United States v. Lawuary, Charlie ( 2000 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 98-3003
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
CHARLIE LAWUARY,
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of Illinois.
No. 97-CR-30058--Richard Mills, Judge.
Argued September 15, 1999--Decided May 1, 2000
Before CUDAHY, COFFEY, and EASTERBROOK, Circuit
Judges.
COFFEY, Circuit Judge. On November 5, 1997, a
federal grand jury sitting in the Central
District of Illinois returned a two-count
indictment charging Charlie Lawuary with
possession with intent to distribute crack
cocaine, in violation of 21 U.S.C. sec.sec.
841(a)(1) and 841(b)(1)(B). On February 2, 1998,
Lawuary moved to quash his arrest and suppress
the evidence of his drug possession. The district
court denied Lawuary’s motion, finding that the
arresting officer had probable cause to believe
Lawuary possessed a controlled substance.
Lawuary, thereafter, entered a conditional plea
of guilty to count number two of the two-count
indictment (the government agreed to dismiss
count one), reserving the right to appeal the
district court’s denial of his motion to suppress
and to contest any finding that his prior
criminal record subjected him to a mandatory life
sentence./1
On appeal, Lawuary argues that, in spite of the
fact that he had actual notice that a life
sentence was mandatory, the trial judge did not
have jurisdiction to impose a life sentence
because the government failed to satisfy 21
U.S.C. sec. 851(a)(1) by failing to file a
written information stating the two prior
convictions it was relying upon to impose a life
sentence. Lawuary also argues that the district
court erred in denying his motion to suppress
because the police did not have probable cause to
arrest. We affirm.
I. BACKGROUND
At about 4:30 p.m., on August 24, 1997, Officer
Chris Russell of the Springfield, Illinois,
Police Department ("SPD") observed a gray Pontiac
Bonneville traveling with its license plate
dangling by one screw in violation of 625 Ill.
Comp. Stat. 5/3-413(b). After observing the
violation, Officer Russell initiated a traffic
stop, and the Pontiac pulled into the driveway of
a residence which the officer knew was Lawuary’s
home.
After all three occupants exited the vehicle,
Officer Russell, in order to maintain control of
the situation and ensure his safety, immediately
ordered everyone back into the car. Lawuary did
not get back in the car as instructed; rather, he
reached into the crotch of his bib overalls where
weapons are frequently carried. Recognizing the
danger Lawuary’s actions represented and knowing
that Lawuary had been recently arrested for
possessing a large quantity of crack cocaine,/2
Officer Russell ordered Lawuary to "raise his
hands." Lawuary again refused to comply with the
officer’s instructions; instead, he turned and
ran toward the front door of his residence.
Officer Russell and Officer Jason Lewis, who had
just arrived on the scene to assist Officer
Russell, observed Lawuary throw a plastic baggie
as he ran. Officer Russell apprehended and
restrained Lawuary while Officer Lewis retrieved
the discarded baggie./3
Before entering his plea of guilty, Lawuary
moved to quash the arrest and suppress the drug
evidence on the grounds that the arresting
officer did not have probable cause to arrest
him. The trial court denied Lawuary’s motion and
determined that the SPD’s search of the plastic
baggie was justified because once Officer Russell
observed a violation of the Illinois traffic code
and Lawuary disregarded Officer Russell’s order
to raise his hands, and reached into the crotch
area of his bib overalls, and fled from the
scene, Officer Russell had probable cause to
arrest Lawuary. Furthermore, the judge ruled that
the search of the plastic baggie was justified as
a search incident to the legal arrest.
After Lawuary’s entry of his conditional plea
of guilty on March 9, 1998, a presentence
investigation report ("PSR") was filed which
concluded that Lawuary’s two Illinois state
felony drug convictions subjected him to a
mandatory life sentence. After reviewing the PSR,
Lawuary objected to it, arguing that although he
was convicted of two separate offenses in
Illinois state court, they arose out of the same
course of conduct and were combined for
sentencing purposes./4 Thus, according to
Lawuary, the two prior convictions should be
treated as one conviction for purposes of 21
U.S.C. sec. 841(b), and he should not be
subjected to a mandatory life sentence. The court
rejected Lawuary’s position and, relying on
Lawuary’s two prior state felony drug
convictions, sentenced him to life imprisonment
and also ordered him to pay a $100 special
assessment.
II. ISSUES
On appeal, Lawuary argues: (1) that the
district court erred in denying his motion to
suppress because the officer did not have
probable cause to arrest him; and (2) that the
district court did not, because the government
did not file the requisite written information
under 21 U.S.C. sec. 851, have jurisdiction to
impose a life sentence.
III. ANALYSIS
A. Probable Cause for Arrest
Initially, Lawuary argues that the district
court erred in denying his motion to suppress
because the police officer lacked probable cause
to arrest him. Because Lawuary’s challenge
involves a mixed question of law and fact, we
review the district court’s decision de novo. See
Ornelas v. United States, 517 U.S. 690, 696-97
(1996).
"As a general matter, the decision to stop an
automobile is reasonable where the police have
probable cause to believe that a traffic
violation has occurred." See Whren v. United
States, 517 U.S. 806, 810 (1996). In this case,
the traffic stop was reasonable because the
officer observed the Pontiac’s rear license plate
dangling and only attached by one screw, an
obvious infraction of Illinois state law. See 625
Ill. Comp. Stat. 5/3-413(b). After Officer
Russell made the traffic stop, however, the
occupants, including Lawuary, immediately exited
the vehicle.
We are cognizant of the fact that traffic stops
are inherently dangerous. See Maryland v. Wilson,
519 U.S. 408, 414 (1997). In an effort to control
this known danger, Officer Russell ordered the
occupants back into the vehicle. Lawuary,
however, made this stop even more dangerous by
refusing to comply with the officer’s directions
and reaching into the crotch area of his overalls
where many criminals are known to carry concealed
weapons. Cf. Minnesota v. Dickerson, 508 U.S.
366, 382 (1993) (Scalia, J., concurring) (citing
J. Moynahan, Police Searching Procedures (1963)).
Recognizing the danger Lawuary’s actions
represented, Officer Russell ordered Lawuary to
raise his hands, but Lawuary once again failed to
comply. Lawuary further aroused Officer Russell’s
suspicions when he suddenly ran from the scene,
tossing away a plastic baggie in the process. The
combination of Lawuary’s threatening gestures,
his failure to comply with the law enforcement
officer’s orders, his flight, and his throwing
the baggie away, created probable cause for
Officer Russell to arrest Lawuary. See Tom v.
Voida, 963 F.2d 952, 957-58 (7th Cir. 1992). Cf.
Illinois v. Wardlow, 120 S. Ct. 673 (2000); Kelly
v. Bender, 23 F.3d 1328, 1330 (8th Cir. 1994),
abrogated on other grounds, 515 U.S. 304 (1995).
Therefore, the officer’s subsequent retrieval and
inspection of the plastic baggie was justified as
a search incident to a lawful arrest. See United
States v. Robinson, 414 U.S. 218, 224 (1973)./5
B. The District Court’s Jurisdiction to Impose an
Enhanced Sentence
Lawuary argues that the district court did not
have the jurisdiction to impose a life sentence
pursuant to 21 U.S.C. sec. 841(b)(1)(A) because,
even though he had actual notice that a mandatory
life sentence would be imposed, the government
failed to comply with the requirements of section
851(a)(1)./6 We review the sufficiency of a
section 851 information de novo. See Jackson, 189
F.3d at 661.
Under 21 U.S.C. sec. 851:
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, 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.
21 U.S.C. sec. 851(a)(1) (emphasis added)./7
Section 851’s requirements are clear: before
Lawuary can be sentenced to life imprisonment by
reason of his two prior felony convictions, the
government must provide written notice
identifying the two prior convictions it is
relying upon. See 21 U.S.C. sec. 851(a)(1). The
statute itself, however, does not specify the
form the filing must take, and we have, in past
decisions, been flexible with regard to what the
government must do in order to comply with
section 851. See United States v. Tringali, 71
F.3d 1375, 1382 (7th Cir. 1995).
With the idea that section 851’s purpose is to
provide the defendant with adequate notice, this
court has stated that the section 851 notice can
be provided through various methods as long as
the defendant receives sufficient written notice
containing the necessary information before he
enters into a guilty plea or goes to trial. See
e.g., Tringali, 71 F.3d at 1382; United States v.
Belanger, 970 F.2d 416, 418-19 (7th Cir. 1992);
United States v. Jackson, 121 F.3d 316, 320 (7th
Cir. 1997). In Tringali, 71 F.3d at 1382, we held
that the section 851 notice was sufficient when
read in conjunction with the government’s
separately filed Rule 404(b) notice./8
Similarly, in Belanger, the government filed a
section 851 notice reciting that the government
sought an enhancement, but the notice did not
identify the convictions to be relied upon. Those
convictions, however, were detailed in a separate
filing, the government’s "Notice and Intent to
Offer Evidence," filed to establish the
defendant’s intent to distribute marijuana and
for impeachment purposes. We held that although
the section 851 notice was initially defective,
the second filing contained "all the required
information." Belanger, 970 F.2d at 419; see also
Jackson, 121 F.3d at 320 (noting that "the plea
agreement . . . clearly indicate[s] that
contingencies in sentencing were possible if [the
defendant] had prior felony drug convictions.").
In this case, Lawuary entered a conditional
plea of guilty so section 851 requires that the
government provide written notice to Lawuary that
he faced a life sentence before he pled guilty.
We are of the opinion that all the requisite
section 851 information was printed on the first
page of the written plea agreement:
Because the defendant has two prior felony drug
convictions in Sangamon County, Illinois case
numbers 93-CF-789 and 95-CF-413 at the time of
the offense, the potential penalties are:
--mandatory life in prison
--up to an eight million dollar fine
--a mandatory period of supervised release of 10
years, and
--a $100 special assessment
Furthermore, Lawuary’s plea agreement recited
that he "may seek to have one or more convictions
vacated, and so does not by this agreement, admit
that they are valid. He does, however,
acknowledge that by his guilty plea, the Court
will be required to impose a sentence of life
imprisonment." This language clearly provided
Lawuary with notice, in writing, that he faced a
life sentence based on his specifically
identified prior state felony drug convictions.
In fact, Lawuary signed the plea agreement which
contained this language and acknowledged, by his
signature, that he "read this entire plea
agreement carefully and have discussed it fully
with my attorney. I fully understand this
agreement, and agree to it voluntarily and of my
own free will . . . , even if it means that I
will receive a sentence of life imprisonment."
We note that the government also supplemented
its written notice by orally advising the
defendant at the time of his plea hearing, that:
[T]he information concerning the two prior felony
convictions that the Defendant has referred to is
contained within the written plea agreement in
accordance with 21 U.S.C. Section 851. And I
think it would be appropriate to make sure that
the Defendant acknowledges, knows, understands;
because we’re talking about a mandatory life
sentence here; that the Government is alleging
that he has two prior felony drug convictions.
Namely, those in Sangamon County, Illinois, case
numbers 93-CF-798 and 95-CF-413, as indicated in
Paragraph 1 of the written plea agreement.
Furthermore, at Lawuary’s plea hearing, the
district judge engaged in an extensive colloquy
with him, ensuring that Lawuary was well aware
that his two prior Illinois state drug
convictions would result in a mandatory life
sentence.
Because Lawuary was given the requisite notice
under section 851 before he entered his plea of
guilty, we hold that the government satisfied the
notice requirement of 21 U.S.C. sec. 851(a)(1).
Lawuary’s conviction and sentence are
AFFIRMED.
/1 See 21 U.S.C. sec. 841(b)(1)(A) ("If any person
commits a violation of this subparagraph . . .
after two or more prior convictions for a felony
drug offense have become final, such person shall
be sentenced to a mandatory term of life
imprisonment without release . . . .").
/2 The SPD arrested Lawuary on May 11, 1997, for
possession of 21.3 grams of crack cocaine. This
charge constituted count one of the November 5,
1997 indictment. Because the district court
dismissed this count, it is not part of this
appeal.
/3 The Illinois State Police Forensic Laboratory
analyzed the plastic baggie and determined that
it contained 64.3 grams of crack cocaine, 13
grams of powder cocaine, and an undetermined
amount of marijuana.
/4 In 1994, Lawuary pled guilty to one felony drug
offense in Sangamon County, Illinois, and was
placed on 18 months’ probation. In 1995, Lawuary,
while on probation, pled guilty to another felony
drug offense in Illinois. He was then sentenced
to concurrent two-year terms for his 1994 and
1995 drug convictions.
/5 We also note that the search of the baggie may
have been justified as a search of abandoned
property. See Bond v. United States, 77 F.3d
1009, 1013 (7th Cir. 1996). Because we have
concluded that the search was proper, we need not
address the abandonment theory.
/6 We have held that the requirements of section 851
are jurisdictional in nature. See United States
v. Jackson, 189 F.3d 655, 661 (7th Cir. 1999).
Consequently, the fact that Lawuary did not raise
this argument at sentencing does not constitute
waiver. See Kelly v. United States, 29 F.3d 1107,
1114 (7th Cir. 1994); see also United States v.
Kennedy, 133 F.3d 53, 59 (D.C. Cir. 1998); Harris
v. United States, 149 F.3d 1304, 1306-09 (11th
Cir. 1998); United States v. Gonzalez-Lerma, 14
F.3d 1479, 1488 (10th Cir. 1994); but see Prou v.
United States, 199 F.3d 37, 42-47 (1st Cir.
1999). Although we do not agree with the
concurrence’s approach to section 851, even if we
did, we do not believe this is the time to
revisit established Circuit precedent. This is
especially true in light of the fact that the
issue does not affect the outcome of Lawuary’s
appeal and the government conceded that section
851 is "jurisdictional" and we are, therefore,
without the benefit of oral advocacy on this
issue.
/7 The legislature has provided safeguards for the
defendant facing sentence enhancement. These
safeguards ensure that the defendant understands
that he faces severe penalties in order that he
can make a "better informed decision[ ] whether
to proceed to trial." Kelly, 29 F.3d at 1109.
/8 Rule 404(b) of the Federal Rules of Evidence
provides that:
Evidence of other crimes, wrongs, or acts is not
admissible to prove the character of a person in
order to show action in conformity therewith. It
may, however, be admissible for other purposes,
such as proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, or
absence of mistake or accident, provided that
upon request by the accused, the prosecution in
a criminal case shall provide reasonable notice
in advance of trial, or during trial if the court
excuses pretrial notice on good cause shown, of
the general nature of any such evidence it
intends to introduce at trial.
Easterbrook, Circuit Judge, concurring in part and
concurring in the judgment. I join all of the
majority’s opinion except for Part III.B. My
concern is footnote 6, which states that "the
requirements of section 851 are jurisdictional in
nature. See United States v. Jackson, 189 F.3d
655, 661 (7th Cir. 1999). Consequently, the fact
that Lawuary did not raise this argument at
sentencing does not constitute waiver." I do not
think that 21 U.S.C. sec.851(a)(1) affects the
jurisdiction of the district courts, so we should
review Lawuary’s contention only to determine
whether the district court committed plain error-
-which it did not.
Section 851 specifies procedures for recidivist
sentencing under the drug-control laws.
Subsection 851(a) reads:
(1) No person who stands convicted of an
offense under this part [21 U.S.C.
sec.sec. 841-63] 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, 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. Upon a showing by the United
States attorney that facts regarding prior
convictions could not with due diligence
be obtained prior to trial or before entry
of a plea of guilty, the court may
postpone the trial or the taking of the
plea of guilty for a reasonable period for
the purpose of obtaining such facts.
Clerical mistakes in the information may
be amended at any time prior to the
pronouncement of sentence.
(2) An information may not be filed under
this section if the increased punishment
which may be imposed is imprisonment for a
term in excess of three years unless the
person either waived or was afforded
prosecution by indictment for the offense
for which such increased punishment may be
imposed.
None of this language purports to affect the
jurisdiction of the district courts. The statute
does no more than establish a condition
precedent. Subject-matter jurisdiction comes from
18 U.S.C. sec.3231. Because a violation of
sec.851(a) does not deprive a court of
jurisdiction, the normal rules of waiver and
forfeiture are applicable. Lawuary did not waive
his entitlements under sec.851(a), but neither
did he assert them, so his position is forfeited,
and only if the district court committed plain
error may we reverse. Johnson v. United States,
520 U.S. 461 (1997); United States v. Olano, 507
U.S. 725 (1993); Fed. R. Crim. P. 52(b). But if
sec.851(a) really is jurisdictional, then neither
waiver nor forfeiture matters. Indeed, the court
of appeals must examine the subject of its own
volition in every case, even if none of the
parties complains. What sense does that make? Why
should the omission or misstatement of an element
of the offense be subject to plain-error
analysis, as Johnson holds, but an error with
respect to sentencing be treated as
jurisdictional?
It is easy to find opinions saying that
sec.851(a) is a jurisdictional rule. Our circuit
has at least three. United States v. Jackson, 189
F.3d 655, 661 (7th Cir. 1999); Kelly v. United
States, 29 F.3d 1107, 1112-13 (7th Cir. 1994);
United States v. Belanger, 970 F.2d 416, 418 (7th
Cir. 1992). It is considerably harder to find an
explanation for this assertion. Jackson just
cites Belanger, which cites United States v.
Wright, 932 F.2d 868, 882 (10th Cir. 1991), which
cites a chain of cases back to United States v.
Cevallos, 538 F.2d 1122, 1126-27 (5th Cir. 1976),
which does not support the proposition for which
Wright used it. Cevallos, which concerned
sec.851(b), said in dictum, 538 F.2d at 1126,
that the fifth circuit requires "strict
compliance" with sec.851(a). Another court said
much the same thing in United States v. Kennedy,
133 F.3d 53, 59 (D.C. Cir. 1998). A demand for
"strict compliance" is unrelated to jurisdiction.
So our circuit’s cases rest in the end on a
misreading of Cevallos and no reading at all of
the statutory text. None of the opinions offers
a reason independent of precedent for a
jurisdictional characterization. Nor can I think
of a reason.
"Jurisdictional" problems fall into two broad
categories, plus many shadings. See Szabo Food
Service, Inc. v. Canteen Corp., 823 F.2d 1073,
1077-79 (7th Cir. 1987). One concerns the
constitutional or statutory limits of
adjudicatory authority. All of the questions here
arise under federal law, however, so Article III
does not impose a limit, and Congress has
authorized federal courts to adjudicate. 18
U.S.C. sec.3231. The other category includes
rules that cannot be waived by the parties, and
which are loosely called "jurisdictional" because
they have this feature in common with the genuine
jurisdictional limits. Yet permitting defendants
to make choices is the norm in federal criminal
procedure, even when the right in question is
expressed in absolute terms. See, e.g., New York
v. Hill, 120 S. Ct. 659 (2000) (Interstate
Agreement on Detainers, which provides that a
defendant transferred to another state "shall be
brought to trial within one hundred eighty days,"
does not preclude waiver or forfeiture); United
States v. Mezzanatto, 513 U.S. 196 (1995) (Fed.
R. Evid. 410 and Fed. R. Crim. P. 11(e)(6), which
provide that statements during plea bargaining
are inadmissible, does not preclude waiver or
forfeiture). That sec.851 is unqualified does not
distinguish it from many other entitlements that
defendants possess and may surrender--often in
exchange for valuable concessions as part of plea
bargains. A defendant who may waive indictment,
despite the fifth amendment’s unqualified
language ("No person shall be held to answer for
a capital, or otherwise infamous crime, unless on
a presentment or indictment of a Grand Jury") may
waive the filing of an information listing prior
convictions. Section 851(a) therefore cannot
properly be placed in this second class of
"jurisdictional" rules.
Only two courts of appeals have addressed this
subject with independent reasoning, as opposed to
citations. Prou v. United States, 199 F.3d 37,
42-46 (1st Cir. 1999), holds that sec.851(a) is
not jurisdictional, and United States v. Baucum,
80 F.3d 539, 543-44 (D.C. Cir. 1996), resolves a
similar issue under 21 U.S.C. sec.860(a) against
a jurisdictional classification. Judge Selya’s
opinion in Prou is well thought out, but one
passage may mislead. Prou says that "[w]ithout
exception, [in] the cases . . . that have called
the procedural requirements of section 851(a)(1)
’jurisdictional’, . . . nothing turned on the
choice of phrase." 199 F.3d at 44. Confined to
direct appeals, as Prou may have intended, this
is true, but there is at least one exception when
we consider collateral attacks too: this
circuit’s opinion in Kelly. The district court
rejected Kelly’s argument under sec.851(a)
because it had not been raised in a timely
fashion; we reversed, holding that because
sec.851(a) is jurisdictional, the defendant did
not have to raise the point at all, let alone on
time. 29 F.3d at 1112-14. Thus we have a conflict
among the circuits: this circuit is on one side
(and may be joined by Harris v. United States,
149 F.3d 1304, 1306-09 (11th Cir. 1998)); Prou
and Baucum are on the other; and remaining
circuits have dicta but not holdings.
Instead of asking us to reexamine the subject,
as in Prou, 199 F.3d at 42, here the United
States has embraced the jurisdictional
characterization. Its brief proclaims that
"[n]on-compliance is a jurisdictional defect."
Obviously the United States Attorney for the
Central District of Illinois and the United
States Attorney for the District of Rhode Island
are not in close communication. I could
appreciate reluctance to revisit a subject that
does not affect the outcome for Lawuary, when the
parties have not made adversarial presentations,
but instead my colleagues say that "we do not
agree with the concurrence’s approach to section
851" (slip op. 6 n.6)--though they do not give
reasons beyond citing cases that themselves
contain none, plus another case (Kennedy) that,
while citing Kelly, does not endorse Kelly’s
assertion about the jurisdictional status of
sec.851 (or mention jurisdiction at all).
Two years ago, United States v. Martin, 147
F.3d 529, 531-33 (7th Cir. 1998), tackled an
argument that failure to establish the
interstate-commerce element of an offense is a
jurisdictional flaw. Recognizing that some
earlier panels had used the word "jurisdiction"
in a loose way to denote "unauthorized," we held
in Martin that the only genuine jurisdictional
element in a federal criminal prosecution is
subject-matter jurisdiction under sec.3231. Once
that has been established, Martin concluded,
other issues are subject to normal rules of
waiver and forfeiture. Accord, United States v.
Krilich, No. 99-2271 (7th Cir. Apr. 12, 2000),
slip op. 6-9; Hugi v. United States, 164 F.3d
378, 381 (7th Cir. 1999). These cases are equally
instructive concerning sec.851(a).
Section 851(a)(1) affects the maximum length of
sentences. Oodles of similar limits exist
(including minimum and maximum sentences and the
application of the Sentencing Guidelines); these
are unrelated to subject-matter jurisdiction.
Steel Co. v. Citizens for a Better Environment,
523 U.S. 83, 88-93 (1998), makes that point
clearly. The statute in Steel Co. specifies
limits on the extent of a remedy, and Congress
even used the word "jurisdiction" to describe
those limits. 42 U.S.C. sec.11046(c). But the
Court concluded that rules of law curtailing
judges’ remedial powers do not affect
"jurisdiction" in the strong sense--that is, do
not require judges to disregard rules of waiver
and forfeiture, do not require judges to address
the issue even if the parties are content with
the district judge’s disposition. That is equally
true of sec.851(a)(1).
Jones v. United States, 119 S. Ct. 2090, 2102-
03 (1999), puts the subject to rest. Jones
contended that he had been sentenced to death
without observance of some statutes that create
extra safeguards for capital cases, and he argued
that his failure to make timely objection was
excused by 18 U.S.C. sec.3595(c)(2)(A), which can
be read to give the court of appeals an
independent role in preventing arbitrary
sentences. But the Supreme Court replied that
because "[t]he statute does not explicitly
announce an exception to plain-error review" the
normal rules of waiver and forfeiture apply. 119
S. Ct. at 2102. The Court went on to hold that
Jones had not established plain error. If this is
the right approach for a sentence of death, it is
certainly the right approach for a sentence of
life imprisonment, which Lawuary has received.
Section 851(a) "does not explicitly announce an
exception to plain-error review". Given Jones,
Steel Co., Martin, and Prou, we ought to hold
that the rules of waiver and forfeiture apply to
sec.851(a)(1).