U.S. v. Jacobs

• Decision Date: 12 January 1995
• Docket Number: No. 93-3644,93-3644
• Citation: 44 F.3d 1219
• Parties: 41 Fed. R. Evid. Serv. 112 UNITED STATES of America v. Orlando JACOBS, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

Page 1219

44 F.3d 1219

41 Fed. R. Evid. Serv. 112

UNITED STATES of America v. Orlando JACOBS, Appellant.

No. 93-3644.

United States Court of Appeals Third Circuit.

Argued June 7, 1994.

Decided Jan. 12, 1995.

Frederick W. Thieman, U.S. Atty., Almon S. Burke, Jr. (argued), Bonnie R. Schlueter, Asst. U.S. Attys., Office of U.S. Atty., Pittsburgh, PA, for appellee.

Thomas S. White, Federal Public Defender, W. Penn Hackney, First Asst. Federal Public Defender, Karen Sirianni Gerlach (argued), Asst. Federal Public Defender, Pittsburgh, PA, for appellant.

Before: MANSMANN, ALITO, and ROSENN, Circuit Judges.

OPINION OF THE COURT

ALITO, Circuit Judge:

Orlando Jacobs has appealed the judgment imposed following his conviction for possession of a firearm by a convicted felon. He argues: (1) that the district court should have bifurcated the elements of the offense with which he was charged, (2) that, if this bifurcation was denied, the district court should have prevented the jury from learning that the prior felony conviction alleged in the indictment was for burglary, (3) that the district court should have excluded evidence that his possession of the firearm occurred during an aborted drug transaction, (4) that the district court gave an erroneous instruction on the requirement of proof beyond a reasonable doubt, and (5) that the Sentencing Commission exceeded its authority in promulgating the "Armed Career Criminal" provision of the Guidelines, U.S.S.G. Sec. 4B1.4. We affirm the judgment of the district court.

I.

Jacobs was indicted in the United States District Court for the Western District of Pennsylvania for one count of possession of a firearm by a convicted felon, in violation of 18 U.S.C. Sec. 922(g)(1). The indictment alleged that Jacobs possessed a .357 magnum revolver on October 22, 1992, after having been previously convicted in 1988 in the Court of Common Pleas of Allegheny County, Pennsylvania, for the crime of burglary.

Before trial, Jacobs' attorney filed a motion in limine to exclude or limit evidence of Jacobs' prior convictions. Noting that the government had stated in pretrial submissions that Jacobs had two prior felony convictions (for burglary and robbery) in addition to the conviction alleged in the indictment, the defense made three separate requests. First, the defense asked the court "to sever the element of possession from the element of a prior conviction so that the jury [would] determine the issue of possession before being informed that Jacobs ha[d] a prior conviction." App. at 313-16 (citing United States v. Joshua, 976 F.2d 844 (3d Cir.1992), and United States v. Busic, 587 F.2d 577 (3d Cir.1978), rev'd on other grounds, 446 U.S. 398, 100 S.Ct. 1747, 64 L.Ed.2d 381 (1980)).

Second, the defense requested that, if severance was not granted, the court should nevertheless prevent the jury from learning that the prior conviction charged in the indictment was for burglary. See id. at 320-21. The defense argued that "to inform the jury of the nature of his prior conviction [was] unnecessary and [would] unfairly prejudice him in violation of Rule 403 of the Federal Rules of Evidence and violate his right to due process of law." Id. at 320.

Third, the defense argued that, if Jacobs chose to testify, his prior convictions should not be admitted for impeachment purposes under Fed.R.Evid. 609. See id. at 321-24.

The district court denied these requests. With respect to severance, the court stated that Joshua and Busic were not controlling because they "deal[t] with the issue of severing other counts," not elements of a single offense. App. 87-88. Turning to the other issues, the court stated:

I am going to permit the admission of the prior burglary conviction. We are not going to get into the details of how it occurred unless you open that door. But the government will offer, I assume, the state court papers reflecting the judgment in that court and the sentence, and I believe again that is appropriate under the circumstances, and I don't believe that any prejudice to the defendant exists under the circumstances, and if any prejudice does so exist, the probative value substantially outweighs any prejudice.

Id. at 88-89.

At trial, the prosecution's evidence showed the following. On October 22, 1992, two undercover Pittsburgh police officers, George Ciganik and Maurice Jones, were on patrol in an unmarked car. As they approached an intersection, they spotted the defendant and two women, Alice Wright and June Coleman. When the officers slowed down, Wright yelled, "[A]re you holding [?]." Jones interpreted this statement as referring to narcotics. Ciganik answered "no," and Wright then asked, "[A]re you looking?" Ciganik responded "yes," and Wright told the officers to pull over. Wright then motioned and spoke to the defendant, and walked to within a few feet of her.

When Ciganik left the car, however, Wright recognized him and shouted to the defendant, "[T]ask force, get out of her[e]." Ciganik took out his badge and shouted that he and his partner were police officers, and the defendant then took two steps back and appeared to swallow objects. As Ciganik approached with his gun drawn, the defendant pulled a .357 magnum revolver from his waistband and pointed it at him. However, the defendant was subsequently disarmed and arrested.

The defendant testified at trial on his own behalf and disputed this version of the events. He stated that just before his arrest, Wright was arguing with the officers. According to the defendant, Ciganik jumped out of his car, put a gun in the defendant's face, told him to open his mouth, "got real mad," and then handcuffed him and threw him in the car. The defendant denied having seen the .357 magnum before the trial. He also testified that at the time of his arrest he had a cast on his arm and was wearing sweat pants, and he said that the .357 magnum could not have fit in the pants' waistband or pockets. On direct examination, the defendant admitted the 1988 burglary conviction, stating that he had pled guilty because he was guilty, and on cross-examination the prosecutor elicited a similar admission, apparently for impeachment purposes.

Coleman also testified for the defense, but her testimony was sketchy. She said that she, Wright, and the defendant were walking together when Wright approached a car and then motioned to the defendant. Coleman said that she kept walking and that, when she heard shouting and turned around, Wright and the defendant were in custody.

The jury found the defendant guilty. Applying the "Armed Career Criminal" provision of the Guidelines, U.S.S.G. Sec. 4B1.4, the district court concluded that Jacobs' guidelines' sentencing range was 262 to 327 months, and the court sentenced him to imprisonment for 22 years. This appeal followed.

II.

The defendant's first argument is based primarily on Busic and Joshua. In Busic, we stated in dictum that, if a defendant is charged with multiple offenses, including one requiring proof of a prior felony conviction, the trial judge should sever the latter offense unless the conviction would be independently admissible with respect to the other charges. See Busic, 587 F.2d at 585. We noted, however, that one district court had addressed this problem by taking the "novel approach" of conducting a "two-stage trial, whereby the jury, having reached a verdict on the other counts, would then proceed to consider the counts requiring proof of prior convictions." Id.

In Joshua, we specifically approved this latter approach. In that case, the defendant was charged with (count I) armed bank robbery, (count II) use of a firearm during a crime of violence, (count III) receipt of a firearm with an obliterated serial number, and (count IV) possession of a firearm by a convicted felon. The district court conducted a bifurcated trial. "The jury first heard evidence and deliberated concerning the first three counts, and then heard evidence of the defendant's criminal record and deliberated concerning Count Four." Id. at 846. On appeal, the defendant argued that the district court should have severed count IV and conducted an entirely separate trial on that charge, but we disagreed and wrote:

We conclude that the procedure adopted by the district court here strikes an appropriate balance between the concern about prejudice to the defendant and considerations of judicial economy.... The defendant's criminal past is not made known to the jury until after they have reached a verdict with respect to the other charges. At the same time, this procedure is considerably more efficient than conducting an entire new jury trial on the weapon possession charge at a later date.

Joshua, 976 F.2d at 848.

Joshua is not directly applicable to this case because here the defendant was charged in a single-count indictment, but the defendant maintains that the logic of Joshua required a bifurcated trial nevertheless. He argues:

[W]here, as here, a prior conviction is an element of the offense, that element should be severed, and the jury should be permitted to determine the existence of the other elements, before learning that the defendant has a prior conviction. The goal of such severance would be the same as the goal for severance of counts: the insulation of the jury from prejudicial information to which it would not otherwise be exposed. It would therefore be a logical extension of Joshua to allow severance of elements of the offense.

Appellant's Br. at 9.

This precise argument has been rejected by three other courts of appeals, and we find their reasoning persuasive. In United States v. Collamore, 868 F.2d 24 (1st Cir.1989), the defendant, who had been indicted for possession of a firearm by a convicted felon, "moved to bifurcate the possession element of the crime from the element pertaining to his prior convictions." Id. at 25-26. The district court ruled in the defendant's favor and entered an order...