Lumbard, Newman and Kearse, Circuit Judges.
JON O. NEWMAN, Circuit Judge:
This appeal raises issues concerning sentencing under the "dangerous special offender" provisions of the Criminal Code, 18 U.S.C. § 3575 (1982). Alfred Calabrese appeals from a judgment of the District Court for the Southern District of New York (Robert J. Ward, Judge) convicting him and a co-defendant, after a jury trial, of drug and firearms offenses. The charges were based primarily on Calabrese's efforts to sell several kilograms of cocaine to an undercover agent. Since the evidence is not claimed to be insufficient and has no bearing on the issues raised on appeal, it need not be described. Calabrese contends that his conviction should be reversed because some reference to section 3575 was improperly made to the trial judge prior to the verdict. He also contends that the sentence was unlawful because on two counts the trial judge relied on section 3575 to enhance the sentences even though the resulting sentences did not exceed the normal statutory maximums. Finding merit in only the second contention, we affirm the convictions but remand for resentencing on Counts 1 and 2.
Section 3575 provides a special sentencing procedure for a defendant who is a "special offender" and is "dangerous." A defendant may be found to be a "special offender" if either his prior criminal record or his conduct in committing the felony for which he is to be sentenced meets the statutory criteria.*fn1 18 U.S.C. § 3575(e). A defendant may be found to be "dangerous" "if a period of confinement longer than that provided for such felony is required for the protection of the public from further criminal conduct by the defendant." Id. § 3575(f). A "dangerous special offender" may be sentenced up to a maximum of 25 years, notwithstanding the statutory maximum otherwise specified for the felony of which he has been convicted. Id. § 3575(b). Prior to trial the prosecutor may file with the court a notice alleging that the defendant is a "dangerous special offender" and detailing the reasons for such pertinence to this appeal, the statute provides: "In no case shall the fact that the defendant is alleged to be a dangerous special offender . . . be disclosed . . . before any . . . verdict . . . to the presiding judge without the consent of the parties." Id.
1. Prior to trial the prosecutor filed under seal with Judge Cannella, then sitting in the motions part, a notice to designate Calabrese as a "dangerous special offender." The notice remained under seal throughout the trial before Judge Ward and was not unsealed until after the verdict. However, just prior to jury selection, Judge Ward became aware of the filing of the section 3575 notice under the following circumstances. In open court Judge Ward stated that he was under the impression that the Government intended to file an information, and he reminded the prosecutor that if this was to occur, an additional arraignment would be required prior to jury selection. The following colloquy ensued:
The prosecutor: Your Honor, we had filed a superseding indictment, if that's what your Honor --
The Court: No, I am talking about enhancing the penalties.
The prosecutor: Yes, sir, under Section 3575, your Honor, that matter is filed under seal before a judge other than the presiding judge. I will direct your Honor's attention to Title 18, Section 3575, I believe it's in Paragraph A: "In no other [ sic ] case shall the fact that the defendant is alleged to be a dangerous special offender, et cetera, et cetera."
The Court: That's not what I am talking about. Mr. Calabrese, for example, has a prior felony conviction. Unless and until you serve and file an information charging him as a convicted felon and he is arraigned, my understanding is that you cannot seek enhanced penalties. . . .
The prosecutor: Your Honor, neither of these defendants has prior narcotics offenses.
The prosecutor: And they simply must be notified the basis upon which the government will seek enhanced sentencing, and what those prior convictions are, and we have so notified the defendants.
Judge Ward then queried defense counsel and was assured that they had received a notice of request for enhanced penalties.
Appellant contends that the prosecutor's reference to section 3575 and to the fact of notifying the defendants of a request for enhanced penalties violated section 3575(a)'s prohibition against premature disclosure to the trial judge. Whether or not violation of this prohibition requires vacation of the portion of a sentence enhanced pursuant to Section 3575 when the violation occurs without the knowledge of the defendant, see United States v. Darwin, 742 F.2d 1325 (11th Cir.1984), or when prompt objection is made to premature disclosure of the contemplated use of section 3575, see United States v. Bailey, 537 F.2d 845 (5th ...