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United States of America v. Aubrey Joshua, Appellant
United States Court of Appeals, Third Circuit. - 976 F.2d 844
Argued Dec. 4, 1991.Decided Oct. 5, 1992
John H. Benham, III (argued), Watts, Streibich & Benham, Charlotte Amalie, St. Thomas, U.S. Virgin Islands, for appellant.
Terry M. Halpern, U.S. Atty., Susan R. Via (argued), Asst. U.S. Atty., Kim L. Chisholm, Special Asst. U.S. Atty., Charlotte Amalie, St. Thomas, U.S. Virgin Islands, for appellee.
Before: STAPLETON, HUTCHINSON and NYGAARD, Circuit Judges.
STAPLETON, Circuit Judge:
The indictment in this case includes a charge of armed bank robbery, weapons charges in connection with the bank robbery, and a charge of possession of a firearm by a convicted felon. The defendant challenges the district court's refusal to sever the possession charge, and the fine and sentence imposed by the court.
In November 1990, a masked man robbed the First Pennsylvania Bank on St. Thomas, Virgin Islands at gun point. According to witnesses, the robber carried a silver, semi-automatic pistol with which he threatened bank employees and customers. He pointed the pistol as well as the revolver that he had taken from the bank guard at the heads of several tellers, ordering them to stuff money into a brown canvas bag.
A witness saw the robber leave the bank, remove his mask, and drive off in a white car. He noted the car's license number which was immediately provided to the Virgin Islands Police through the bank manager. A squad car pursued the vehicle on a high speed chase through a residential area. Minutes later, after he had sideswiped several unfortunate cars in his path, the robber lost control of his vehicle, and it flipped. One of the officers later testified that, as he and his partner approached the car, the robber reached for his nine-millimeter pistol, which the officer managed to secure before the robber reached it. The police found in the car the bank guard's revolver and a brown bag containing approximately $19,000. A number of nine-millimeter ammunition rounds and a mask were found in the suspect's pockets. The apprehended suspect was later identified as the defendant, Aubrey Joshua.
Joshua was charged in a four count indictment as follows: Count One--armed bank robbery, 18 U.S.C. § 2113(a) & (d)1; Count Two--use of a firearm during a crime of violence, 18 U.S.C. § 924(c)(1); Count Three--receipt of a firearm with an obliterated serial number, 18 U.S.C. §§ 922(k) & 924(a)(1)(B); and Count Four--possession of a firearm by a convicted felon, 18 U.S.C. § 922(g)(1) and § 924(e).2
Prior to trial, Joshua moved to sever the trial of Count Four of the indictment from the remaining counts. He feared that exposure of the jury to evidence of his prior criminal record might unfairly influence its decision concerning the first three counts. The government acquiesced in this motion. The court denied the motion but ordered a bifurcated trial. The jury first heard evidence and deliberated concerning the first three counts, and then heard evidence of the defendant's criminal record and deliberated concerning Count Four.
After the presentation of the evidence on the first three counts, the jury was unable to reach verdicts on Counts One and Two and returned a verdict of not guilty on Count Three. The government then tendered to the jury a stipulation that the defendant was a convicted felon. After closing arguments and instructions on Count Four, the jury returned a verdict of guilty.
Before Counts One and Two could be retried, Joshua and the government entered a plea agreement under which they exchanged a guilty plea to armed bank robbery for a dismissal of the charge of use of a firearm during a crime of violence. The court sentenced Joshua to 300 months in prison for the armed bank robbery charge. On Count Four, he received a sentence of 365 months in prison. The court also assessed a $3,000 fine and ordered that the sentences of imprisonment be served concurrently.
The district court had jurisdiction under 48 U.S.C. § 1612(a). We review the final judgment of conviction and sentence pursuant to 28 U.S.C. § 1291.
Joshua's first argument3 is that the district court erred in denying his uncontested motion to sever Count Four--felon in possession of a firearm--from the remaining counts of the indictment.4 Severance decisions under Rule 14 require the district court to weigh the potential for prejudice to the defendant from joinder against the conservation of judicial resources that joinder will occasion. Striking the appropriate balance is within the sound discretion of the district courts. Accordingly, we review such decisions for an abuse of that discretion. United States v. Sandini, 888 F.2d 300, 305 (3d Cir.1989), cert. denied, 494 U.S. 1089, 110 S.Ct. 1831, 108 L.Ed.2d 959 (1990).
Joshua maintains that the district court's procedure prejudiced him because the same jury that heard the evidence in the first part of the trial was then asked to decide Count Four--raising the possibility of improper spill-over of evidence. Moreover, he claims that severance was mandated by our opinion in United States v. Busic, 587 F.2d 577 (3d Cir.1978), rev'd on other grounds, 446 U.S. 398, 100 S.Ct. 1747, 64 L.Ed.2d 381 (1980).
In Busic, we dealt with a similar factual situation. The defendant was charged with various drug offenses and with being a felon in possession of a firearm. Claiming prejudice if the jury were aware of his prior convictions, the defendant moved to sever the weapons possession charge. The district court denied the defendant's motion and he appealed. This court upheld the district court's decision on the grounds that the evidence was independently admissible on the other counts of the indictment and additionally that any error was harmless beyond a reasonable doubt. However, we went on to advise the district courts that:
[W]e think that in ruling on a pre-trial motion to sever the district court should determine whether evidence of the prior convictions would be independently admissible on the other counts. If it is determined that the convictions would not be admissible on the other counts--that were these counts to be tried alone the jury would not hear this evidence--then severance should be granted.
Id. at 585 (footnote omitted).5 We recognized that the district courts may have difficulty making these determinations in a pre-trial setting; however, "if the government chooses to join such counts, it must be prepared to justify the joinder to the trial judge by showing that the prior convictions would be admissible even absent joinder." Id. at 585 n. 9.
The parties disagree on whether the procedure followed in this case was condoned or forbidden by Busic. Although in Busic we noted that bifurcation was a "novel approach" to the problem, id. at 585 (citing United States v. Franke, 331 F.Supp. 136 (D.Minn.1971)), we have not yet squarely addressed the issue of its propriety. Moreover, the district courts in this circuit have reached contrary conclusions on that issue. In United States v. Vastola, 670 F.Supp. 1244, 1263 (D.N.J.1987), the court interpreted our reference to bifurcation as a "novel approach" to mean that we approved of this procedure. However, in United States v. Edwards, 700 F.Supp. 837, 838 (W.D.Pa.1988), the court refused to read Busic "so loosely" and held that the bifurcated trial procedure replaced one kind of prejudice to the defendant with another:
Rather than determining the guilt or non-guilt of the defendant as to Counts One and Two with knowledge of a prior felony conviction, the jury would determine the guilt or non-guilt of the defendant as to Count Three after hearing testimony relating to, and possibly convicting the defendant of Counts One and Two.
Id.
We conclude that the procedure adopted by the district court here strikes an appropriate balance between the concern about prejudice to the defendant and considerations of judicial economy. Our concern in Busic was that the necessity of introducing evidence of the defendant's criminal record in order to prove the weapons possession charge would prejudice the defendant during the jury's deliberations on other counts. The bifurcated trial procedure adopted here addresses that concern. The defendant's criminal past is not made known to the jury until after they have reached a verdict with respect to the other charges. At the same time, this procedure is considerably more efficient than conducting an entire new jury trial on the weapon possession charge at a later date.
The potential for the type of prejudice that concerned the court in Edwards and of which Joshua complains is the same potential for prejudice that every criminal defendant faces when multiple counts are tried together. Here, for example, the potential for prejudice to Joshua from the jury having the evidence regarding armed bank robbery available to it in the first part of the trial when it decided Count Three (receipt of a firearm with an obliterated serial number) is precisely the same potential for prejudice that arose when the jury had that same evidence available to it while deciding the unlawful possession of a firearm charge in the second phase. Thus, the logical extension of Joshua's argument is that a defendant is entitled to separate trials on all charges against her because she will suffer prejudice if the jury hears evidence regarding more than one charge in a given trial. This is clearly an untenable position that we decline to endorse.
All of the charges contained in Joshua's indictment arose out of the same, uninterrupted series of transactions, making it highly efficient to try all of them together. This is the kind of situation in which all charges are normally joined for trial in the absence of a showing of substantial potential for prejudice. See F.R.Cr.P. 8(a) & 14. There was no such showing here. United States v. Thomas, 610 F.2d 1166, 1171 (3d Cir.1979) (Although in moving to sever, defendant correctly identified danger inherent when related charges are tried together, "absent special justification, juries are relied on to recall and sort through a broad range of evidence to which they are exposed.") Accordingly, we conclude that the bifurcation procedure employed in this case was well within the discretion of the district court.
We now turn to the sentencing guidelines and their application in this particular case. Joshua argues that the district court erred in its application of the guidelines and that we should remand for resentencing.
In order to understand the arguments in this case, it is necessary to retrace the path through the briar patch of guidelines and commentary trod by the probation officer and the district court in arriving at Joshua's sentence. We start with U.S.S.G. § 4B1.4, the Armed Career Criminal Guideline, which provides in part:
(a) A defendant who is subject to an enhanced sentence under the provisions of 18 U.S.C. § 924(e) is an armed career criminal.
(b) The offense level for an armed career criminal is the greatest of:
(1) the offense level applicable from Chapters Two and Three; or
(2) the offense level from § 4B1.1 (Career Offender) if applicable; or
(3)(A) 34, if the defendant used or possessed the firearm or ammunition in connection with a crime of violence or controlled substance offense, as defined in § 4B1.2(1), or if the firearm possessed by the defendant was of a type described in 26 U.S.C. § 5845(a); or
(B) 33, otherwise.*
18 U.S.C. § 2113 provides in relevant part:
(a) Whoever, by force and violence, or by intimidation, takes, or attempts to take, from the person or presence of another, or obtains or attempts to obtain by extortion any property or money or any other thing of value belonging to, or in the care of, custody, control, management, or possession of, any bank, credit union, or any savings and loan association ...
Shall be fined not more than $5,000 or imprisoned not more than twenty years, or both.
(d) Whoever, in committing, or in attempting to commit, any offense defined in subsections (a) and (b) of this section, assaults any person, or puts in jeopardy the life of any person by the use of a dangerous weapon or device, shall be fined not more than $10,000 or imprisoned not more than twenty-five years, or both.
18 U.S.C. § 922(g) provides:
It shall be unlawful for any person--
(1) who has been convicted in any court of a crime punishable by imprisonment for a term exceeding one year ...
to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.
18 U.S.C. § 924(e) provides:
(1) In the case of a person who violates section 922(g) of this title and has three previous convictions by any court referred to in section 922(g)(1) of this title for a violent felony or a serious drug offense, or both, committed on occasions different from one another, such person shall be fined not more than $25,000 and imprisoned not more than fifteen years....
The defendant also raised a prosecutorial misconduct issue on appeal, claiming that the prosecutor's argument to the jury on the felon in possession charge misstated the law and impermissibly referred to evidence presented during the first part of the bifurcated trial. We conclude that this claim is without merit; the prosecutor made a rational legal argument based upon the facts in evidence
Joshua made his motion pursuant to Rule 14 of the Federal Rules of Criminal Procedure which provides in pertinent part as follows:
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 for 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....
This so-called "per se rule" of Busic has been widely criticized by other courts of appeals and no other court has adopted the procedure spelled out there. See, e.g., United States v. Lewis, 787 F.2d 1318, 1322 (9th Cir.1986); United States v. Daniels, 770 F.2d 1111, 1117 (D.C.Cir.1985); United States v. Silva, 745 F.2d 840, 843 (4th Cir.1984), cert. denied, 470 U.S. 1031, 105 S.Ct. 1404, 84 L.Ed.2d 791 (1985); United States v. Valentine, 706 F.2d 282, 290 (10th Cir.1983); United States v. Aleman, 609 F.2d 298 (7th Cir.1979), cert. denied, 445 U.S. 946, 100 S.Ct. 1345, 63 L.Ed.2d 780 (1980)
This number is derived first by grouping Count One and Count Four under § 3D1.2(c). This guideline provides that closely-related counts should be grouped when one count embodies conduct that is treated as a specific offense characteristic of the other. Because use or possession of a weapon is a specific offense characteristic under the robbery guideline, § 2B3.1, these two counts are grouped. (In fact, this exact scenario is given as an example in Application Note 5 of § 3D1.2: "use of a firearm in a bank robbery and unlawful possession of that firearm are sufficiently related to warrant grouping of counts under this subsection."). Then, we determine the offense level applicable to the group under § 3D1.3. In this case, because the bank robbery offense yields the higher offense level of the counts in the group, it is used. The base offense level is 20, § 2B3.1(a). The specific offense characteristics increase the base offense level as follows: 2-level increase because the offense involved the property of a financial institution, § 2B3.1(b)(1); 3-level increase because a weapon was brandished, § 2B3.1(b)(2) (today, this would be 5-level increase due to an amendment to the guideline effective November 1, 1991); 1-level increase because a firearm was taken from the security guard, § 2B3.1(b)(5); 1-level increase because the loss was between $10,000 and $50,000, § 2B3.1(b)(6)(B). To the specific offense characteristic numbers, a 2-point adjustment for reckless endangerment under § 3C1.2 is added and a 2-point adjustment for acceptance of responsibility is deducted, § 3E1.1. This calculation yields an adjusted offense level of 27
7 U.S.S.G. § 4B1.1 provides:
A defendant is a career offender if (1) the defendant was at least eighteen years old at the time of the instant offense, (2) the instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense, and (3) the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense. If the offense level for a career criminal from the table below is greater than the offense level otherwise applicable, the offense level from the table below shall apply. A career offender's criminal history category in every case shall be Category VI.
Offense Statutory Maximum Offense Level* (A) Life 37 (B) 25 years or more 34 (C) 20 years or more, but less than 25 32
* * *
18 U.S.C. § 924(e) provides in part:
In the case of a person who violates section 922(g) of this title and has three previous convictions by any court referred to in section 922(g)(1) of this title for a violent felony or a serious drug offense, or both, committed on occasions different from one another, such person shall be fined not more than $25,000 and imprisoned not less than 15 years, and, notwithstanding any other provision of law, the court shall not suspend the sentence of, or grant a probationary sentence to, such person with respect to the conviction under section 922(g), and such person shall not be eligible for parole with respect to the sentence imposed under this subsection.
Application Note 2 now provides:
"Crime of violence" includes murder, manslaughter, kidnapping, aggravated assault, forcible sex offenses, robbery, arson, extortion, extortionate extension of credit, and burglary of a dwelling. Other offenses are included where (A) that offense has an element the use, attempted use, or threatened use of physical force against the person of another, or (B) the conduct set forth (i.e., expressly charged) in the count of which the defendant was convicted involved the use of explosives (including any explosive material or destructive device) or, by its nature, presented a serious potential risk of physical injury to another. Under this section, the conduct of which the defendant was convicted is the focus of the inquiry.
The term "crime of violence" does not include the offense of unlawful possession of a firearm by a felon. Where the instant offense is the unlawful possession of a firearm by a felon, the specific offense characteristics of § 2K2.1 (Unlawful Receipt, Possession, or Transportation of Firearms or Ammunition; Prohibited Transactions Involving Firearms or Ammunition) provide an increase in offense level if the defendant has one or more prior felony convictions for a crime of violence or controlled substance offense; and, if the defendant is sentenced under the provisions of 18 U.S.C. § 924(e), § 4B1.4 (Armed Career Criminal) will apply.
See Appendix C, Guidelines Manual, 253-54.
28 U.S.C. § 944(p) provides:
The Commission, at or after the beginning of a regular session of Congress, but not later than the first day of May, may promulgate under subsection (a) of this section and submit to Congress amendments to the guidelines.... Such an amendment or modification shall be accompanied by a statement of the reasons therefor and shall take effect on a date specified by the Commission, which shall be no earlier than 180 days after being so submitted and no later than the first day of November of the calendar year in which the amendment or modification is submitted, except to the extent that the effective date is revised or the amendment is otherwise modified or disapproved by Act of Congress.
The court in John was faced with an analogous, but somewhat different situation from the one facing us. The defendant in John challenged the characterization of a prior offense as a crime of violence for the purposes of determining whether the Career Offender provision applied to him in the first place. The definition of the term "crime of violence" in § 4B1.2, however, is the same regardless of whether the court is concerned with the instant offense or with a prior felony conviction. But see United States v. Walker, 930 F.2d 789, 794 (10th Cir.1991) (When determining whether prior offenses is a crime of violence, court may only look to elements of crime as charged in indictment, but when categorizing instant offense, court may examine actual conduct.)
In its short life, John has been criticized by other courts of appeals as ignoring the clear intent of Sentencing Commission. These courts read § 4B1.1 and the attendant commentary to prohibit the sentencing court from looking to all the relevant conduct when deciding whether a particular offense is a crime of violence. These courts hold that this decision is made by 1) comparing the offense charged with the list of enumerated crimes of violence, 2) determining whether an element of the offense involves physical force, or 3) looking to the conduct actually charged in the indictment for evidence of violence. See United States v. Johnson, 953 F.2d 110, 112-114 (4th Cir.1991) ("In assessing a particular offense to determine if it is a crime of violence under the 'catchall' provision of U.S.S.G. § 4B1.2, a sentencing court must confine its factual inquiry to those facts charged in the indictment."); United States v. Fitzhugh, 954 F.2d 253, 255 (5th Cir.1992) (same)
It is important to note that we are not here concerned with an amendment that imposes a harsher penalty than the guidelines and commentary in effect at the time of the crime. The issue here is whether the defendant gets the benefit of an amendment that would authorize a lesser penalty. Thus the ex post facto clause is not implicated. Miller v. Florida, 482 U.S. 423, 107 S.Ct. 2446, 96 L.Ed.2d 351 (1987); United States v. Kopp, 951 F.2d 521, 526 n. 8 (3d Cir.1991)
A related question, which we need not resolve, is whether commentary amendments that are submitted to Congress in accordance with the guideline amendment procedure should be treated differently than amendments such as the one in question. We note that despite promulgating the amendment sub judice in 1991 and indicating that it would take effect November 1 of that year, the Commission recently submitted the same amendment to Congress. See 57 Fed.Reg. 20148, 20157 (1992) (Amendment 25). According to the Commission, this "new" amendment "ratifies a previous amendment to the commentary." In the absence of congressional action, the effective date of this amendment is November 1, 1992
The government notes in its brief and appendix that the fine has already been paid. The government attached the judgment and was paid directly by the government of the Virgin Islands. A small amount remained in excess of the amount of the fine which has been returned to Mr. Joshua