UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA :
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v. : Criminal No. xx-496(JGP)
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xxxxxxxxxxxxxxxxx, :
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Defendant. :
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DEFENDANT'S MOTION TO BIFURCATE TRIAL AND INCORPORATED
MEMORANDUM OF POINTS AND AUTHORITIES
xxxxxxxxxx, through undersigned counsel, respectfully requests this Honorable Court to bifurcate his trial so that the jurors do not learn of his alleged prior felony conviction, unless and until the jury finds that he knowingly possessed a firearm that travelled, or had been transported, in interstate commerce.
Absent bifurcation, Mr. xxxxxx will suffer unfair prejudice because the jury would learn of his prior convictions even if he does not take the stand to testify in this case. A pre-trial hearing on this motion is respectfully requested. The grounds for this Motion are set forth below.
Background
Michael A. xxxxxx was arrested on November 29, 1997. Police allege that Mr. xxxxxx evaded capture on October 29, 1997, after he ran from police officers who identified him as an individual wanted on a Superior court arrest warrant. Police claim that Mr. xxxxxx dropped a Browning Arms .380 caliber pistol as he was running away from police, and that Mr. xxxxxx was convicted in May of 1990 of a felony.
Mr. xxxxxx now stands charged in a two-count indictment. Count One charges him with possession of firearms by a previously convicted felon, and Count Two charges Mr. xxxxxxxxxx with possession of ammunition by a convicted felon. Both charges are violative of 18 U.S.C. §922(g)(1).
Mr. xxxxxxxxxx allegedly was previously convicted in 1996 of Robbery and Possession of
Cocaine. At the time of the instant arrest, Mr. xxxxxxxxxx was on Probation.
ARGUMENT
I. Legal Background
When the government "charge[s] an ex-felon firearms count together with other counts, thereby permitting the jury to hear otherwise inadmissible evidence regarding a defendant's prior conviction," the defendant clearly is prejudiced. See Old Chief v. United States, 117 S.Ct. 644, 653 (1997). See also, United States v. Dockery, 955 F.2d 50 (D.C. Cir. 1992). The Court of Appeals has explained:
"[a] defendant's interest is avoiding introduction of prior crimes evidence is clear and compelling. 'The exclusion of other crimes evidence is not simply a technicality designed to prevent law enforcement personnel from doing their job; it reflects and gives meaning to the central precept of our system of criminal justice, the presumption of innocence."
Id. at 53, quoting in part, United States v. Daniels, 770 F.2d 1111, 1118 (D.C. Cir. 1985). For the same reasons, evidence of the fact that a person is under indictment for another criminal charge is prejudicial to a person and intrudes on his right to a fair opportunity to defend against other charges.
Although joinder of a felon-in-possession count with other courts for trial is not "always an abuse of discretion under Rule 14," United States v. Daniels, 770 F.2d at 1118 (emphasis in original), the Court of Appeals has made clear that "if Rule 14 and the presumption of innocence are to be given their proper content, a joint trial of ex-felon counts must be conducted with 'sufficiently scrupulous regard for the defendant's right to a fair trial.'"
United States v. Dockery, 955 F.2d at 56, quoting in part, United States v. Daniels, 770 F.2d at 118; see also id. at 1119 ("it is neither commendable nor prudent for prosecutors to seek to use ex-felon counts to escape the encumbrances of the presumption of innocence").
In Dockery, the trial court had redacted the indictment to eliminate any reference to the nature of defendant Dockery's prior offense and the probation officer who testified about the prior felony conviction did not testify as to any details of the conviction. The Court of Appeals ruled that "this was not nearly enough to avoid the problem of undue prejudice." 955 F.2d at 56, n.5. It explained that the trial court's actions did not show "sufficiently scrupulous regard" for Dockery's right to a fair trial. 955 F.2d at 56. The Court of Appeals concluded that the trial court abused its discretion in failing to sever the felon-in-possession count or to take other steps to ensure the defendant's right to a fair trial. See 955 F.2d at 57.
The Court of Appeals identified the following approach that the trial court could have taken to protect Mr. Dockery's right to a fair trial:
"the trial judge might have instructed the jury solely on possession, withholding any evidence of the ex-felon count until a verdict was reached. Then, assuming the jury had found Dockery guilty of possession, the court could have asked the jury to find whether or not Dockery was an ex-felon, allowing at that time the State to offer its evidence."
955 F.2d at 55, n.4, citing Spencer v. Texas, 385 U.S. 554, 557, n.2 (1967). Under this approach, the trial court's interest in achieving judicial economy are in fact best served. The felon-in-possession count is not severed from the remaining counts of the indictment for trial. Rather, the defendant receives one trial on all counts, but the jury learns of the prior felony conviction only if and when it is found that the defendant knowingly possessed a firearm that travelled or had been transported in interstate commerce.(1)
In cases involving similar offenses, where an element of the offense is a prior criminal conviction, courts have held that the existence of a predicate conviction is "a question of law." See e.g. United States v. Beebe, 467 F.2d 222, 225 (10th Cir. 1972) (question whether accused charged with making false statement about his criminal record in the application for a firearm, had a prior felony conviction was one of law). It is axiomatic that questions of law are to be determined by the Court, while questions of fact are for the jury to decide.
II. Bifurcation or Severance is necessary to ensure Mr. xxxx a fair trial.
Absent a bifurcated trial, a severance of counts, or an alternative form of relief, the jury in Mr. xxxxxxxxx case will learn of his alleged prior conviction and case under indictment even if Mr. xxxxxxxxxx exercises his constitutional right not to testify. Mr. xxxxxxxxxx's right to a fair trial on the question of whether he knowingly possessed the firearms alleged in this case would be extremely prejudiced by the jury learning of the information about other cases before resolving that question of possession See Michelson v. United States, 335 U.S. 469, 476 (1948)(prior crimes evidence "weigh[s] too much with the jury and ... overpersuade[s] them as to prejudge one with a bad general record and deny him a fair opportunity to defend against a particular charge"). In Mr. xxxxxxxxxx's case, the prejudice he would suffer comes not only from the prior felony charged in Count Two. The same reasons that compel the court to preclude the jury from learning of a prior conviction until after it has determined the possession of a firearm question adversely to the defendant, compels the court to treat information about a case under indictment in the same manner.
Under Dockery, the Court should bifurcate Mr. xxxxxxxxxx's trial so that the jury first resolves the question of whether Mr. xxxxxxxxxx knowingly possessed a firearm that travelled or had been transported in interstate commerce. See United States v. Dockery,
955 F.2d at 55. Only if the jury resolves the question adversely to Mr. xxxxxxxxxx, should the further issues of his prior felony conviction and case under indictment be addressed. This approach is the most efficient and is the most appropriate as a means of safeguarding Mr.Cooper's constitutional rights to a fair trial and to present a defense to the charges against him.
WHEREFORE, for all the foregoing reasons,and any others which may appear to this Court,Anthony xxxxxxxxxx, through undersigned counsel, respectfully requests that the instant motion be granted and that he be granted a bifurcated trial in this case.
Respectfully submitted,
A.J. KRAMER
FEDERAL PUBLIC DEFENDER
Valencia Rainey
Assistant Federal Public Defenders
625 Indiana Ave., N.W., Suite 550
Washington, D.C. 20004
(202) 208-7500
CERTIFICATE OF SERVICE
This is to certify that, on this 13th day of January 1998, a copy of the foregoing
Motion to Bifurcate Trial and Incorporated Memorandum of Points and Authorities, has been
served upon Sima Sarrafin, Assistant United States Attorney, the Office of the United
States Attorney, 555 Fourth Street, N.W., Washington, D.C. 20001, by leaving a copy at the
United States District Courthouse drop box for the Office of the United States Attorney.
Valencia R. Rainey
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA :
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v. : Criminal No. xx-0467(JGP)
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xxxxxxxxxxxxxxx, :
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Defendant. :
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ORDER
Upon consideration of defendant's Motion to Bifurcate Trial, the supporting memorandum, and the entire record in this case, it is this day of , 1998, hereby
ORDERED that defendant's Motion To Bifurcate Trial is GRANTED; and the government shall be precluded from introducing evidence of defendant's alleged prior felony conviction unless and until the jurors have found that the defendant knowingly possessed a firearm that travelled or had been transported in interstate commerce; and
IT IS FURTHER ORDERED that counsel for defendant shall submit proposed verdict forms consistent with this Order at the time of trial.
JOHN GARRETT PENN
UNITED STATES DISTRICT JUDGE
Copies to:
Sima Sarrafan, Esq.
Assistant United States Attorney
555 Fourth St., N.W., Room 5211
Washington, D.C. 20001
Valencia Rainey
Assistant Federal Public Defenders
625 Indiana Ave., N.W., Suite 550
Washington, D.C. 20004
1. The Dockery court identified severance of counts as an alternative approach. See 955 F.2d at 53. Under Fed. R. Crim. P. 14, severance of counts is proper whenever "it appears that a defendant ... is prejudiced by a joinder of offenses."
The Dockery court also suggested that the trial court could hold a bench trial on the prior felony element of the felon-in-possession count so the jury did not learn of it. 955 F.2d at 55. It also mentioned the possibility of the defendant stipulating to the prior felony conviction outside the presence of the jury. Id. at 54-55; see also United States v. Lipps, 659 f.2d 961 (9th Cir. 1981) (where accused stipulated to fact he was convicted felon, Court of Appeals held it error for trial court to determine that proof of prior conviction was more probative than prejudicial); United States v. Yeagin, 927 F.2d 798, 802 (5th Cir. 1991) (where accused offered to stipulate to prior conviction, "to prevent the jury from improperly basing its conclusion on evidence that he had a propensity for crime," trial court erred in allowing government to adduce evidence of prior convictions because probative value of such evidence was outweighed by its prejudicial impact).