301 F.Supp.2d 36 (2004) | Cited 0 times | D. Maine | February 4, 2004


The Defendant has been indicted on the following charges: Count I,Robbery under the Hobbs Act; Count II, use of a firearm during robberynamed in Count I; Count III, possession of a stolen firearm; Count IV,felon in possession of a firearm; and Count V, possession of oxycontinwith intent to distribute. On December 17, 2003, Magistrate JudgeKravchuk issued an Order, denying the three motions in the matter: amotion to transport prisoner to the crime scene; a motion to delay trialuntil the pre-sentence reports of co-defendants Hunter and Pelotte areavailable; and, a motion to sever Counts III and IV.

The Defendant appeals the part of the Order denying the severance ofCounts III and IV from the Superseding Indictment.1 He essentiallyraises two arguments in his appeal. First, the Defendant cites UnitedStates v. Holloway, 1 F.3d 307 (5th Cir. 1993), and United States v.Dockery, 955 F.2d 50 (D.C. Cir. 1992), for the proposition that thisCourt should sever the felon-in-possession and drug charges because theyare not related to the robbery charges. Second, thePage 2Defendant suggests that a failure to sever the charges will create"undue prejudice in the minds of the jurors."

II. Discussion

A. Severance

Federal Rule of Criminal Procedure 8(a) provides: The indictment or information may charge a defendant in separate counts with 2 or more offenses if the offenses charged — whether felonies or misdemeanors or both — are of the same or similar character, or are based on the same act or transaction, or are connected with or constitute parts of a common scheme or plan.

However, Rule 14(a) provides defendants relief from prejudicialjoinders:

If the joinder of offenses or defendants in an indictment, an information, or a consolidation for trial appears to prejudice a defendant or the government, the court may order separate trials of counts, sever the defendant's trials, or provide any other relief that justice requires.The Defendant urges severance in this instance because, he claims,Counts III and IV are not related to the other charges in the indictment.This Court disagrees. As the Magistrate Judge stated, "the eventsrelating to the allegations in Counts III and IV are closely related tothe events alleged in the other counts." Indeed, Count III chargespossession of a stolen firearm used in the robbery in Counts I and II;Count IV alleges that when he possessed the firearm, he had beenpreviously convicted of a felony; and Count V charges possession withintent to distribute the drug stolen during the robbery in Counts I andII.

Neither Holloway nor Dockery supports the Defendant's position on thisissue. In Holloway, a defendant was charged with armed robbery. 1 F.3d at308. Two months later, he was charged as a felon in possession of afirearm found on him when he was arrested on thePage 3armed robbery charge. Explaining the interaction of Rules 8(a) and14(a), the Fifth Circuit concluded that the district court abused itsdiscretion by refusing to sever the felon-in-possession count because theweapons charge was not related to the robbery charge. However, the FifthCircuit also noted: [I]f the weapons charge had been related to the robbery charges, initial joinder would have been proper and our conclusion in this case would have been different, as this court has previously held on several occasions that a district court may properly refuse severance even though proof of one of the counts requires proof of a prior felony conviction.Id. at 312 n.4 (citation omitted). This case presents the exact scenariodescribed by the Fifth Circuit. The weapon and drug charges areinextricably related to the robbery charges: the Defendant allegedlystole the firearm used in the robbery where he obtained the drugs.Holloway hardly demands severance in this instance.

Similarly, Dockery does not stand for the proposition that this Courtmust sever the counts. In Dockery, the District of Columbia Circuit Courtconcluded that the district court abused its discretion in failing tosever firearm counts from drug counts in an ex-felon's trial. 955 F.2d at51. There, the Government resisted defense motions to sever, to introducethe defendant's prior convictions by stipulation, and to try the count tothe judge. The Government also repeatedly referred to the defendant'sprior conviction during trial. Based on these circumstances, the Dockerycourt held that the high level of care necessary to prevent undueprejudice was not present in the trial. However, the court also reiteratedthe circuit's rejection of a per se rule requiring separate trial ofex-felon counts and limited its holding to the facts of the case beforeit. Certain safeguards, the court explained, demonstrate a "sufficientlyscrupulous regard for the defendant's right to a fair trial" and "protectthe defendant from undue prejudice resulting from joinder." Id. at50-51, 56 (discussing United States v. Daniels, 770 F.2d 1111Page 4(D.C. Cir. 1985)). Such safeguards may include the introduction of priorconvictions by stipulation, a limiting instruction to the jury, and careon the part of the government to refrain from emphasizing the convictionto the jury. Id. The absence of those measures led the Circuit Court toconclude that the district court abused its discretion. Dockery isfactually distinguishable from the case at hand.

B. Juror Prejudice

This Court agrees with the Magistrate Judge and virtually all availablecase law that any prejudicial effect of the felon-in-possession count canbe minimized by a stipulation to the nature of the previous felony. InUnited States v. Tavares, 21 F.3d 1, 5 (1st Cir. 1994), the First Circuitheld that evidence of the nature of a prior conviction, beyond the factof the conviction itself, is inadmissible absent adequate trial courtfindings that its non-cumulative relevance is sufficiently compelling tosurvive the balancing test under Federal Rule of Evidence 403("[E]vidence may be excluded if its probative value is substantiallyoutweighed by the danger of unfair prejudice. . . . "). See also UnitedStates v. Melvin, 27 F.3d 703, 707 (1st Cir. 1994) (discussing Tavares).Here, Tavares creates a significant incentive for the Defendant tostipulate to the prior conviction and a significant burden for theGovernment if it seeks to admit evidence regarding the nature of theprior conviction.

At the conference of counsel on February 4, 2004, the parties confirmedthat they have agreed to enter into a stipulation that the Defendant hasbeen convicted of at least one crime punishable by imprisonment for aterm exceeding one year, thus addressing the court's concerns inTavares.Page 5

III. Conclusion

Therefore, I DENY Defendant's appeal of Magistrate Judge Kravchuk'sDecember 17, 2003 Order.

1. At conference of counsel on February 4, 2004, the Defendant'scounsel indicated that he was uncertain whether he was maintaining hisobjection on Count III. Nevertheless, for the sake of completeness, theCourt will address both counts.

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