In U.S. v. Ladson, No. 10-10151 (June 24, 2011), the Court vacated a sentence of life imprisonment, because the government did not properly serve its 21 U.S.C. § 851 notice of enhanced sentence. The Court noted that § 851 requires the government to both file and serve the notice before trial. The government is required to”strictly comply with the service requirement before trial.”
The district court stated that it remembered that the notice had been served on trial counsel. However, this recollection “was not informed by admissible evidence or testimony.” Nor was it a fact appropriate for judicial notice, as it could not be determined by resort to sources whose accuracy could not be reasonably be questioned.
The emails of trial counsel also did not show that the notice had been served.
Finally, it was error to conclude that an oral summary of the notice read in open court, and the defendant’s actual knowledge of the filing of the notice, were valid substitutes for service of a copy of the § 851 notice.
