United States District Court, S.D. New YorkFeb 15, 2002
No. 01 CR 180 (LTS) (S.D.N.Y. Feb. 15, 2002)

No. 01 CR 180 (LTS)

February 15, 2002

JAMES B. COMEY, UNITED STATES ATTORNEY FOR THE SOUTHERN DISTRICT OF NEW YORK, By: David P. Burns, Esq., New York, NY, Attorney's for the United States



LAURA TAYLOR SWAIN, United States District Judge:

Defendant Charles Belk is charged in an indictment, pursuant to Sections 922(g)(1) and 924(e) of Title 18 of the United States Code, with possession of a firearm after having been convicted of a crime punishable by imprisonment for a term exceeding one year and having been convicted previously of three separate violent felonies. Mr. Belk has moved in limine to bifurcate the trial on the issues of possession of the firearm and his prior criminal record, and to strike certain portions of the indictment. The Court has considered thoroughly the issues and arguments raised by the parties in connection with Mr. Belk's motion. For the reasons discussed below, the motion to bifurcate the trial is denied. In light of the parties' agreement to stipulate to the fact of a single conviction of a crime punishable by imprisonment for a term exceeding one year. the Court will permit redaction of the indictment to the extent that it identifies the nature of such crime and insofar as it refers to three previous convictions for violent felonies.


Section 922(g)(1) of Title 18 of the United States Code makes it a crime for "any person who has been convicted in any court of, [sic] a crime punishable by imprisonment for a term exceeding one year . . . to . . . possess in or affecting commerce, any firearm or ammunition. . . ." Section 924(e) of Title 18 of the United States Code penalizes a person who violates Section 922(g)(1) and who has "three previous convictions . . . for a violent felony or a serious drug offense, or both. committed on occasions different from one another," with a fine of not more than $25,000 and imprisonment for no less than fifteen years. 18 U.S.C.A. §§ 922,924 (West 2000).

Defendant argues that bifurcation is necessary to prevent prejudice that would result from the jury being presented with evidence of prior convictions when it considers the issue of possession of a firearm. Defendant also asserts that the jury must find beyond a reasonable doubt that the statutory elements of 18 U.S.C. § 924(e) (as well as those under Section 922(g)(1)) have been satisfied in order to convict Mr. Belk of the substantive offense and render him subject to sentencing pursuant to Section 924(e). The Government contends that bifurcation under these circumstances is not permitted under Second Circuit precedent and that the three prior felony convictions are significant under Section 924(e) for sentencing purposes but do not constitute elements of the crime and, therefore, need not be presented to the jury. The issues of bifurcation and presentation to the jury of evidence of three prior felonies for Section 924(e) purposes will be discussed in turn.


In arguing for bifurcation of the trial, Mr. Belk relies on United States v. Clarence Jones, 16 F.3d 487 (2d Cir. 1994), in which the Second Circuit approved the district court's bifurcation of a trial where the defendant was charged in an indictment with violation of 18 U.S.C. § 922(g)(1) along with other charges. Defendant's reliance is misplaced. Jones is distinguishable from the instant action because it involved bifurcation of the felon in possession charge from separate counts in the indictment. See Jones, 16 F.3d at 492-93. Mr. Belk, in contrast, is charged in a one-count indictment with being a felon in possession; the charge against him is that he possessed a firearm and he has a prior felony conviction. There are not multiple counts here that can properly be separated in a bifurcated trial.

The Second Circuit is clear on the principle that elements of a single charge cannot be separated for a jury's consideration. United States v. Gilliam, 994 F.2d 97 (2d Cir. 1993), is binding, relevant and instructive here. In Gilliam, the Second Circuit affirmed the district court's ruling that the Government was not required to accept a stipulation in which the defendant conceded his prior conviction and which would have removed from the jury evidence proffered by the prosecution to prove the prior felony element under Section 922(g)(1). The Gilliam holding rested in the inseparability of separate elements in single count:

[Defendant's] proposal violates the very foundation of the jury system. It removes from the jury's consideration an element of the crime, leaving the jury in a position only to make findings of fact on a particular element without knowing the true import of those findings. . . . [Defendant] is not charged with mere possession of a weapon, but with possession by a convicted felon. The jury speaks for the community in condemning such behavior, and it cannot condemn such behavior if it is unaware of the nature of the crime charged.
Gilliam, 994 F.2d at 100-01. Bifurcation, like a stipulation removing entirely the issue of the prior felony from the jury's consideration, is improper elimination of a "critical element of [Section] 922(g)(1)," and is, therefore, impermissible. Id. at 101.

Defendant advocates the approach taken in United States v. Orena, 811 F. Supp. 819 (E.D.N.Y. 1992), in which, over the objection of the Government, the court permitted the defendant in a felon in possession case to stipulate to the fact of a prior felony and remove from jury consideration any evidence concerning that element of the charge against him. The Gilliam court was, however, openly critical of the course taken in Orena. See Gilliam, 994 F.2d at 102. Acknowledging the risk of prejudice that evidence of prior felony convictions may raise, Gilliam teaches that a stipulation to the fact of a prior felony conviction (which the Government has agreed to here) and a proper curative instruction are sufficient to balance the competing concerns of allowing the jury to appreciate the seriousness of the crime and minimizing the risk of unfair prejudice to the defendant. See Gilliam, 994 F.2d at 103.

Although the Gilliam majority opinion holds, as a matter of law, that no unfair prejudice can arise from the presentation of evidence of the fact of a prior felony conviction in a Section 922(g) case, the Court has considered the balance of probative value and risk of unfair prejudice in formulating its decision on Defendant's motion. The Court has concluded that the risk of unfair prejudice does not outweigh substantially the probative value of the evidence where, as here, it is presented by way of stipulation to the fact of a single prior felony conviction and will be accompanied by a curative instruction. Moreover, the bifurcation sought by Defendant is clearly inconsistent with the policy concerns underlying the Second Circuit's decision in Gilliam.

The fact of a single prior felony conviction will be presented to the jury by way of stipulation in satisfaction of that element of Section 922(g)(1) with a curative instruction. To mitigate further any risk of unfair prejudice and in accordance with the request of the defense, the Government is hereby instructed to refrain from characterizing Mr. Belk as a "convicted felon" in its arguments at trial.

Submission of evidence for Section 924(e) purposes

Defendant argues that the question of his prior felony convictions should go to the jury to keep within the spirit and letter of Apprendi v. New Jersey, in which the Supreme Court held that "any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." 530 U.S. 466, 490 (2000). The standard in this Circuit was clearly articulated in United States v. Baldwin, where the court held that "the existence of the three prior felony convictions necessary for a sentencing enhancement pursuant to § 924(e) is a sentencing factor, rather than an element of the offense." Baldwin, 186 F.3d 99, 102 (2d Cir. 1999). After Apprendi was decided, the Second Circuit affirmed, inUnited States v. Santiago, its earlier conclusion that the existence of prior felony convictions under Section 924(e) are determinations for the judge, not the jury: "Apprendi explicitly carved out an exception for `the fact of a prior conviction,'. . . . We thus continue to be bound by . . . Baldwin, which held that under Section 924(e) the fact of prior convictions is not a separate element of the crime but `is relevant only to sentencing.'" Santiago, 268 F.3d 151, 155 (2d Cir. 2001) (citations omitted).

Defendant argues that Santiago was wrongly decided and suggests that, because of procedural differences between this case and Santiago, the Second Circuit has not yet conclusively decided the question before this Court. Even if this Court disagreed with Santiago's reading ofApprendi, it is not in a position to reject binding precedent. Regardless of the factual differences between the instant action and Santiago, there was no mincing of words in the Second Circuit's decision: "the existence of three prior felony convictions for offenses committed on separate occasions is a sentencing factor, not an offense element." Santiago, 268 F.3d at 157. It is irrelevant that there was no jury trial in Santiago sentencing factors are for the Court to consider and satisfaction of the elements of the offense is for the jury to decide. In any event, treatment of Section 924(e) as falling within the "fact of prior convictions" rubric of Apprendi is not inconsistent with the letter or spirit of that carve-out. The exception is based, at least in part, in reliance on the procedural safeguards in the proceedings that resulted in the prior convictions. See Apprendi, 530 U.S. at 488 (discussing the exception for the fact of prior convictions, "all of which had been entered pursuant to proceedings with substantial procedural safeguards," and noting "the certainty that procedural safeguards attached to any `fact' of prior conviction").

The defendant in Santiago was not convicted by a jury but had instead entered a guilty plea, resulting in the imposition by the court of an enhanced sentence under Section 924(e). The defendant challenged that sentence on the grounds that the statute was not cited in the indictment.

For the reasons discussed above, Defendant's motion is denied to the extent that it seeks to bifurcate the trial on the issues of possession and prior felony conviction(s) and to submit to the jury statutory requirements of Section 924(e). Defendant's motion is granted to the extent it seeks redaction from the indictment of any particulars of the single prior felony relied on for Section 922(g)(1) purposes and of all references to the three prior felony convictions. The Court approves the parties' agreement to refer to Defendant only by the name "Charles Belk" at trial, as he is so named in the indictment. Defendant's request that the Government not refer to Mr. Belk at trial as a "convicted felon" is granted.