## Facts

- Agnes Kole pleaded guilty in federal court in New Jersey to drug-importation conspiracy offenses under 21 U.S.C. §§ 952(a), 960(a)(1), and 963, based on a scheme to import heroin into the United States from Thailand.
- The government filed an information under 21 U.S.C. § 851(a) seeking a higher statutory penalty under 21 U.S.C. § 960(b)(1)(A) based on Kole’s prior Philippine felony drug conviction.
- The prior Philippine case arose from events on December 8, 1991, when a courier, Jamie Williams, was arrested in Manila while boarding a flight to Chicago with a false-bottom suitcase containing approximately five kilograms of heroin.
- Williams led Philippine police to the condominium complex where Kole lived with her fiancé, Lazarus Iwuchukwu (“Ike”).
- The owner of the complex consented to a search; police entered Kole’s apartment with Williams and found a suitcase containing heroin.
- Kole, Ike, and others were arrested; Kole and Ike were captured after attempting to flee by jumping from a second-story terrace.
- In the Philippine prosecution, multiple defendants (including Kole and Ike) were represented by the same lawyer and tried before a judge, consistent with Philippine procedure rather than a jury.
- Kole was convicted in the Philippines, while other defendants were acquitted.
- At federal sentencing, the district court treated the Philippine conviction as a qualifying prior drug conviction and applied § 960’s increased penalty, producing a 20-year mandatory minimum.
- Kole appealed, arguing the Philippine conviction could not be used because (1) the lack of a jury trial violated Sixth Amendment principles and (2) joint representation created a conflict of interest amounting to a denial of the right to counsel.

## Issues

1. Whether a prior foreign drug conviction from a legal system that does not provide jury trials is barred from use in a federal statutory penalty increase under 21 U.S.C. § 960(b) and § 851.
2. Whether Kole proved, under 21 U.S.C. § 851(c)(2), that her Philippine conviction was “obtained in violation of the Constitution” due to ineffective assistance of counsel from conflicted joint representation.
3. What burden and type of showing § 851(c)(2) requires to invalidate a foreign conviction offered as a predicate for § 960(b).

## Decision

- The Third Circuit affirmed the district court’s judgment and sentence.
- The court held that Congress authorized reliance on foreign narcotics convictions in the statutory scheme governing importation penalties, and a foreign conviction is not excluded simply because the foreign system differs from U.S. criminal procedure.
- The absence of a jury trial in the Philippine proceeding, standing alone, did not make the conviction unusable for the § 960(b) penalty increase.
- Kole failed to carry her burden under § 851(c)(2) to show that her Philippine conviction was constitutionally defective based on ineffective assistance of counsel from a conflict of interest.

## Legal Principles

- Under 21 U.S.C. § 851(c)(2), a defendant challenging a prior conviction used to increase a federal drug sentence bears the burden of proving, by a preponderance of the evidence, that the conviction was obtained in violation of the Constitution.
- Congress’s importation-penalty framework (including provisions addressing prior foreign narcotics convictions) permits using qualifying foreign drug convictions as predicates for higher statutory penalties.
- The Sixth Amendment’s jury-trial guarantee governs U.S. criminal prosecutions and does not automatically invalidate a conviction entered by a foreign court operating under its own lawful procedures.
- An ineffective-assistance claim based on joint representation requires more than pointing to multiple representation; the defendant must show an actual conflict that adversely affected counsel’s performance (or otherwise establish constitutionally ineffective representation under governing standards).
- A defendant cannot defeat a § 960(b) penalty increase by showing only that the foreign proceeding lacked U.S.-style procedural features; § 851 relief requires proof of a constitutional-level defect relevant to the statutory bar.

## Conclusion

United States v. Kole upheld a federal statutory penalty increase under 21 U.S.C. § 960(b) based on a prior Philippine drug conviction. The Third Circuit ruled that differences between Philippine and U.S. criminal procedure—particularly the absence of a jury—did not, by themselves, make the conviction unusable under § 851, and it concluded that Kole did not prove that joint representation in the Philippine case amounted to constitutionally ineffective assistance of counsel.


United States v. Kole, 164 F.3d 164 (1998)