United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 10, 1998 Decided May 12, 1998
No. 97-3093
United States of America,
Appellee
v.
Robert S. Bowie, Jr.,
Appellant
Appeal from the United States District Court
for the District of Columbia
(No. 96cr00243-01)
Ronald N. Carroll argued the cause for appellant, with
whom David A. Handzo was on the briefs.
L. Jackson Thomas, II, Assistant U.S. Attorney, argued
the cause for appellee, with whom Wilma A. Lewis, U.S.
Attorney, John R. Fisher and G. Michael Lennon, Assistant
U.S. Attorneys, were on the brief.
Before: Randolph, Rogers and Tatel, Circuit Judges.
Opinion for the Court filed by Circuit Judge Rogers.
Rogers, Circuit Judge: Robert S. Bowie, Jr., appeals his
conviction on two narcotics and four weapons counts, two of
which depended on his status as a convicted felon. Drawing
on United States v. Daniels, 770 F.2d 1111 (D.C. Cir. 1985),
and our later decision in United States v. Dockery, 955 F.2d
50 (D.C. Cir. 1992), he contends, in effect, that a severance
was required so that the jury deciding the drug possession
counts would not be aware of his prior felony conviction.
Specifically, he contends that the district court abused its
discretion by failing to require the government, pursuant to
his motion, to choose either severance of the two felon-in-
possession counts or a bench trial for those counts, and that
he was denied a fair trial and due process of law when the
jury was informed of his status even though he did not testify
at trial. Because the district court demonstrated sufficiently
scrupulous regard for Bowie's right to a fair trial, we affirm.1
I.
Counts one and six of the six-count indictment charged
Bowie with possession of cocaine base (or crack cocaine) with
intent to distribute in violation of 21 U.S.C. s 841 (1994) and
possession of marijuana in violation of 21 U.S.C. s 844(a)
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1 Bowie's other contention is that the quantity of narcotics was
an element of his drug possession charge under 21 U.S.C.
s 841(b)(1)(B)(iii) (1994) and thus that the district court's failure to
ask the jury to decide the amount of crack he possessed violated his
constitutional rights under the Fifth and Sixth Amendments to due
process and trial by jury. This argument is foreclosed by circuit
precedent. See, e.g., United States v. Thompson, 994 F.2d 864, 865
(D.C. Cir. 1993); United States v. Lam Kwong-Wah, 966 F.2d 682,
685 (D.C. Cir. 1992); United States v. Garrett, 959 F.2d 1005, 1006
n.1 (D.C. Cir. 1992); United States v. Patrick, 959 F.2d 991, 996 n.5
(D.C. Cir. 1992); see also Almendarez-Torres v. United States, 118
S. Ct. 1219, 1223-28 (1998). This panel cannot overturn settled
circuit law. See LaShawn A. v. Barry, 87 F.3d 1389, 1395 (D.C.
Cir. 1996).
(1994). Counts two and three charged him with violation of
18 U.S.C. s 922(g)(1) (1994), which prohibits possession of
weapons and ammunition transported in interstate commerce
by anyone who has been convicted of a crime punishable by a
year or more of imprisonment. Counts four and five charged
him with possession of weapons and ammunition without
proper registration, in violation of District of Columbia law.
See D.C. Code Ann. ss 6-2311(a), -2361(3) (repl. vol. 1995).
Because of the government's burden under the federal
weapons and ammunition counts to show that Bowie had a
prior felony conviction, see 18 U.S.C. s 922(g)(1) (1994), he
asked the district court at a pretrial suppression hearing to
adopt a special trial procedure in order to avoid undue
prejudice to him on the other counts. The prosecutor had
agreed to introduce the evidence of the prior conviction by
stipulation, but Bowie's counsel found this insufficient:
Our position ... would be that to protect Mr. Bowie's
rights, we need one bit of further protection, and that is
that we would ask that [the prior conviction] portion of
the case be tried to the Court rather than to a jury. I
think that the way we could formulate this is that all of
the other elements of the offense would go to the jury,
but that one element would be to the Court, and since it
would be a stipulation, obviously, if the jury finds all of
the other elements, the Court would enter a conviction
on that, that count.
The district court declined to sever the felon-in-possession
counts from the other counts or to bifurcate factfinding
between the jury and the bench. Instead, to minimize any
prejudice resulting from the mention of the prior conviction to
the jury, the district court ordered that the prosecutor could
only enter evidence of the prior conviction by stipulation and
without reference to the nature of the underlying crime; that
references at trial to the prior conviction would be strictly
limited to only those "necessary in explaining the charge to
the jury"; and that in final instructions and whenever the
prior conviction was mentioned to the jury, the court would
instruct the jury not to allow the stipulation to affect its
consideration of anything other than that specific element of
the felon-in-possession counts. Bowie's first trial proceeded
in accordance with this plan but resulted in a mistrial when
the jury was unable to reach a verdict on any count.
Prior to the second trial, Bowie again moved to sever the
drug possession counts from the counts for possession of
weapons and ammunition. He repeated that the stipulation
of his prior felony conviction caused him undue prejudice as
to the drug possession counts and noted the grant of a
severance in a similar case, United States v. Henry, 940
F. Supp. 342 (D.D.C. 1996). He maintained that cautionary
instructions to the jury could not cure this prejudice and had
not done so in the first trial, as post-trial discussions with
jurors indicated that the knowledge of his prior felony convic-
tion had affected some jurors' ability to consider each charge
on its own merits. The district court had already denied his
request that this element of the felon-in-possession counts be
tried separately to the bench; thus, Bowie proposed that the
district court sever the drug possession counts from the
others entirely, pursuant to Federal Rule of Criminal Proce-
dure 14. The prosecutor argued in response that informing
the jury of the fact of prior conviction would not be unduly
prejudicial and that he had no intention of letting the jury
know the nature of the underlying conviction, and thus would
not run afoul of this court's opinion in Dockery or the
Supreme Court's recent decision in Old Chief v. United
States, 117 S. Ct. 644 (1997).
The district court denied severance, expressing skepticism
about the probative value of the purported statements by the
jurors after the first trial, and the second trial proceeded
much as the first: both sides agreed to the same stipulated
facts, the prosecution again could not mention the nature of
Bowie's prior conviction or describe it except as necessary to
explain the felon-in-possession counts to the jury, and the
district court gave two cautionary instructions to the jury.
The stipulation read to the jury was that Bowie had previous-
ly been convicted of an offense punishable by a term of
imprisonment exceeding one year, and after the jury heard
this stipulation and two others,2 the district court gave a
cautionary instruction,3 the substance of which was repeated
in the final instructions to the jury:
You have heard, ladies and gentlemen, that the parties
have agreed that the Defendant was convicted of a felony
prior to July 10, 1996. And I especially advised you
when that came into evidence as to its limited purpose.
Now, this is admitted in evidence solely for your consid-
eration of evaluating Counts 2 and 3 of the Indictment,
both of which require the Government to prove the
Defendant has a prior felony conviction. The fact that
the Defendant was convicted of a crime in the past is not
evidence that the Defendant is guilty of the offenses with
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2 The parties also stipulated that all of the weapons and ammu-
nition had traveled in interstate commerce and that the Drug
Enforcement Administration's laboratory report on the narcotics
samples submitted for examination accurately reflected the examin-
er's analysis of those samples.
3 After the stipulations were read to the jury, the district court
instructed the jury:
Ladies and gentlemen, let me advise you to one important
matter. One of those stipulations that you heard, number one,
[was] related to Mr. Bowie having a previous conviction of a
felony. That is admitted for a very limited purpose only, and
please keep this in mind at all times. That was admitted solely
for your consideration when you evaluate Count 2 and Count 3
of the Indictment, both of which require the Government to
prove that the Defendant has a prior felony conviction.
The fact that Mr. Bowie is convicted of a crime is not
evidence, but that the Defendant is guilty of the offenses [with]
which he is charged [i]n this case and you must not draw any
inference of guilt from Mr. Bowie's previous conviction or use
as evidence, except as I have stated in this instruction. You
may consider only this prior conviction [in] determining wheth-
er the Government has met its burden of proof with respect to
the particular elements of the offenses in Counts 2 and 3 of the
Indictment, so that that came in for a very limited purpose and
you [may] use it for no other purpose whatsoever in this case
except as I have instructed you.
which he is charged in this case. You must not draw any
inference of guilt against the Defendant from his prior
conviction or use it for any other purpose except as set
forth in this instruction. You may consider this prior
conviction--you may only consider his prior conviction in
determining whether the Government has met its burden
with respect to Counts 2 and 3 of the Indictment.
The jury found Bowie guilty on all six counts, and the
district court sentenced him to 120 months of imprisonment
and eight years of supervised release.
II.
Bowie contends that the district court abused its discretion
by not requiring the government, pursuant to his motion, to
choose between severing the felon-in-possession counts from
the remaining counts or trying these counts to the court
without a jury in order to limit the potential prejudice result-
ing from the introduction of his prior felony conviction. Al-
though the district court both limited the manner in which the
prosecution could mention and use that prior conviction and
specifically instructed the jury twice not to allow that prior
conviction to affect its deliberation inappropriately, Bowie
maintains that such steps were inadequate.
Bowie proposed three different ways to minimize the preju-
dice from the jury's learning of his prior felony conviction.
These alternatives were similar to those discussed in Dockery.
See Dockery, 955 F.2d at 54-55. Before the first trial, Bowie
requested that the district court adopt a bifurcated factfind-
ing procedure, with the jury deciding all the elements of the
charged crimes except for the element of a prior felony
conviction in counts two and three. The court would try this
element alone (but only as a formal matter, given that the
parties stipulated that this element was satisfied), and the
jury would never have occasion to learn of Bowie's prior
conviction. Before the second trial, Bowie filed a motion to
sever the felon-in-possession counts from the drug possession
counts, such that there would be two entirely separate trials.
In the alternative, he requested that the district court adopt a
different bifurcated factfinding procedure, this time divided
chronologically: the jury would decide all the elements of the
crime other than the prior felony conviction element, and only
then would receive evidence of and be asked to decide this
element (again, only as a formal matter). The district court
denied the three requests; thus, the jury was told of Bowie's
prior conviction before it began deliberations on all six counts.
This circuit has long noted that the introduction of evidence
of a prior conviction has the potential for grave mischief
because of its tendency to "divert[ ] the attention of the jury
from the question of the defendant's responsibility for the
crime charged to the improper issue of his bad character."
United States v. Jones, 67 F.3d 320, 322 (D.C. Cir. 1995)
(quoting United States v. James, 555 F.2d 992, 1000 (D.C.
Cir. 1977)) (internal quotation marks omitted); see Drew v.
United States, 331 F.2d 85, 89-90 (D.C. Cir. 1964); cf. Fed. R.
Evid. 404(b). The introduction of such evidence goes against
the principle that a criminal trial should turn on the facts of
the specific charge, not on who the defendant is or what the
defendant may have done in the past. See Dockery, 955 F.2d
at 53; Daniels, 770 F.2d at 1116 (citing United States v.
Myers, 550 F.2d 1036, 1044 (5th Cir. 1977)). Trial courts can
and should attempt to limit potential prejudice through cau-
tionary instructions, but the court has recognized that such
instructions can only do so much.4
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4 Specifically, the court has observed:
To tell a jury to ignore the defendant's prior convictions in
determining whether he or she committed the offense being
tried is to ask human beings to act with a measure of dispas-
sion and exactitude well beyond mortal capacities. In such
cases, it becomes particularly unrealistic to expect effective
execution of the "mental gymnastic" required by limiting in-
structions, and "the naive assumption that prejudicial effects
can be overcome by instructions to jury" becomes more clearly
than ever "unmitigated fiction."
Daniels, 770 F.2d at 1118 (quoting Nash v. United States, 54 F.2d
1006, 1007 (2d Cir. 1932), and Krulewitch v. United States, 336 U.S.
440, 453 (1949) (Jackson, J., concurring)). But see Zafiro v. United
The problem is particularly acute when felon-in-possession
counts are joined with other counts: the evidence of past
convictions necessary to substantiate a felon-in-possession
charge is likely to impinge impermissibly upon a jury's rea-
soning as to the other charges. This court has observed that
a prosecutor may even include a felon-in-possession count in
order to manufacture the need to introduce such evidence.
See Dockery, 955 F.2d at 50; Daniels, 770 F.2d at 1118.
Under the Federal Rules of Criminal Procedure, the district
court could not force the prosecution to accede to a bench
trial on any of the charges, see Fed. R. Crim. P. 23(a), but the
court could force the prosecution to choose between a bench
trial on the felon-in-possession counts and severance; "the
Government has no right to a joined jury trial." Dockery,
955 F.2d at 55. At the same time, the district court could not
simply withhold the disputed element of the felon-in-
possession counts from the jury, for "[t]he jury must always
be informed of the full nature, including each element, of the
charged crime." United States v. Fennell, 53 F.3d 1296, 1302
(D.C. Cir. 1995) (citing United States v. Gilliam, 994 F.2d 97,
101 (2d Cir. 1993)); see also Old Chief, 117 S. Ct. at 654.
Introduction of evidence of Bowie's prior conviction was not
improper under the Federal Rules of Evidence because the
prior conviction was an element of two of the charged of-
fenses, see Fed. R. Evid. 401-404, but this is only the begin-
ning of the analysis. Rules of evidence aside, the district
court has an independent duty to ensure that trial procedures
are fair and, in particular, to sever trials when justice so
requires. See Dockery, 955 F.3d at 53-54; Bradley v. United
States, 433 F.2d 1113, 1117 (D.C. Cir. 1969); Fed. R. Crim. P.
14. At the same time, though, the court reviews district court
decisions whether to sever trials pursuant to Federal Rule of
Criminal Procedure 14 only for abuse of discretion, and the
district court does not necessarily abuse its discretion when it
declines to sever a case even when the failure to do so may
result in some prejudice to the defendant. See Zafiro v.
__________
States, 506 U.S. 534, 539 (1993) (citing Richardson v. Marsh, 481
U.S. 200, 211 (1987)).
United States, 506 U.S. 506, 538-39 (1993) ("Rule 14 does not
require severance even if prejudice is shown; rather it leaves
the tailoring of the relief to be granted, if any, to the district
court's sound discretion."). Thus, when felon-in-possession
counts are joined with other counts, the court reviews a
district court's decision regarding severance only to deter-
mine whether the court has "demonstrated a sufficiently
scrupulous regard for the defendant's right to a fair trial to
warrant affirmance." Daniels, 770 F.2d at 1118; see Dock-
ery, 955 F.2d at 50. To succeed on an abuse of discretion
claim, then, the defendant must first show that he or she
suffered undue prejudice (that is, that the district court's
adopted procedures did not demonstrate a sufficiently scru-
pulous regard for his rights). See Dockery, 955 F.2d at 53-
55; Daniels, 770 F.2d at 1118; cf. Fennell, 53 F.3d at 1302.
In Daniels, the court declined to adopt a per se rule
regarding what steps a district court must take to minimize
the prejudice of other crimes evidence. See Daniels, 770
F.2d at 1118. Specifically, the court declined the defendant's
invitation to impose a rule under which "an ex-felon charge--
such as the firearm possession count in the instant case--may
not be tried together with another charge if the prior felony
conviction would be inadmissible in a separate trial of the
other charge." Id. at 1115. The imposition of a blanket rule
would be counterproductive given the virtually endless vari-
ety of circumstances in which the issue might arise and the
experience a trial court would have with such situations; the
Daniels court did, however, reduce the flexibility left to the
district court to choose from a variety of protective measures,
including those suggested by Bowie and others, by requiring
the district court to show scrupulous regard for the defen-
dant's right to a fair trial. See Dockery, 955 F.2d at 56;
Daniels, 770 F.2d at 1116-18. Whether the particular array
of precautionary measures chosen by the district court is
sufficiently protective remains a case-by-case determination,
analyzed by examining the actual prejudice remaining after
the protective measures taken by the trial court. See United
States v. Moore, 104 F.3d 377, 382 (D.C. Cir. 1997); Dockery,
955 F.2d at 53-54; Daniels, 770 F.2d at 1118-19.
To minimize prejudice to Bowie, the district court took a
number of steps. The court only allowed the prosecution to
introduce evidence of the prior conviction through stipulation
and did not allow the prosecution to mention the nature of
this prior conviction. The court forbade the prosecution from
mentioning the prior conviction except as necessary to explain
the felon-in-possession counts to the jury. Bowie does not
contend that the prosecution violated these guidelines. In
addition, the court twice admonished the jury not to use the
fact of prior conviction for anything other than consideration
of that element of the felon-in-possession counts. In Dock-
ery, the court had little problem finding that the district court
had failed its "continuing obligation to assure a fair trial"
when the prosecutor repeatedly and gratuitously mentioned
the fact of the defendant's prior conviction while examining
witnesses and the district court failed to instruct the jury not
to let that fact affect its determination of guilt on the other
charges. Dockery, 955 F.2d at 56; cf. Moore, 104 F.3d at 382.
The district court's protective measures in the instant case,
by contrast, mirror those approved by this court in Daniels:
Daniels had previously been convicted of bank robbery,
but the jury was not told the nature of his offense.
Instead, the jury was read a stipulation stating simply
that Daniels had been convicted of an unspecified felo-
ny.... The district judge instructed the jury twice
concerning the limited evidentiary use to which the stipu-
lation should be put--first at the time the stipulation was
read to the jury, and again in the final jury instructions.
Daniels, 770 F.2d at 1114. The court in Daniels ruled that
the district court's protective measures prevented the defen-
dant from suffering "undue prejudice"; in view of this prece-
dent, the district court certainly seems to have demonstrated
"a sufficiently scrupulous regard for the defendant's right to a
fair trial." Id. at 1118. For the court to conclude that the
district court abused its discretion, Bowie would have to show
that his situation differed from that in Daniels, such that he
suffered undue prejudice despite the district court's adoption
of the same protective measures.
In taking a contrary position, Bowie contends that the
prejudice he suffered was particularly severe because of the
nature of his case. Emphasizing both weaknesses in the
prosecution's case-in-chief 5 and the fact that the first trial
ended with the jury unable to reach a verdict as to any count,
Bowie maintains that the district court should have been
aware that the second trial was apt to be very close. In his
view, the district court should have known that the potential
prejudice resulting from the introduction of evidence of a
prior conviction was likely to be the deciding factor, and
hence should have taken extra precautions to prevent the jury
from relying improperly upon this evidence. The district
court's experience with the evidence at Bowie's first trial and
the subsequent mistrial do not necessarily imply that the
district court should have considered the case a close one,
however; the first jury, which was informed of Bowie's felon
status, may have been unable to reach a verdict for any
number of reasons, and the court could hardly predict what
the second jury might do. Moreover, Bowie's indicia of
closeness do not necessarily show that the district court
should have thought it more likely that the jury's knowledge
of the prior conviction would have an untoward effect at the
second trial. The fact that the district court already had
experience with the first trial cuts both ways: having heard
the evidence at the first trial, the district court was in a good
position to evaluate whether the evidence of the prior convic-
tion exerted any improper influence on the jury's delibera-
tions and whether the protective measures adopted in the
first trial were sufficiently effective where the second trial
would otherwise simply be a replay.
Absent some showing that his situation was different in
material respects from that in Daniels, Bowie fails to demon-
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5 Bowie details numerous inconsistencies among the accounts of
the three police officers who testified at trial. The government
does not dispute that there were inconsistencies but downplays
their significance.
strate that he suffered undue prejudice and thus that the
district court abused its discretion. While Bowie suggests
that jurors at the first trial indicated that knowledge of his
felon status affected their decision about his guilt on the other
counts, the district court expressed understandable skepti-
cism about the probative value to be assigned to such com-
ments in the absence of knowledge of the questions that the
jurors were asked, much less their precise responses. The
record contains no details of these conversations, and Bowie
has not pressed this point on appeal. Hence, we are not
confronted with a case in which jurors, contrary to the
cautionary instructions from the court, indicated that they
were unable to make a reliable judgment about Bowie's guilt
or innocence on the other counts; were there such evidence,
then a severance would likely have been required. See
Zafiro, 506 U.S. at 539 (noting that a district court should
grant severance when there is a serious risk that the jury
cannot make a reliable judgment about guilt or innocence);
United States v. Brown, 16 F.3d 423, 433 (D.C. Cir. 1994).
Trial courts and prosecutors must act with great caution
when felon-in-possession counts are joined with other counts
in a single criminal trial. See Daniels, 770 F.2d at 1118-19.
The district court would have been well within its discretion if
it had, for instance, forced the prosecution to choose between
having a bench trial on the felon-in-possession counts and
severing the counts entirely. See Henry, 940 F. Supp. 342,
346-48. Indeed, in Daniels, this court appeared to favor
granting such severances. See Daniels, 770 F.2d at 1117-18.
The government did not contend, in the district court or on
appeal, that it would have been prejudiced under any of the
alternative trial procedures that Bowie proposed. Neverthe-
less, the district court does not necessarily abuse its discre-
tion when it refuses to adopt the procedural measures that
will most effectively reduce prejudice to defendants. See
United States v. Applewhite, 72 F.3d 140, 144 (D.C. Cir.
1995). The defendant must first show that undue prejudice
remains after the district court's protective measures have
taken effect. See Dockery, 955 F.2d at 56; Daniels, 770 F.2d
at 1117-18; cf. Moore, 104 F.3d at 383; Fennell, 53 F.3d at
1302; Brown, 16 F.3d at 432-34. Bowie makes no such
showing.
Accordingly, because Bowie has failed to show that the
district court did not demonstrate "a sufficiently scrupulous
regard for the defendant's right to a fair trial," Daniels, 770
F.2d at 1118, we affirm the judgment of conviction.