Opinion
CR-18-01695-005-TUC-JAS (EJM)
03-23-2022
United States of America, Plaintiff, v. Michael Anthony Williams, Defendant.
REPORT AND RECOMMENDATION
Eric J. Markovich United States Magistrate Judge
Defendant Michael Anthony Williams (“Williams”) has filed a Motion to Bifurcate Counts 12, 13, and 16 (the prohibited possessor counts) of the Second Superseding Indictment from the other counts in which he is charged. The defendant argues that because the prohibited possessor counts require the government to prove the element that the defendant has a prior felony conviction, the admission of evidence about his prior felony conviction will result in a high risk of undue prejudice with respect to the other counts that do not have that element. As such, the defendant requests that the prohibited possessor counts be bifurcated so that the jury will only hear evidence about the defendant's prior felony conviction after reaching a verdict on the other counts in which he is charged.
The government argues that bifurcation of the prohibited possessor counts is not needed because the risk of prejudice can be minimized in two ways. First, the trial court can use cautionary jury instructions to ensure that the jury only considers the prior felony with respect to the prohibited possessor offenses, and not in deciding guilt on the other offenses. Second, the prior felony can be sanitized so that the jury only hears that the defendant has a prior felony conviction, and not the nature of the prior felony.
For the reasons stated below, it is recommended that the District Court grant the Motion to Bifurcate Counts 12, 13, and 16. [Doc. 1060.)
FACTUAL BACKGROUND
On October 20, 2021, a federal grand jury sitting in Tucson, Arizona returned a Second Superseding Indictment against Williams and eighteen other individuals. The offenses charged in the Second Superseding Indictment pertain to an alleged criminal enterprise operated by a gang known as the Western Hills Bloods (“WHB”). Williams is charged with the following 15 felony offenses.
Count One charges Williams with participating in a RICO conspiracy, in violation of 18 U.S.C. §§ 1962(d) and 1963(a), the objects of which are: (a) acts involving murder (18 U.S.C. §§ 1959(b)(1) and 1961(1)); (b) offenses involving drug trafficking (21 U.S.C. §§ 846 and 841); and (c) acts involving the obstruction of justice (18 U.S.C. § 1512). Count Two charges Williams with Violent Crime in Aid of Racketeering - Conspiracy to Commit Murder, in violation of 18 U.S.C. § 1959(a)(5). Count Three charges Williams with Violent Crime in Aid of Racketeering - Murder, in violation of 18 U.S.C. §§ 1959(a)(1) and 2. Count Four charges Williams with Use of a Firearm During and in Relation to a Crime of Violence Resulting in Death, in violation of 18 U.S.C. §§ 924(j), 924(c)(1)(A)(i), (ii), (iii), and 2. Counts 12, 13, and 16 charge Williams with Possession of a Firearm by a Prohibited Person, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). Counts 14 and 17 charge Williams with Possession of a Firearm in Furtherance of a Drug Trafficking Crime, in violation of 18 U.S.C. §§ 924(c)(1)(A)(i) and 2. Count 24 charges Williams with Conspiracy to Possess with the Intent to Distribute Cocaine, in violation of 21 U.S.C. §§ 846 and 841. Count 25 charges Williams with Possession with the Intent to Distribute Cocaine, in violation of 21 U.S.C. § 841. Count 33 charges Williams with Conspiracy to Possess with the Intent to Distribute Marijuana, in violation of 21 U.S.C. §§ 846 and 841. Counts 34 and 37 charge Williams with Possession with the Intent to Distribute Marijuana, in violation of 21 U.S.C. § 841. Count 38 charges Williams with Possession with the Intent to Distribute Cocaine, in violation of 21 U.S.C. § 841.
On February 1, 2022, the defendant filed a Motion to Bifurcate Counts 12, 13 and 16 (the prohibited possessor counts) of the Second Superseding Indictment from the other counts in which he is charged. The defendant points out an element of the prohibited possessor counts is that he has a prior felony conviction. The defendant notes that his prior felony conviction would not be admissible evidence in the government's case-in-chief for any of the other counts. As a result, the defendant argues that the admission of his prior felony conviction in a trial involving all of the charged counts would result in undue prejudice. Specifically, the jury will likely consider the prior felony conviction in assessing guilt on the counts where the prior felony is not an element and would otherwise not be admissible evidence.
The government argues that prejudice can be cured in two ways. First, by sanitizing the prior felony so the jury only hears that the defendant has a prior felony conviction, and not the nature of the conviction. Second, the Court can instruct the jury that it may only consider the defendant's prior felony conviction with respect to whether the government has proven an element of the prohibited possessor offenses, and not as evidence of guilt on the other offenses.
In response, the defendant argues that a cautionary jury instruction and sanitizing the prior felony conviction are insufficient remedies to cure prejudice because it is unrealistic to expect a juror to compartmentalize the evidence in assessing guilt on the prohibited possessor offenses when assessing guilt on the other counts alleged against him.
DISCUSSION
The Ninth Circuit has held that there is a high risk of undue prejudice whenever evidence of other crimes are "'introduced in a trial of charges with respect to which the evidence would otherwise be inadmissible.'" United States v. Nguyen, 88 F.3d 812, 816 (9th Cir. 1996) (quoting United States v. Lewis, 787 F.2d 1318, 1322 (9th Cir, 1986)). In fact, "[a]ll of the Circuit Courts seem to agree that trying a felon in possession count together with other felony charges creates a very dangerous situation because the jury might improperly 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 has committed a crime before and probably did this one too.'" Nguyen, 88 F.3d at 815. There is no per se rule about how to handle this situation. Id. But the trial court must do "whatever is possible to minimize the chance of prejudice." Id.
Some courts have used severance of counts or bifurcation of the trial to separate the felon in possession count(s) from other counts to minimize prejudice. Id. The parties' stipulation to the prior felony so the jury does not hear about the prior bad act and limiting instructions to the jury have also been used to minimize prejudice. See United States v. Von Willie, 59 F.3d 922, 930 (9th Cir. 1995). But it is an uncommon situation where cautionary jury instructions alone are "a sufficient means of shielding the defendant from prejudice." Nguyen, 88 F.3d at 816.
In Lewis, the Ninth Circuit explained why a severance (or bifurcation) of counts is the preferred remedy to minimize the risk of undue prejudice to a defendant. That court "emphasized that '[i]t is much more difficult for jurors to compartmentalize damaging information about one defendant derived from joint counts than it is to compartmentalize evidence against separate defendants joined for trial.'" Nguyen, 88 F.3d at 816 (quoting Lewis, 787 F.2d at 1322). The court went on to note that “[s]tudies have shown that joinder of counts tends to prejudice jurors' perceptions of the defendant and of the strength of the evidence on both sides of the case.” Lewis, 787 F.2d at 1322.
The presumption that a jury will adhere to a limiting instruction where a prohibited possessor offense is joined with other offenses “‘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.'” Nguyen, 88 F.3d at 817 (quoting United States v. Jones, 16 F.3d 487, 493 (2d Cir. 1994). Thus, “bifurcation of a trial ‘strikes an appropriate balance between the concern about prejudice to the defendant and considerations of judicial economy . . . [because] . . . [t]he defendant's criminal past is not made known to the jury until after they reached a verdict with respect to the other charges.” Id. (quoting United States v. Joshua, 976 F.2d 844 (3d Cir. 1992)).
For the following reasons, the Court concludes that stipulation to the prior felony so the jury does not hear about the prior bad act and limiting instructions to the jury are not sufficient to minimize prejudice. There is undoubtedly a risk that the jury will improperly consider the defendant's prior felony conviction when deliberating about the other felony charges. Admittedly, that risk exists any time a prohibited possessor charge is tried jointly with other felony charges. However, in light of the nature of the serious charges alleged against the defendant, there is a grave danger that the jury will convict the defendant because he is a “bad guy, ” or convict because “he has committed a crime before and probably did this one too.”
Count One of the Second Superseding Indictment alleges that the defendant was in a violent street gang whose members engaged in murder, shootings, and drug dealing between 2012 and 2018. Given these allegations, it is hard to imagine a jury not deducing, concluding, or at least speculating, that the defendant's prior felony conviction stemmed from gang activity. As such, there is great risk that the jury will convict the defendant on the assumption or belief that “he did it before, so he must have done it again.” Moreover, the prior felony not only portrays the defendant as a “bad guy” generally, but it also portrays him as the “bad guy” in relation to his co-defendants because the jury will not hear evidence about the co-defendants' prior felony conviction(s). It would ignore human nature to conclude that a jury instruction can cure that type of thinking which, while legally improper, is not necessarily illogical for many laypeople.
Two co-defendants have at least one prior felony conviction.
The Court concludes that it is simply not possible for jurors to follow a limiting instruction and compartmentalize damaging information about the defendant - his prior felony conviction, even if sanitized - and not consider that information when assessing guilt on other counts where the prior felony would not otherwise be admissible but for the prohibited possessor counts. Bifurcation is the only remedy to sufficiently minimize the risk of undue prejudice to the defendant, while still promoting judicial economy.
CONCLUSION
For the reasons detailed above, the Court recommends that the District Court GRANT the Motion to Bifurcate Counts 12, 13, and 16. [Doc. 1060.]
Pursuant to Federal Rule of Criminal Procedure 59(b)(2), any party may serve and file written objections within 14 days of being served with a copy of this Report and Recommendation. A party may respond to the other party's objections within fourteen days. No reply brief shall be filed on objections unless leave is granted by the district court. If any objections are filed, this action should be designated case number: CR 18-01695-TUC-JAS. Failure to timely file objections to any factual or legal determination of the Magistrate Judge may be considered a waiver of a party's right to de novo consideration of the issues. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc).