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UNITED STATES v. ORENA

December 10, 1992

UNITED STATES OF AMERICA
v.
VICTOR J. ORENA, Defendant.



The opinion of the court was delivered by: JACK B. WEINSTEIN

 WEINSTEIN, J.:

 The government maintains that it is entitled to inform the jury as an element of an offense that defendant is a convicted felon even though defendant concedes that this element need not be proved. For reasons indicated below, the jury shall not be informed of the prior conviction.

 Defendant Victor Orena is charged with several serious crimes and conspiracy counts. Among them is a firearm offense that requires as an element of the crime that defendant have previously been convicted of a felony. 18 U.S.C. § 922(g)(1). Defendant is willing to stipulate to a prior felony conviction, precluding proof of the facts pertaining to that conviction; the government consents. Defendant also concedes that he is guilty of the prior felony-conviction element of the offense. He asks the court not to instruct the jury on this element of 18 U.S.C. § 922 (g)(1). The government argues that it is entitled to put the prior felony conviction before the jury since it is an element of the charged crime. Because an instruction concerning the felony element would cause unnecessary risk of prejudice, his request is granted.

 I. FACTS

 The government charges defendant Victor Orena, the alleged "boss" of a major crime "family," with racketeering, racketeering conspiracy, murder, murder conspiracies, conspiracies to make extortionate extensions and collections of credit and two firearm offenses. 18 U.S.C. §§ 892, 894, 922(g)(1), 924(c)(1), 1959(a)(1) and (a)(5), and 1962(c) and (d). Defendant's trial is underway.

 In the firearm count at issue here the government charges that defendant

 having been convicted in a court of a crime punishable by imprisonment for a term exceeding one year, knowingly and willfully possessed in and affecting commerce firearms and ammunition, and received firearms and ammunition which had been shipped and transported in interstate commerce.

 The law defendant is charged with violating makes it a crime

 for any person who has been convicted in any court of a crime punishable by imprisonment for a term exceeding one year . . . to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.

 18 U.S.C. § 922(g)(1).

 Defendant wishes to stipulate that the felony-conviction element of the offense is satisfied in his case. The government has consented to a stipulation informing the jury that defendant had been convicted of a felony in the past. By precluding documentary or testimonial proof of the conviction, defendant would prevent the jury from knowing the type of offense or the circumstances of its commission.

 Concerned about prejudice he might suffer from the jury finding out that he is a convicted felon, defendant also asks the court to keep that fact from the jury. He requests a charge that to convict defendant of the firearm count the jury need only find that he possessed the weapon and that it moved in interstate commerce.

 The court proposed to instruct the jury that Congress has deemed possession unlawful in certain circumstances and that the parties have agreed that such circumstances exist in this case. The government objects to such an instruction and maintains that it is entitled to have the entirety of the statute as well as the contents of the stipulation put before the jury.

 II. LAW

 A. stipulations to Prevent Prejudice

 Defendants routinely stipulate to elements of crimes with which they are charged. The jury is then instructed "that if they find all the other elements established beyond a reasonable doubt, they can resolve the issue against the defendant because it is not disputed." United States v. Figueroa, 618 F.2d 934, 942 (2d Cir. 1980) (such an instruction would be appropriate where defendant expresses with sufficient clarity, by stipulation or otherwise, a decision not to contest the element of intent; error to admit prior conviction); see also United States v. Gill, 490 F.2d 233, 237-38 (7th Cir. 1973), cert. denied, 417 U.S. 968, 41 L. Ed. 2d 1139, 94 S. Ct. 3171 (1974) (the trial court correctly declined to instruct jury on definition of interstate commerce where the parties stipulated that the element was satisfied).

 In a strong opinion for the court of appeals of this circuit, Judge Newman writing for a majority of himself and Judge Oakes, with a dissent from Judge Moore, forcefully and properly put the duty of the district court to weigh possible prejudice in making a decision. He wrote,

 United States v. Figueroa, 618 F.2d 934, 942 (2d Cir. 1980).

 A party is not required to accept another's concession where the trial court, in exercising its discretion, believes probative force overwhelms prejudice. United States v. Gantzer, 810 F.2d 349, 351 (2d Cir. 1987) (holding, in case in which defendant sought to stipulate that photographs were obscene, that "[a] party is not obliged to accept an adversary's 'judicial admission' in lieu of proving the fact" where the "sound discretion" of the trial court resulted in admission); United States v. James, 609 F.2d 36, 50 (2d Cir. 1979), cert. denied, 445 U.S. 905, 63 L. Ed. 2d 321, 100 S. Ct. 1082 (1980) (government generally may refuse an offer to stipulate to facts "where the probative value of the evidence is not substantially outweighed by the danger of unfair prejudice"); cf. John H. Wigmore, ...


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