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United States v. White

December 4, 2009

UNITED STATES OF AMERICA
v.
LANCE WHITE, DEFENDANT.



The opinion of the court was delivered by: Nicholas G. Garaufis, District Judge

MEMORANDUM & ORDER

DefendantLance White ("Defendant" or "White") is charged with one count of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). (See Docket Entry # 14.) Section 922(g)(1) makes it unlawful for any person who has been convicted "in any court of a crime punishable by imprisonment for a term exceeding one year" to "possess in or affecting commerce, any firearm or ammunition." 18 U.S.C. § 922(g)(1). Jury selection for his trial is scheduled to begin on December 7, 2009. On November 19, 2009, Defendant made five in limine requests.

Defendant asks the court to (1) prevent the Government from using the phrase "convicted felon" when referring to him in the presence of the jury; (2) preclude any reference to the name, nature or number of his prior felony convictions, give a limiting instruction to the jury concerning the use of his prior convictions, and redact from the indictment information concerning his prior felonies; (3) limit the scope of the Government's cross-examination of him, should he choose to testify; (4) preclude testimony by Government witnesses concerning a confidential informant; and (5) prevent the introduction of certain post-arrest statements. (See Defendant's Motion in Limine (Docket Entry # 36) ("Def. Mem.").)

The parties agree on the second and fourth requests, but the Government opposes the remaining three. (See Government's Memorandum in Partial Opposition to Defendant's Motions in Limine (Docket Entry # 40) ("USA Mem.").) The court heard from the parties on these requests on November 30, 2009. Because of their agreement with respect to two of the requests,*fn1 the court addresses only the first, third, and fifth requests in this Memorandum & Order.

For the reasons that follow, Defendant's motions in limine are GRANTED IN PART AND DENIED IN PART.

I. REQUEST TO EXCLUDE THE PHRASE "CONVICTED FELON"

In his first in limine request, Defendant asks the court to order that the phrase "convicted felon" not be used at trial to characterize him. (See Def. Mem. 3.) He points out that "convicted felon" does not appear in the statutory language of the charged offense, § 922(g)(1), and contends that its use before the jury would be inflammatory. (Id.) Defendant asks the court to require the use of alternative phrases, such as "previously was convicted of a felony" or "has been convicted of a felony," claiming that these phrases are less prejudicial than "convicted felon," and more closely track the statutory language. (Id.) For support, defense counsel points to United States v. Belk, 346 F.3d 305 (2d Cir. 2003), in which the Second Circuit commended a district court that prevented the Government from using the term "convicted felon." (Id.)

The Government opposes this request. It argues that Belk does not establish a rule precluding the use of the phrase "convicted felon" in every case. (USA Mem. 3-4.) Moreover, the Government argues that the alternative phrases suggested by defense counsel are far more cumbersome than "convicted felon," but only slightly less prejudicial, if at all. (Id. at 4.) Finally, the Government argues that defense counsel is free to object at trial if she believes the Government is overusing the phrase, but that outright prohibition is not warranted. (Id. at 4-5.)

The court will not impose a blanket prohibition on the use of the phrase "convicted felon" in reference to Defendant. Although not contained in the statutory text of § 922(g)(1), the phrase is a convenient shorthand for the prior-conviction element of the statutory offense charged, and it is commonly used when referring to that element of the crime. Courts have routinely used it in that manner, and defense counsel has provided no reason why it would be inflammatory to use it before a jury. See, e.g., United States v. Rodriquez, 128 S.Ct. 1783, 1786 (2008) (referring to "possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1)"); United States v. McCourty, 562 F.3d 458, 461 (2d Cir. 2009) (referring to "possession of a firearm as a convicted felon, in violation of 18 U.S.C. § 922(g)(1)"); United States v. Gonzalez, 864 F. Supp. 375, 377 (S.D.N.Y. 1994) (noting that § 922(g)(1) "makes it a federal crime for a convicted felon to possess a firearm that has travelled in interstate commerce").

Of course, the use or repeated use of a label can be prejudicial in certain circumstances. In United States v. Farmer, 583 F.3d 131, 144-48 (2d Cir. 2009), for example, the Second Circuit surveyed cases finding the introduction of a defendant's nickname to be unfairly prejudicial. In Farmer itself, the defendant's nickname, "Murder," was mentioned "no fewer than thirty times during the [Government's] rebuttal summation in a presentation that occupie[d] only sixteen transcript pages," which, according to the Second Circuit, "amounted to a flagrant abuse." Id. at 147. The problem with this tactic was "the prosecutors' frequently repeated, gratuitous invocation of Farmer's nickname, in their addresses to the jury, uttered in a context that, in effect, invited the jurors to infer that the defendant had earned the nickname among his gang colleagues as a result of his proclivity to commit murder, an inference corroborated by the government's evidence that he had yielded to that proclivity in the particular instances being tried." Id. at 146-47. Misuse of a nickname to suggest a criminal proclivity can therefore be highly prejudicial. See id.

Unlike Farmer, however, this case does not present an "earned" nickname suggesting that White has a propensity to commit the charged offense. "Convicted felon" is common shorthand for an element of the offense to which he has stipulated. While the court is cognizant of the need to prevent the jury from finding guilt based upon a criminal propensity, the risk posed by the challenged phrase is minimal. Moreover, it would be unduly burdensome to require the Government to steer completely clear of the phrase "convicted felon" at trial. Less restrictive measures are sufficient to minimize prejudice: the Government has represented that it will not overuse the phrase, and the court will carefully monitor its utilization to ensure that it is not abusively employed by the Government.

Belk does not require a contrary result. In Belk, the defendant asked the district court to bifurcate his one-count felon-in-possession trial into two phases: a phase to determine possession of a firearm, and, if necessary, a phase to determine previous conviction of a felony. 346 F.3d at 308. The district court denied bifurcation and the Second Circuit affirmed, holding that "a district court does not err when it refuses to bifurcate a defendant's jury trial to provide for separate consideration of the elements of a felon-in-possession charge." Id. at 307. In doing so, the Second Circuit noted "the importance of certain measures to protect the defendant in a § 922(g)(1) trial because 'the fact of a prior conviction may have an additional and adverse effect if the jury is unduly influenced by the prior conviction.'" Id. at 311 (quoting United States v. Gilliam, 994 F.2d 97, 100 (2d Cir.1993)). Among such protective measure was an instruction that the Government refrain from characterizing the defendant as a "convicted felon." However, the Second Circuit did not require district courts to prohibit all use of the phrase "convicted felon;" instead, the court referenced the measure as one among many that can reduce the risk of prejudice. Indeed, it placed less emphasis on the prohibition on the phrase "convicted felon" than on curative instructions and the narrowing of prior conviction evidence -- measures the parties will be stipulating to in this case. See id. at 309-11.

For the foregoing reasons, White's request to prohibit the use of the phrase ...


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