IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

UNITED STATES )

)

v. ) Criminal No. xx-293-01 (RMU)

)

xxxxxxxxxxxxxx, )

)

Defendant. )

_________________________)

MOTION FOR SEVERANCE OF COUNTS ONE AND TWO,

IN THE ALTERNATIVE, FOR BIFURCATION OF TRIAL

Defendant xxxxxxxxxxx, through undersigned counsel, respectfully moves the Court for an Order severing Counts One and Two of the indictment from the remaining counts for trial. Severance of these counts--which allege that Mr. xxxxxxx is a prior convicted felon--is required to protect Mr. xxxxxxx's right to a fair trial and to avoid unfair prejudice.

Alternatively, Mr. xxxxxxx moves the Court for an Order bifurcating his trial on Counts One and Two. Unless and until the jurors find, with regard to each of those counts, 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

__________________________

L. Barrett Boss

Assistant Federal Public Defender

625 Indiana Avenue, N.W., Suite 550

Washington, D.C. 20004

(202) 208-7500

Counsel for Gary J. xxxxxxx

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

UNITED STATES )

)

v. ) Criminal No. xx-293-01 (RMU)

)

GARY J. xxxxxxx, )

)

Defendant. )

_________________________)

MEMORANDUM IN SUPPORT OF MOTION FOR SEVERANCE OF COUNTS ONE

AND TWO OR, IN THE ALTERNATIVE, FOR BIFURCATION OF TRIAL

Defendant xxxxxxx has moved the Court for an Order severing Counts One and Two (hereinafter referred to as the "felon-in-possession counts"). These counts charge that Mr. xxxxxxx possessed a firearm or ammunition, and that the firearm or ammunition "had been possessed, shipped and transported in and affecting interstate and foreign commerce," and that Mr. xxxxxxx previously has "been convicted of a crime punishable by imprisonment for a term exceeding one year, that is, Attempted Distribution of Cocaine, in District of Columbia Superior Court Case No. F6209-89."

Alternatively, Mr. xxxxxxx has requested that the Court 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.

Absent severance of counts or a bifurcated trial, Mr. xxxxxxx will be gravely prejudiced if the jury learns of his alleged prior felony drug conviction, even if Mr. xxxxxxx chooses not to take the stand to testify at trial.

BACKGROUND

On October 28, 1995, at approximately 4:30 p.m., police officers responded to a report of a man with a gun. According to the discovery materials, when the officers responded to the scene, they observed an individual who they claim matched the "lookout" description. That individual reportedly threw a handgun from his waistband on to the ground and then ran. After a chase, the officers entered 721 T Street, N.W. where they arrested Mr. xxxxxxx. The discovery materials reveal that Mr. xxxxxxx, post-arrest but pre-rights, made statements to the effect that he does not live at the address at which he was arrested and that the hat recovered by the police on the street belonged to him.⁽¹⁾

All four counts in the indictment charge Mr. xxxxxxx with offenses relating to his alleged possession of the guns and ammunition on October 28th. Count One charges Mr. xxxxxxx with being a felon-in-possession of a Davis .380 caliber semi-automatic pistol in violation of 18 U.S.C. § 922(g)(1). Count Two charges Mr. xxxxxxx with being a felon-in-possession of .380 caliber ammunition. Counts Three charges Mr. xxxxxxx with being in possession of an unregistered Davis .380 caliber semi-automatic pistol, in violation of D.C. Code Section 2311(a). Count Four charges Mr. xxxxxxx with being in possession of unregistered .380 caliber ammunition, in violation of D.C. Code Section 2361(3).ARGUMENT

I. 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 that

[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 insure 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 that

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.

As an alternative approach, the Dockery Court indicated that a trial court could sever the felon-in-possession count from remaining counts of the indictment. See Dockery, 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." Fed. R. Crim. P. 14. Joinder of a felon-in-possession count with other offenses can severely prejudice a defendant at trial by permitting the jury to hear otherwise inadmissible evidence that the defendant has a prior felony conviction. See Dockery, 955 F.2d at 53.⁽³⁾

II. Application of Legal Principles.

Counts One and Two of the indictment in this case charges Mr. xxxxxxx with being a felon-in-possession of a firearm or ammunition. Absent (i) severance of these counts from the remaining counts for trial, (ii) 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, or (iii) an alternative form of relief as suggested in Dockery, the jury improperly would learn of Mr. xxxxxxx's 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. The alleged prior conviction is for a felony drug offense, attempted distribution of cocaine, and the indictment in this case charges weapons offenses. Given the current climate in the District of Columbia--including frequent news reports linking drugs to guns and crimes of violence--jurors who learn that Mr. xxxxxxx has a prior felony drug conviction will be 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). No instruction about Mr. xxxxxxx's alleged felony drug 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.

Under Dockery and Federal Rule of Criminal Procedure 14, the Court should sever the felon-in-possession counts from the remaining counts for trial. See Dockery, 955 F.2d at 57. Alternatively, the Court should bifurcate Mr. xxxxxxx's trial so that the jurors do not hear evidence of the alleged prior drug conviction unless and until they find that Mr. xxxxxxx knowingly possessed a firearm or ammunition that had been transported in interstate commerce. See id. at 55 n.4. If the Court adopts the 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 or ammunition that had been transported in interstate commerce, the jury then would hear evidence about the alleged prior felony drug 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 sever the felon-in-possession counts from the remaining counts for trial. Alternatively, Mr. xxxxxxx requests that the Court bifurcate his trial so that the jurors do not learn of his alleged prior felony conviction unless and until they find that he knowingly possessed a firearm or ammunition that had been transported in interstate commerce.

Respectfully submitted,

A.J. KRAMER

FEDERAL PUBLIC DEFENDER

L. Barrett Boss

Assistant Federal Public Defender 625 Indiana Avenue, N.W., Suite 550

Washington, D.C. 20004

(202) 208-7500

Counsel for Gary J. xxxxxxx

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

UNITED STATES )

)

v. ) Criminal No. xx-0293-01 (RMU)

)

GARY J. xxxxxxx, )

)

Defendant. )

_________________________)

O R D E R

Upon consideration of Defendant Mose's Motion for Severance of Count One and Two or, in the Alternative, 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 _____________, 1995, hereby

ORDERED that defendant xxxxxxx's Motion is granted; and it is further

ORDERED that the counts charging Mr. xxxxxxx with being a felon-in-possession of a firearm in violation of 18 U.S.C. § 922(g)(1) is hereby severed from the remaining counts for trial.

________________________________

THE HONORABLE RICARDO M. URBINA

UNITED STATES DISTRICT JUDGE

Copies to:

L. Barrett Boss

625 Indiana Avenue, N.W.

Suite 550

Washington, D.C. 20004

Anthony Asuncion

U.S. Attorney's Office

555 - 4th Street, N.W.

Washington, D.C. 20001

CERTIFICATE OF SERVICE

I hereby certify that on the day of December 1995, the foregoing Motion for Severance of Counts One and Two or, in the Alternative, for Bifurcation of Trial, and the Memorandum in Support, were served by first-class mail, postage prepaid, upon:

Anthony Asuncion, Esquire

Office of the United States Attorney

for the District of Columbia

555 - 4th Street, N.W.

Washington, D.C. 20001

L. Barrett Boss

1. A motion to suppress these statements is being filed simultaneously.

2. The elements of possession of a firearm [ammunition] after conviction of a felony in violation of 18 U.S.C. § 922(g)(1) are: (1) that the defendant knowingly possessed a firearm [ammunition]; (2) that the firearm [ammunition] had been shipped or transported from one state to another; and (3) that at the time the defendant possessed the firearm [ammunition], the defendant had been convicted of a felony. See Criminal Jury Instructions for the District of Columbia (4th ed. 1993), at Instruction 4.79.

3. In addition to the bifurcated trial approach and the severance of counts approach, the Dockery Court discussed other methods available to provide a fair trial for a defendant charged with felon-in-possession and other offenses. One method is for the trial court to hold a bench trial on the prior felony element of the felon-in-possession charge, so that the jury does not learn of the prior felony. See Dockery, 955 F.2d at 55. Another method is for the defense to stipulate to the defendant's prior felony conviction outside the presence of the jury, so that the jury does not learn of the prior felony. See id. at 54-55. Mr. xxxxxxx requests a severance of counts or bifurcated trial but, in the alternative, he requests that the Court afford him another form of relief, such as a bench trial or stipulation to the Court on the prior felony element of the two felon-in-possession counts.