guaranteeing a fundamental constitutional right are sufficiently

protective of that right.").

That gets the grease from the goose. Since the

disqualification provision in the Three Strikes Law is

functionally equivalent to the statutory affirmative defense

discussed in Patterson, the holding in Cooper is inapposite

here. It follows inexorably that the burden placed upon

criminal defendants to establish by clear and convincing
-47-

evidence that their prior convictions are nonqualifying offenses

pursuant to 18 U.S.C. § 3559(c)(3) is not incompatible with due

process. Accord Gatewood, 230 F.3d at 191; Ferguson, 211 F.3d

at 887.

V. CONCLUSION

We need go no further. Having canvassed the

appellant's asseverational array and rejected his sundry claims

of error, we affirm the judgment below.

Affirmed.