United States v. Gregory O. Daniels

STARR, and Before MIKYA Circuit McGOWAN, Judges, and Senior Circuit Judge.

MIKVA, Judge: Circuit We review this case a criminal convic- robbery, carrying tion for bank a armed license, pistol possession a of a without subsequent felony firearm to a conviction. Daniels, Appellant, Gregory argues O. reversibly by court erred allow- district ing possession togeth- count to be tried robbery er with the and license counts. prior felony Proof of a conviction ele- the defendant was introduced as an possession charge, ment of the but would probably sepa- in a been inadmissible robbery carrying an rate trial for bank pistol. Daniels contends there- unlicensed impermissibly prejudiced fore was that he by the sever the district refusal to two-stage counts hold a trial. On the or to ease, however, facts of unable unfairly prej- Daniels to conclude that was procedure udiced the dis- used court, his trict and we therefore affirm conviction.

I. connection with June bank robbery Washington, Daniels in northwest on four counts a Grand indicted charged Jury. I Daniels and a code- Count robbery in fendant armed bank viola- with Jr., Counsel, 2113(a)(d). Count Magill, J. Student tion 18 U.S.C. Frank § charged pistol Goldblatt, carrying H. Wash- with whom Steven license, D.C., of D.C.Code ington, by this Court and without a violation Appointed charged put stipula- and 4 Dan- should be at the time the Counts 22-3204. § —first possessing of a firearm after a jury, iels with tion was read to the again conviction, violation addition, of U.S.C. final instructions. 1202(a)(1). I) provision, This (App. last retyped dictment was being § before sub- prohibits pos- enacted or mitted read to the so that it did “any by, alia, session firearm” inter prior felony indicate what Daniels’ was. “[a]ny person who ... has been convicted government’s other evidence includ- by a court of the United States or eyewitnesses testimony ed the of three any political subdivision thereof of State robbery who identified Daniels from a felony.” and 3 Counts involved photo array days shown to them two after pistol alleged Daniels was to have used crime, expert testimony identifying a during robbery; Count concerned a palm print left on the bank counter as pistol apart- from Daniels’ different seized Daniels’, testimony eyewitness an robbery days ment four after the but not gun that the in Count 3 resembled the alleged to been used in that crime. have weapon used in robbery. Daniels Daniels moved to sever Counts 3 and 4. presented evidence, no jury and the convict- motion, argued only In his written Daniels ed him all three counts. The severed gun that neither had been shown be fourth count govern- was dismissed at the weapon robbery. hearing a used At request. ment’s however, judge, before the district defense counsel also contended that severance was II.

warranted because introduction of Daniels’ reaching Before merits Dan conviction, prior felony which was an ele- claim, government’s iels’ we address the possession offenses, ment of the firearm threshold contention that the claim was unduly prejudicial respect be government points waived below. The out robbery charges. and license that Daniels’ written motion in district

The district court denied motion as to not argument court did raise the now granted pressed Count 3 but as to appeal, Count 4. The on and that Daniels never pistol Court reasoned that the in specifically proposed involved two-stage a trial to had Count 3 been “at least tentatively iden- judge. district tified” weapon as the robbery used suggestion The that Daniels had thus and that trial along of Count 3 with Counts objection any waived of the unduly and would therefore not be charges against wholly him is frivolous. prejudicial. contrast, judge the district 12(b) Rule of the Federal Rules Civil possession found that weapon of the de- pretrial Procedure allows motions to scribed in Count 4 bore no reasonable rela- orally writing, made or in “at the discretion tionship to robbery, the bank and that the judge.” problem of the trial presented jury might unfairly general infer a criminal by prior felony the Daniels’ conviction was disposition possession from Daniels’ orally judge raised before the district after weapon. gave express permis- he counsel defense previously

Daniels had been convicted of sion to raise an argument additional robbery, bank beyond but the was not told the argument severance made Instead, nature of his offense. the written motion. As to Daniels’ failure a stipulation stating simply request was read particular remedy aof two- Daniels had unspec- trial, been convicted of stage we have previously noted felony. government ified tacitly pretrial con- “a explicitly motion need not state stipulation cedes that the would not have made”; grounds upon which a motion is in a separate admissible all necessary is that the motion Counts and 2. The arguments district “contain facts and that make concerning structed the twice the lim- objections.” clear the basis of defendant’s evidentiary ited stipulation use to which the Bailey, lowed wide latitude in (D.C.Cir.), determining nom. whether cert. denied sub 853,103 grant relief; severance or other the trial v. Walker United decision may generally Daniels court’s 74 L.Ed.2d be reversed “only upon a clearly requirement. finding this minimal of clear met

abuse discretion.” United States v. argu Lewis, support (D.C.Cir.1980); of its waiver accord, as well ment, Bailey, cites e.g., Kim, Yates, F.2d 368 as United States Poore, (8th Cir.1984), and United States requests Daniels this court exercise Cir.1979). these (4th Each of 594 F.2d 39 supervisory to limit power the district however, inapplicable, manifestly cases Specifi- discretion under on raised the defendant in each because cally, suggests that we rule that an never ar for severance ground appeal charge ex-felon pos- firearm —such prosecutors Federal at all. below gued may session count not tried ease— doing justice; the court to aid duty together charge with another if the convictions to save job their felony convictionwould be inadmissible are of Prosecutors costs. all reversal separate trial charge. of the other He contending advocates, before course argues that situations the trial pro be affirmed should conviction separate court should order trials or a two- proffering as before just grounds, cedural stage trial. procedure, Under the latter prejudicial, potentially is evidence would reach verdict on the attorney States United assistant “[t]he charges hearing other before the prior felo- partisan her his or step back ny ruling evidence and on the ex-felon objec “in an situation and assess role” charge. United fashion.” and fair-minded tive 517, 525-26 F.2d 636 Foskey, v. States supervisory power of federal argu waiver We believe (D.C.Cir.1980). appellate courts is well established. “[A]n lacking totally case was in this ment raised will, course, appellate court require of merit. trial court conform constitutional mandates, may require likewise it to III. procedures follow deemed desirable from viewpoint judicial of practice sound al 14 of Rule of Federal Rules though by nowise commanded or statute gives Criminal Procedure district courts Cupp the Constitution.” v. 414 Naughten, powers prevent broad 146, 396, 400, 94 U.S. S.Ct. 38 L.Ed.2d charges adju can result different are when explore 368 We need not the con single proceeding: dicated here, authority this tours of al because agree though joinder or the appears If it that a defendant special ex-felon charges prob creates by joinder prejudiced is when lems evidence of in an indict- or of defendants offenses separate not be in a admissible joinder or such ment or information charges, of the other we do not believe that may together, the court order for trial joinder an absolute rule counts, separate trials of election or appropriate. pro- or grant a severance defendants justice requires. relief vide whatever IY. charges long 14. As as the

Fed.R.Crim.P. long tradition has joined in the indictment properly Our allegation on of evidence of there is no the introduction information—and barred was erro- that an accused appeal prove that the initial misconduct disposition to ordinarily likely al- as a matter judges neous—district are 1116 he or (quoting

committed offense for which she Phillips, (7th Cir.1968)). is on trial. The exclusion and its estab- Even when exceptions carefully lished codified in the Feder- the trial instructs the significance al Rules of regarding Evidence: the limited it should give crimes, prejudice to evidence of other crimes, wrongs, Evidence of other or acts “well-nigh inescapable.” to the defendant is prove is not admissible to the character Carter, person of a in order to show that he (D.C.Cir.1973). conformity may, acted It therewith. however, be other pur- admissible for high There is thus a risk of preju- undue motive, poses, proof opportu- such as whenever, case, dice as in this joinder of intent, nity, plan, preparation, knowl- counts allows evidence other crimes to edge, identity, or absence of mistake or introduced a trial of charges with accident. respect to which the evidence would other- 404(b). Fed.R.Evid. wise be inadmissible. How to reconcile this risk with the broad generally discretion bad acts evidence exclusion granted trial judges under is founded not on a that the evidence belief the Federal Rules of CriminalProcedure is a irrelevant, fear but rather on a matter of first impression for this court. juries tend give weight, excessive guided Our resolution but not controlled and on a fundamental sense that no one Supreme Spenc- Court’s decision in should be convicted of a crime based his Texas, er See, previous e.g., or her misdeeds. Mi (1967), our own decision States, chelson United in Drew v. United 331 F.2d 85 475-76, 218-19, L.Ed. (1948); (E. McCormick on Evidence § Cleary 1984); 3d ed. 1A Wigmore, J. Evi In Spencer, Supreme upheld Court (P. dence in Trials at statutes, Common Law 58.2 convictions under § Texas recidivist 1983). Tillers rev. ed. juries That provided treat which repeat stiffer sentences for prior highly probative statutes, convictions as has Under jurors offenders. the by empirical investigations. confirmed prior informed of the convictions before Zeisel, See H. Kalven & H. they American issue guilt. By deliberated the of Jury 160 Supreme Such reliance the trier the time the case reached the of “long standing Court, fact offends the two-stage tradition had Texas switched to a protects a criminal procedure, defendant from trial but the Court held that ‘guilt by reputation’ and from ‘unnecessary procedure under convictions the old did not ” prejudice.’ Cook, guarantee United States v. 538 violate the constitutional of due 1000, (D.C.Cir.1976). F.2d 1004 process. observed,

As the Fifth clear, however, Circuit has “a It is far from the concomitant of presumption the upheld proce- inno- Court would the same cence is a defendant must be tried for dure in a trial court. Much the federal did, what he not for who he is.” Spencer United motivation for the decision was Myers, (5th States v. 550 F.2d 1044 the Court’s reluctance to constitutionalize Cir.1977). precept This is law; “fundamental to state evidence Court the noted that its jurisprudence,” American authority significantly United States v. expansive was more Foskey, when it reviewed federal court convictions Consequently, “[ejvidence of a supervisory crime under power. its See 385 U.S. ‘is always prejudicial ... 562-64, Moreover, to a at defendant. S.Ct. at 652-54. It the jury diverts attention of the from the Justice Stewart made clear that he con- question of the responsibility defendant’s judgment only curred in Court’s be- charged for the crime improper question issue cause the raised the case was of his bad character.” United States v. not propriety procedure of the Texas James, (D.C.Cir.1977) 555 only conformity the fourteenth likely

amendment, at 656 was to cumulate the evidence improp- id. S.Ct. see J., concurring); erly. (Stewart, when Justice added to those of the four

Stewart’s vote present This problem is not appears quite possi- dissenting justices, today; sugges case before us there is no gone the would have the decision ble that jury keep straight tion that the could not the trial been held way had other charges against the three different federal court. supporting and the each. evidence Drew, prej- one we considered kind problem pose that this case does ad —the joinder can result from udice that missibility of a conviction be prejudice caused when counts—the joinder cause of of an ex-felon offense— account decid- charge into when takes one not the court in considered Drew. an- ing guilty defendant whether the take Drew Consequently, we can from that a motion for reaffirmed other. We general trial notions court’s 14 is ad- generally severance under respect discretion under Rule should be “in to the trial discretion: dressed ed, but that undue other weigh preju- must any given case the court pertaining to other crimes evidence joinder caused the defendant dice to not be allowed. obviously important considera- expedition justice tion circuits, however, Other have established F.2d at We not- administration.” 331 precise question raised in this case. ed circumstances certain The Third has said in dicta Circuit that “if if even the evidence permissible offenses it is determined that the convictions would ad- charge would not otherwise be not be on the other admissible counts—that in a trial of other: missible were these to be tried alone the counts not where the evidence would [E]ven evidence—then hear this sever trials, separate if have been admissible granted.” should ance charged, it nature of the crimes from the Busic, (3d Cir.1978), prosecutor might appears that grounds, rev’d on other present evidence able (1980). At least the accused is manner that not confound- Circuit, in the Third one district court how and the able ed in his defense will be ever, language merely has treated that the evidence relevant to each to treat hortatory. v. Huslage, States See United charge separately distinctly, the Moreover, F.Supp. (W.D.Pa.1979). 480 870 judge need not order or elec- severance Fourth, Sixth, and Tenth Seventh Cir commencement trial. tion at the of the approach rejected appar cuits all however, If, appears stage at any it later ently taken in United States v. Busic. See that in the trial defendant will be Cir.1984), (4th Silva, 840, 745 843 cert. making or his defense embarrassed — -, 1404, denied, 105 S.Ct. 84 U.S. possibility jury is a that there that the (1985); L.Ed.2d 791 United States Val confused, or has become will become (10th 282, Cir.1983); entine, 290 706 F.2d motion, then, upon proper the trial Aleman, 609 F.2d 298 States v. United severance. should order denied, 946, (7th Cir.1979), 445 U.S. cert. Id. 91-92. (1980); 1345, L.Ed.2d 780 100 S.Ct. (10th Roe, F.2d 600 Nonetheless, we reversed the district 858, 95 Cir.), denied, an 419 U.S. judge’s denial of severance Drew as cert. 107, (1974); United States v. Not would evi- L.Ed.2d 92 abuse of discretion. Cir.1970), Lee, (6th cert. of the de concerning each two offenses F.2d 917 dence 679, 1017, nied, 92 S.Ct. not have admissi- charged in that ease been offense, These courts reasoned separate ble trial of other in a a prejudice is mat found the crimes that to avoid but in addition we severance discretion, jury judge’s so ter left to sufficiently similar that the the trial presumed juries must be to follow ecutors and judges proceed limiting instructions. caution when situations similar to this one face them in the future. nearly sanguine We are not so concern ing efficacy jury instructions cur ing caused the introduc Y. tion of other crimes evidence. tell To In making illegal for ex-felons ignore prior the defendant’s convic firearms, possess Congress was motivated determining tions in whether he she by an understandable desire to restrict being committed the offense tried is to ask ownership weapons by those whose beings act human with a measure of pasts suggested proclivity even a minimal dispassion and beyond exactitude mor well I) toward crime. (App. See U.S.C. cases, capacities. tal In such it becomes 1201; 1097, S.Rep. No. Cong., § 90th 2d particularly expect unrealistic to effective 2-3, Sess. reprinted in 1968 U.S.Code gymnastic” execution the “mental re Cong. & Ad.News 2113-14. Unfortu quired by limiting instructions, Nash v. nately, a consequence side of the law has States, (2d Cir.) United provide been prosecutors federal with a (Learned Hand, J.), denied, cert. 285 U.S. powerful tool for circumventing the tradi (1932), 52 S.Ct. 76 L.Ed. 945 tional rule against introduction of other assumption “the naive prejudicial ef crimes evidence. Whenever an ex-felon is fects can be overcome instructions to charged with committing involving a crime

jury” clearly becomes more than ever “un gun, prosecutors may use inform mitigated fiction,” Krulewitch v. United of the defendants’ convic 440, 453, 716, 723, merely by tions taking the time to include a (1949) (Jackson, J., 93 L.Ed. 790 concur charge of possession. firearms ring). observed, As the Third Circuit has once evidence of crimes reaches the The results in this case are instructive. jury, difficult, “it is most impossible, if not prison sentenced to concurrent to assume integrity pre continued years terms of ten robbery, for armed bank sumption drop of innocence. A years of ink can four for carrying pis- unlicensed not be tol, removed from glass of milk.” years and two possession of a fire- Toto, Government Virgin arm Islands v. after a conviction. convic- (3d Cir.1976); 529 F.2d accord, possession tion for virtually is thus certain Carter, 740 to have no effect the time served defendant; all obtained adding possession ability count was the Nonetheless, are unable to tell previously Daniels had say situation al felony. convicted of a ways an abuse of discretion under Rule and we see no supervi cause to invoke our We do not believe had such a sory power in order to similarly fashion a tactic in mind posses- when it criminalized absolute In particular, rule. we think the sion by ex-felons, of firearms and we do in district court this case demonstrated a not believe the judiciary federal should en- sufficiently scrupulous regard courage for the de or countenance this use of law. right fendant’s to a fair trial to warrant The exclusion of other crimes evidence is affirmance; on record, these facts and this not simply a “technicality” designed pre- joinder not convinced that the vent personnel doing law enforcement from ex-felon offense caused Daniels prej job; undue their gives it reflects meaning emphasize, however, udice. We join precept the central system of our of crimi- der decisions must be informed justice, re nal presumption of innocence. spect special problems for the created That precept exclusion and that must not the introduction evidence, of other crimes be discarded in the judicial name of effi- and that consequently it pros- ciency. behoove this conviction affirmance

Our (2) at hand and the facts closely tied to opinion, length the court dwells at In its judge. by the care taken scrupulous trial courts must consid one factor that on nor is neither commendable general, determining severance is whether er use ex- to seek to prosecutors prudent for to the defendant. Con justified prejudice — escape the encumbrances counts to felon important con cededly, this is a valid of innocence. presumption Yet, admonishing trial courts to cern. allowing other “proceed caution” with Affirmed. counts, proper wise me what seems to the court overlooks concurring in STARR, Judge, Circuit question, namely, of the severance essence judgment: balancing prejudice to the defendant that Mr. today’s judgment I concur in judicial utilization of against the effective by the unfairly prejudiced was not long Joined trials resources. to sever Count failure Court’s District impor recognized to be of fundamental Additionally, remaining charges. from the jus orderly administration of tance the court’s agree with wholeheartedly I tice, in an era beset with particularly man- bright line rule to embrace refusal weighing crowded court dockets. count re- dating whenever severance resulting joinder against felony convictionis proof of a quiring it, flowing expeditious from the benefits charges for trial. with other joined resources has been judicial use of scarce however, me, opinion leaves concern.” recognized as a “dominant briefly out- which I shall concerns several Nolan, 700 F.2d v. line. (9th Cir.), denied, cert. 462 U.S. (D (1983); 3095, 77 L.Ed.2d 1354 see also 182, 191 Lyles, 593 F.2d appellant’s pro- United States refusing adopt While denied, (2d Cir.), cert. of automatic sever- bright line rule posed As 59 L.Ed.2d 789 supervi- S.Ct. ance, clearly views our the court Circuit, through Judge speaking sufficiently permit Second broad sory powers as stated, Feinberg, aptly (now Judge) Chief propo- I am troubled a result. [permitting joinder] conserves a rule powers “Such supervisory inherent that the sition resources, alleviates burdens Ap- permit Courts the federal courts and avoids the serving jurors, citizens supervisors of the roving peals to sit as reiterate tes necessity having witnesses bench, meet shaping rules to federal trial of trials.” United timony in a series they another as needs of one sort or felt (2d Borelli, proce- States arise, specific rule of even where today on Cir.1970). court’s silence Federal the issue. expressly controls dure is odd countervailing considerations au- these speaks Procedure Criminal leading opinion on light of this circuit’s broad dis- thoritatively to the trial courts’ charging question, a decision the severance motions. ruling on severance cretion the de “weigh prejudice to empowered to courts court is [the] The notion joinder against the by the caused area al- fendant supervisory rule fashion a of econ important considerations obviously promulgated by governed by a rule ready judicial administra expedition in is, omy and the Judicial Conference tion.” Drew United mind, unsettling. The Judicial Confer- my Thus, the court while Congress itself and, ultimately, the ence for the need were, understandably emphasizes field, as it thus occupied this have scrupulously guard to courts legislating counseling judicially in restraint defendant, in the interests to the prejudice already authoritative- addressed in an area system orderly and efficient body an policy-making judiciary’s the ly weighed in the balance. also must be I the Article branch. and (3) procedures utilized conformed below to view, they In my clearly law. did. its The court states that concern the over (4) guided by counts Spencer the Supreme decision Court’s Finally, I to my am constrained demur to Texas and this circuit’s decision in Drew. agnosticism brethren’s the efficacy about majority appear as to Insofar juries. of curative instructions to It is a eases, urging severance in similar I find judicial of faith article “[a] unconvincing. Spencer the assertion clear- presumed to follow trial court’s instruc- ly proposition stands for the that severance Jackson, tions.” required multiple is not where counts re- 1198, (D.C.Cir.1980); see also Shot- sult in introduction evidence Mfg. well Co. United Spencer, defendant’s conviction. 83 S.Ct. 9 L.Ed.2d 357 governmental the Court stated that (1963). The reason for principle this basic orderly jus- terest in the administration simple. foibles, For all jury sys- its outweighed right tice the defendant’s to be tem demands that we faith in and, equally impor- all free from people. work, system For our to we tant, that defendant’s interests are “[t]he put skepticism aside our and have faith instructions, protected by limiting and is, that the it duty do when residing the discretion with the trial here, repeatedly properly instructed as particu- limit forbid the admission of evidentiary limited use certain larly prejudicial evidence.” 385 bring home, To all items. this to we need omitted) (citation (em- 87 S.Ct. at 652 go Spencer no further than itself to be added). phasis law, pure reminded it is the and sim- must, ple, by, question I sufficiently this instructions can Court, protect being “headcounting” Spencer defendant’s inso- interest free prejudice. from undue far as the arithmetic leads 385 U.S. at assertion S.Ct. at 652. [concurring] “when Justice Stewart’s vote is added to those the four dissent- sum, require and the case law ing justices, appears quite possible that trial courts be left free to effectuate gone way the decision would have the other the will of take whatever had the trial been held a federal court.” steps they necessary deem to minimize First, Opinion at Stewart’s Justice prejudice. remedy— Severance is one-paragraph opinion suggest not does certainly most extreme—in fed- that, legally, a different result should have Judge eral courts’ remedial arsenal. Ho- states, opinion obtained that case. His gan, using disposal, the tool's at his assured instead, the joined Justice’s own view that all the satisfaction of members legally permissible trials —while not —are panel that Mr. Daniels received fair trial. optimal trying method for counts in- colleagues Our on the district court bench volving prior convictions. As Justice Stew- similarly fashion, should be left free gave art stated: the Constitution me a “[I]f discretion, their appropriate sound reme- roving impose upon Commission to “provide jus- dies and thus whatever relief Texas, criminal my courts own notions requires.” Nothing tice Fed.R.Crim.P. 14. enlightened policy, join I would not properly required. more can opinion____ question Court’s But the applaud decision is not whether or even approve we personally proce-

whether

dures followed.” 385 U.S. at Appeals

at 656. We on the Court of sim-

ilarly optimal do sit fashion methods interests; liberty

for the maximization of is, job rather,

our to decide whether the

Case Details

Case Name: United States v. Gregory O. Daniels

Court Name: Court of Appeals for the D.C. Circuit

Date Published: Sep 25, 1985

Citation: 770 F.2d 1111

Docket Number: 84-5695

Court Abbreviation: D.C. Cir.