defendant that he was aware of his prior convictions and that cooperation may be a possibility.
Addressing the second prong, the government has shown that the defendant was aware of his rights and the consequences of waiving them. Each right was explained to him, as required by Miranda, and he indicated both orally and in writing that he understood and waived those rights. Reviewing the totality of the circumstances as required by the Court in Burbine, the Court concludes that the defendant made "both an uncoerced choice and [had] the requisite level of comprehension," Burbine, supra at 421, to give a knowing and voluntary waiver of his Miranda rights.
2. Motion to Sever
Defendant also moves under Rule 14 of the Federal Rules of Criminal Procedure to sever the gun and ammunition counts (counts 2-6) from the drug counts (counts 1 and 6). He argues that the joinder of these offense would unduly prejudice his right to a fair trial and are beyond the curative power of a cautionary instruction.
Rule 14 provides that the Court, in its discretion, may grant severance, order separate trials of counts, or provide whatever other relief justice requires if it appears that the defendant is prejudiced by joinder of offenses. Fed.R.Crim.P. 14. When considering a motion for severance, the Court must balance the accused's right to a fair trial against the public's interest in the efficient and economic administration of justice. United States v. Phillips, 664 F.2d 971 (5th Cir. 1981). While judicial economy is a factor in deciding a severance motion, it should not outweigh a defendant's basic right to a fair trial. United States v. Boscia, 573 F.2d 827, 833 (3rd Cir. 1978).
The defendant first contends that the counts were improperly joined because "the act of possessing a firearm is a separate act from the act of possessing or distributing drugs [and] hence, such acts cannot be considered part of a common scheme or plan." In the alternative, even assuming the counts were properly joined, he argues that they should now be severed because of "the spillover effect [between the gun and drug charges] and the risk of jury confusion.
The Court finds that the drug and gun counts were properly joined. Clearly possession of the drugs is a separate act from possession of the gun. By definition, however, "common scheme or plan" envisions two or more separate acts that are connected together. In this case, the defendant is charged with possessing the gun and drugs at the same time and in the same place. It is certainly conceivable that he did so as part of a common scheme or plan and there is nothing improper about the government joining the counts.
The Court also rejects defendant's argument that even if properly joined, the counts should still be severed. Clearly, there is always a risk of prejudice in a multicount indictment. This does not mean that the government must hold six separate trials on six counts, or even two trials. The defendant makes no showing that there is anything particular about this indictment making it any more prejudicial than any other multicount indictment. Accordingly, defendant's motion for severance will be denied.
3. Motion to Bifurcate
In Counts two and three of the indictment, defendant is charged with unlawfully possessing guns and ammunition having been previously convicted of a felony. Defendant moves to bifurcate his trial on counts two and three so that jurors would not hear evidence of his alleged prior felony conviction unless and until they had determined that defendant knowingly possessed a firearm and/or ammunition that had been transported in interstate commerce. defendant argues that jurors would be unable to put his prior convictions aside and give full effect to the presumption of innocence on the issue of possession. In support of his motion, defendant cites to United States v. Dockery, 293 U.S. App. D.C. 357, 955 F.2d 50 (D.C. Cir. 1992).
However, neither Dockery nor the earlier case of United States v. Daniels, 248 U.S. App. D.C. 198, 770 F.2d 1111 (D.C. Cir. 1985) provides a per se rule requiring the severance of prior felony counts. Rather, the Court of Appeals cautioned trial judges and prosecutors to proceed with care in dealing with such issues when they arise. Trial courts retain considerable flexibility in these matters.
Title 18 U.S.C. § 922(g)(1) criminalizes possession of firearms and ammunition by a convicted felon. The prior conviction is an essential element of the crime and, as such, the Government has the duty and right to prove it. Of course, it would not be necessary or proper for the Government to prove the nature of the prior felony. Such proof would be overly-prejudicial, as well as irrelevant. A stipulation as to the prior felony conviction, along with a cautionary instruction as to how the jury is to consider the stipulation, should be able to cure the prejudice defendant alleges might occur. The potential for prejudice would be minimized by instructing the jury against using the stipulation for any purpose other than to establish the applicable elements of the offenses. United States v. Fennell, 311 U.S. App. D.C. 332, 53 F.3d 1296, 1302 (D.C. Cir. 1995).
For all the reasons stated above, defendant's motions for suppression, severance and bifurcation are denied. An appropriate Order is attached hereto.
United States District Judge
This matter is before the Court on defendant's motions for suppression of physical evidence and statements, for severance of offenses, and for bifurcation of counts two and three. For the reasons stated in the attached Memorandum Opinion, it is hereby
ORDERED that defendant's motion for suppression of physical evidence and statements be DENIED ; and it is further
ORDERED that defendant's motion for severance of offenses be DENIED ; and it is further
ORDERED that defendant's motion for bifurcation of counts two and three be DENIED.
United States District Judge