IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA :
v. : CR. CASE NO. xx-0396-01 (JR)
xxxxxxxxxxxxxxx :
MOTION FOR BIFURCATION OF TRIAL
xxxxxxxxx, through undersigned counsel, respectfully moves the Court for an Order bifurcating his trial on Counts One and Two. Unless and until the jurors find that he knowingly possessed a firearm or ammunition that had been transported in interstate commerce, Mr. xxxxxxx requests that the jurors not learn of his alleged prior conviction.
The grounds for this Motion are more fully set forth in the attached Memorandum.
Respectfully submitted,
A.J. KRAMER
FEDERAL PUBLIC DEFENDER
__________________________
Tony W. Miles
Assistant Federal Public Defender
625 Indiana Avenue, N.W., Suite 550
Washington, D.C. 20004
(202) 208-7500
Counsel for Stephen xxxxxxx
Dated: October 12, 1997
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA :
v. : CR. CASE NO. xx-0396-01 (JR)
xxxxxxxxxxxxx :
MEMORANDUM IN SUPPORT OF MOTION FOR BIFURCATION OF TRIAL
xxxxxxxxxxx has moved the Court for an Order to bifurcate his trial so that, unless and until the jurors determine that he possessed a firearm or ammunition that had been transported in interstate commerce, they do not learn of his alleged prior felony conviction(s).
Absent a bifurcated trial, Mr. xxxxxxx will be gravely prejudiced if the jury learns of his alleged prior felony conviction(s). Such prejudice will result even if Mr. xxxxxxx chooses not to take the stand to testify at trial.
BACKGROUND(1)
On June 3, 1997, at approximately 1:25 a.m., an officer with the Metropolitan Police Department stopped a vehicle occupied by Mr. xxxxxxx in the 3600 block of B Street, S.E., Washington, D.C.. As a result of the stop, a Colt 38 handgun and ammunition were allegedly found in the vehicle.
Mr. xxxxxxx is now charged by indictment with unlawful possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1) and unlawful possession of ammunition by a convicted felon, in violation of 18 U.S.C. § 922(g)(1).
ARGUMENT
I. Relevant Legal Principles
In United States v. Dockery, 955 F.2d 50 (D.C. Cir. 1992), the District of Columbia Circuit considered the prejudice a defendant suffers 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." Id.
The Court recognized that allowing the government to introduce evidence of a defendant's prior crimes in such cases threatens the fundamental principle of our system of criminal justice. The Court declared:
[a] defendant's interest in 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 United States v. Daniels, 770 F.2d 1111, 1118 (D.C. Cir. 1985)); 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").
Although joinder of a felon-in-possession count with other counts for trial is not "always an abuse of discretion under Rule 14," Daniels, 770 F.2d at 1118 (emphasis in original), the D.C. Circuit 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."
Dockery, 955 F.2d at 56 (emphasis added) (quoting Daniels, 770 F.2d at 1118); Daniels, 770 F.2d 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 redacted the indictment to eliminate any reference to the nature of Dockery's prior offense and his probation officer, who testified to Dockery's prior conviction, offered no details about the prior conviction. "But this was not nearly enough to avoid the problem of undue prejudice," Dockery, 955 F.2d at 56 n.5 (emphasis added), and the trial court's actions failed to show "sufficiently scrupulous regard" for Dockery's right to a fair trial, id. at 56 (quoting Daniels, 770 F.2d at 1118). The D.C. Circuit in Dockery ruled that the trial court abused its discretion in failing to sever the felon-in-possession count or take other steps to ensure the defendant's right to a fair trial. See id. at 57.
The Dockery Court suggested several ways that a trial court could provide a fair trial for a defendant charged with felon-in-possession and other offenses, while still achieving judicial economy. See Dockery, 955 F.2d at 54-56. The Court suggested the following:
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.
Id. at 55 n.4 (citing Spencer v. Texas, 385 U.S. 554, 445 n.2 (1967)).(2) Under this approach, which also fully protects the trial court's interest in achieving judicial economy, the felon-in-possession count is not severed from the remaining counts of the indictment for trial. Instead, the defendant receives one trial on the felon-in-possession and other counts of the indictment, but the jury learns of the defendant's prior felony conviction only after the jury finds that the defendant knowingly possessed a firearm that had been transported in interstate commerce.
II. Application of Legal Principles.
Count One of the indictment in this case charges Mr. xxxxxxx with being a felon-in-possession of a firearm and Count Two of the indictment charges Mr. xxxxxxx with being a felon-in-possession of ammunition. Absent a bifurcated trial in which the jury does not learn of the alleged prior crime unless and until they find that Mr. xxxxxxx knowingly and intentionally possessed a firearm or ammunition that had been transported in interstate commerce, the jury improperly would learn of Mr. xxxxxxx' alleged prior crime even if he were to exercise his constitutional right not to testify. Mr. xxxxxxx would be severely prejudiced by the admission of this evidence.
Additionally, considering that Mr. xxxxxxx' prior alleged conviction involved a firearm, a jury learning of this conviction would be particularly unable to put that information aside and give full effect to the presumption of innocence. See Michelson, 335 U.S. at 476 (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"); Daniels, 770 F.2d at 1116 (recognizing "high risk of undue prejudice" when joinder of counts results in admission of prior crimes evidence). Therefore, no instruction regarding Mr. xxxxxxx' alleged felony conviction would effectively cure the prejudice that he would suffer in the eyes of jurors asked to determine whether he also committed the charged firearms and ammunition offenses.
Hence, the Court should bifurcate Mr. xxxxxxx' trial so that the jurors do not hear evidence of the alleged prior felony conviction(s) unless and until they find that Mr. xxxxxxx knowingly possessed a firearm and ammunition that had been transported in interstate commerce. See id. at 55 n.4. If the Court adopts this bifurcated trial approach--which fully protects the trial court's interest in judicial economy--Mr. xxxxxxx would have a single trial and the jury would deliberate about all alleged offenses at the same time. If (and only if) the jury determined that Mr. xxxxxxx knowingly possessed a firearm and ammunition that had been transported in interstate commerce, the jury then would hear evidence about the alleged prior felony conviction. See id. (citing Spencer v. Texas, 385 U.S. at 557 n.2).
CONCLUSION
For the foregoing reasons, and any others which may appear to the Court, Mr. xxxxxxx requests that the Court bifurcate his trial so that the jurors do not learn of his alleged prior felony conviction(s) unless and until they find that he knowingly possessed a firearm and ammunition that had been transported in interstate commerce.
Respectfully submitted,
A.J. KRAMER
FEDERAL PUBLIC DEFENDER
__________________________
Tony W. Miles
Assistant Federal Public Defender 625 Indiana Avenue, N.W., Suite 550
Washington, D.C. 20004
(202) 208-7500
Dated: October 12, 1997
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA :
v. : CR. CASE NO. xx-0396-01 (JR)
STEPHEN xxxxxxx :
ORDER
Upon consideration of Defendant Stephen xxxxxxx' Motion for Bifurcation of Trial, the Memorandum in Support thereof, the government's Response thereto, and the entire record in this matter, it is this ________ day of _____________, 1997, hereby
ORDERED that Mr. xxxxxxx' Motion is granted.
____________________________________
THE HONORABLE JAMES ROBERTSON
UNITED STATES DISTRICT JUDGE
Copies to:
Tony W. Miles
Federal Public Defender's Office
625 Indiana Avenue, N.W.
Suite 550
Washington, D.C. 20004
Leutrell Osborne
U.S. Attorney's Office
555 - 4th Street, N.W.
Washington, D.C. 20001
CERTIFICATE OF SERVICE
I hereby certify that a true and accurate copy of the foregoing Motion for Bifurcation of Trial, and the Memorandum in Support, were served upon Leutrell Osborne, Assistant United States Attorney by hand delivering a copy to a receptacle at the United States District Courthouse, 3rd and Constitution Avenue, N.W., Washington, D.C. provided for pleadings upon the Office of the United States Attorney, on this 12th day of October, 1997.
Tony W. Miles
Assistant Federal Public Defender
1. This background information is a summary based on a police report which has been provided in discovery. Neither Mr. xxxxxxx nor defense counsel has any personal knowledge about the police officers' state of mind and exactly what they saw beyond the general summary which is provided in the police report.
2. The elements of possession of a firearm after conviction of a felony in violation of 18 U.S.C. § 922(g)(1) are: (1) that the defendant knowingly possessed a firearm; (2) that the firearm had been shipped or transported from one state to another; and (3) that at the time the defendant possessed the firearm, the defendant had been convicted of a felony. See Criminal Jury Instructions for the District of Columbia (4th ed. 1993), at Instruction 4.79.