U.S. v. Daniels

• Decision Date: 25 September 1985
• Docket Number: No. 84-5695,84-5695
• Citation: 770 F.2d 1111,248 U.S. App. D.C. 198
• Parties: , 18 Fed. R. Evid. Serv. 1113 UNITED STATES of America v. Gregory O. DANIELS, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1111

770 F.2d 1111

248 U.S.App.D.C. 198, 18 Fed. R. Evid. Serv. 1113

UNITED STATES of America v. Gregory O. DANIELS, Appellant.

No. 84-5695.

United States Court of Appeals District of Columbia Circuit.

Argued April 17, 1985.

Decided Aug. 16, 1985.

As Amended Sept. 25, 1985.

Appeal from the United States District Court for the District of Columbia (Criminal No. 84-00081).

Frank J. Magill, Jr., Student Counsel, with whom Steven H. Goldblatt, Washington, D.C., Appointed by this Court and Martha J. Tomich, Washington, D.C., were on brief, for appellant.

Ellen Bass, Asst. U.S. Atty., Washington, D.C., with whom Joseph E. diGenova, U.S. Atty., Michael W. Farrell, Judith Hetherton and Douglas J. Behr, Asst. U.S. Attys., Washington, D.C., were on brief, for appellee.

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

Opinion for the Court filed by Circuit Judge MIKVA.

Separate concurring opinion filed by Circuit Judge STARR.

MIKVA, Circuit Judge:

We review in this case a criminal conviction for armed bank robbery, carrying a pistol without a license, and possession of a firearm subsequent to a felony conviction. Appellant, Gregory O. Daniels, argues that the district court erred reversibly by allowing the possession count to be tried together with the robbery and license counts. Proof of a prior felony conviction against the defendant was introduced as an element of the possession charge, but would probably have been inadmissible in a separate trial for bank robbery and carrying an unlicensed pistol. Daniels contends therefore that he was impermissibly prejudiced by the district court's refusal to sever the counts or to hold a two-stage trial. On the facts of this case, however, we are unable to conclude that Daniels was unfairly prejudiced by the procedure used by the district court, and we therefore affirm his conviction.

I.

In connection with a June 1983 bank robbery in northwest Washington, Daniels was indicted on four counts by a Grand Jury. Count I charged Daniels and a codefendant with armed bank robbery in violation of 18 U.S.C. Sec. 2113(a)(d). Count 2 charged Daniels with carrying a pistol without a license, in violation of D.C.Code Sec. 22-3204. Counts 3 and 4 charged Daniels with possessing of a firearm after a felony conviction, in violation of 18 U.S.C. (App. I) Sec. 1202(a)(1). This last provision, enacted by Congress in 1968, prohibits possession of "any firearm" by, inter alia, "[a]ny person who ... has been convicted by a court of the United States or of a State or any political subdivision thereof of a felony." Counts 2 and 3 involved the pistol Daniels was alleged to have used during the robbery; Count 4 concerned a different pistol seized from Daniels' apartment four days after the robbery but not alleged to have been used in that crime.

Daniels moved to sever Counts 3 and 4. In his written motion, Daniels argued only that neither gun had been shown to be the weapon used in the robbery. At a hearing before the district judge, however, defense counsel also contended that severance was warranted because introduction of Daniels' prior felony conviction, which was an element of the firearm possession offenses, would be unduly prejudicial with respect to the robbery and license charges.

The district court denied the motion as to Count 3 but granted it as to Count 4. The Court reasoned that the pistol involved in Count 3 had been "at least tentatively identified" as the weapon used in the robbery and that trial of Count 3 along with Counts 1 and 2 would therefore not be unduly prejudicial. In contrast, the district judge found that possession of the weapon described in Count 4 bore no reasonable relationship to the bank robbery, and that the jury might unfairly infer a general criminal disposition from Daniels' possession of the weapon.

Daniels had previously been convicted of bank robbery, but the jury was not told the nature of his offense. Instead, the jury was read a stipulation stating simply that Daniels had been convicted of an unspecified felony. The government tacitly concedes that the stipulation would not have been admissible in a separate trial of Counts 1 and 2. The district judge instructed the jury twice concerning the limited evidentiary use to which the stipulation should be put--first at the time the stipulation was read to the jury, and again in the final jury instructions. In addition, the indictment was retyped before being submitted or read to the jury so that it did not indicate what Daniels' prior felony was.

The government's other evidence included the testimony of three eyewitnesses to the robbery who identified Daniels from a photo array shown to them two days after the crime, expert testimony identifying a palm print left on the bank counter as Daniels', and testimony by an eyewitness that the gun in Count 3 resembled the weapon used in the robbery. Daniels presented no evidence, and the jury convicted him of all three counts. The severed fourth count was dismissed at the government's request.

II.

Before reaching the merits of Daniels' claim, we address the government's threshold contention that the claim was waived below. The government points out that Daniels' written motion in district court did not raise the argument now pressed on appeal, and that Daniels never specifically proposed a two-stage trial to the district judge.

The suggestion that Daniels had thus waived any objection to the joinder of the charges against him is wholly frivolous. Rule 12(b) of the Federal Rules of Civil Procedure allows pretrial motions to be made orally or in writing, "at the discretion of the trial judge." The problem presented by the Daniels' prior felony conviction was raised orally before the district judge after he gave defense counsel express permission to raise an additional argument for severance beyond the argument made in the written motion. As to Daniels' failure to request the particular remedy of a two-stage trial, we have noted previously that "a pretrial motion need not state explicitly the grounds upon which a motion is made"; all that is necessary is that the motion "contain facts and arguments that make clear the basis of defendant's objections." United States v. Bailey, 675 F.2d 1292 1294 (D.C.Cir.), cert. denied sub nom. Walker v. United States, 459 U.S. 853, 103 S.Ct. 119, 74 L.Ed.2d 104 (1982). Daniels clearly met this minimal requirement.

In support of its waiver argument, the government cites Bailey, as well as United States v. Yates, 734 F.2d 368 (8th Cir.1984), and United States v. Poore, 594 F.2d 39 (4th Cir.1979). Each of these cases is manifestly inapplicable, however, because in each the defendant raised on appeal a ground for severance never argued below at all. Federal prosecutors have a duty to aid the court in doing justice; their job is not to save convictions from reversal at all costs. Prosecutors are of course advocates, but before contending that a conviction should be affirmed on procedural grounds, just as before proffering evidence that is potentially prejudicial, "[t]he assistant United States attorney must step back from his or her partisan role" and assess the situation "in an objective and fair-minded fashion." United States v. Foskey, 636 F.2d 517, 525-26 (D.C.Cir.1980). We believe the waiver argument raised in this case was totally lacking in merit.

III.

Rule 14 of the Federal Rules of Criminal Procedure gives district courts broad powers to prevent the prejudice that can result when different charges are adjudicated in a single proceeding:

If it appears that a defendant or the government is prejudiced by a joinder of offenses or of defendants in an indictment or information or by such joinder for trial together, the court may order an election or separate trials of counts, grant a severance of defendants or provide whatever relief justice requires.

Fed.R.Crim.P. 14. As long as the charges were properly joined in the indictment or information--and there is no allegation on this appeal that the initial joinder was erroneous--district judges are ordinarily allowed wide latitude in determining whether to grant severance or other relief; the trial court's decision may generally be reversed "only upon a finding of clear prejudice and abuse of discretion." United States v. Lewis, 626 F.2d 940, 945 (D.C.Cir.1980); accord, e.g., United States v. Kim, 595 F.2d 755, 770 (D.C.Cir.1979).

Daniels requests that this court exercise its supervisory power to limit the district court's discretion under Rule 14. Specifically, Daniels suggests that we rule that an ex-felon charge--such as the firearm possession count in this case--may not be tried together with another charge if the prior felony conviction would be inadmissible in a separate trial of the other charge. He argues that in such situations the trial court should order separate trials or a two-stage trial. Under the latter procedure, the jury would reach its verdict on the other charges before hearing the prior felony evidence and ruling on the ex-felon charge.

The supervisory power of federal appellate courts is well established. "[A]n appellate court will, of course, require the trial court to conform to constitutional mandates, but may likewise require it to follow procedures deemed desirable from the viewpoint of sound judicial practice although nowise commanded by statute or by the Constitution." Cupp v. Naughten, 414 U.S. 141, 146, 94 S.Ct. 396, 400, 38 L.Ed.2d 368 (1973). We need not explore the contours of this authority here, because although we agree with Daniels that joinder of ex-felon charges creates special problems when evidence of the prior felony would not be admissible in a separate trial of the other charges, we do not believe that an absolute rule against such joinder is appropriate.

IV.

Our judicial tradition has long barred the introduction of evidence of prior misconduct to prove that an accused was likely as a matter...