2006 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

1-12-2006

USA v. Hedgepeth

Precedential or Non-Precedential: Precedential

Docket No. 04-4564

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Recommended Citation

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

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

 

No. 04-4564

 

UNITED STATES OF AMERICA

v.

DARIN L. HEDGEPETH,

Appellant

 

Appeal from the United States District Court

for the Middle District of Pennsylvania

(D.C. Criminal Action No. 03-cr-00294)

District Judge: Honorable William W. Caldwell

 

Submitted Under Third Circuit LAR 34.1(a)

September 26, 2005

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

 

* Honorable Alan D. Lourie, Circuit Judge for the United

States Court of Appeals for the Federal Circuit, sitting by

designation.
2

(Opinion filed January 12, 2006)

Daniel M Myshin, Esquire

4800 Linglestown Road, Suite 305

Harrisburg, PA 17112

Counsel for Appellant

Thomas A. Marino

 United States Attorney

James T. Clancy, Esquire

 Assistant U.S. Attorney

Office of United States Attorney

228 Walnut Street, P.O. Box 11754

220 Federal Building and Courthouse

Harrisburg, PA 17108

Counsel for Appellee

 

OPINION OF THE COURT

 

AMBRO, Circuit Judge

Darin L. Hedgepeth appeals from his conviction and

sentence for possession of a firearm by a convicted felon, 18

U.S.C. § 922(g)(1) and 18 U.S.C. § 924(a)(2), possession of

crack cocaine, 21 U.S.C. § 844, and possession of crack cocaine
3

while on pre-trial release, 18 U.S.C. § 3147 and 21 U.S.C. §

844. He alleges that the District Court abused its discretion by

(a) denying his pretrial motion to strike portions of a

superseding indictment that included factors relevant to

sentencing and (b) submitting, over Hedgepeth’s objection, a

special verdict slip to the jury that included the contested

sentencing factors. For the reasons provided below, we affirm.

I. Factual and Procedural History

Hedgepeth was indicted in October 2003 on charges of

manufacturing counterfeit currency in violation of 18 U.S.C. §

471 and possession of a firearm by a previously convicted felon

in violation of 18 U.S.C. § 922(g)(1). The Government

subsequently filed three superseding indictments, the first two

of which added charges for possession of a sawed-off shotgun

in violation of 26 U.S.C. §§ 5841, 5861(d) and 5871, possession

of crack cocaine in violation of 21 U.S.C. § 844, and possession

of crack cocaine while on pre-trial release in violation of 21

U.S.C. § 844 and 18 U.S.C. § 3147. The third superseding

indictment added a Notice of Special Findings containing

factors that would affect sentencing if they were found to exist

by a jury beyond a reasonable doubt, including: (a) whether

Hedgepeth possessed a shotgun with a barrel length of less than

eighteen inches; (b) whether the offense involved three or more

firearms; and (c) whether one or more of the firearms involved

in the offense was stolen. Hedgepeth filed a motion to strike the

sentencing factors as surplusage and the District Court denied
4

the motion. At the August 2004 trial, a Special Verdict Form

was submitted to the jury, over Hedgepeth’s objection, that

included the three sentencing factors added by the third

superseding indictment. 

Central to this case is that the Government’s decisions to

file the third superseding indictment and submit the special

verdict form were prompted by the Supreme Court’s decision in

Blakely v. Washington, 542 U.S. 296, 304 (2004) (holding that

any fact, other than a prior conviction, that increased a sentence

beyond the maximum a judge could impose based on admitted

conduct must be pled and proven to a jury beyond a reasonable

doubt). Seven months after Blakely, the Supreme Court struck

the Federal Sentencing Guidelines insofar as they were

mandatory. United States v. Booker, 125 S. Ct. 738, 766 (2005).

Thus, “mandatory enhancement of a sentence under the

Guidelines, based on facts found by the court alone,” is

constitutionally impermissible. United States v. Davis, 407 F.3d

162, 163 (3d Cir. 2005). In Hedgepeth’s case the Government

chose to respond to the post-Blakely, pre-Booker context by

pleading and proving the sentence enhancements to the jury.

The jury found Hedgepeth guilty of possession of a

firearm by a previously convicted felon, possession of crack

cocaine, and possession of crack cocaine while on pre-trial

release. (He was found not guilty of possession of a sawed-off

shotgun and a mistrial was granted as to the counterfeiting

charge because the jury could not reach a verdict.) With respect
The District Court had subject matter jurisdiction pursuant to 1

18 U.S.C. § 3231. We have appellate jurisdiction under 28

U.S.C. § 1291 and 18 U.S.C. § 3742. 

5

to the felon in possession of a firearm offense, the jury found

two of the three sentencing factors beyond a reasonable doubt

(that the offense involved three or more firearms and that at

least one of the firearms was stolen). Hedgepeth appeals,

alleging that the District Court unfairly prejudiced him and

committed reversible error by denying his pretrial motion to

strike portions of the third superseding indictment and

submitting, over his objection, the special verdict slip to the

jury. 

1

II. Discussion

A. Standard of Review

We review for abuse of discretion the District Court’s

decision to deny a motion to strike surplusage from an

indictment. See, e.g., United States v. Rezaq, 134 F.3d 1121,

1134 (D.C. Cir. 1998); 1 Charles Alan Wright & Arthur R.

Miller, Federal Practice and Procedure § 127, at 277–78 (3d

ed. 1999). Motions to strike surplusage are rarely granted.

United States v. Alsugair, 256 F. Supp. 2d 306, 317 (D.N.J.

2003); see also United States v. Pharis, 298 F.3d 228, 248 (3d

Cir. 2002) (Cowen, J., dissenting) (“[T]he scope of a district

court’s discretion to strike material from an indictment is
6

narrow.” (internal quotation marks omitted)). 

The District Court’s decision to submit a special verdict

form to the jury is also reviewed for abuse of discretion. United

States v. Console, 13 F.3d 641, 663 (3d Cir. 1993); Waldorf v.

Shuta, 896 F.2d 723, 740 (3d Cir. 1990).

B. Notice of Special Findings in the Indictment

An indictment must contain “the elements of the offense

charged” and enable the defendant “to plead an acquittal or

conviction in bar of future prosecutions for the same offense.”

Hamling v. United States, 418 U.S. 87, 117 (1974) (citation

omitted); United States v. Olatunji, 872 F.2d 1161, 1168 (3d Cir.

1989). “As long as the crime and the elements of the offense

that sustain the conviction are fully and clearly set out in the

indictment, the right to a grand jury is not normally violated by

the fact that the indictment alleges more crimes or other means

of committing the same crime.” United States v. Miller, 471

U.S. 130, 136 (1985). However, upon the defendant’s motion,

the court may strike surplusage from the indictment or

information. Fed. R. Crim. P. 7(d). “This rule introduces a

means of protecting the defendant against immaterial or

irrelevant allegations in an indictment or information, which

may, however, be prejudicial.” Fed. R. Crim. P. 7(d) Advisory

Committee’s Note.

Hedgepeth asserts that our Court has not determined
7

whether the test for striking surplusage is “irrelevant or

prejudicial” or “irrelevant and prejudicial.” Indeed, the only

Third Circuit reference to this test is Judge Cowen’s dissent in

United States v. Pharis, suggesting that surplus material “‘may

only be stricken if it is irrelevant and prejudicial.’” 298 F.3d at

248 (quoting United States v. Oakar, 111 F.3d 146, 157 (D.C.

Cir. 1997)). District courts in our Circuit have not applied a

consistent test. Compare United States v. Ali, 2005 WL

1993519, at *1 (E.D. Pa. Aug. 16, 2005) (motion to strike

surplusage should only be granted where it is clear that

information in indictment “not relevant, and the surplusage is

prejudicial or inflammatory in nature”), with United States v.

Yeaman, 987 F. Supp. 373, 376 (E.D. Pa. 1997) (motion to

strike should be granted if allegations irrelevant or prejudicial),

and United States v. Gatto, 746 F. Supp. 432, 455 (D.N.J. 1990)

(same). 

We hold that, upon the defendant’s timely motion, the

court may strike surplusage from the indictment or information

when it is both irrelevant (or immaterial) and prejudicial. Logic

demands the conjunctive standard: information that is

prejudicial, yet relevant to the indictment, must be included for

any future conviction to stand and information that is irrelevant

need not be struck if there is no evidence that the defendant was

prejudiced by its inclusion. Application of the conjunctive test

is also in keeping with the Advisory Committee’s Note to Fed.

R. Crim. P. 7(d) (referencing “immaterial or irrelevant

allegations . . . which may . . . be prejudicial”) and the decisions
8

of our sister courts. See, e.g., United States v. Rezaq, 134 F.3d

1121, 1134 (D.C. Cir. 1998); United States v. Scarpa, 913 F.2d

993, 1013 (2d Cir. 1990); United States v. Poore, 594 F.2d 39,

41 (4th Cir. 1979); United States v. Anderson, 579 F.2d 455. 457

n.2 (8th Cir. 1978), cert. denied, 439 U.S. 980 (1978); United

States v. Bullock, 451 F.2d 884, 888 (5th Cir. 1971); see also 1

Charles Alan Wright & Arthur R. Miller, Federal Practice and

Procedure § 127, at 634. (3d ed. 1999) (the “purpose of [Fed.

R. Crim. P. 7(d)] is to protect the defendant against prejudicial

allegations of irrelevant or immaterial facts”). 

Here, we need not address whether the sentencing factors

were relevant to the charged offense because the Government

claims that the third superseding indictment was neither shown

nor read to the jury and Hedgepeth does not contest this

assertion. In the absence of any evidence that the jury was

exposed to the third superseding indictment, Hedgepeth’s claim

of prejudice fails before it leaves the gate, as information never

revealed to the jury could not have prejudiced its deliberations.

In this context, the District Court did not abuse its

discretion in denying Hedgepeth’s motion to strike portions of

the third superseding indictment.

C. Special Verdict Form

“Although special interrogatories are disfavored in

criminal trials, this court has established no per se rule against
 A special interrogatory has been submitted “after” a guilty

2

verdict has been returned when jurors are instructed on a single

form to answer the special interrogatory only after filling out a

verdict of guilty or not guilty. See generally Kate H. Nepveu,

Beyond “Guilty” or “Not Guilty:” Giving Special Verdicts in

Criminal Jury Trials, 21 Yale L. & Pol'y Rev. 263, 294 (Winter

2003) (contrasting “extreme” practice of handing jury special

findings forms only after they state they have come to a verdict

9

them.” United States v. Palmeri, 630 F.2d 192, 202 (3d Cir.

1980), cert. denied, 450 U.S. 967 (1981) (citations omitted).

“Nevertheless, there are circumstances where the use of special

findings may be necessary,” including “where a determination

of certain facts will be crucial to the sentence . . . .” United

States v. Desmond, 670 F.2d 414, 418 (3d Cir. 1982); see also

United States v. Barrett, 870 F.2d 953, 955 (3d Cir. 1989)

(“sharply contrast[ing]” use of special interrogatories “to assist

in sentencing” with their impermissible use “to clarify an

ambiguous verdict”). 

The “disfavor with which courts view special

interrogatories in criminal casesresultsfrom interrogatories that

lead the jury in a step-by-step progression to a verdict of guilty.”

Palmeri, 630 F.2d at 202. Therefore, our Court has held that,

when special findings are necessary for sentencing purposes,

“the appropriate information may be obtained by submitting

special interrogatories to the jury after a guilty verdict has been

returned.” Desmond, 670 F.2d at 418.2
with standard practice of using a single form).

 At the top of the relevant page of the verdict slip was the 3

following statement: “As to the charge of knowing possession

of firearms by a previously convicted felon, we find the

defendant [Guilty or Not Guilty ].” The next line on the verdict

slip instructed the jury as follows: “If you found the defendant

Guilty, go to [the special finding questions]; if you found the

defendant Not Guilty, go to [the next charged count].” 

 Although an argument could be made that the jurors could 4

have looked down the page at the special findings before

rendering a guilty verdict, “we must assume that the jury

understood and followed the court's instructions.” Loughman v.

Consol-Pennsylvania Coal Co., 6 F.3d 88, 105 (3d Cir. 1993).

10

In this case the verdict slip was structured so that the jury

was first instructed to determine whether Hedgepeth was guilty

of possession of a firearm by a felon and only then move to

consideration of the special findings. The danger of prejudice 3

to Hedgepeth was thus alleviated, as we cannot say that the jury

was led step-by-step to a guilty verdict when the special findings

followed the guilt determination. See Console, 13 F.3d at 663; 4

see also United States v. Ruggiero, 726 F.2d 913, 929 (2d Cir.

1983) (Newman, J., concurring in part and dissenting in part)

(“an instruction to the jury . . . that the interrogatory . . . is to be

answered only in the event that the jury has agreed upon a

general verdict of guilty. . . . enables the jury to perform its

generalized task first, responding to the interrogatory thereafter
11

only if a guilty verdict reflects that the jury has found all the

elements of an offense established.”). Further, the jury found

that one of the special findings had not been proven, and that

Hedgepeth was not guilty on one of the charges, suggesting that

the jurors were not so swayed by the inclusion of the sentencing

factors on the verdict slip that they could not engage in careful

deliberation. See Palmeri, 630 F.2d at 203 (citing jury’s

acquittal of defendants on some counts and not others as

evidence that jury understood the verdict form). As we have

held that special interrogatories are appropriate in the sentencing

context when they are considered by the jury after a guilty

verdict has been rendered, it was not an abuse of discretion for

the District Court to allow the Government to submit the special

verdict form to the jury. 

 * * * * *

As we conclude that the District Court did not abuse its

discretion either by denying the pretrial motion to strike or

submitting the special verdict slip to the jury, its judgment of

conviction and sentence is affirmed.