U.S. v. Poore

• Decision Date: 08 March 1979
• Docket Number: No. 78-5144,78-5144
• Citation: 594 F.2d 39
• Parties: UNITED STATES of America, Appellee, v. Charles Lewis POORE, Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 39

594 F.2d 39

UNITED STATES of America, Appellee, v. Charles Lewis POORE, Appellant.

No. 78-5144.

United States Court of Appeals Fourth Circuit.

Argued Dec. 8, 1978.

Decided March 8, 1979.

Michael S. Frisch, Washington, D.C., (Ravdin & Frisch, Washington, D.C., on brief), for appellant.

Glenn L. Cook, Asst. U.S. Atty., Baltimore, Md. (Russell T. Baker, Jr., U.S. Atty., Baltimore, Md., on brief), for appellee.

Before WINTER, RUSSELL and WIDENER, Circuit Judges.

WIDENER, Circuit Judge:

Charles Lewis Poore was charged in a two count indictment with possession of an unregistered firearm (a sawed-off shotgun) in violation of 26 U.S.C. § 5861(d) ¹ (Count I) and with possession of a firearm by a previously convicted felon in violation of 18 U.S.C.App. § 1202(a) ² (Count II). Both charges involved a single firearm, a sawed-off shotgun, allegedly possessed by Poore on or about November 1, 1977. Appellant filed a Motion for Relief from Prejudicial Joinder, seeking separate trials on the two counts or, in the alternative, other relief. The motion was denied, and the case proceeded to trial, where the jury found appellant guilty on both counts of the indictment. On appeal, he contends that the district court erred in denying any relief, in the various alternative forms suggested by him, from the prejudicial joinder of Counts I and II. He also contends that the district court erred in denying his Motion for Judgment of Acquittal made at the close of all the evidence.

I

Count II of the indictment charged defendant with possession of a firearm after having been convicted of a felony in violation of 18 U.S.C.App. § 1202(a). It reads as follows:

And the Grand Jury for the District of Maryland further charges:

On or about the 1st day of November, 1977, in the State and District of Maryland,

CHARLES LEWIS POORE

having been convicted of a felony by the Circuit Court of Prince George's County, that is, carrying a handgun, knowingly possessed, received, and transported in commerce and affecting commerce a firearm, that is a Stevens 16-gauge shotgun, Model 58, no serial number, in violation of Section 1202(a) Title 18, Appendix, United States Code.

The contention from the outset has been that Count II improperly contained the nature of the prior felony conviction, i. e., "carrying a handgun." Poore was concerned that the jury, in passing on both counts of the indictment, each of which charged "possession" of a sawed-off shotgun, could be prejudiced by being made aware of the prior handgun conviction. Consequently, Poore asked the district court for various alternative relief all to the end and effect that the jury would not be apprised of the nature of the prior handgun conviction. ³

Appellant requested that the nature of the prior felony conviction contained in Count II, i. e., for carrying a handgun, be stricken from the indictment as surplusage and prejudicial. ⁴ He offered to, and in fact did, stipulate that he had previously been convicted of the felony of carrying a handgun. The nature of Poore's prior felony conviction was not stricken from Count II of the indictment and, thus, the jury was aware of the fact that appellant had previously been convicted of a firearm violation, "carrying a handgun," when determining his guilt or innocence of the offenses charged in Counts I and II of the indictment. ⁵

We begin by noting that pursuant to FRCrP 7(d) a district court, on the motion of a defendant, may strike surplusage from an indictment. ⁶ The purpose of Rule 7(d) is to protect a defendant against prejudicial allegations that are neither relevant nor material to the charges made in an indictment, 1 Wright, Federal Practice and Procedure, § 127 at 277, or not essential to the charge, United States v. Kemper, 503 F.2d 327, 329 (6th Cir. 1974), cert. den., 419 U.S. 1124, 95 S.Ct. 810, 42 L.Ed.2d 824, or unnecessary, or inflammatory, Dranow v. United States, 307 F.2d 545, 558 (8th Cir. 1962). A Rule 7(d) motion is addressed to the discretion of the district court, Kemper at p. 329, Dranow at p. 558; 1 Wright, Federal Practice and Procedure, § 127 at 277-78. Therefore, an appellate court, in determining whether a district court has erred in refusing to strike certain language from an indictment, reviews the district court's decision to see if that decision constituted an abuse of discretion. United States v. Bullock, 451 F.2d 884, 888 (5th Cir. 1971).

Appellant asserts that in the context of this case the district court's refusal to strike the nature of his prior felony conviction from Count II of the indictment constituted an abuse of discretion. We agree. In light of his stipulation to the prior felony conviction, the nature of that conviction was not a necessary element of the statutory offense charged in Count II. Section 1202(a) does not require a specific type of prior felony conviction before the prohibitions of the section attach; any felony conviction suffices. ⁷ Poore's stipulation to the prior felony conviction itself satisfied § 1202(a)'s requirement of a prior felony conviction. See Kemper, pp. 329-330, but Cf. United States v. Smith, 520 F.2d 544, 548 (8th Cir. 1975), cert. den., 429 U.S. 925, 97 S.Ct. 328, 50 L.Ed.2d 294 (1976) (the government is not required to accept defendant's proffered general stipulation of conviction of felony or that of a prior felony conviction to the one relied upon in lieu of offering proof thereof). The prejudice against appellant in permitting the jury to be apprised of the nature of Poore's prior felony conviction by the use of unnecessary language descriptive of that felony conviction contained in Count II is clear. The prior felony conviction was for "carrying a handgun," the same type of firearm offense with which appellant is being charged in this case. Despite the district court's precautionary instructions, we recognize that "to the layman's mind a defendant's criminal disposition is logically relevant to his guilt or innocence of a specific crime." United States v. Foutz, 540 F.2d 733, 736 (4th Cir. 1976). Therefore, we must conclude that it was not unlikely that the jury, being apprised of the fact that appellant had previously been convicted of a like firearms offense, considered that fact in passing on his guilt or innocence of the offenses charged in this case. ⁸ Any such consideration, of course, would be improper. To prevent such prejudice from occurring, the district court should have stricken the objectionable language from Count II of the indictment.

United States v. Kemper, 503 F.2d 327 (6th Cir. 1974), cert. den., 419 U.S. 1124, 95 S.Ct. 810, 42 L.Ed.2d 824, a case very similar to the case before us, supports our conclusion that the district court abused its discretion in refusing to strike the nature of the prior felony conviction from Count II of the indictment. In Kemper, the defendant was convicted on Count II of a three count indictment for transporting a firearm in interstate commerce after having been convicted of a felony in violation of 18 U.S.C. § 922(g). Defendant appealed his conviction on the ground that the district court erred in refusing to strike from the indictment language descriptive of the nature of the felony for which he had been convicted despite his willingness to stipulate to the prior conviction. The indictment read as follows:

Count 2

(T. 18 Sec. 922(g), U.S.C.) THE GRAND JURY FURTHER CHARGES:

That on or about the 30th day of April, 1973, TOMMY KEMPER having been convicted of a crime punishable by imprisonment for a term exceeding one year, that is, the interstate transportation of a female for the purpose of having her practice prostitution and for other immoral purposes on or about the 29th day of November, 1943, by the United States District Court for the Southern District of California, did transport a firearm, that is, a Rossi .32 caliber revolver, from Valdosta, in the State of Georgia, to Madison County, in the Eastern District of Kentucky.

Kemper, 503 F.2d at 328-29.

In passing on the defendant's contention that the district court erred in not striking the nature of his prior felony conviction from the indictment, the court in Kemper stated:

"In the case before us, the material which was requested to be stricken was not a necessary element of the statutory offense in light of the defendant's willingness to stipulate to the prior conviction itself. (footnote omitted, see following) It should suffice for the indictment to contain language simply stating that defendant had previously been convicted in a specified court of a crime punishable by imprisonment for a term exceeding one year, omitting language descriptive of the offense." 503 F.2d at 329.

"A different question would be presented if there was no offer to stipulate to the prior felony conviction, and the government was therefore forced to prove such conviction by reliance upon a prior judgment containing a statement of conviction inextricably interwoven with descriptive details of the offense. Indeed, if the defendant should not be willing to stipulate to the prior conviction, he could Require the prosecution to prove such conviction by the prior record or judgment of conviction." 503 F.2d at 329, n. 3.

The court then explained that the fact the jury had been apprised of the nature of the defendant's prior felony conviction was prejudicial and stated that a serious question had arisen on the facts presented as to whether or not the district court abused its discretion in denying the motion to strike the objectionable details. The court concluded, however, that the district court's refusal to strike the challenged...