defendant was tried on a charge of being a felon in possession of a firearm in violation of the precursor statute to 18 U.S.C. § 922(g). The district court granted the defendant's motion for a bifurcated trial in which the jury would retire to decide the possession issue and then return, if it found that the defendant possessed the weapon, to hear evidence on the felony-conviction element. The defendant declined to stipulate that he had a prior felony conviction.
The Court of Appeals reversed. Its chief objection to the proposed plan of the district court was that "when a jury is neither read the statute setting forth the crime nor told of all the elements of the crime, it may, justifiably, question whether what the accused did was a crime." Id. at 28. The court described the firearm offense as a "stark" example of this problem since possession of firearms by "most" people is not a crime. Id. It also stated that special interrogatories are "disfavored" in criminal cases because they "curtail the right to a jury trial by allowing the judge to carefully guide the jury to its conclusion." Id. The court extended this reasoning to the government's case because the government has an interest in seeing its cases tried before a fair tribunal and, in the court's view, the trial court's order threatened to "override" or "tamper" with the government's decision to try its case before a jury. Id.
The government's right to a fair hearing of its case must be protected. The concerns of the First Circuit, however, can readily be resolved in the instant case. The court's opinion makes clear that it disfavored the burdensome and awkward bifurcated proceeding ordered by the trial court. But see United States v. Joshua, 976 F.2d 844, 847-48 (3d Cir. 1992) (approving use of bifurcated proceeding where jury retired to decide bank robbery charge, then returned to hear evidence on § 922(g) charge) Such a procedure is not necessary. An instruction omitting the felony-conviction element, as described above, is sufficient to prevent possible prejudice.
Potential unfairness to the government due to the possibility of jury nullification can be foreclosed. A proper charge directs the jury that it is obligated to apply the law, as explained to it by the court, fairly and impartially to the facts as it finds them. The government is entitled to no less and no more.
The likelihood of jury nullification is reduced in cases in which the totality of the evidence removes any doubt the jury might have about the criminality of the defendant's conduct. In jurisdictions such as the Eastern District of New York, jurors are familiar with the many restrictions the law places on ownership of firearms. The circumstances and ruling might well be different in the ranching country of Wyoming where lawful possession of guns is the rule.
Finally, the Collamore court's concern about the use of special interrogatories in criminal cases is inapposite to an instruction omitting the felony-conviction element. Such an instruction does not resemble an interrogatory. It is an ordinary instruction that informs the jury of the law applicable to the government's charge. The jury's verdict is in no way directed or guided by the court. The jury would be required to find the element satisfied in any event.
The Court of Appeals for the Third Circuit, in a case in which a defendant requested protection similar to that sought in the instant case, found no error in the trial court's refusal of the defendant's request, stating, "We perceive no authority for counsel or the court to modify a criminal statute enacted by Congress by eliminating through stipulation one of the elements of the crime." United States v. Williams, 612 F.2d 735, 740 (3d Cir. 1979), cert. denied, 445 U.S. 934, 100 S. Ct. 1328, 63 L. Ed. 2d 770 (1980). That conclusion seems doubtful.
The Federal Rules of Evidence were adopted by Congress and have the force of statute. See Pub. L. No. 93-595, 88 Stat. 1926 (1974) (original enactment of Federal Rules of Evidence); 28 U.S.C. §§ 2072 (statutory authority for promulgation of rules by Supreme Court), 2074(a) (proposed rules must be transmitted to Congress before they take effect); Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 31, 49 L. Ed. 2d 752, 96 S. Ct. 2882 (1976) ("Congress . . . has plenary authority over the promulgation of evidentiary rules for the federal courts.").
A court should interpret Congress's enactments so that they consistently and harmoniously further the policies Congress sought to implement in enacting those laws. Where the government suggests a reading of one statute that causes it to conflict with another, an alternative reading that avoids the conflict should be sought. Watt v. Alaska, 451 U.S. 259, 267, 68 L. Ed. 2d 80, 101 S. Ct. 1673 (1981) (competing statutes must be read to give effect to each if it can be done while preserving their sense and purpose); United States v. Caldera-Herrera, 930 F.2d 409, 411 (5th Cir. 1991) ("Where possible, statutes must be read in harmony with one another so as to give meaning to each provision."). Statutes should be construed to avoid constitutional defects. Rust v. Sullivan, 114 L. Ed. 2d 233, 111 S. Ct. 1759, 1788-89 (1991) (O'Connor, J., dissenting).
In adopting 18 U.S.C. § 922(g)(1) Congress, concerned about the risk posed by weapons in the hands of persons previously convicted of serious crimes, sought to punish and deter such possession. United States v. Daniels, 248 U.S. App. D.C. 198, 770 F.2d 1111, 1118 (D.C. Cir. 1985). Because an essential element of the crime is the fact of the person's prior conviction, the statute potentially conflicts with the strong policy of the Federal Rules of Evidence to prevent the government from making unfair substantive use of a defendant's prior conviction. See Fed. R. Evid. 403 (relevant evidence may be excluded if probative value is outweighed by danger of unfair prejudice), 404(b) ("Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith."), 609(a) (evidence that accused has been convicted of a crime admissible under limited circumstances for purpose of attacking credibility).
These strong protections embodied in the Federal Rules of Evidence are founded upon a policy deeply rooted in the law of evidence and the Constitution's guarantee of due process. See John H. Wigmore, Evidence § 216 (Tillers rev. 1983) (explaining how general rule against substantive use of past crimes and exceptions to rule where evidence proves motive, intent and the like stem from fundamental principle that evidence probative of bad character is not relevant); United States v. Daniels, 248 U.S. App. D.C. 198, 770 F.2d 1111, 1118 (D.C. Cir. 1985) ("The exclusion of other crimes evidence . . . reflects and gives meaning to the central precept of our system of criminal justice, the presumption of innocence."). Every defendant is entitled to a presumption of innocence that can be overcome only by proof of guilt beyond a reasonable doubt. In re Winship, 397 U.S. 358, 25 L. Ed. 2d 368, 90 S. Ct. 1068 (1970). Much of the law of evidence -- the same as much procedural and substantive criminal law -- is structured to guard that constitutional guarantee.
A defendant usually faces the prospect of having a prior crime used against him only if he chooses to place his credibility or character in issue. Fed. R. Evid. 404(a)(1), 609(a)(1). He can ensure that such evidence does not reach the jury by exercising his right to remain silent. U.S. Const. Amend. V. The government may not comment on his decision not to testify. Griffin v. California, 380 U.S. 609, 615, 14 L. Ed. 2d 106, 85 S. Ct. 1229 (1965). While other-crime evidence may be admissible if relevant to a particular issue, pursuant to Rule 404(b), such evidence is excludable at the court's discretion, under Rule 403, for reasons of prejudice.
The law of evidence places barriers between the jury and a defendant's prior crimes because there are limits on how coolly rational the law can expect jurors to be. Generally it is too much to ask jurors to remove from their minds the thought that a defendant's past transgression makes his commission of another more likely. See United States v. Daniels, 248 U.S. App. D.C. 198, 770 F.2d 1111, 1118 (D.C. Cir. 1985) ("To tell a jury to ignore the defendant's prior conviction in determining whether he or she committed the offense being tried is to ask human beings to act with a measure of dispassion and exactitude beyond mortal capacities."). Where as important a principle as the presumption of innocence is at stake, such risks are to be avoided wherever possible. Cf. In re Winship, 397 U.S. 358, 368-75, 25 L. Ed. 2d 368, 90 S. Ct. 1068 (1970) (Harlan, J., concurring) (burden of proof beyond a reasonable doubt represents decision that erroneous acquittals are preferable to erroneous convictions).
These carefully constructed protections would amount to a futile barricade, a Maginot Line easily swept around, were the jury to learn from the court's charge -- after having been assiduously kept in the dark throughout the presentation of the evidence -- that the defendant is a convicted felon. For reasons of both sound statutory interpretation and constitutional policy, a defendant who is willing to stipulate to the felony-conviction element of the crime is, in circumstances where prejudice far outweighs probative value, entitled to an instruction that ensures that the jury will not learn of his criminal record.
The government's right to a fair trial must also be considered. The trial court should base its determination on a careful evaluation of the facts before it. Turning as it does on subtleties of fact and the nuances of courtroom atmospherics, prejudice is a matter for the sensitive exercise of a district judge's discretion. Fed. R. Evid. 403.
III. APPLICATION OF LAW TO FACT
Defendant's case requires the use of a carefully tailored instruction leaving the felony-conviction element out of the court's description of the law. Defendant is charged with many serious crimes, including racketeering, murder and murder conspiracies, that carry heavy sentences. The government's charges, as contained in the indictment and amplified by the testimony of many of its witnesses, amount to an accusation that defendant has led a life of crime. Defendant will probably chose not to testify. His counsel will argue to the jury that the government has not succeeded in meeting the heavy burden required to defeat the presumption of innocence.
Much of the government's proof consists of the testimony of accomplice witnesses. Defense counsel's lengthy and able cross-examination has relied heavily on the substantial impeachment material available for each of these witnesses, including graphic details of the past involvement of many of them in murders and deceit. When it retires to deliberate, this jury may well be on the knife's edge on the question whether to credit the testimony of the government's witnesses. Defendant is depending upon the jury holding the government to its proof at trial and not drawing unfair inferences based upon his past criminal conduct. Such an inference might well tip the scales against him.
An instruction informing the jury in this case of defendant's prior conviction might seriously and unnecessarily undermine the protections of the Federal Rules of Evidence and the Constitution. The Court of Appeals for the District of Columbia Circuit has stated the matter bluntly:
Unfortunately, a side consequence of [ 18 U.S.C. § 922(g)(1)] has been to provide federal prosecutors with a powerful tool for circumventing the traditional rule against introduction of other crimes evidence. . . . We do not believe Congress had such a tactic in mind when it criminalized possession of firearms by ex-felons, and we do not believe the federal judiciary should encourage or countenance this use of the law.
United States v. Daniels, 248 U.S. App. D.C. 198, 770 F.2d 1111, 1118 (D.C. Cir. 1985).
Defendant's application is granted. If defendant stipulates that he has previously been convicted of a felony, the court will charge the jury that it must find defendant guilty of the firearm offense if it finds that he possessed the weapon and that the weapon moved in interstate commerce. The jury will be instructed that the parties have agreed that mere possession is criminal in this case and that it is not for them to decide the wisdom of such a law.
Jack B. Weinstein
United States District Judge
Dated: Brooklyn, New York
December 10, 1992
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