BARRY J. PORTMAN
Federal Public Defender
STEVEN G. KALAR
Assistant Federal Public Defender
440 Golden Gate Avenue
San Francisco, CA 94102
Telephone: (415) 436-7700
Counsel for Defendant XXXX
IN THE
UNITED STATES DISTRICT COURT
FOR THE
NORTHERN DISTRICT OF CALIFORNIA
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UNITED STATES OF AMERICA,
Plaintiff,
v.
XXXX XXXXX,
Defendant.
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No. CR 00-0000 ABC
DEFENDANT=S MOTION REGARDING MISJOINDER, MOTION TO
SEVER, AND MOTION TO SUPPRESS AND MEMORANDA OF POINTS AND AUTHORITIES
Hearing Date: Wednesday, January 31, 2001 at 2:30
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TO: UNITED STATES ATTORNEY,
PLAINTIFF; AND ROBERT S. MUELLER, III, UNITED STATES ATTORNEY, NORTHERN
DISTRICT OF CALIFORNIA; AND ANDREW SCOBLE, ASSISTANT UNITED STATES ATTORNEY
PLEASE TAKE NOTE that on
Wednesday, January 31, 2001 Mr. XXXX XXXXX will move this Court to dismiss or
sever improperly joined counts in a federal indictment; sever other counts; and
suppress all fruits of an unlawful search.
This motion is based on the following memoranda of points and authority,
the Federal Rules of Criminal Procedure, the United States Constitution, all
relevant legal authority and such argument as will be entertained by the Court
at the hearing on January 31.
Introduction
In an earlier motion Mr. XXXX
has challenged the federalization of state offenses via the thin veneer of
jurisdiction in 18 U.S.C. ' 922(g)(1). The present motions again question the
federal government=s attempt to exercise a general police power
not granted by the Constitution. In
these present motions, Mr. XXXX challenges a crazy-quilt indictment that
alleges an old state offense that has already served as a basis for a state
parole revocation, a new unrelated state robbery offense presented in the guise
of a federal firearm crime, and another federal Aserial number@ charge as the belt for the government=s
suspenders.
This Court should suppress
all fruits arising from an unlawful search that was the basis of Count Three,
involving the 1998 possession of a .380 Colt pistol. If the Court declines to suppress this evidence, the Court should
dismiss or sever Count Three from the indictment, which was improperly joined
under Federal Rule of Criminal Procedure 8(a).
The Court should further sever Count Two of the indictment B
alleging possession of a firearm with an obliterated serial number. Count Two cannot not be fairly defended when
tried with Count One, alleging felon in possession of a firearm in May
2000. The result of these necessary
severances will be three trials before three separate juries regarding
additional counts that appear to matter not a whit for sentencing.
In the alternative, the
government can supercede and allege only the heart of the case B
Count One, alleging the possession of a gun in May 2000 reportedly used in an
Ocean Beach robbery B thereby avoid interesting but unnecessary
litigation in this and appellate courts.
Background
Mr. XXXX is charged in a
gerrymandered federal indictment that proceeds in reverse chronological
order. See Indictment, Appendix A.
In Count One, Mr. XXXX is
charged with being a felon in possession of a nine millimeter Lorcin pistol on
May 9, 2000. Id. at Count One,
Bates 00163. That is the weapon
allegedly involved in the Ocean Beach robbery discussed by government witnesses
in the line-up evidentiary hearing.
The San Francisco County
Police Department was involved in the recovery of this weapon, and the San
Francisco County Police Department appears to have exclusive jurisdiction over
the stretch of Ocean Beach where the robbery allegedly occurred. Not surprisingly, possession of this firearm
was originally charged in San Francisco County. For reasons clear only to the federal government, what is essentially
a local robbery case was taken from County jurisdiction and charged as a
federal offense.
The discovery produced by the
government to date suggests that the Lorcin pistol charged in Count One has an
obliterated serial number. If Mr. XXXX
is convicted on Count One, the government will presumably seek an enhanced
sentenced under U.S.S.G. ' 2K2.1(b)(4), which provides, AIf
any firearm was stolen, or had an altered or obliterated serial number,
increase by 2 levels.@ U.S.S.G. ' 2K2.1(b)(4). Although Mr. XXXX does not now concede this point, the government
would presumably argue at sentencing that the two-level enhancement should
apply whether or not he knew the gun had an obliterated serial number. See U.S.S.G. '
2K2.1 comment. n.19.
Despite this sentencing
scheme, the government has alleged in Count Two that Mr. XXXX possessed the
same firearm at the same time B but that the firearm had an obliterated
serial number. See Indictment at
2. This Count alleges a violation of 18
U.S.C. ' 922(k), rather than '
922(g)(1) found in Count One.
Interestingly, the indictment charges that Mr. XXXX knowingly
possessed a firearm which had a manufacturer=s serial number removed. See id. Should the case proceed to trial the defense will be seeking jury
instructions regarding Mr. XXXX=s mens rea on Count Two. Moreover, should Mr. XXXX be acquitted on
Count Two the defense will argue that this precludes fair application of the
serial number enhancement in U.S.S.G. ' 2K2.1(b)(4) at sentencing for Count
One.
Notably, the statute alleged
in Count Two does not require the government to prove that Mr. XXXX was a felon
at the time of possession of the firearm.
See Count Two; see also 18 U.S.C. '
922(k).
Count Three of the indictment
stretches back two years to allege possession of .380 Colt pistol in 1998. See Indictment, Count Two at 2. San Francisco County Police Officers recovered
this weapon, and the case was charged in San Francisco County courts. Mr. XXXX has already received a term of
custody for a state parole violation for charges that he possessed that weapon.
Alleged possession of the
.380 Colt in 1998 has nothing whatsoever to do with charges surrounding the
Lorcin nine-millimeter pistol in 2000.
In 2000, the government apparently recovered .380 ammunition from the
house of an alleged girlfriend of Mr. XXXX.
There is no showing, however, that this ammunition had any relation to
the .380 Colt recovered in 1998.
Moreover, there is insufficient evidence to charge Mr. XXXX with
possession of the .380 ammunition in 2000, and there is no link between any
.380 weapon and the Ocean Beach robberies.
Based in the discovery
provided to the defense to date, the search of the car that produced the .380
Colt was undertaken without a valid search or arrest warrant.
Discussion
I. This Court
Should Suppress the Fruits of an Illegal Search in 1998
The government has produced
nothing in discovery that shows the search of the car from which the .380 Colt
was recovered in 1998 was undertaken pursuant to a valid search or arrest
warrant. The search of the car was
therefore presumptively illegal. See
United States v. Katz, 389 U.S. 347 (1967). "Any exception to the Fourth Amendment warrant requirement
must be proven by a preponderance of evidence, and this burden is upon the
government.@ United
States v. Linn, 880 F.2d 209, 214 (9th Cir. 1989) (emphasis added).
Nothing in the discovery
provided by the government indicates that the San Francisco County Police
Officers who searched the car from which the .380 was allegedly recovered made
any efforts to obtain a search warrant before beginning their search. It is accordingly the government's burden to
establish sufficient facts to authorize the search under an exception to the
Fourth Amendment's warrant requirement.
The Supreme Court has
consistently held that evidence seized during an unlawful search cannot be admitted
as proof against the victim of the search.
Wong Sun v. United States, 371 U.S. 471, 485, 83 S. Ct. 407, 416
(1963). If the government fails to meet
its evidentiary burden in establishing a lawful basis for the search, all
evidence secured from the 1998 search of a car by the San Francisco Police
Department must be suppressed.
II. This Court
Should Sever or Dismiss Count Three, Which is Improperly Joined with Counts One
and Two
Count Three, alleging
possession of a .380 Colt in 1998, is improperly joined with Counts One and
Two, alleging possession of a Lorcin nine-millimeter in 2000. This Court should accordingly sever or
dismiss Count Three from the Indictment.
Joinder of offenses and
defendants is controlled by Federal Rule of Criminal Procedure 8. That rule requires some relation between
offenses charged in an indictment:
(a) Joinder of Offenses. Two or more offenses may be charged in the
same indictment or information in a separate count fo each offense if the
offenses charged, whether felonies or misdemeanors, or both, are of the same or
similar character or are based on the same act or transaction or on two or more
acts or transactions connected together or constituting part of a common scheme
or plan.
Fed. R. Crim. Pro. 8(a). The 1998 possession of a Colt .380 is not
based on the same act or transaction as the 2000 possession of a Lorcin
nine-millimeter. Possession of the two weapons
two years apart are not two acts or transactions connected together or
constituting part of a common scheme or plan.
The government=s only possible theory for joining these
offenses is that possession of the Colt is Aof the same or similar character@
as possession of the Lorcin. That
theory, however, fails.
In United States v. Terry,
911 F.2d 272 (9th Cir. 1990), the Ninth Circuit considered a conviction arising
from an indictment that charged both gun and drug offenses. Id. at 274. The defendant in Terry challenged the misjoinder, and moved
for severance and separate trials of the counts. Id. at 276. The
Court in Terry found that the joinder was improper. Id.
The Ninth Circuit adopted
what was effectively a categorical approach in examining the joinder issue in Terry. ABecause Rule 8 is concerned with the
propriety of joining offenses in the indictment, the validity of the joinder is
determined solely by the allegations in the indictment.@ Id. at 276. The Court examined the charging instrument in Terry, and
determined that ANo effort is made in the indictment even to
suggest that the offenses are part of the same or similar character or that
they are part of the same transaction or parts of a common scheme.@ Id.
Similarly, in the case now before this Court, the government makes no
effort on the face of the indictment to provide any link between possession of
the Lorcin in 2000 and possession of the Colt in 1998.
The Court in Terry
also considered the interrelationship B or lack thereof B
of evidence between the counts charged.
The Court observed that the evidence necessary to prove the drug counts
did not overlap with the evidence required to prove the gun counts. Id. at 276. The Ninth Circuit concluded that AWhen, as in this case, joined offenses are
not connected and are not probable by the same evidence, joinder is improper.@ Id. citing United States v. Barney,
568 F.2d 134 (9th Cir. 1978). In the
present case, as in Terry, there is no overlap in proof between the 1998
Colt charge and the 2000 Lorcin charges.
Mr. XXXX is not required to
show prejudice to prevail on his motion for severance based on misjoinder. It bears emphasis, however, that permitting
Count Three to remain with Counts One and Two will have a substantial and
injurious effect and influence in determining the jury=s
verdict. See Terry, 911 F.2d at
277 (discussing appellate standard for reversal of misjoined offenses). The allegations in Count Three are
effectively a backdoor route to introducing evidence and allegations otherwise
precluded by Federal Rules of Evidence 404(b) and 609. If Count Three did not exist, the government
could obviously not introduce evidence of a 1998 parole violation for
possession of a Colt firearm in the trial of the 2000 Lorcin charges.
If Count Three is permitted
before the jury in the trial of Counts One and Two, the obvious conclusion that
the jury will reach is that Mr. XXXX is a felon who has repeatedly possessed a
firearm; once in 1998, and again in 2000.
It will be impossible to fairly defend the more serious
2000 charges with the spectre of the 1998 allegations hanging over the jury=s
deliberations.
The attempted exercise of
federal general police power is never appropriate. It is particularly inappropriate when the charges in a federal
indictment have been resolved two years prior in a state proceeding. See United States Attorney Manual, '
9-2.031 Dual and Successive Prosecution Policy (APetite Policy@) (AThis policy precludes the initiation or
continuation of a federal prosecution, following a prior state or federal
prosecution based on substantially the same act(s) or transaction(s) unless
three substantive prerequisites are satisfied: first, the matter must involve a
substantial federal interest; second, the prior prosecution must have left that
interest demonstrably unvindicated; and third, applying the same test that is
applicable to all federal prosecutions, the government must believe that the
defendant=s conduct constitutes a federal offense, and
that the admissible evidence probably will be sufficient to obtain and sustain
a conviction by an unbiased trier of fact.@)
The exercise of federal
police power is even more inappropriate when old state charges are tacked on as
a conspicuous afterthought to current offenses in a federal indictment.
The federal government=s
usurpation of state police power is inexcusable, however, when the government
brings the charges as an attempt to smuggle otherwise precluded character
evidence into the trial of serious new firearm offenses.
Defense trial and appellate
issues spring forth like mushrooms in the fertile soil of this misjoined
count. The prudent course would be for
the government to supercede its current indictment, alleging only a count involving
the 2000 possession of the nine-millimeter Lorcin. If the government declines this more practical course, this Court
should sever Count Three from the remainder of the indictment and that Count
should be tried in a separate trial.
Count Three should, moreover,
be tried before a separate jury than those hearing Counts One and Two. Once a jury has reached a verdict on either
the Lorcin or Colt, (2000 or 1998), charges, it will be impossible to fairly
and neutrally consider evidence on a separate and unrelated count. Thus, Count Three will require at least two
trials before two separate juries. As
will be discussed in greater detail below, severance of Counts One and Two will
require two additional trials, requiring three juries for three counts that add
little or nothing to Mr. XXXX=s sentencing exposure.
III. This Court
Should Sever Count One, Alleging a Violation of '
922(g)(1), and Count Two, Alleging a Violation of '
922(k)
Demonstrating an apparent
lack of confidence in the strength of its evidence, the government has charged
the same nine-millimeter Lorcin twice in a federal indictment: first, under 18
U.S.C. ' 922(g)(1) B felon in possession B and again under '
922(k) B possession of a weapon with an obliterated
serial number. These two counts must be
severed, and tried before different juries.
A necessary element under 18
U.S.C. ' 922(g)(1) is that the defendant suffered a
prior conviction for a crime punishable by imprisonment for a term exceeding
one year. See Ninth Cir. Model Jury Instruction
8.19.16, Firearms B Ammunition B
Unlawful Possession (18
U.S.C. ' 922(g)).
Conviction of Counts One and Three, alleging violations of 18 U.S.C. '
922(g)(1), would therefore necessarily expose the jury to the fact that Mr. XXXX
has suffered a prior felony conviction.
Count Two, alleging a
violation of 18 U.S.C. ' 922(k), requires no proof of the existence
of a prior felony conviction. Proof of
a prior felony conviction during the trial of Count Two would be improper
character or bad act evidence precluded by Federal Rules of Evidence 404(b) and
609. Trying either Count One or Three
with Count Two would impermissibly taint the trial of Count Two B
possession of a weapon with an obliterated serial number B
with the improper disclosure of bad act evidence.
Circuit courts have
consistently recognized the prejudice engendered by '
922(g)(1) prosecutions that are joined with other felony offenses. In United States v. Lewis, 787 F.2d
1318 (9th Cir. 1986), the Ninth Circuit considered an appeal of a defendant
convicted of bark larceny, killing to avoid apprehension in a bank larceny, and
being a felon in receipt of a firearm. Id.
at 1320. The defendant moved for
severance of the felon-in-receipt charge under Federal Rule of Criminal
Procedure 14.
The text of Rule 14 in the Lewis
case remains the same today:
Rule 14. Relief from
Prejudicial Joinder
If it appears that a
defendant or the government is prejudiced by a joinder of offenses or of
defendants in an indictment or information or by such joinder or trial
together, the court may order an election or separate trials of counts, grant a
severance of defendants or provide whatever other relief justice requires . . .
.
Federal Rule of Criminal Procedure 14.
The Ninth Circuit in Lewis
noted that the government is prohibited under Federal Rule of Evidence 404(b)
from introducing evidence of a defendant=s prior crimes to show that the defendant
has a bad character and propensity to commit the charged act. Lewis, 787 F.2d at 1321. AOther crimes@ evidence, explained the Court, is not
looked upon favorably and must be narrowly circumscribed and limited. Id.
Hence, A[t]he danger that a jury will infer present
guilt from prior convictions cannot be ignored by the court in deciding whether
to sever a charge that necessitates the introduction of other crimes evidence.@ Id.
The Ninth Circuit declined to
adopt a per se rule regarding severance in Lewis, but recognized
that there is a Ahigh risk of undue prejudice whenever, as in
this case, joinder of counts allows evidence of other crimes to be introduced
in a trial of charges with respect to which evidence would otherwise be
inadmissible.@ Id.
at 1332, quoting United States v. Daniels, 770 F.2d 1111, 1116 (D.C.
Cir. 1985). The Court in Lewis
shared the D.C. Circuit=s skepticism of jury instructions regarding
a prior conviction, Ano matter when they are given.@ Id. at 1323 (emphasis added).
To tell a jury to ignore the
defendant=s prior convictions in determining whether
he or she committed the offense being tried is to ask human beings to act with
a measure of dispassion and exactitude well beyond moral capacities.
Id.
at 1323, quoting Daniels, 770 F.2d at 1118. The Court reversed the defendant=s killing charge. Id.
Eight years later, the Second
Circuit considered a severance challenge in a case involving robbery and use of
a firearm. See United States v.
Jones, 16 F.3d 487 (2d Cir. 1994).
In Jones, the defendant was convicted of bank robbery, armed bank
robbery, using a firearm during a crime of violence, and possessing a firearm
as a convicted felon. Id. at
489. The trial court refused to sever
or bifurcate two counts alleging felon in possession of a firearm, but
instructed the jury Anot to consider the prior felony conviction
for character or propensity.@ Id.
at 488.
The Second Circuit reversed,
citing the same D.C. Circuit=s Daniels decision that had also been
relied upon by the Ninth Circuit in Lewis. The Court in Jones explained, AThe
presumption that a jury will adhere to a limiting instruction evaporates where
there is an overwhelming probability that the jury will be unable to follow the
court=s instructions and the evidence is
devastating to the defense.@ Id.
at 492. The Court reversed the
convictions for robbery, armed robbery, and the ' 924(c) counts for a new trial. Id. at 493.
The present approach of the
Ninth B and other Circuits as well B
is to view joinder of felon-in-possession counts and other felony offenses with
disfavor:
This opinion is published to alert trial
judges and prosecutors that the practice of consolidating Afelon
in possession charges@ without properly safeguarding the defendant
from the prejudicial effect of introducing evidence of the prior felony with
other unrelated felony charges is not looked upon with favor by the Circuit or,
for that matter, by other Circuits.
United
States v. Nguyen, 88 F.3d
812, 815 (9th Cir. 1996). In Nguyen,
the Court noted that trying a felon-in-possession count together with other
felony counts created a Avery dangerous situation.@ Id.
The jury might Aimproperly consider the evidence of a prior
conviction when deliberating about the other felony charges, i.e.
convict the defendant because he is a >bad guy= or convict because he committed a crime
before and probably did this one too.@ Id.
The Court in Nguyen
ultimately concluded that, in light of audio and video recordings of the
defendant and an undercover agent committing the offenses charged, the
persuasiveness of the evidence negated the prejudice caused by introduction of
the prior felony. Id. at
817. The Nguyen decision is thus
distinguishable from the present case, where the evidence against Mr. XXXX is
much less compelling. Because the
evidence against Mr. XXXX in the present case falls far short of the strength
of the evidence in Nguyen, the admonition B and not the ultimate decision B
of the Nguyen opinion controls: Aseverance
or bifurcation [of felon in possession charges] is the preferred alternative.@ Id. at 818.
The concerns underlying the
D.C., Second, and Ninth Circuit decisions regarding improper joinder of '
922(g)(1) charges require that Counts One and Two be tried separately before
separate juries. No instruction can
cure the harm caused by proof of a felony to a jury considering the obliterated
serial-number charge.
Accordingly, to ensure that
Mr. XXXX has the opportunity for a fair and full defense, the
belt-and-suspenders strategy of the government will require three separate
juries be empaneled for three distinct trials.
While this considerable effort will multiply opportunities for appellate
error, it will have no appreciable impact on Mr. XXXX=s
sentence.
A defendant has the right to
represent himself, no matter how impractical or foolish that decision may
be. The government enjoys similar
discretion in its charging decisions.
This Court, however, should not permit the government=s
charging decisions to preclude a fair trial of serious firearm offenses. A three-way severance with three separate
trials before three distinct juries preserves the government=s
charging discretion and would permit Mr. XXXX the right to mount a full and
fair defense.
Conclusion
For the foregoing reasons,
Mr. XXXX respectfully requests that the Court suppress all fruits from the
unlawful search in 1998 that produced the .380 firearm. In the alternative, Mr. XXXX asks that the
Court sever Count Three, which has been improperly joined, and further sever
Counts One and Two.
Dated: 2001
Respectfully submitted,
BARRY J. PORTMAN
Federal Public Defender
STEVEN G. KALAR
Assistant
Federal Public Defender
See
Def. Mot. Dismiss Counts One through Three of Indictment.
As
will be discussed in greater depth below, re-allegation of the .380 charge by
the federal government appears to be inconsistent with the spirit of the Petite
policy. See United States Attorney=s
Manual ' 9-2.031.
The
2000 charges are more serious because B despite the machinations in the indictment B
they are not truly ' 922 allegations but rather robbery
charges. If the government obtains a
conviction for either of the 2000 charges in Counts One or Two, it will
presumably seek a four offense-level enhancement of Mr. XXXX=s
sentence under U.S.S.G. ' 2K2.1(b)(5). This roughly increases his sentencing guidelines by three to four
years.
Neither 18 U.S.C. ' 922(g)(1) nor the model instruction for
that offense use the term Afelony.@ The
term Afelony@ or Afelon@ can be pejorative when used before a jury,
and is often subtly (and not-so-subtly) employed by prosecutors as a means of
undermining a defendant=s character.
If
the term Afelony@ is used in the superseding indictment Mr. XXXX
will move that this surplusage be stricken.
Specifically, Mr. XXXX will ask that all references to Afelon@
or Afelony@B
terms not found in the statute B be removed. The government may avoid this problem by using the proper phrase,
Acrime punishable by imprisonment for a term
exceeding one year,@ in the superseding indictment.
If no superseding indictment is returned,
Mr. XXXX will move in limine that all references to Afelony@
or Afelon@ in the present indictment be stricken and
that these terms not be used at the three trials.