United States v. Higdon

PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________

No. 10-3882
_____________

UNITED STATES OF AMERICA
Appellant

v.

JOEMON D. HIGDON
A/K/A JOEMON D. HIGDEN
A/K/A JOEMON HIGDOM
A/K/A JOEMON DEANDRE HIGDON
Appellee

Appeal from the United States District Court
for the Eastern District of Pennsylvania
(No. 2-09-cr-00742-001)
District Judge: The Honorable John P. Fullam

Argued January 26, 2011

Before: McKEE, Chief Judge, SMITH, Circuit Judge,
and STEARNS, District Judge

(Opinion Filed: March 17, 2011)

Francis C. Barbieri, Jr. Esq.
Andrew J. Schell, Esq., Jeffery W. Whitt, Esq.
Robert A. Zauzmer, Esq. (Argued)
Office of United States Attorney
615 Chestnut Street

Honorable Richard G. Stearns, District Court Judge, United
States District Court for the District of Massachusetts, sitting
by designation.
1
Suite 1250
Philadelphia, PA 19106
Attorneys for Plaintiff-Appellant

Paul M. George, Esq. (Argued)
McKinney & George
239 South Camac Street
Philadelphia, PA 19107
Attorney for Defendant-Appellee

OPINION

McKEE, Chief Circuit Judge.

The United States appeals the district court‟s refusal to inform
a jury about a stipulation that was entered into with defense counsel.
The government also petitions this court for a writ of mandamus
directing the United States District Court for the Eastern District of
Pennsylvania to properly instruct a jury on the elements of the crime
of illegal possession of a firearm by a convicted felon, in violation of
18 U.S.C. § 922(g)(1), that was charged in this case. Although
mandamus is an exceptional remedy, we conclude that the troubling
circumstances of this case require granting the writ to correct the
trial court‟s continuing abuse of discretion in failing to inform the
jury of the elements of the charged offense. Accordingly, we will
grant the petition and remand the case for trial. We also find that we
have jurisdiction to review the court‟s refusal to inform the jury
about the stipulation. Given the district court‟s conduct in this case,
we feel that we have no alternative but to direct the Chief Judge of
the District Court to reassign this matter to a different judge on
remand.

I. Factual Background

Joemon D. Higden, a previously convicted felon, was
indicted for possessing a firearm in or affecting interstate commerce,
in violation of 18 U.S.C. § 922(g)(1).1 The matter was assigned on

1
Higden‟s last name has been spelled in the record as Higdon
as well as Higdom. We adopt the spelling that Higden used
2
July 20, 2010 to United States District Court Judge John P. Fullam, a
very experienced and hard working senior judge.

At trial, the government called Lisa Walker, who testified that
Higden came to her home on the night in question with a gun, and
that she called the police after Higden fired the gun in the street.
Two police officers responded to the call. The officers testified that
they observed Higden crouched over on the street. They also said
that they heard a clanking noise, and later found a gun in the same
area where Higden had been.

Prior to trial, Higden stipulated that he had been previously
convicted of a felony and that the gun the police retrieved in this
case had traveled in interstate commerce. Higden did not initially
object to introducing the stipulations at trial. They included the
following:
The firearm listed in the
Indictment – a 9mm Taurus semi-
automatic handgun, Model
PT92AFS, serial number
TAR1146, loaded with 14 rounds
of 9mm ammunition – has been
test-fired, is operable, and is a
“firearm” as defined within Title
18, United States Code, Sections
922(g)(1) and 924(e).

***

The firearm listed in the
Indictment - a 9mm Taurus semi-
automatic handgun, Model
PT92AFS, serial number
TAR1146, loaded with 14 rounds
of 9mm ammunition – was
manufactured outside of the
Commonwealth of Pennsylvania
and was therefore “in or affecting
[interstate] commerce” within the
meaning of Title 18, United States

in his brief as well as that which his counsel used during the
voir dire. See App. 27.
3
 Code, Sections 922(g)(1) and
924(e) on or about September 20,
2009.

***

Prior to September 20, 2009,
defendant Joemon D. Higd[e]n
had been convicted in a court of
the Commonwealth of
Pennsylvania of a felony crime,
punishable by imprisonment for a
term exceeding one year, within
the meaning of Title 18 United
States Code, Sections 922(g)(1)
and 924(e).

App. 20–22.

Despite both parties agreeing that the jury would be informed
about these stipulations, the district court did not permit the
government to mention them to the jury. Rather, during voir dire,
the judge only told the potential jurors:

Now the charge brought by the
Government is that the defendant,
Mr. Higd[e]n, had possession of a
firearm which it was illegal for
him to possess in those
circumstances . . . . The charge is
that the defendant was not legally
permitted to have possession of a
firearm, and the Government says
on a particular occasion he did
have possession of a firearm.

App. 27-28.

The Assistant United States Attorney (“AUSA”) prosecuting
the case repeatedly objected to the district court‟s refusal to inform
the jury of the relevant charge.

4
 On the first day of trial, the AUSA asked Judge Fullam in
chambers whether he could refer to the prior felony conviction in his
opening statement. The AUSA apparently made that request
because Judge Fullam described Higden‟s offense to the potential
jurors as simply “possession of a firearm which [] was illegal for
him to possess in those circumstances,” App. 27, without mentioning
the other two elements of § 922(g)(1). Judge Fullam denied the
request and told the prosecutor that Higden‟s stipulation about his
prior conviction would not be sent to the jury.

The following morning, the judge held another conference in
chambers at the prosecutor‟s request. The AUSA again asked if he
could inform the jurors of the elements of the charged offense, and
cited precedent of this court. The AUSA argued that, at a minimum,
the court should colloquy the defendant to ensure that he had agreed
to waive his right to have all of the elements of § 922(g) established
by proof beyond a reasonable doubt to the jury. The court denied
both requests.

After returning to the courtroom, the court reiterated that the
stipulation regarding Higden‟s prior convictions would not be
provided to the jury “in spite of the Government‟s position.” App.
126. The court then cut off the prosecutor‟s attempts to make a
record, asking the AUSA: “Are you getting paid by the day or
what[?]” App. 127. The prosecutor then requested a brief stay to
consult with superiors in his office about the possibility of filing a
petition for mandamus. App. 124. The court refused and chided the
prosecutor, stating: “You go right ahead, but you‟re not going to get
a stay. You‟re expected to act like human beings.” App. 124.

As promised, during the trial, the court refused to permit the
government to inform the jury of any of the stipulations. Thus, the
jury was not informed that the defendant had a prior felony
conviction, nor was the government allowed to present evidence to
establish that the firearm had travelled in interstate commerce – two
of the three elements that the government had to prove beyond a
reasonable doubt to convict Higden of violating § 922(g).

At the conclusion of the trial, before the court instructed the
jury, the prosecutor reiterated his request that the court colloquy the
defendant about the effect of the stipulations. The prosecutor asked
for “a very brief colloquy that [the defendant] understands that he
agrees to give up his right to have the jury decide the other two

5
elements.” App. 158. The court denied the request, explaining
“[b]ecause he‟s agreed – defendant has already agreed to those.
We‟ve been over this enough. Please be seated. You‟re wasting our
time.” App. 158.

In the parties‟ proposed jury instructions, both Higden and the
government agreed that the jury should be instructed on all of the
elements of the offense. The language that the attorneys agreed to
largely tracked the Third Circuit model jury instructions, which
addresses all of the elements of § 922(g)(1).2 However, the
instruction that the court actually gave deviated significantly from
the model instructions, and consisted mostly of boilerplate language
pertaining to the definition of “evidence,” the presumption of
innocence, and reasonable doubt. The court‟s entire instruction on §
922(g)(1) was as follows:

The issue in this case, as you
know by now, is does the
evidence establish beyond a
reasonable doubt that the
defendant, Mr. Higd[e]n, had
possession of this firearm at the
time in question, namely, last
September 20, 2009.

***
I‟m sure that when you carefully
consider the evidence and the
arguments of counsel that are
based on that evidence, you will
have little difficulty in
understanding that your job is to

2
The Third Circuit‟s model jury instruction regarding a
stipulation is as follows:

“The Government and the defendant(s) have agreed that (set
forth stipulated fact(s)) (is)(are) true. You should therefore
treat (this fact)(these facts) as having been proved. You are
not required to do so, however, since you are the sole judge of
the facts.”

Model Third Circuit Crim. Jury Instruction 4.02.
6
 decide whether the evidence
which was actually presented does
or does not establish beyond a
reasonable doubt that the
defendant, Mr. Higd[e]n, had
possession of this firearm, that he
knew he had possession and knew
it was a firearm.

App. 203-04. Thus, not only did the court fail to inform the jury of
the fact of a prior felony and the need to find that the gun travelled in
interstate commerce, which were two of the three elements of the
charged offense, but the court also offered no instruction on the
meaning of “possession.”3

After nearly a day of deliberation, the jury pronounced that it
was deadlocked. App. 229. Judge Fullam responded by taking the
highly unusual step of proposing the following: “[A]ssuming that the
jury is somewhat evenly divided, would there be any consideration
in accepting a majority vote for the jury?” App. 227. The
government rejected the idea and reminded the court that a criminal
jury‟s verdict must be unanimous. App. 228. Defense counsel
stated that he “could not in good conscience” agree to the court‟s
suggestion without knowing the vote. App. 227-28. The court
responded by telling the attorneys that “both sides are entitled to the
same information,” but noting: “[s]o far you‟ve been informed that
it‟s fairly even.” 4 App. 227. Afterwards, the court informed the

3
“Possession” is clearly a common term and it may not, at
first, appear to require definition. However, that is not the
case when a defendant is charged with a possessory offense,
especially where, as here, the contraband was not found on
his person. Thus, the term should have been explained to the
jury. See United States v. Weatherly, 525 F.3d 265, 270 (3d
Cir. 2008).
4
The court added: “I don‟t propose to let you know what the
ultimate outcome would be by a majority vote. I don‟t think
that‟s fair to either side, unless – unless you want it. I don‟t
know.” App. 227. When neither attorney responded, the
court observed: “I hear a deafening silence.” App. 228.
Defense counsel finally told the court that he “did not have
the guts . . . to recommend that to [his] client[;]” and the court
7
parties that the vote was 7 in favor of guilty and 5 in favor of not
guilty. The court scheduled a second trial for September 27, 2010,
pointing out that it would “retry it at vast expense and effort.” App.
228.

In advance of the scheduled retrial, the government filed a
motion in limine on September 15, 2010, in which it moved: (1) that
the court advise the jury at the outset that the charge in this case is
possession of a firearm by a convicted felon, in violation of 18
U.S.C. § 922(g)(1); (2) that the government be permitted to present
to the jury evidence and argument regarding each of the elements of
the § 922(g)(1) offense, including stipulations regarding two of the
elements; and (3) that the court instruct the jury at the conclusion of
the trial regarding each of the elements of the offense. App. 236-57.
Although Higden had originally agreed with the government that the
jury should be instructed about the stipulations, he now opposed the
government‟s motion arguing that the government sought to
prejudice his case. App. 259-62.

The district court denied the motion in limine. In doing so,
Judge Fullam explained that at the first trial, he followed his “normal
procedure,” App. 7, of informing the jury that the defendant was not
lawfully permitted to have possession of a firearm on the occasion in
question, and that he intended to follow this practice at the second
trial as well.5 Judge Fullam asserted that the “only conceivable
purpose,” App. 7-8, for the government‟s desire to inform the jury

asked the AUSA: “[i]s the government counsel any more
courageous?” App. 228.
5
Judge Fullam has adopted this practice in at least two other
cases. In United States v. Harold Brunson, No. 10-4039,
2011 WL 758839 (3d Cir. Mar. 3, 2011), Judge Fullam
denied the government‟s motion in limine to instruct the jury
about all of the elements of the § 922(g)(1) offense. The
government filed an appeal and petition for writ of
mandamus, which has been granted. In United States v.
Darrell Bell, No. 10-454 (E.D. Pa.), in the wake of the
Higden case, the government filed a motion in limine
requesting that the court advise the jury regarding each
element of the § 922(g)(1) offense. Judge Fullam entered an
order continuing the case pending our decision in the present
appeal.
8
about the felony conviction would be to prejudice Higden. Rather
than proceed with the trial, the government filed this appeal and
petitioned for mandamus.

Higden subsequently filed a motion to bifurcate the evidence.
App. 271-72. He asked that the jury be informed of the prior
conviction if, and only if, it first concluded that he possessed the
firearm in question. The government filed a response opposing the
motion and the district court stayed the case because the
government‟s appeal was pending. App. 276-81.

II. Standard of Review

The district court‟s decision regarding the admissibility of
evidence is reviewed for abuse of discretion. United States v.
Serafini, 233 F.3d 758, 768 n.14 (3d Cir. 2000). We apply the same
standard in reviewing a district court's determination that the risk of
unfair prejudice does not substantially outweigh the probative value
of otherwise admissible evidence. See United States v. Mathis, 264
F.3d 321, 326-27 (3d Cir. 2001).

III. Discussion

A. Jurisdiction

The Criminal Appeals Act, 18 U.S.C. § 3731, governs when
the government can take an interlocutory appeal. Higden maintains
that this appeal falls outside of the permission granted in that Act
and that we therefore lack jurisdiction. Section 3731 provides in
pertinent part:

An appeal by the United States
shall lie to a court of appeals from
a decision or order of a district
court suppressing or excluding
evidence or requiring the return of
seized property in a criminal
proceeding, not made after the
defendant has been put in
jeopardy and before the verdict or
finding on an indictment or
information, if the United States
attorney certifies to the district

9
 court that the appeal is not taken
for purpose of delay and that the
evidence is substantial proof of a
fact material in the proceeding.

Higden argues that jurisdiction does not lie under § 3731
because the district court neither suppressed nor excluded any
evidence. However, the Supreme Court has explained that the
legislative history of § 3731 “makes it clear that Congress intended
to remove all statutory barriers to [g]overnment appeals and to allow
appeals whenever the Constitution would permit.” United States v.
Wilson, 420 U.S. 332, 337 (1975). This is consistent with the
language of the statute itself, which states that “[t]he provisions of
this section shall be liberally construed to effectuate its purposes.”
18 U.S.C. § 3731.

Here, the court refused to introduce stipulations regarding
Higden‟s prior felony and the fact that the firearm had traveled in
interstate commerce. The court then denied the government‟s
motion to introduce evidence about the stipulated facts at the retrial.
The court‟s order constituted an evidentiary ruling that effectively
suppressed proof of the facts set forth in the stipulation including
evidence of Higden‟s prior conviction.

Accordingly, we conclude that § 3731 confers appellate
jurisdiction to review the district court‟s order prohibiting the
stipulation being admitted into evidence. See United States v.
Helstoski, 576 F.2d 511, 521 (3d Cir. 1978) (“Section 3731 was
designed to allow appeals from [district court orders] to insure that
prosecutions are not unduly restricted by erroneous pre-trial
decisions to exclude evidence.”).

However, § 3731 does not allow us to exercise jurisdiction
over the district court‟s refusal to properly charge the elements of the
offense for which Higden was on trial. That ruling did not suppress
or exclude evidence. Rather, it prohibited the jury from learning the
definition of the crime with which Higden was charged. We know
of no authority that would allow us to stretch the parameters of §
3731 far enough to cover a court‟s refusal to inform the jury of the
elements of the crime(s) with which the defendant is charged.

Nevertheless, that does not end our jurisdictional inquiry
because the government claims that the court‟s refusal to properly

10
charge a jury is appropriate for mandamus relief pursuant to 28
U.S.C. § 1651. Higden contends that we lack jurisdiction to issue a
writ of mandamus because the district court did not exceed the
lawful exercise of its discretion. However, as we will explain, we
believe that this case is precisely the sort of “extraordinary” situation
where a writ of mandamus is warranted. Kerr v. United States Dist.
Court, 426 U.S. 394, 402 (1976); In re Nwanze, 242 F.3d 521, 524
(3d Cir. 2001).

B. The Stipulation

In order to establish a violation of § 922(g)(1), the
government must establish each of the following elements beyond a
reasonable doubt: (1) the defendant has been convicted of a crime
punishable by imprisonment for a term exceeding one year; (2) the
defendant knowingly possessed the firearm; and (3) the firearm had
travelled in interstate commerce. United States v. Dodd, 225 F.3d
340, 344 (3d. Cir. 2000). Here, the court only informed the jury
about the second element – whether Higden had possessed the gun
the government introduced into evidence.

We have previously rejected the idea that a defendant‟s
stipulation to an element of an offense removes that element entirely
from the jury‟s consideration. In United States v. Williams, 612 F.2d
735 (3d Cir. 1979), the defendant agreed to stipulate to his prior
conviction and asked the district court to preclude the government
from referring to his status as a convicted felon. Id. at 740.
However, the government refused to join the tendered stipulation,
and the district court did not require the government to do so. Id.
Rather, the government introduced evidence of the prior conviction
and the defendant subsequently appealed his conviction. On appeal,
we summarized the issue regarding the proposed stipulation as
follows:

Counsel for the appellant offered
in effect to modify the statute by
stipulating that the appellant was
a convicted felon and to preclude
thereby any mention to the jury of
the appellant's felony status either
by argument of counsel for the
government or through
instructions to the jury by the

11
 court on the elements of the
crime. Counsel for government
refused to join in such a
stipulation, and the court refused
to require the government so to
do.

Id. We held that “[t]he court did not err.” Id. We explained that
“we perceive no authority for counsel or the court to modify a
criminal statute enacted by Congress by eliminating through
stipulation one of the elements of the crime.” Id. We further noted
that even if the stipulation “did not go so far as to constitute the
modification of a criminal statute, „[t]he Government was not
required to accept a judicial admission . . . of the defendant but had a
right to proffer proof on the point admitted.‟” Id. (quoting United
States v. Brickey, 426 F.2d 680, 686 (8th Cir. 1970)) (ellipsis in
original).

Our holding in Williams is consistent with the Supreme
Court‟s recognition that the protections of the Sixth Amendment
entitle every criminal defendant to “a jury determination that [he] is
guilty of every element of the crime with which he is charged,
beyond a reasonable doubt.” Apprendi v. New Jersey, 530 U.S. 466,
477 (2000). The constitutional right to trial by jury has, “as its most
important element, the right to have the jury, rather than the judge,
reach the requisite finding of „guilty.‟” Sullivan v. Louisiana, 508
U.S. 275, 277 (1993). That fundamental component of a jury trial
cannot be negated or abridged by stipulation. Therefore, although a
stipulation may provide a mechanism for proving facts that
constitute an element of an offense, it cannot prevent a jury from
performing its role as the ultimate finder of fact as to all those facts
required to prove the elements of an offense beyond a reasonable
doubt.

Every court of appeals that has addressed the issue before us
has reached the same conclusion. In United States v. Gilliam, 994
F.2d 97, 100 (2d Cir. 1993), the Court of Appeals for the Second
Circuit held that removing an element from the jury‟s consideration
upon a stipulation would offend the function of the jury. The court
explained that “[w]ithout full knowledge of the nature of the crime,
the jury cannot speak for the people or exert their authority.” Id. at
101. Indeed, the court emphasized that removing an element of the

12
crime from the jury‟s consideration “violates the very foundation of
the jury system.” Id. at 100.

Similarly, in United States v. Milton, 52 F.3d 78, 81 (4th Cir.
1995), the Court of Appeals for the Fourth Circuit held that
removing the prior felony element of the § 922(g)(1) offense from
the jury‟s consideration “prevents the government from having its
case decided by the jury, and changes the very nature of the charged
crime.” Accordingly, the court held that the district court must
instruct the jury of all the elements of the crime charged. Id.; see
also United States v. Barker, 1 F.3d 957, 959 (9th Cir. 1993),
amended, 20 F.3d 365, 366 (9th Cir. 1994); United States v.
Birdsong, 982 F.2d 481, 482 (11th Cir. 1993); United States v.
Collamore, 868 F.2d 24, 27-29 (1st Cir. 1989); United States v.
Bruton, 647 F.2d 818, 825 (8th Cir. 1981) (en banc); United States v.
Brinklow, 560 F.2d 1003, 1006 (10th Cir. 1977).

Higden counters by arguing that none of these cases are
relevant because they pre-date the Supreme Court‟s decision in Old
Chief v. United States, 519 U.S. 172 (1997), which Higden contends
is directly on point. There, as here, the defendant was a convicted
felon who had been charged with possession of a firearm in violation
of 18 U.S.C. § 922(g)(1). Id. at 175. The defendant stipulated to the
prior felony and moved for an order to prevent the government from
presenting evidence of his prior offense because of its likelihood to
prejudice the jury. Id. The district court denied the order and the
court of appeals affirmed, finding that the government was entitled
to introduce probative evidence to prove the prior offense, regardless
of the defendant‟s stipulation offer. Id. at 177. The Supreme Court
reversed. Id. at 192.

The Court held that the district court abused its discretion by
spurning the defendant‟s offer to stipulate to the prior offense
because the admissibility of the evidence would be prejudicial to the
defendant. Id. at 174. The Court was sensitive to the specific
problem raised by § 922(g)(1) and the prior felony conviction
element. The Court explained that “there can be no question that
evidence of the name or nature of the prior offense generally carries
a risk of unfair prejudice to the defendant.” Id. at 185. Therefore,
the Court reasoned that the trial court should have accepted the
stipulation because “[the defendant‟s] proffered admission . . .
presents the District Court with alternative, relevant, admissible and

13
seemingly conclusive evidence of the prior conviction,” Id. at 186,
that would allay the risk of unfair prejudice to the defendant.

However, Old Chief does not stand for the proposition that
evidence of a defendant‟s prior conviction is not admissible when a
defendant offers to stipulate to the conviction. Rather, the Court
held only that the “name or general character of that crime” need not
be disclosed because “the fact of the qualifying conviction is alone
what matters under the statute.” Id. at 190. In fact, the Court
anticipated that a jury would be informed of the stipulation about a
defendant‟s prior conviction. The Court explained that: “the most
the jury needs to know is that the conviction admitted by the
defendant falls within the class of crimes that Congress thought
should bar a convict from possession of a gun, and this point may be
made readily in a defendant‟s admission and underscored in the
court‟s jury instructions.” Id. at 190-91. Thus, the Supreme Court
did not hold, as Higden contends, that the jury need not be informed
of the fact of a prior conviction when that prior conviction is an
element of the charged offense. On the contrary, the Court affirmed
that the jury must still be made aware of the existence of a
defendant‟s prior conviction.6

6
Higden also cites to United States v. Mason, 85 F.3d
471 (10th Cir. 1996) in support of his position that a jury
should not be informed of a defendant‟s prior conviction,
even if it is an element of the charged offense. In Mason, the
defendant was prosecuted under 18 U.S.C. § 922(g) and the
parties stipulated to the prior felony conviction and interstate
commerce elements of the offense. Id. at 471-72. The
district court then instructed that because the parties
stipulated to these elements, “the government need not offer
proof as to these elements, and you should consider them
proven by the government.” Id. at 472.

On appeal, the defendant argued that the district court
erred by withholding the stipulated elements from the jury's
consideration. Finding no error in the district court's jury
instructions, the Court of Appeals for the Tenth Circuit
reasoned that “the jury need not resolve the existence of an
element when the parties have stipulated to the facts which
establish that element . . . the judge has not removed the
consideration of an issue from the jury; the parties have.” Id.
Higden‟s reliance on this case is wholly misplaced because
14
 Our analysis of Old Chief is consistent with other post-Old
Chief decisions, which conclude that a district court may not entirely
exclude a stipulated fact from the jury‟s consideration when that fact
constitutes an element of an offense. In United States v. Chevere,
368 F.3d 120, 122 (2d Cir. 2004), the Court of Appeals for the
Second Circuit held that in a prosecution under § 922(g)(1), there are
“no circumstances” where a district court may remove the element
of a prior felony conviction entirely from the jury‟s consideration by
accepting a defendant‟s stipulation to that element. Consistent with
the holding in Old Chief, the court explained that “[a]lthough a
defendant may, by stipulating that he has a prior felony conviction,
prevent the jury from hearing the nature or underlying facts of the
conviction, he may not prevent the jury from learning the fact that he
has a prior felony conviction – a ‘crucial element’ of the offense.”
Id. at 121 (emphasis in original). Similarly, in United States v.
Amante, 418 F.3d 220 (2d Cir. 2005), the court quoted heavily from
its earlier opinion in Gilliam, 994 F.2d 100, in finding that
withholding an element of a crime from a jury‟s consideration places
the jury “in a position only to make findings of fact on a particular
element without knowing the true import of those findings.” Id. at
223. The court reasoned that a defendant‟s “prior conviction is a
„critical element‟ of § 922(g)(1) that cannot be divorced from the
crime.” Id.

Moreover, our reasoning here is informed not only by our
own precedent and the persuasive reasoning of our sister circuit
courts of appeals, but also by the practical implications of failing to
instruct a jury about all elements of this offense. Possession of a
firearm is ordinarily not a crime, and the emotions and fervor
surrounding efforts to restrict gun ownership are all too familiar to
require citation. Therefore, it is quite likely that a juror would be
concerned about prosecuting someone merely for possessing a
firearm, particularly if the juror is a gun owner. Although no one
other than the people on Higden‟s first jury can know why it
deadlocked, common sense suggests that it may well have been

the Tenth Circuit never found that the district court could
refuse to inform the jury of the prior conviction or the
elements that make up the charged offense. On the contrary,
the district court judge explicitly advised the jury of the
elements of § 922(g)(1), including the prior felony element,
and the Tenth Circuit found no error in that instruction. Id. at
471.
15
because of concerns about convicting someone for simply
possessing a gun. The fact that the first trial resulted in a hung jury
also suggests that at least some of the jurors may have been confused
about why Higden was on trial in the first place. See Old Chief, 519
U.S. at 189 (“People who hear a story interrupted by gaps of
abstraction may be puzzled at the missing chapters, and jurors asked
to rest a momentous decision on the story's truth can feel put upon at
being asked to take responsibility knowing that more could be said
than they have heard.”). Furthermore, the district court‟s jury
instructions were so cursory that it is entirely possible that the jury
surmised that Higden had been charged with an entirely different
offense altogether. For example, it is a federal crime for an illegal
alien to possess a gun. See 18 U.S.C. § 922(g)(5).

In addition, failing to instruct the jury about the prior felony
element of the § 922(g)(1) offense would have the impermissible
effect of allowing the district court to modify a congressionally
enacted criminal statute by eliminating an element of the crime
through stipulation. It is also contrary to fundamental concepts of a
jury trial. See United States v. Haywood, 363 F.3d 200, 207 (3d Cir.
2004) (“[O]mission of an essential element of an offense [in a jury
instruction] ordinarily constitutes plain error.‟”) (quoting United
States v. Xavier, 2 F.3d 1281, 1287 (3d Cir. 1993)) (emphasis in
original); United States v. Cornish, 103 F.3d 302, 307 (3d Cir. 1997)
(finding that the jury should be informed about a stipulated element);
Williams, 612 F.2d at 740 (rejecting the appellant‟s proffered
stipulation on grounds that it would modify a criminal statute).

We, of course, realize the danger of undue prejudice inherent
in any attempt to inform a jury that a defendant has a prior criminal
conviction. Such evidence can certainly create bias that could
increase the likelihood of a conviction on something other than
evidence. We have previously recognized that a government‟s
proffered reasons “to admit prior bad act evidence may often be [a]
Potemkin [Village], because the motive, we suspect, is often mixed
between an urge to show some other consequential fact as well as to
impugn the defendant's character.” United States v. Sampson, 980
F.2d 883, 886 (3d Cir. 1992). Here, however, Higden‟s prior
conviction is not merely a consequential fact, it is an element of the
crime charged. Thus, any prejudice results from the requirements of

16
the statute itself, and is best addressed by an appropriately forceful
limiting instruction.7

Nevertheless, we are not so naïve as to believe that a curative
instruction will always vitiate all possibility of prejudice in every
case. It will, however, help to balance the district court‟s obligation
to inform the jury about the charge at issue on the one hand, and the
defendant‟s right to a fair trial by an unbiased fact finder on the
other. See Zafiro v. United States, 506 U.S. 534, 540-41(1993)
(noting the presumption that jurors follow limiting instructions);
United States v. Liburd, 607 F.3d 339, 344 (3d Cir. 2010) (“[W]hile
curative instructions cannot repair every error, we do generally
presume that juries follow their instructions.”); Gilliam, 994 F.2d at
100 (“But where the district court issues a proper curative
instruction, we must presume that a conscientious jury will only use
the proof of the prior conviction to satisfy the element of the
crime.”).

7
We agree that courts must diligently attempt to prevent
the kind of prejudice that “clouds impartial scrutiny and
reasoned evaluation of the facts,” United States v. Starnes,
583 F.3d 196, 215 (3d Cir. 2009), by ensuring that
prosecutors do not attempt to exploit the defendant‟s record.
Thus, at the very least, forceful and carefully tailored curative
instructions will almost always be required.

For example, see Gilliam, 994 F.2d at 99, in which the
Second Circuit cited with approval the district court‟s limiting
instructions with respect to a § 922(g) offense:

Now, I want to firmly instruct you in this connection
that the prior conviction that is an element of the
charge here and is not disputed, is only to be
considered by you for the fact that it exists. And for
nothing else. You are not to consider it for any other
purpose, you are not to speculate as to what it was for
or anything else. It is not to be in any way considered
by you on whether it is more likely than not that the
defendant was in knowing possession of the gun that is
charged, which is the disputed element of the offense
here charged.
17
 In addition, Higden‟s claim of undue prejudice here is further
undermined by the fact that evidence of a defendant‟s prior bad act
can be admitted as proof of motive, intent, knowledge, or any
number of other factors under Fed.R.Evid. 404(b). United States v.
Scarfo, 850 F.2d 1015, 1019 (3d Cir. 1988)). It is true that evidence
of prior bad acts is excluded under Rule 404(b) when it involves
“other crimes, wrongs, or acts.” Rule 404(b) (emphasis added).
However, Higden‟s prior conviction proves an element of the
charged offense and is therefore not evidence of some “other” crime.

C. Bifurcation of the Trial

As an alternative to the procedure that the district court
adopted in Higden‟s first trial, Higden contends that we should
approve a bifurcated second trial. Under the proposed bifurcated
procedure, the jury would learn about the prior conviction only after
determining whether Higden was in possession of a firearm. In his
motion to bifurcate, Higden contends that bifurcation “would allow
the government to present evidence regarding all elements of the
offense without predisposing the jury to resolve the element of
possession against Defendant on the basis of his prior record.” App.
271. In other words, Higden asserts that a bifurcated procedure
would help mitigate any undue prejudice that would arise by the jury
knowing of his prior conviction at the outset of the trial.

The district court did not rule on Higden‟s motion to bifurcate
the evidence because it stayed the case on the basis of the
government‟s appeal. Therefore, the bifurcation issue is not before
us. We will note, however, that we have rejected a bifurcated
procedure under similar circumstances. See United States v. Jacobs,
44 F.3d 1219, 1223 (3d Cir. 1995). 8

8
In Jacobs, we held that the trial court was not permitted
to sever the trial of a single § 922(g) offense to prevent the
jury from learning of a defendant‟s prior felony conviction
until it resolved other elements. We reasoned that bifurcation
would deprive the jury of knowledge of the very crime with
which the defendant was charged, which was an untenable
result. Id. Since our decision in Jacobs, every appellate court
that has addressed whether a single count indictment under §
922(g)(1) should be entitled to a bifurcated trial has rejected
the idea. See Amante, 418 F.3d at 225; United States v.
Clark, 184 F.3d 858, 866-68 (D.C. 1999); United States v.
18
 D. Writ of Mandamus as a Remedy

The All Writs Act gives appellate courts the power to issue a
writ of mandamus “in exceptional cases where the traditional bases
for jurisdiction do not apply.” In re Pasquariello, 16 F.3d 525, 528
(3d Cir. 1994). The Act states that “[t]he Supreme Court and all
courts established by Act of Congress may issue all writs necessary
or appropriate in aid of their respective jurisdictions and agreeable to
the usages and principles of law.” 28 U.S.C. § 1651(a).
Traditionally, the writ of mandamus has been used “to confine an
inferior court to a lawful exercise of its prescribed jurisdiction or to
compel it to exercise its authority when it is its duty to do so.” Will
v. Calvert Fire Ins. Co., 437 U.S. 655, 661 (1978). The writ is a
drastic remedy that “is seldom issued and its use is discouraged.”
Lusardi v. Lechner, 855 F.2d 1062, 1069 (3d Cir. 1988).

Nevertheless, the need for a writ of mandamus is “obvious” in
certain very rare circumstances. Blasband v. Rales, 979 F.2d 324,
328 (3d Cir. 1992). “For example, mandamus is appropriate when a
district court has failed to adhere to the mandate of an appellate
court.” In re Chambers Development Co., Inc., 148 F.3d 214, 224
(3d Cir. 1998); see also Delgrosso v. Spang & Co., 903 F.2d 234,
237 (3d Cir. 1990).

Koskela, 86 F.3d 122, 125 (8th Cir. 1996); United States v.
Dean, 76 F.3d 329, 332 (10th Cir. 1996); Milton, 52 F.3d at
80-81; Birdsong, 982 F.2d at 482; Barker, 1 F.3d at 959;
Collamore, 868 F.2d at 28. As we explained in Jacobs,
bifurcation under these circumstances puts the jury in the
difficult position of deciding the guilt or innocence of a
defendant without knowing all of the elements of the crime
that is charged. Jacobs, 44 F.3d at 1222.

This does not, however, mean that other appropriate
steps cannot be taken to minimize the danger of undue
prejudice that could almost certainly result from the jury
learning of the defendant‟s prior felony conviction. Indeed,
courts should attempt to minimize and mitigate that danger,
but they must do so in ways that are appropriate, consistent
with precedent, and do not deprive the jury of the information
it needs to appropriately determine the defendant‟s guilt for
the charged offense.
19
 In order for a court to issue the writ, (1) the petitioner must
have no other adequate means to obtain the desired relief, and (2) the
petitioner must meet its burden of showing that its right to the writ is
clear and indisputable. Cheney v. U.S. Dist. Ct. D.C., 542 U.S. 367,
380-81 (2004). Even when these prerequisites are met, however, the
issuance of a writ is “largely discretionary.” Hahnemann Univ.
Hosp. v. Edgar, 74 F.3d 456, 461 (3d Cir. 1996).

We find that both elements have been met here. First, it is
crystal clear that the government has “no other adequate means” of
compelling the district court to instruct the jury of all elements of the
§ 922(g) offense. As noted above, the prosecutor repeatedly asked
the district court, both in conferences held in chambers as well as in
the courtroom, to inform the jury of the relevant charge. The
prosecutor also requested on two occasions that the court colloquy
Higden to confirm that he agreed to waive his right to have all of the
elements of the crime found by a jury beyond a reasonable doubt.9
The court denied these requests. The prosecutor then asked for a
stay to permit consultation with his superiors regarding the
possibility of filing a petition for mandamus. That request was
similarly denied. The government then filed a motion in limine
requesting the district court to properly instruct the jury about each
of the elements of § 922(g)(1) at the conclusion of the trial. That
request was also denied by the district court. The government thus
exhausted all possible options, and was left with no alternative but to
allow the retrial to proceed under the same circumstances as the first
trial, or to seek relief by writ of mandamus.

The second requirement for mandamus relief is also satisfied
here. The court‟s insistence on giving an improper jury charge
constitutes “clear and indisputable” error, Cheney, 542 U.S. at 381,
especially given the district court judge‟s stated intention of
repeating his “usual practice” at the retrial. App. 7-8. We have
recognized that “the adoption of a clearly erroneous jury instruction

9
This request was apparently based upon the AUSA‟s
awareness that allowing the case to be submitted to the jury
based only upon the stipulation to two elements without
requiring (or allowing) any proof of those elements would be
tantamount to waiving the defendant‟s constitutional right to
a jury trial as to the two elements that were the subject of the
stipulations.
20
that entails a high probability of failure of a prosecution – a failure
the government could not then seek to remedy by appeal or
otherwise – constitutes the kind of extraordinary situation in which
we are empowered to issue the writ of mandamus.” United States v.
Wexler, 31 F.3d 117, 129 (3d Cir. 1994).

This is such an extraordinary situation. The district court
refused to abide by controlling precedent that a jury must be
instructed about all of the elements of an offense. The precedent is
not only clear, but is fundamental to the jury system. In addition, the
court‟s conduct placed the government in a very precarious situation.
On one hand, any conviction based on the flawed jury instruction the
court insisted on giving would almost surely have been reversed,
thereby subjecting the defendant to another retrial. On the other
hand, an acquittal after a flawed jury instruction would leave the
government with no ability to appeal because the protections of the
Double Jeopardy Clause would apply. See Wexler, 31 F.3d at 128.

The situation is especially problematic here because, as we
noted above, possession of a firearm is not a crime under ordinary
circumstances, and it is now clear that an individual has a
constitutional right to possess a gun. See District of Columbia v.
Heller, 554 U.S. 570, 635 (2008) (holding that the District of
Columbia‟s ban on handgun possession in the home violates the
Second Amendment, as there is an individual right to gun
ownership). A juror who is asked to convict someone merely for
possessing a gun under “these circumstances,” App. 27, with no
explanation about the “circumstances” that make possession a crime,
could well be both confused by the charges and reluctant to convict
for conduct that s/he knows is not ordinarily criminal. It is hard to
believe that some jurors would have been anything other than
puzzled as well as distrustful given the erroneous and incomplete
jury charge here.

We are also deeply troubled that the district court would even
entertain the notion of accepting a majority vote from the jury, in
clear violation of a defendant‟s constitutional right to a unanimous
jury verdict in a federal criminal trial. See McDonald v. City of
Chicago, 130 S.Ct. 3020, 3035 n.14 (2010) (explaining that the
Sixth Amendment right to trial by jury requires a unanimous jury
verdict in federal criminal cases); United States v. Beros, 833 F.2d
455, 461 (3d Cir. 1987) (“[J]ust as the [S]ixth [A]mendment requires
jury unanimity in federal criminal cases on each delineated offense

21
that it finds a defendant culpable, it must also require unanimity
regarding the specific act or acts which constitutes that offense.”
(internal citation omitted)) .10 Accordingly, we affirmatively
exercise our discretion and conclude that the circumstances here
merit mandamus relief. See Amante, 418 F.3d 220. In granting
mandamus relief, we are aware that another panel of this Court has
now decided the case of United States v. Harold Brunson. See note
6, supra.11 There, as here, the same district court judge refused to
follow the precedent of this circuit and instead insisted upon
conducting a trial according to his own personal view of the law and
his own custom.

The resulting situation is as unfortunate as it is regrettable.
We noted at the outset that Judge Fullam is a very experienced and
hard working jurist and he has devoted decades of service to the
federal bench. Nothing we have said in this opinion should detract
from that. However, neither this court, nor any other court, can
tolerate a situation where a judge decides to follow his/her own
custom and concepts of justice rather than the precedent of the
applicable appellate court or the United States Supreme Court. Ours
is a nation of laws, not judges.

In granting relief, we have acknowledged that human frailties
may well predispose jurors against a defendant charged with
violating § 922 and result in a conviction based primarily upon a

10
Indeed, the district court judge‟s suggestion that defense
counsel and the AUSA consider agreeing to decide the
outcome by a majority vote of a closely divided jury is so
bizarre that it is tempting to assume that the court was simply
joking. However, the judge did nothing to correct the
impression that he was serious and neither side interpreted the
court‟s overture as anything other than a serious suggestion.
Both attorneys responded as if the court was serious and
nothing suggests that they were mistaken in doing so.
11
Brunson is a nonprecedential opinion. However, we do
not refer to it here by way of authority. Rather, our reference
is only intended to provide the context of this appeal and
mandamus petition. Moreover, given the conclusion of the
unanimous panel in Brunson, it is clear that this case must be
assigned to a different judge on remand.

22
prior criminal record even where the evidence might not otherwise
support a conviction. Nonetheless, we cannot accept a situation of a
judge taking it upon himself/herself to mitigate prejudice in a
manner that undermines the very laws the judge has taken an oath to
uphold and defend.

Nor can all that happened here be dismissed as the result of
the court‟s concern for ensuring that Higden received a fair trial. We
can think of few procedures that would be more prejudicial to a
defendant‟s constitutional rights, nor more inimical to the concept of
a right to a jury trial embodied in the Sixth Amendment, than the
court‟s suggestion that this case be decided by a majority vote of a
closely divided jury. We are therefore simply at a loss to understand
the court‟s behavior.

Finally, we are not convinced that the district court was
justified in believing that the government‟s only intent in eliciting
proof of Higden‟s prior conviction was to unduly prejudice him.
Although that may sometimes be the case, nothing on this record
suggests that the prosecutor here was concerned about anything
other than informing the jury of the elements of the charged offense
as defined by Congress when he asked to inform the jury of the
existence of the prior felony conviction.12

In light of these unfortunate circumstances, we will grant the
petition for mandamus. We must also exercise our authority to
direct the Chief Judge of the Eastern District of Pennsylvania to
reassign the case to another district court judge on remand. See

12
We realize that there are certainly instances where the
government may seek to admit a defendant‟s prior bad acts in
an effort to prejudice the jury. While referring to
admissibility of prior bad acts under Fed. R. Evid. 404(b), we
have noted that there are “obvious dangers inherent in
evidence of uncharged bad acts, and the adversarial tendency
of the proponents of such evidence to be less than candid
about their motives for offering evidence that suggests that a
defendant's character is suspect.” United States v. Morley,
199 F.3d 129, 139 (3d Cir. 1999). However, an examination
of the record in this case makes clear that the prosecutor
merely sought to make the jury aware of the elements of the
charged offense.

23
Alexander v. Primerica Holdings, Inc., 10 F.3d 155, 167 (3d Cir.
1993) (“We are authorized to order the reassignment of this case to
another district court judge pursuant either to the All Writs Act, 28
U.S.C. § 1651(a) or 28 U.S.C. § 2106.”). Although we recognize
that “[t]he decision to remove a judge from an ongoing trial should
be considered seriously and made only rarely,” Huber v. Taylor, 532
F.3d 237, 251 (3d Cir. 2008), the district court‟s troubling actions in
this case leave us with no alternative.

IV. Conclusion

For the foregoing reasons, we will grant the writ of
mandamus and remand for additional proceedings consistent with
this opinion. In doing so, we will direct the Chief Judge of the
District Court for the Eastern District of Pennsylvania to assign this
case to a different judge.

24