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United States District Court, Southern District of New York

March 27, 2003


The opinion of the court was delivered by: Gerard E. Lynch, United States District Judge.


Defendant Tony Roberts, who is charged with being a felon in possession of a firearm, moves to bifurcate his trial, such that the government would not be permitted to introduce evidence of the defendant's prior conviction, and the jury would not be asked to decide whether that fact had been proven, until after the jury had first decided whether the government had proved beyond a reasonable doubt that he was in possession of a firearm. The motion will be denied.

The universal weight of appellate authority that has addressed this issue is against defendant's proposal. Appellate courts have not only affirmed district courts that have rejected such bifurcation, United States v. Clark, 184 F.3d 858, 867 (D.C. Cir. 1999); United States v. Mangum, 100 F.3d 164, 171 & n. 11 (D.C. Cir. 1996); United States v. Jacobs, 44 F.3d 1219, 1222-23 (3d Cir. 1995); United States v. Birdsong, 982 F.2d 481, 482 (11th Cir. 1993), but have granted mandamus to reverse district courts that granted it, United States v. Barker, 1 F.3d 957, 959 (9th Cir. 1993), modified on other grounds, 20 F.3d 365 (9th Cir. 1994); United States v. Collamore, 868 F.2d 24, 28-30 (1st Cir. 1989), reaffirmed in United States v. Tavares, 21 F.3d 1, 3 (1st Cir. 1994) (en banc).

While our Court of Appeals has not addressed this precise issue, it has addressed the virtually identical argument that a defendant should be permitted to stipulate to a prior felony conviction and thereby remove that element from the jury's consideration altogether. United States v. Gilliam, 994 F.2d 97, 100-03 (2d Cir. 1993). The Court in Gilliam held that the defendant's proposal misunderstood "the nature and function of a jury, to wit: to be informed of the nature of the crime, as well as to find the defendant guilty of the offense at issue beyond a reasonable doubt. Without full knowledge of the nature of the crime, the jury cannot speak for the people or exert their authority. If an element of the crime is conceded and stripped away from the jury's consideration, the jurors become no more than factfinders. The jury must know why it is convicting or acquitting the defendant, because that is simply how our judicial system is designed to work." Id. at 101. The Court explicitly recognized the analogy between Gilliam's proposal and bifurcation, relying on the First Circuit's decision in Collamore, and quoting with approval that Court's conclusion 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 102 (quoting Collamore, 868 F.2d at 28).

Gilliam predated Old Chief v. United States, 519 U.S. 172 (1997), in which the Supreme Court held that, in a prosecution for possession of a firearm by a felon, it was an abuse of discretion to admit evidence detailing the nature of the defendant's prior offense where the defendant was prepared to stipulate that he was a felon. But Old Chief in no way undermines the reasoning of the Court of Appeals in Gilliam, nor its conclusion that the defendant may not require the government to stipulate away the jury's consideration of the fact of the prior offense. To the contrary, the Supreme Court in Old Chief expressly reaffirmed the usual rule that "a criminal defendant may not stipulate or admit his way out of the full evidentiary force of the case as the Government chooses to present it." 519 U.S. at 186-87. The actual evidence can do what no stipulation ever could, "not just to prove a fact but to establish its human significance, and so to implicate the law's moral underpinnings and a juror's obligation to sit in judgment." Id. at 187-88. In United States v. Clark, the District of Columbia Circuit reaffirmed its prior holding that bifurcation was inappropriate, specifically noting that the reasoning of Old Chief did not require such a practice, and recognizing that bifurcation "might well have deprived the prosecution of its rightful opportunity, recognized in Old Chief, `to convince the jurors that a guilty verdict would be morally reasonable.'" Clark, 184 F.3d at 867 (citing Old Chief, 519 U.S. at 188).*fn1

The government (and the Court of Appeals) may sometimes weaken in its enthusiasm for the historic role of the jury in announcing to the community that a guilty verdict is not only legally correct but "morally reasonable." See United States v. Pabon Cruz, No. 01 Cr. 1187 (GEL), 2003 US Dist. Lexis 1673, at *35-*36 (S.D.N.Y. Feb. 4, 2003) (noting Second Circuit's grant of mandamus to direct trial court not to inform jury of mandatory minimum penalties). But this Court adheres firmly to the view of the jury's role proclaimed in Gilliam and Old Chief, and is fully confident in the ability and willingness of properly instructed jurors to separate the question of the moral and legal appropriateness of convicting felons who are found beyond a reasonable doubt to have possessed firearms from the question of whether such possession has in fact been proved by that standard. The government thus will be permitted to prove its case in the ordinary way, introducing evidence (by document or stipulation) of all elements of the offense in a single trial before a single factfinder that will be empowered to return a single, general verdict.


For the reasons set forth above, the motion for bifurcation is denied.


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