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United States District Court, Southern District of New York

April 2, 2003


The opinion of the court was delivered by: Richard Conway Casey, United States District Judge


The Defendant is charged in a one count indictment as a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). Presently before the Court are Defendant's motions to bifurcate the trial, to preclude the Government from cross-examining the Defendant about his two prior felony convictions, and for a jury view of the lobby of 1815 Story Avenue, Bronx, NY. The Court first considers Defendant's bifurcation motion.

The Defendant moves for bifurcation of his trial, such that proof, argument and the jury's consideration of the issue of possession would be bifurcated from the issue of the Defendant's status as a convicted felon. Defendant argues that bifurcation is necessary to prevent prejudice that would result from the jury being presented with evidence of prior convictions when it considers the possession element of section 922(g)(1). The Government opposes the application citing to United States v. Gilliam, 994 F.2d 97 (2d Cir. 1993), for the proposition that the Defendant's prior felony conviction is a necessary and essential element under section 922(g)(1). Gilliam addressed the question of whether a defendant should be permitted to stipulate to a prior felony conviction and thereby entirely remove that element from a jury's consideration. Defendant asserts that Gilliam is not binding because the Defendant is not asking that the prior felony element be removed from the jury's consideration, but rather that consideration of this element be delayed until the jury has decided the possession element. However, the Second Circuit in Gilliam held that:

Evidence is prejudicial only when it tends to have some adverse effect upon a defendant beyond tending to prove the fact or issue that justified its admission into evidence. A prior conviction is not prejudicial where the prior conviction is an element of the crime; rather it prove[s] the fact or issue that justified its admission. . . . 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 100-01.

Indeed, the Second Circuit's decision in Gilliam has clearly enunciated the principle that elements of a single charge cannot be separated for a jury's consideration. As in Gilliam, the Defendant "is not charged with mere possession of a gun, but with possession by a convicted felon." Id. at 101. Therefore, bifurcation, like a stipulation removing the issue of a prior felony from the jury's consideration, would improperly eliminate a "critical element of section 922(g)(1) and is . . . impermissible." United States v. Belk, 2002 WL 237837, at *2 (S.D.N.Y. Feb. 19, 2002); see also United States v. Roberts, 02 Cr. 710, at 2 (S.D.N.Y. Mar. 27, 2003) (Lynch, D.J.); United States v. Gonzalez, 864 F. Supp. 375, 389 (S.D.N.Y. 1994). Accordingly, Defendant's motion is denied.

Second, the Defendant moves to preclude the Government from cross-examining him about his prior felony convictions, the first conviction for criminal sale of a controlled substance in the third degree and the second conviction for attempted robbery in the first degree. The Court is afforded wide discretion in assessing the probative value and prejudicial impact of a prior conviction. See United States v. Pedroza, 750 F.2d 187, 202 (2d Cir. 1984). In striking this balance, the Court has examined the impeachment value of the prior crimes, the date of the conviction and the Defendant's subsequent history, the degree of similarity between the past crimes and this crime, the centrality of the Defendant's credibility in this case, and the importance of the Defendant's testimony. Having done so, the Court concludes admitting evidence of Mr. Jenkin's narcotics conviction is appropriate pursuant to Rule 609. The Second Circuit has stated that evidence of a witness's prior narcotics conviction is highly probative on the issue of a witness's credibility. See United States v. Hayes, 553 F.2d 824, 828 (2d Cir. 1977); see also United States v. Feola, 651 F. Supp. 1068, 1127 (S.D.N.Y. 1987). Moreover, Mr. Jenkins' conviction for criminal sale of a controlled substance is recent and therefore probative of his current truthfulness. Additionally, the narcotics conviction is not similar to the felon in possession charge that Mr. Jenkins faces here. Given that the Defendant's testimony may be critical to the jury's resolution of the case, the Court finds that the prejudicial effect of admitting evidence of the Defendant's prior narcotics conviction would not outweigh its probative value.

On the other hand, the Court precludes evidence of Mr. Jenkins' conviction for armed robbery in the first degree. As previously stated, under Rule 609(a), a court should look to the similarity of the past crime and the charged crime to determine whether the probative value of admitting a prior conviction outweighs its prejudicial effect on the accused. Because the attempted robbery conviction, which involved possession of a weapon, is similar to the instant charge, the Court finds that the propensity problem presented by this conviction may weigh against admission. Therefore, in an exercise of caution, the Court concludes that the proper balance may weigh against not admitting this conviction in the circumstances of this case.

Finally, the Defendant has moved for a jury view of the lobby of 1815 Story Avenue. The Court finds that the prudent course in this case is to reserve decision on this motion until the time of trial. See United States v. Mota, 1996 WL 191962, at *2 (S.D.N.Y. Apr. 22, 1996).

In conclusion, the Defendant's motion to bifurcate is denied and the Defendant's motion to preclude admission of his prior felony convictions is denied in part and granted in part. In addition, the Court reserves decision on the Defendant's motion for a jury view until the time of trial.

So Ordered


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