U.S. v. Jones, 94-3062

• Decision Date: 10 October 1995
• Docket Number: No. 94-3062,94-3062
• Citation: 67 F.3d 320,314 U.S.App. D.C. 241
• Parties: , 43 Fed. R. Evid. Serv. 146 UNITED STATES of America, Appellee v. Keith E. JONES, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 320

67 F.3d 320

314 U.S.App.D.C. 241, 43 Fed. R. Evid. Serv. 146

UNITED STATES of America, Appellee v. Keith E. JONES, Appellant.

No. 94-3062.

United States Court of Appeals District of Columbia Circuit.

Argued Sept. 11, 1995.

Decided Oct. 10, 1995.

Appeal from the United States District Court for the District of Columbia (No. 91cr00253-02).

Frederick J. Sullivan, Portsmouth, NH, appointed by the court, argued the cause and filed the brief for appellant.

Elizabeth H. Danello, Assistant United States Attorney, Washington, DC, argued the cause for appellee, with whom Eric H. Holder, Jr., United States Attorney, John R. Fisher, and Odessa F. Vincent, Assistant United States Attorneys, were on the brief.

Before: WALD, SILBERMAN and ROGERS, Circuit Judges.

ROGERS, Circuit Judge:

The principal issue in this appeal is the harmfulness of informing the jury of the nature of the defendant's prior felony conviction in a prosecution under 18 U.S.C. Sec. 922(g) ¹ where the prior conviction is essentially identical to other charges in the indictment. On appeal, the government concedes that, in light of the defendant's offer to stipulate to the fact of his prior conviction, it was error to inform the jury of the nature of the prior felony. In accord with precedent in this circuit, we reverse in view of the undue prejudice to the defense and remand for a new trial.

I.

Appellant Keith E. Jones was convicted by a jury of all six counts in an indictment that included the charge of possession with intent to distribute five grams or more of cocaine base in violation of 21 U.S.C. Sec. 841(a)(1) and (b)(1)(B)(iii) (1988) and 18 U.S.C. Sec. 2 (1994). The indictment also charged that Jones was a convicted felon whose possession of a firearm violated 18 U.S.C. Sec. 922(g)(1) (1994). ² The prior felony conviction was for possession with intent to distribute cocaine, the same charge as in one count of the indictment and closely related to the other counts alleging Jones' participation in a drug-distribution scheme.

The government's evidence showed that when the police executed a search warrant at an apartment at 3912 Wheeler Road, in Southeast Washington, D.C., on January 30, 1991, they initially encountered Troy Holder. Upon entering the kitchen, the police saw Jones seated at a table, talking on the telephone. Jones had a plastic bag of crack cocaine in his hand. Several similar packets were on a plate in front of him, and a razor blade was lying next to the plate. The packets appeared to be of a size common in street sales, and there were several empty plastic bags. The police searched Jones and found one plastic bag of crack and one hundred dollars in cash. They also searched the apartment and found three guns in various locations and large quantities of cocaine and phencyclidine (PCP). In a bedroom, the police found several photos with Jones in them, as well as a pay stub in Jones' name between the mattress and box spring of a bed. A slip of paper found on Jones was the same size and had similar coloring as paper found in a locked tool box that contained drugs and a gun and was found in the apartment.

Jones' defense was that he did not live in the apartment and was not part of the drug operation, but was merely a customer who happened to be in the wrong place at the wrong time. According to Jones, Troy Holder, the true drug dealer, had permitted his customer Jones to use the telephone in the apartment to call Jones' girlfriend. Jones' girlfriend testified that Jones had called her and was planning a date when the call was interrupted by the police. Jones' aunt testified that Jones had lived with her at the time of his arrest.

Prior to trial, Jones' attorney had offered to stipulate to the fact that Jones had a prior felony conviction, and he moved to exclude evidence of the nature of the prior conviction pursuant to Rule 403 of the Federal Rules of Evidence. ³ The prosecutor argued that the nature of the prior felony was admissible because the government had the burden of proving the specific prior conviction charged in the indictment. The district court deferred ruling on the defense request, but ordered the prosecutor not to refer to the nature of the prior felony in opening argument. Almost immediately thereafter, however, the district court read the indictment to the jury, including the nature of the prior felony set out in the Sec. 922(g) charge. ⁴

At trial, Jones objected when the prosecutor attempted to elicit the nature of his prior conviction from a government witness. During a bench conference, the district court advised Jones' counsel that "the cat is probably out of the bag" because the court had read all of count six of the indictment to the jury and overruled the objection. The witness proceeded to describe the nature of the prior felony and also identified a certified copy of the judgment of Jones' conviction for possession with intent to distribute cocaine. The district court then gave a limiting instruction. ⁵ The court also included a similar limiting instruction in the final instructions to the jury. The jury found Jones guilty as charged, and the district court denied Jones' motion for a new trial.

II.

On appeal, Jones contends that the district court abused its discretion under Federal Rule of Evidence 403 by allowing the government to prove the nature of his prior conviction, when it was for virtually the same offense for which he was on trial. The government concedes that the evidence of the nature of Jones' prior felony conviction should not have been admitted as part of his Sec. 922(g) prosecution once Jones offered to stipulate to the fact of that conviction. Nonetheless, the government maintains that the error was harmless because the prosecution did not emphasize the evidence, the district court gave limiting instructions, Jones did not move for a severance, and there was compelling evidence of guilt.

The jury was confronted on five occasions with both the fact and nature of Jones' prior felony conviction: when the district court read the indictment to the jury at the beginning of the trial; when the prosecutor elicited oral testimony, over Jones' objection, of the nature of the felony conviction; when the government introduced into evidence the certificate of the felony conviction; when the prosecutor referred to the nature of the conviction during closing argument; and when the court mentioned the nature of the prior conviction twice while instructing the jury on the Sec. 922(g) count. In addition, the jury heard of the nature of the prior felony when the district court twice instructed the jury that it should not consider Jones' prior felony conviction for possession with intent to distribute cocaine in determining his guilt or innocence of the pending firearms offense or any other pending offense of which he was charged in the indictment.

This court has long cautioned against the highly prejudicial nature of other-crimes evidence. It "is always ... prejudicial to a defendant. It diverts 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. James, 555 F.2d 992, 1000 (D.C.Cir.1977) (alteration in original) (quoting United States v. Phillips, 401 F.2d 301, 305 (7th Cir.1968)). Federal Rule of Evidence 403 embodies the concern for a defendant's right to a fair trial and requires the district court to reject evidence whose prejudicial effect substantially outweighs its probative value. See United States v. Simpson, 992 F.2d 1224, 1229 (D.C.Cir.) (finding "the fairness of the entire proceeding" questionable when other-crimes evidence was improperly admitted), cert. denied, --- U.S. ----, 114 S.Ct. 286, 126 L.Ed.2d 236 (1993). ⁶

At the time of Jones' trial, the district court and the trial prosecutor also had the guidance of United States v. Daniels, 770 F.2d 1111 (D.C.Cir.1985). In Daniels, the nature of the prior felony had been redacted from the felon-in-possession-of-firearms charge in the indictment, and the jury was read a stipulation that the defendant had been convicted of an unspecified felony. Id. at 1114. This court affirmed the conviction, declining to fashion an absolute rule against the joinder of ex-felon charges with other charges if evidence of the fact of the prior conviction would normally be inadmissible as to those charges. The court reasoned that such a rule would limit the district court's usual discretion under Federal Rule of Criminal Procedure 14 whether to sever charges to prevent unfair prejudice. Id. at 1115. In so doing, the court pointed out the "special problems" created by joinder of a count that requires proof of the defendant's status as a felon. Id. A jury is apt to misuse the fact of the defendant's prior felony as evidence of his bad character, and, even with a limiting instruction, "prejudice to the defendant is 'well-nigh inescapable.' " Id. at 1115 (citation omitted). The court therefore cautioned that "it consequently will behoove prosecutors and trial judges to proceed with caution when situations similar to this one face them in the future." Id. at 1118.

On appeal, the government concedes that, for purposes of 18 U.S.C. Sec. 922(g), the district court erred in permitting the jury to learn the nature of Jones' prior felony conviction after he offered to stipulate to his status as a felon. Although some circuits have taken a position more favorable to the prosecution, see, e.g., United States v. Breitkreutz, 8 F.3d 688, 690-92 (9th Cir.1993) (holding that the government is not required to accept a stipulation to felon status in a Sec. 922(g) case), the government urges this court to adopt the approach of the First Circuit in United States v. Tavares, 21 F.3d 1 (1st Cir.1994) (en banc). There, the First Circuit held that it was an abuse of discretion to allow the prosecution to introduce evidence of the nature of the prior felony...