U.S. v. Bowie

• Citation: 142 F.3d 1301
• Decision Date: 12 May 1998
• Docket Number: No. 97-3093,97-3093
• Parties: UNITED STATES of America, Appellee, v. Robert S. BOWIE, Jr., Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1301

142 F.3d 1301

330 U.S.App.D.C. 74

UNITED STATES of America, Appellee, v. Robert S. BOWIE, Jr., Appellant.

No. 97-3093.

United States Court of Appeals, District of Columbia Circuit.

Argued March 10, 1998.

Decided May 12, 1998.

Appeal from the United States District Court for the District of Columbia (No. 96cr00243-01).

Ronald N. Carroll argued the cause for appellant, with whom David A. Handzo was on the briefs.

L. Jackson Thomas, II, Assistant U.S. Attorney, argued the cause for appellee, with whom Wilma A. Lewis, U.S. Attorney, John R. Fisher and G. Michael Lennon, Assistant U.S. Attorneys, were on the brief.

Before: RANDOLPH, ROGERS and TATEL, Circuit Judges.

ROGERS, Circuit Judge:

Robert S. Bowie, Jr., appeals his conviction on two narcotics and four weapons counts, two of which depended on his status as a convicted felon. Drawing on United States v. Daniels, 770 F.2d 1111 (D.C.Cir.1985), and our later decision in United States v. Dockery, 955 F.2d 50 (D.C.Cir.1992), he contends, in effect, that a severance was required so that the jury deciding the drug possession counts would not be aware of his prior felony conviction. Specifically, he contends that the district court abused its discretion by failing to require the government, pursuant to his motion, to choose either severance of the two felon-in-possession counts or a bench trial for those counts, and that he was denied a fair trial and due process of law when the jury was informed of his status even though he did not testify at trial. Because the district court demonstrated sufficiently scrupulous regard for Bowie's right to a fair trial, we affirm. ¹

I.

Counts one and six of the six-count indictment charged Bowie with possession of cocaine base (or crack cocaine) with intent to distribute in violation of 21 U.S.C. § 841 (1994) and possession of marijuana in violation of 21 U.S.C. § 844(a) (1994). Counts two and three charged him with violation of 18 U.S.C. § 922(g)(1) (1994), which prohibits possession of weapons and ammunition transported in interstate commerce by anyone who has been convicted of a crime punishable by a year or more of imprisonment. Counts four and five charged him with possession of weapons and ammunition without proper registration, in violation of District of Columbia law. See D.C.CODE ANN. §§ 6-2311(a), -2361(3) (repl. vol.1995).

Because of the government's burden under the federal weapons and ammunition counts to show that Bowie had a prior felony conviction, see 18 U.S.C. § 922(g)(1) (1994), he asked the district court at a pretrial suppression hearing to adopt a special trial procedure in order to avoid undue prejudice to him on the other counts. The prosecutor had agreed to introduce the evidence of the prior conviction by stipulation, but Bowie's counsel found this insufficient:

Our position ... would be that to protect Mr. Bowie's rights, we need one bit of further protection, and that is that we would ask that [the prior conviction] portion of the case be tried to the Court rather than to a jury. I think that the way we could formulate this is that all of the other elements of the offense would go to the jury, but that one element would be to the Court, and since it would be a stipulation, obviously, if the jury finds all of the other elements, the Court would enter a conviction on that, that count.

The district court declined to sever the felon-in-possession counts from the other counts or to bifurcate factfinding between the jury and the bench. Instead, to minimize any prejudice resulting from the mention of the prior conviction to the jury, the district court ordered that the prosecutor could only enter evidence of the prior conviction by stipulation and without reference to the nature of the underlying crime; that references at trial to the prior conviction would be strictly limited to only those "necessary in explaining the charge to the jury"; and that in final instructions and whenever the prior conviction was mentioned to the jury, the court would instruct the jury not to allow the stipulation to affect its consideration of anything other than that specific element of the felon-in-possession counts. Bowie's first trial proceeded in accordance with this plan but resulted in a mistrial when the jury was unable to reach a verdict on any count.

Prior to the second trial, Bowie again moved to sever the drug possession counts from the counts for possession of weapons and ammunition. He repeated that the stipulation of his prior felony conviction caused him undue prejudice as to the drug possession counts and noted the grant of a severance in a similar case, United States v. Henry, 940 F.Supp. 342 (D.D.C.1996). He maintained that cautionary instructions to the jury could not cure this prejudice and had not done so in the first trial, as post-trial discussions with jurors indicated that the knowledge of his prior felony conviction had affected some jurors' ability to consider each charge on its own merits. The district court had already denied his request that this element of the felon-in-possession counts be tried separately to the bench; thus, Bowie proposed that the district court sever the drug possession counts from the others entirely, pursuant to Federal Rule of Criminal Procedure 14. The prosecutor argued in response that informing the jury of the fact of prior conviction would not be unduly prejudicial and that he had no intention of letting the jury know the nature of the underlying conviction, and thus would not run afoul of this court's opinion in Dockery or the Supreme Court's recent decision in Old Chief v. United States, 519 U.S. 172, 117 S.Ct. 644, 136 L.Ed.2d 574 (1997).

The district court denied severance, expressing skepticism about the probative value of the purported statements by the jurors after the first trial, and the second trial proceeded much as the first: both sides agreed to the same stipulated facts, the prosecution again could not mention the nature of Bowie's prior conviction or describe it except as necessary to explain the felon-in-possession counts to the jury, and the district court gave two cautionary instructions to the jury. The stipulation read to the jury was that Bowie had previously been convicted of an offense punishable by a term of imprisonment exceeding one year, and after the jury heard this stipulation and two others, ² the district court gave a cautionary instruction, ³ the substance of which was repeated in the final instructions to the jury:

You have heard, ladies and gentlemen, that the parties have agreed that the Defendant was convicted of a felony prior to July 10, 1996. And I especially advised you when that came into evidence as to its limited purpose. Now, this is admitted in evidence solely for your consideration of evaluating Counts 2 and 3 of the Indictment, both of which require the Government to prove the Defendant has a prior felony conviction. The fact that the Defendant was convicted of a crime in the past is not evidence that the Defendant is guilty of the offenses with which he is charged in this case. You must not draw any inference of guilt against the Defendant from his prior conviction or use it for any other purpose except as set forth in this instruction. You may consider this prior conviction--you may only consider his prior conviction in determining whether the Government has met its burden with respect to Counts 2 and 3 of the Indictment.

The jury found Bowie guilty on all six counts, and the district court sentenced him to 120 months of imprisonment and eight years of supervised release.

II.

Bowie contends that the district court abused its discretion by not requiring the government, pursuant to his motion, to choose between severing the felon-in-possession counts from the remaining counts or trying these counts to the court without a jury in order to limit the potential prejudice resulting from the introduction of his prior felony conviction. Although the district court both limited the manner in which the prosecution could mention and use that prior conviction and specifically instructed the jury twice not to allow that prior conviction to affect its deliberation inappropriately, Bowie maintains that such steps were inadequate.

Bowie proposed three different ways to minimize the prejudice from the jury's learning of his prior felony conviction. These alternatives were similar to those discussed in Dockery. See Dockery, 955 F.2d at 54-55. Before the first trial, Bowie requested that the district court adopt a bifurcated factfinding procedure, with the jury deciding all the elements of the charged crimes except for the element of a prior felony conviction in counts two and three. The court would try this element alone (but only as a formal matter, given that the parties stipulated that this element was satisfied), and the jury would never have occasion to learn of Bowie's prior conviction. Before the second trial, Bowie filed a motion to sever the felon-in-possession counts from the drug possession counts, such that there would be two entirely separate trials. In the alternative, he requested that the district court adopt a different bifurcated factfinding procedure, this time divided chronologically: the jury would decide all the elements of the crime other than the prior felony conviction element, and only then would receive evidence of and be asked to decide this element (again, only as a formal matter). The district court denied the three requests; thus, the jury was told of Bowie's prior conviction before it began deliberations on all six counts.

This circuit has long noted that the introduction of evidence of a prior conviction has the potential for grave mischief because of its tendency to "divert[ ] the attention of the jury from the question of the defendant's responsibility for the crime charged to the improper issue of his bad character." United States v. Jones, 67 F.3d 320, 322 (D.C.Cir.1995) (...