IN THE UNITED STATES DISTRICT COURT FOR

THE DISTRICT OF COLUMBIA CIRCUIT



UNITED STATES OF AMERICA )



v. ) CR. NO. xxxxxxxxxxxxxxxxx



xxxxxxxxxxxxxxxxx )



DEFENDANT xxxxxxxxx MOTION TO PREVENT THE GOVERNMENT FROM OFFERING EVIDENCE RELATING TO PRIOR FELONY CONVICTION

AND INCORPORATED MEMORANDUM OF POINTS AND AUTHORITIES

Defendant xxxxxxxxx, through counsel, respectfully moves the Court for an order preventing the government from offering evidence relating to any prior felony conviction to avoid the danger of unfair prejudice. In order to avoid informing the jury about Ms. xxxxxxxxx prior record, she offers to concede the existence of a prior felony conviction. Ms. xxxxxxx's concession would constitute conclusive proof on the issue, would remove the need for the government to present evidence on the element, and would remove the need for the jury to learn of this conviction before returning a verdict on the non-felon-in-possession counts. Old Chief v. United States, 117 S. Ct. 644, 653 (1997).

I. BACKGROUND.

In this expansive indictment, the government alleges in Count Eight that Ms. xxxxxxx possessed a firearm in violation of 18 U.S.C. §922(g). The indictment includes numerous other counts alleging various acts of drug distribution and gun distribution.

II. DISCUSSION.

The elements of the charged crime of possession of a firearm or ammunition after conviction of a felony in violation of 18 U.S.C. § 922(g)(1) are that (1) the defendant knowingly possessed a firearm or ammunition; (2) the firearm or ammunition had been shipped or transported from one state to another; and (3) at the time the defendant possessed the firearm or 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. By preventing the jury from learning about a prior felony conviction, the Court could help ensure that Ms. xxxxxxx is not subject to the grave prejudice which would otherwise result even if Ms. xxxxxxx chooses not to take the stand and testify.

There is no question that informing the jury of the name or nature, or even the existence, of a defendant's prior felony creates a risk of unfair prejudice to the defendant. See Old Chief v. United States, 117 S. Ct. 644, 652 (1997). The holding in Old Chief rests upon the principles that underlie Federal Rule of Evidence 403, which renders evidence inadmissible where "its probative value is substantially outweighed by the danger of unfair prejudice . . . ." In this context, "'unfair prejudice' . . . means an undue tendency to suggest [a] decision on an improper basis, commonly, though not necessarily, an emotional one." See Fed. R. Evid. 403, advisory committee's note. And, in the context of a criminal case, "unfair prejudice. . . speaks to the capacity of some concededly relevant evidence to lure the factfinder into declaring guilt on a ground different from proof specific to the offense charged." Id.

The specific danger of unfair prejudice in § 922(g) cases is that the jury will generalize from the defendant's prior conviction (i.e., prior bad act) that the defendant is of bad character and take that as raising the odds that the defendant committed a charged § 922(g) offense. Even worse, the jury could determine that preventive conviction is necessary even if the defendant is innocent. See id. "Other crimes evidence is always prejudicial to a defendant because it diverts the attention of the jury from the question of the defendant's responsibility for the crime charged to the improper issue of his bad character." United States v. Myles, 96 F.3d 491, 495 (D.C. Cir. 1996) (quoting United States v. Jones, 67 F.3d 320, 322 (D.C. Cir. 1995)).

In United States v. Dockery, the District of Columbia Circuit, recognizing the threat presented by prior crimes evidence to a fair trial, 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 justice, the presumption of innocence." Dockery, 955 F.2d 50, 53 (D.C. Cir. 1992) (quoting United States v. Daniels, 770 F.2d 1111, 1118 (D.C. Cir. 1985)).

There is no constitutional or statutory prescription that the jury consider each element of the offense during their initial deliberations. See id. at 53. Indeed, the absence of any such requirement is implicit in the Dockery court's reasoning. Id. at 53-56. For example, in describing the procedures available to trial courts for eliminating the danger of unfair prejudice from prior convictions, the Dockery court specifically 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)).

Since the Court is not required to submit all of the elements of the offense to the jury, the sole remaining question is whether the initial submission of the prior felony element to the jury would serve any constructive purpose. No such purpose exists; submission of the prior felony element would only serve to prejudice Ms. xxxxxxx or else establish an element of the offense that she is willing to concede in a later proceeding. Such a concession would constitute conclusive proof on the issue and would remove the need for the government to present evidence on the element. Old Chief v. United States, 117 S. Ct. 644, 653 (1997); United States v. Crowder, 87 F.3d 1405, 1410 (D.C. Cir. 1996) ("In order to protect defendants from the prejudicial effects of bad acts evidence without also weakening the Government's ability to prove its case, the conceded elements must be completely removed from the trial"). (1)

As in Dockery, this case involves the joinder of §922(g) charges with non-felon-in-possession charges. This fact distinguishes this case from the typical "922(g)" case in which a defendant is only charged under the felon-in-possession statute. In those cases, the government often relies on the argument that the existence of a prior felony is an element of the charge, and any prejudice to the defendant from the jury hearing about the evidence of a prior felony conviction is inherent to the nature of the specific charge. The calculus, however, shifts where, as here and as in Dockery, the defendant is also charged with other offenses because the 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.

In this case, the jury's knowledge of any of Ms. xxxxxxx's prior felonies, all of which relate to narcotics (based on the information provided by the government in discovery), would under no circumstances be admissible in the government's case-in-chief in his trial on the charges of distributing drugs or unlawful transferring of firearms. Even if the government's typically requested stipulation were accepted, and the jury were not informed of the nature of the prior felony, the mere existence of a prior felony is likely to make the jury think that Ms. xxxxxxx is more likely to have distributed drugs or guns in this case, notwithstanding any curative instruction by the Court. 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"); United States v. Daniels, 770 F.2d 1111, 1116 (D.C. Cir. 1985) (recognizing "high risk of undue prejudice" when joinder of counts results in admission of prior crimes evidence).

Should the Court exclude the prior conviction evidence from the jury's initial deliberations, the Court could, as recommended in Dockery, allow the jury to decide the possession issue, and, if the jury finds Ms. xxxxxxx guilty of possession, allow the government to present evidence of the conceded prior conviction at that time. Alternatively, Ms. xxxxxxx submits that the bifurcated prior felon issue could be resolved by the Court. Ms. xxxxxxx defers to the Court and the government as to whether the conceded element is technically found by the jury or by the Court.

CONCLUSION

By removing Ms. xxxxxxx' prior felon status from the jury's initial consideration, Ms. xxxxxxx will receive a trial free from unfair prejudice without diminishing the government's opportunity to present its case. Accordingly, Ms. xxxxxxx submits that this motion should be granted.



Respectfully submitted,



A.J. KRAMER

FEDERAL PUBLIC DEFENDER





L. Barrett Boss

Assistant Federal Public Defender

625 Indiana Avenue, N.W.

Washington, D.C. 20004

(202) 208-7500

IN THE UNITED STATES DISTRICT COURT FOR

THE DISTRICT OF COLUMBIA CIRCUIT



UNITED STATES OF AMERICA )



v. ) CR. NO.



xxxxxxxxxxx )

 

O R D E R

Upon consideration of Defendant Robin xxxxxxxxx Motion To Prevent The Government From Offering Evidence Relating To Prior Felony Conviction, the Supporting Memorandum, the government's response, and the entire record in this matter, it is this ________ day of _____________, 1998, hereby

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

ORDERED that the government is prohibited from offering any evidence relating to, or making any mention of, the existence of a prior felony conviction as to Ms. xxxxxxx during its case-in-chief.

IT IS SO ORDERED.





THE HONORABLE HAROLD H. GREENE

UNITED STATES DISTRICT JUDGE









Copies To:

Barry Boss

Office of the Federal Public Defender

625 Indiana Avenue, N.W.

Washington, D.C. 20004



Albert Herring

Office of the United States Attorney

555 Fourth Street, N.W.

Washington, D.C. 20001





CERTIFICATE OF SERVICE

I hereby certify that on this ___ day of May, 1998, a copy of the foregoing Motion To Prevent The Government From Offering Evidence Relating To Prior Felony Conviction and Incorporated Memorandum of Points and Authorities was served upon Assistant United States Attorney Albert Herring by hand delivery to a receptacle at the United States District Courthouse, 3rd Street and Constitution Avenue, N.W., Washington, D.C., provided for service of pleadings upon the Office of the United States Attorney. A copy was also sent via U.S. Mail to Joanne Vasco, 4401-A Connecticut Avenue, N.W., Box 301, Washington, DC 20008



L. Barrett Boss

Assistant Federal Public Defender

1. While the D.C. Circuit is currently considering the impact of Old Chief on its decision in Crowder, Ms. xxxxxxx submits that the en banc court's reasoning in that case remains persuasive.