U.S. v. Mason, 95-5118

• Decision Date: 30 May 1996
• Docket Number: No. 95-5118,95-5118
• Citation: 85 F.3d 471
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Robert MASON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 471

85 F.3d 471

UNITED STATES of America, Plaintiff-Appellee, v. Robert MASON, Defendant-Appellant.

No. 95-5118.

United States Court of Appeals Tenth Circuit.

May 30, 1996.

Allen J. Litchfield, Assistant United States Attorney, Tulsa, Oklahoma, (James L. Swartz, Assistant United States Attorney, Tulsa, Oklahoma, on the brief), for Plaintiff-Appellee.

Craig P. Bryant, Assistant Federal Public Defender, Office of the Federal Public Defender, Tulsa, Oklahoma, for Defendant-Appellant.

Before ANDERSON, McKAY, and MURPHY, Circuit Judges.

MURPHY, Circuit Judge.

Defendant was convicted by a jury of possessing a firearm after a prior felony conviction. On appeal, he argues that the trial court erred by instructing the jury, based on his stipulations, that two elements of the offense with which he was charged had been proved. This court affirms.

Defendant Robert Mason was charged in a one-count indictment with possession of a firearm after prior conviction of a felony, in violation of 18 U.S.C. § 922(g). At trial, Mason stipulated that he had previously been convicted of a felony and that the firearm he was charged with possessing had been transported in interstate commerce.

At the close of evidence, the judge instructed the jury that to sustain its burden of proof, the government was required to prove: (1) the defendant had previously been convicted of a crime punishable by imprisonment for a term exceeding one year; (2) the defendant knowingly possessed the firearm described in the indictment; and (3) the possession was in or affecting interstate or foreign commerce. In addition, the court instructed the jury as follows The parties stipulate that the first and third elements have been met, that is, that the defendant has previously been convicted of a crime punishable by imprisonment for a term exceeding one year and that the possession of the firearm was in or affecting commerce. Therefore, the government need not offer proof as to these elements, and you should consider them proven by the government.

Defendant did not object to the jury instructions at trial. The jury returned a verdict of guilty and Mason was sentenced to seventy-eight months imprisonment, to be followed by three years supervised release.

Notwithstanding his stipulations, Mason on appeal argues that the district court erred by instructing the jury that the first and third elements of the crime with which he was charged had been proved. He contends that the district court improperly invaded the province of the jury by removing the stipulated elements from the jury's consideration.

Because no objection was raised at the time of trial, this court reviews the district court's instructions to the jury only for plain error. United States v. Kennedy, 64 F.3d 1465, 1478 (10th Cir.1995). Rule 52(b) of the Federal Rules of Criminal Procedure, which governs an appeal from criminal proceedings, provides that "[p]lain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court." Because the court finds no error in the trial court's instructions to the jury, the court need not determine whether the claimed error was plain or affected substantial rights. See United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 1776-77, 123 L.Ed.2d 508 (1993).

The defendant relies upon the Sixth Circuit's decision in United States v. Jones, 65 F.3d 520 (6th Cir.1995), vacated and reh'g en banc granted, 73 F.3d 616 (6th Cir.1995), ¹ to support his argument that the district court improperly invaded the province of the jury by removing the stipulated elements from the jury's consideration. In Jones, the Sixth Circuit held that it is plain error for a trial court to instruct a jury that an essential element of a crime has been established when the defendant has stipulated to the facts which prove that element. Id. at 522-23. The defendant in Jones, like the defendant in this case, had been charged with possession of a firearm after prior conviction of a felony and had stipulated that he was a convicted felon. Id. at 521. The court, relying on general language from court of appeals and Supreme Court precedent, declared that "stipulated evidence remains evidence for the jury's consideration," and that a trial judge "override[s] or interfere[s] with the jurors' independent judgment" when it instructs the jury that an element of the crime has been established, notwithstanding the defendant's stipulation to that element. Id. at 522. (emphasis in original) (citation and internal quotation marks omitted).

As the dissent in Jones indicates, however, none of the cases cited by the Jones majority involved a stipulation to an element of the crime. Id. at 524-25 (Matia, J., dissenting). Rather, in each of the cases upon which the Jones majority relies, the trial court removed the consideration of an issue from the jury based on the strength or singularity of the government's evidence. See, e.g., United States v. Mentz, 840 F.2d 315 (6th Cir.1988). By relying on such cases, the Jones majority fails to distinguish between evidence and facts.

When the only evidence tends to establish an elemental fact, or when the parties stipulate to evidence tending to establish an elemental fact, the jury must still resolve the existence or nonexistence of the fact sought to be proved. In contrast, the jury need not resolve the existence of an element when the parties have stipulated to the facts which establish that element. In the latter circumstance, the judge has not removed the consideration of an issue from the jury; the parties have. More specifically, by stipulating to elemental facts, a defendant waives his right to a jury trial on that element. If such a partial waiver runs afoul of the Sixth Amendment, then traditional, wholesale waivers manifest in bench trials and guilty pleas must necessarily violate the right to a jury trial. ²

By holding that a defendant may not waive the right to a jury trial on a particular element by stipulating to the facts that prove that element, the Jones decision deprives defendants like Mason of the strategic benefit of a sterile stipulation in lieu of stark evidence of both the number and character of prior felony convictions. See Jones, 65 F.3d at 526 (Matia, J., dissenting). If the jury is allowed to ignore facts that have been proved by stipulation, prosecutors will have little incentive to enter stipulations. Instead, "the government will be forced to introduce into evidence every previous felony conviction a defendant has, lest the jury choose to 'disbelieve' either a stipulation or any one such conviction the government might select." Id. (Matia, J., dissenting). In this case, if Mason had not stipulated to a prior felony conviction, the prosecution likely would have sought to introduce evidence ³ of his multiple felony convictions, including his conviction for assault with a deadly weapon. This result would have been far more prejudicial to Mason than the following antiseptic stipulation: "It is hereby stipulated and agreed between the parties that the defendant, Robert Lee Mason, had been previously convicted in a court of a crime punishable by imprisonment for a term exceeding one year."

Perhaps the most disturbing aspect of Jones is its underlying premise: jury nullification. ⁴ While we recognize that a jury in a criminal case has the practical power to render a verdict at odds with the evidence or the law, a jury does not have the lawful power to reject stipulated facts. Such a power, if exercised, would conflict with the jurors' sworn duty to apply the law to the facts, regardless of outcome. See United States v. Trujillo, 714 F.2d 102, 105 (11th Cir.1983).

In addition to relying on Jones, Mason argues that the Supreme Court's decision in United States v. Gaudin, --- U.S. ----, 115 S.Ct. 2310, 132 L.Ed.2d 444 (1995), mandates a finding of plain error in this case. We disagree. In Gaudin, a criminal prosecution for making false statements in a matter within the jurisdiction of a federal agency, the Court held that the Sixth Amendment required the trial judge to submit the question of the materiality of the defendant's allegedly false statements to the jury. Id. at ----, 115 S.Ct. at 2320. The defendant had not stipulated to the materiality of his statements. Gaudin holds that "[t]he Constitution gives a criminal defendant the right to demand that a jury find him guilty of all the elements of the crime with which he is charged." Id. at ----, 115 S.Ct. at 2314. Our holding simply reaffirms that a defendant may waive this right to a jury determination on a particular issue when it is in his interest to do so. Because the district court's instructions to the jury were consistent with Mason's right to a jury determination of every element of his crime and his decision to waive that right, this court finds no error. ⁵

The judgment of conviction is AFFIRMED.

McKAY, Circuit Judge, dissenting:

As I see it, the issue in this case is whether the court violates a defendant's right to trial by jury when it directs a jury that it must accept stipulated facts as proven. Apparently, the majority believes that no error occurred because the Defendant waived his right to a jury trial as to those facts which he stipulated. Because this position is contrary to clear circuit precedent, I dissent.

I believe the majority's erroneous analysis begins with its failure to understand the nature and intent of Defendant's stipulation. In another case in which a defendant offered to stipulate that he had a prior conviction, we explained the true nature of such a stipulation:

[Defendant]'s proposed stipulation did not attempt to keep from the jury the fact that he was a convicted felon, nor did it seek to preclude the jury from deciding the prior conviction element of the crime. Rather, the stipulation sought only to limit the prejudice that would result from the jury being informed that...