Académique Documents
Professionnel Documents
Culture Documents
_____
____________________
OPINION EN BANC
____________________
____________________
April 12, 1994
____________________
____________________
*Of the District of Puerto Rico, sitting by designation.
being a
violation of 18 U.S.C.
for any
felon in possession
922(g)(1).
of a firearm
in
of a crime
possess
ammunition."1
At
in
or
affecting
commerce,
accept the
stipulation.
United States v.
______________
On
Collamore, 868
_________
any
firearm
to stipulate to
or
the
the basis
of our
F.2d 24
(1st Cir.
decisions in
1989), and
prior conviction,
evidence of
its nature
fact of
-- larceny
of a
firearm.
A
panel of
this court,
government
concluding the
to
reject
contrary,
the
stipulation
unanimously agreed
and
that under
in allowing
one
that "the
member
precise
focused discussion in
full court
accordingly
granted
rehearing and
entertained
____________________
court
abused
its discretion
in
permitting
the government
to
that the
confrontations,
night
of
August
apartment
defendant was
culminating
28-29,
complex.
car radio.
first
The government
involved in a
about the
individual's
also
and then
apartment
incident, on
Mashpee,
two
the
Massachusetts
confrontations
alleged that
which he
radio theft,
three escalating
involved
third incident, in
another acquaintance
shooting
at
involved in
with a
1991,
The
understanding the
in a
fired at
building.
Damage
Tavares
was
accosted with a
gun
discussion with
him
the outside of
this
was
done
to
two
automobiles.
arrested.
subsequently
An
officer assisted
located
shotgun
and
by
a police
rifle
in
tracking dog
nearby
woods.
As
crime,
larceny
noted earlier,
introduce evidence
of
that Tavares
a
found
firearm,
the
prosecutor was
allowed to
had been
convicted of a
and
received
had
prior
two-year
sentence.
Our
first task is
they remain
district
compelling authority.
court determined
As we
that it
have indicated,
was constrained
the
under these
reject the
defendant's
claim
unlawfully admitted
that
grand
at trial.
jury
testimony
had
been
evidence of
a year
earlier, the
reversed.
record.
We
We
the jury
held
observed
that
that
of
barring
possession
proof of
a court
any
government's
evidence
presenting
the
us was
before presenting to
criminal
question before
In
prior
F.2d
may
the
felony
the defendant's
not
do so
government
in
and
from
felon-in-
an essential element of
at 27,
and
thus improperly
as charged,
id.
___
at 28.
dictum
In support
that
"even in
of our conclusion,
the face
of an
we added by
offer to
way of
stipulate, the
____________________
government
may
choose to
present
evidence on
the
one felony
that a
other procedural
his
defendant may
rested on a
cases, two
a stipulation
felon-in-possession
conviction, we
not use
prosecution
the
fact
____
shaky foundation.
from the Sixth
In Collamore, we
_________
to remove
of
his
or any
from
prior
relied on three
v. Blackburn,
_________
592 F.2d 300, 301 (6th Cir. 1979); and United States v. Burkhart,
_____________
________
545 F.2d 14, 15 (6th Cir. 1976); and one from the Eighth Circuit,
United States v. Bruton, 647 F.2d 818, 825 (8th Cir. 1981), which
_____________
______
685-86 (8th
whether,
in
Cir.
proving
1970).3
the
The
crime
question in
giving
rise
Brickey
_______
to
the
was
instant
The defendant
discretion
government to
in the
trial
accept the
in Brickey
_______
stipulate to the
refusal
to
require
the
the following
____________________
3
passage
from Parr v.
____
F.2d 86, 88
(5th Cir.
1958):
"It is a general rule that `A party is not required to
accept a judicial admission of his adversary, but may
insist on proving the fact.' 31 C.J.S. Evidence
299,
p. 1068. The reason for the rule is to permit a party
`to present to the jury a picture of the events relied
upon. To substitute for such picture a naked admission
might have the effect to rob the evidence of much of
its fair and legitimate weight.'"
426 F.2d at 686.
Brickey,
_______
the sole
underpinning of
the cases
on
which we
While
relevant
the
to the
stipulation to
This
difference
stipulation
there
instant crime,
the case
facts establishing
is
so
concerned
before us
only the
significant
facts
that
directly
involves a
defendant's status.
we
no
longer
deem
reiterating its
stipulation
possession
concerning
case in
prosecution to
charged.
limited
no
the
way
make a full
scope.
predicate
trenches
decision
crime
upon
the
presentation of the
in
to
a
right
honor
felon-inof
the
crime currently
Doherty, 675 F. Supp. 714, 717 (D. Mass. 1987), aff'd in part and
_______
_________________
elements of
the
brought to trial.
to
eliminate
crime for
which
including proof of
the defendant
gruesome details
of
a killing,
the
has
been
be forced
quantity of
-6-
drugs, or the
degree of malevolence
exhibited by the
defendant
as it
sees fit is
stipulation
fashion weakened
by requiring a
status
element is
crime,
a requirement
possession
in no
of a
individuals
a discrete
reflecting
firearm is
who have
been
Congressional
of the
policy
categorically prohibited
convicted of
The
that
for those
wide assortment
of
falls within
for
any
crime
see 16 U.S.C.
___
The predicate
the category
crime is
ranging
simply by
from
3372, to the
virtue of
possession
of
past
short
significant only to
demonstrate status,
not a situation in
one way to
testimony by
a clerk,
stipulation, a defendant's
affidavit, or
None of
these
alternatives
is
tainted
by
the
government suggests
that, beyond
as a serious offender.
establishing status,
It asserts
that knowledge of
-7-
the nature of the predicate crime in this way bears on the jury's
ability
to
evaluate
the
defendant's guilt
on
the
felon-in-
this connection.
Relevant evidence,
we are
than
it would
defendant's
makes
be without
the evidence."
prior criminal
The
record that
fact concerning
922(g)(1)
explicitly
gradation for
such distinctions
significance.
See, e.g.,
___ ____
seriousness,
have
18 U.S.C.
924(e)(1)
defendant convicted
Congress
numerosity or
in other
recency,
contexts been
924(c) (penalizing
given
use of
multiple violent
felonies or
for
"serious"
drug offenses).
In effect,
to claim relevance
opprobrious
(organized
crime),
present prosecution
highly
likely
or
similar
systemically
to the
crime
(possession of firearms).
that such
perception of the
(pornography),
evidence
would
occasioning
the
It is, of course,
influence the
dangerous
jury's
a sufficient
threat
to society
information,
to
warrant additional
however,
has no
tendency
of
make more
less
to
such
or
conviction, which
Such
the
incarceration.
evidence
to
And
it is precisely
prejudice
the
jury's
by
evidence that
the defendant's
right to introduce
his prior
culpability and
be less
inclined to
more appropriate
Congressional
than
policy
conviction.
the reverse
would
be
This would be
tendency.
subverted.
penalty
The
Either
way,
neutral
role
of
922(g)(1)
unrelated
to the
crime for
the defendant
is on
if
conviction
the
government
could
preferred,
be introduced
into
the government.
be read to the
redacted
evidence.
judgment
Severing
jury
of
the
-9-
admissible
evidence from
the
inadmissible
thus would
require
to
color
character,
the
jury's
for revealing
felony.
which
exists no reason,
Although we
the
of
would outweigh
admission
of
those
however,
of
nature of
details,
evidence beyond
the fact
absent
adequate
be
trial
prior
circumstances in
to the
We therefore
such
defendant's
surrounding
there may
Even in
the
conceive of
the facts
exclusion.
inadmissible
of
government's
the defendant's
the prejudice
perception
cannot now
probativeness
conviction
the
the
prior
defendant from
permutations
that
of the
court
prior
circumstances,
conviction is
findings
that
its
considerable
number,
though not
Circuit applies
adopt today.
all, of
the other
circuits.
of discretion
The Eleventh
standard that
we
(11th Cir.
1984).
possession
case that
"the Government's
right to
introduce its
Evid.
403 to
limit
unduly prejudicial
or
cumulative
-10-
evidence."
Cir.
See
___
1992).
recognized
the
admissibility of
Brinklow,
________
interstate
Fifth and
district
Tenth Circuits
court's
prior crimes
authority to
evidence.
transportation of
similarly have
decide
on
the
v.
explosives by a
convicted felon);
Cir. 1976)
Second
and
Fourth
Circuits
affirmatively
reject
admission of
1993);
United States v. Poore, 594 F.2d 39, 41-43 (4th Cir. 1979), while
_____________
_____
panels in both the Ninth and Seventh Circuits have signalled that
the fact of a
conviction
Pirovolos, 844
_________
F.3d 688,
692 (9th
alternative
form
prosecution
has
of
Cir. 1993)
proof
a right
and
Breitkreutz,
___________
(rejecting stipulation
noting
to refuse
"the
rule
stipulation").4
as an
that
the
On the
____________________
4
In
concurring in
other
side,
as
noted
earlier,
are
the
Sixth
and
Eighth
Circuits.5
We
want to be
First, we
felony
can be
kept
from the
jury.
of the prior
Second,
the
predicate
prosecution
judgment of
conviction properly
redacted.
The
if the nature or
prejudicial
number of redactions
overtones.
In
some
would invest it
circumstances,
where
circumscribed oral
apprehension that a
prior
felony
inappropriateness of
that
conviction
limiting our
counsel irresponsibly
procedure.
ability to
determination that
for
convey
benign,
to abuse
note
the
a concern
our chosen
in neutral
fashion both
subsequent punishment
we
would contrive
was
for possession
Congress's
a sufficient basis
of firearms,
and the
____________________
612 F.2d 735, 740 (3d Cir. 1979), also facially supports the
government's position. The stipulation at issue there, however,
concerned the fact of the prior conviction, and the decision
____
therefore simply may reflect agreement with our conclusion in
Collamore that a
defendant may not modify a
statute by
_________
eliminating one of its elements from the jury's consideration.
-12-
jury's obligation to
on
we
acknowledge
that
in
some
cases
evidence
probative
See O'Shea,
___ ______
risky one,
applied
setting
in contexts
the stage
where greater
for
similar reasoning
hazards might
the
relevance.
evidence
we
In the third
exclude
has
be
In the
status as a felon is
lie.
to
relating to his
In the second
no legitimate
claim
to
risk of unfair
prejudice
our
likely in this
trial court to
context.
Finally,
this
admitting
case, the
evidence of
government
the
We
has
nature of
added the
the
cannot agree.
claim
predicate crime,
The government's
that
if
case
and
that
the
Tavares's
credibility of these
actual
perpetrators
were
-13-
connected
to Blake's
prior conviction
could
not help
claim
that, this
The fact
that defendant's
States v. Torres,
______
______
felon-in-possession
manslaughter
drug dealing.
influence the
time, someone
610 F.
jurors' attitude
case,
evidence
of
gun.
of a firearm
toward his
See United
___ ______
(E.D.N.Y. 1985)
prior
convictions
illegal possession of
(in
for
a gun "would
is the
in
admission of
steal the
other
prejudicial
the
facts
car radio
and testimony
have seen
about defendant's
little
doubt
not this
that
inadmissible
allowed,6 there
testimony
concerning
Tavares's
increased
the
risk
that
the
jury
drew
upon
defendant's
In these circumstances, we
cannot say that "it is `"highly probable"' that the error did not
____________________
contribute to
-15-
SELYA,
Judge, joins
_____
Circuit Judge,
_____________
with whom
(concurring).
I write
separately, not
because I
reached in this
case, but
harbor reservations
because I
by some to
I have
three qualms.
First:
First:
_____
distinguish
facts
think
the
court,
in
endeavoring
to
necessary to
uncomfortably cramped
relevance.
that
In my
give
that conviction
content, suggests
disputed
an
definition of
evidence is
relevant
situation.
The rule
it be construed
to
if
its
harmful
relevance.
Rather,
mandating
reason
871
effect
is
the
substantially
presumption
the admissibility
of
reverse
this
238 (1st
the
by
its
other
way,
unless
good
Cir. 1989).
presumption, see,
___
works
relevant evidence
F.2d 235,
outweighed
e.g.,
____
The
court here
ante at
____
8,
seems to
10, thereby
struck on
instances, the
fervently believe
a case by
strikers of
case basis,
403 balance
and that,
is
in almost all
be the
district
-16-
865 F.2d
Cir. 1988)
circumstances
("Only
will
value and
opinion undervalues
unfair
effect.").
worry that
of
today's
though correct in the context of the case before us, may be taken
by
some as
a command that
will prompt
the district
courts to
(which
analysis,
rather,
is to
say, dispense
a trial is not
a
recreation
an exercise in
of
before a jury
it.
the last
events
for
be squeezed from
can chew on
In
flesh-and-blood
injustice).
To
a piece of
the
as
evidence
"[a]
Wagenmann
_________
v. Adams,
_____
829 F.2d
196, 217
(1st Cir.
1987).
In sum,
while I
is the rare
situation in
to
extrapolate a
general rule
specific holding.
-17-
advised to avoid
from the
any
court's case-