IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES )
)
v. ) Criminal No. xxxxxxxxxxxx
)
xxxxxxxxxxxxxx, )
)
Defendant. )
_________________________ )
DEFENDANT'S MOTION TO PREVENT
THE GOVERNMENT FROM OFFERING EVIDENCE OF OR
RELATED TO DEFENDANT'S PRIOR FELONY CONVICTION
Defendant Michael xxxxxx, through undersigned counsel, moves the Court for an order preventing the government from offering evidence of the defendant's prior felony convictions in order to avoid the danger of unfair prejudice. In order to avoid informing the jury about the defendant's prior conviction, he offers to concede the existence of his prior felony conviction. This concession would constitute conclusive proof on the issue and remove the need for the government to present evidence on the element. Old Chief v. United States, 117 S. Ct. 644, 653 (1997).
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
IN THE UNITED STATES DISTRICT COURT FOR
THE DISTRICT OF COLUMBIA CIRCUIT
UNITED STATES OF AMERICA )
v. ) CR. NO. xxxxxxxxxxxx
MICHAEL xxxxxxxxx )
MEMORANDUM IN SUPPORT OF MOTION
TO PREVENT THE GOVERNMENT FROM OFFERING EVIDENCE OF OR RELATED TO DEFENDANT'S PRIOR FELONY CONVICTION
Introduction
The defendant has moved the Court for an order removing the prior conviction element of § 922(g) from the jury's consideration. The elements of possession of a firearm or 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 or ammunition; (2) that the firearm or ammunition had been shipped or transported from one state to another; and (3) that 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 the defendant's prior conviction, the Court could help insure that the defendant is not subject to the grave prejudice which would otherwise result even if he chooses not to take the stand and testify.
Argument
A. Informing the jury of the defendant's prior felony convictions would result in unfair prejudice.
There is no question that informing the jury of the name or nature, or even the existence, of the 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 rested on the principles behind Federal Rule of Evidence 403, which renders inadmissible evidence 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." 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 (bad act) that the defendant is of bad character and take that as raising the odds that the defendant committed the currently charged § 922(g) offense or, worse, as calling for preventive conviction even if the defendant is innocent. See id. Recently, in United States v. Bowie, F.3d (D.C. Cir. May 12, 1998) (slip. op.), the court noted that:
This circuit has long noted that the introduction of evidence of a prior conviction has the potential for grave mischief because of its tendency to "divert 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." . . . The introduction of such evidence goes against the principle that a criminal trial should turn on the facts of the specific charge, not on who the defendant is or what the defendant may have done in the past.Id. (slip op. at 7) (citations omitted).
In United States v. Dockery, the court, recognizing the threat prior crimes evidence presents to the most fundamental principle of our criminal justice system, 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)).
B. The Court has the authority to prevent this potential unfair prejudice by removing the prior felony element from the jury's initial consideration.
As an initial matter, there is no constitutional or statutory requirement that the jury consider each element of the offense during their initial deliberations. See id. (1) Indeed, the absence of any such constitutional or statutory requirement is implicit throughout the Court of Appeals reasoning in Dockery. 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)).
Given that the court is neither constitutionally nor statutorily required to submit all of the elements of the offense to the jury, the sole remaining question is whether initially submitting the prior felony element to the jury serves any constructive purpose. However, it is difficult to conceive of any purpose for admitting the existence of the defendant's prior conviction, other than for the purpose of prejudicing him or for purposes of establishing the element of the offense. In light of the defendant's conditional offer to concede the prior conviction element, there is no need to submit the evidence to the jury in their initial deliberations since this concession constitutes conclusive proof on the issue and removes the need for the government to present evidence on the element. Old Chief v. United States, 117 S. Ct. 644, 653 (1997). (2)
After excluding 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 the defendant guilty of possession, allow the government to present evidence of the conceded prior conviction at that time. Alternatively, the defense would allow the issue to be resolved by the court. The defense defers to the Court and the government as to whether the conceded element is technically found by the jury or by the Court.
The often heard argument that the government should be permitted to present evidence of the prior felony conviction in its case in chief based on the notion that the government should be able to present its case as it deems most effective has been rejected by the Supreme Court in Old Chief. While the government generally has a right to present to the jury with the facts and events it has relied upon in bringing the charges, this rule has "... virtually no application when the point at issue is a defendant's legal status, dependent on some judgement rendered wholly independently of the concrete events of later criminal behavior charged against him." Old Chief v. United States, 117 S. Ct. at 653-655 (1997). Where, as here, the prior felony conviction relates simply to the defendant's status, this general notion has little applicability because " proof of the defendant's status goes to an element entirely outside the natural sequence of what the defendant is charged with thinking and doing to commit the current offense." Id. at 655.
Conclusion
Because removing the prior felon status element from the jury's initial consideration protects the defendant's right to a trial free from unfair prejudice without diminishing the government's opportunity to present its case, the defendant's Motion should be granted.
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
CERTIFICATE OF SERVICE
I hereby certify that a true and accurate copy of the foregoing Motion, Memorandum and Order were served upon Sima Sarrafan, Assistant U.S. Attorney by hand delivering a copy to a receptacle at the U.S. District Courthouse, 3rd and Constitution Avenue, N.W., Washington, D.C. provided for pleadings upon the Office of the U.S. Attorney, on this 21st day of May, 1998.
L. Barrett Boss
IN THE UNITED STATES DISTRICT COURT FOR
THE DISTRICT OF COLUMBIA CIRCUIT
UNITED STATES OF AMERICA )
v. ) CR. NO. xxxxxxxxxxxx
MICHAEL xxxxxx )
O R D E R
Upon consideration of the defendant's Motion To Prevent The Government From Offering Evidence Of Or Related To Defendant's Prior Felony Conviction, the Memorandum in Support thereof, the government's Response thereto, and the entire record in this matter, it is this ________ day of _____________, 1998, hereby
ORDERED that the defendant'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 the defendant's prior felony conviction during its case-in-chief.
UNITED STATES DISTRICT JUDGE
Copies to:
L. Barrett Boss Sima Sarrafan
625 Indiana Avenue, N.W. Assistant U.S. Attorney
Suite 550 555 4th Street, N.W.
Washington, D.C. 20004 Washington, D.C. 20001
1. The defense concedes that the court's holding in Dockery is not controlling precedent in his case since Dockery involved a situation where the felon-in-possession counts were joined with non-felon-in-possession counts, a situation which does not exist here. Nevertheless Dockery demonstrates the inherent dangers of admitting prior felony convictions and, more importantly, that there is no Constitutional or statutory prohibition from removing an element of an offense from the jury's consideration.
2. The Circuit's recent decision in United States v. Crowder, F.3d (D.C. Cir. May 1, 1998) (en banc) (slip op.), does not dispose of this argument. There, the court held that under Rule 404(b) evidence was not rendered inadmissible by a defendant's unequivocal offer to stipulate. However, the instant motion is based on Rule 403, and the court in Crowder distinguished between stipulations involving issues which are "at the core of the offenses charged" and issues which, as in Old Chief and the present case, concern "an element that is 'wholly independent[] of the concrete events' of the charged crime.'" Id. (slip op. at 11) (quoting Old Chief, 117 S. Ct. at 654-55).