United States v. Tavares

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 92-2052

UNITED STATES OF AMERICA,

Appellee,

v.

DANIEL D. TAVARES,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Jose Antonio Fuste,* U.S. District Judge]

Before

Breyer, Chief Judge, Coffin and Campbell, Senior Circuit Judges,

Torruella, Selya, Cyr, Boudin and Stahl, Circuit Judges.

Owen S. Walker with whom Peter B. Krupp was on brief for

appellant.
Michael J. Pelgro, Assistant U.S. Attorney, with whom Donald K.

Stern, United States Attorney, was on brief for appellee.

OPINION EN BANC

April 12, 1994

*Of the District of Puerto Rico, sitting by designation.

COFFIN, Senior Circuit Judge. A jury found defendant Daniel

Tavares guilty of being a felon in possession of a firearm in

violation of 18 U.S.C. 922(g)(1). The statute makes it a crime

for any person "who has been convicted in any court of a crime

punishable by imprisonment for a term exceeding one year . . . to

. . . possess in or affecting commerce, any firearm or

ammunition."1 At trial, defendant offered to stipulate to the

fact that he had such a prior conviction. The prosecutor refused

to accept the stipulation. On the basis of our decisions in

United States v. Collamore, 868 F.2d 24 (1st Cir. 1989), and

United States v. Donlon, 909 F.2d 650 (1st Cir. 1990), the court

allowed the prosecutor to introduce, in addition to the fact of

the prior conviction, evidence of its nature -- larceny of a

firearm.

A panel of this court, two members concluding that under

Collamore and Donlon the district court did not err in allowing

the government to reject the stipulation and one member

concluding the contrary, unanimously agreed that "the precise

issue in our case was not the subject of a focused discussion in

the prior decisions, that the issue is an important and recurring

one, and that en banc consideration of the issue is appropriate."

The full court accordingly granted rehearing and entertained

further briefing and argument. We now conclude that the district

1Although the predicate crime may not be a felony, the common
reference which we adopt is a "felon-in-possession" offense.

-2-

court abused its discretion in permitting the government to

reject the offered stipulation.

We set forth only the facts essential for understanding the

basic issue that concerns us. The government's evidence at trial

indicated that the defendant was involved in three escalating

confrontations, culminating with a shooting incident, on the

night of August 28-29, 1991, at a Mashpee, Massachusetts

apartment complex. The first two confrontations involved

acrimonious discussions in which Tavares was accused of stealing

a car radio. The government also alleged that Tavares was

involved in a third incident, in which he accosted with a gun

another acquaintance who had engaged in a discussion with him

about the radio theft, and then fired at the outside of this

individual's apartment building. Damage was done to two

automobiles.

Tavares was shortly thereafter seen running in a wooded area

and arrested. An officer assisted by a police tracking dog

subsequently located a shotgun and rifle in nearby woods.

Forensic evidence showed that the shotgun had fired shells found

near the damaged cars. Tavares was convicted following a three-

day trial. As noted earlier, the prosecutor was allowed to

introduce evidence that Tavares had been convicted of a prior

crime, larceny of a firearm, and had received a two-year

sentence.

Our first task is to reexamine our two cases on which the

district court relied, Collamore and Donlon, to determine whether

-3-

they remain compelling authority. As we have indicated, the

district court determined that it was constrained under these

cases to accord the government the absolute right to reject the

defendant's proffered stipulation.2

In Donlon, our more recent opinion, we dealt at length with

the defendant's claim that grand jury testimony had been

unlawfully admitted at trial. Then, as to a number of secondary

issues, we briefly indicated their disposition and our reasoning.

On the issue of the government's right to introduce evidence of

the nature of the predicate crime, we merely cited Collamore. In

Collamore, decided a year earlier, the question before us was

whether the court could bifurcate a felon-in-possession trial by

requiring the government to prove the possession element of the

charge before presenting to the jury proof of the defendant's

criminal record. We held that a court may not do so and

reversed. We observed that barring the government from

presenting any evidence of a prior felony in a felon-in-

possession case effectively "eliminated an essential element of

the government's case," 868 F.2d at 27, and thus improperly

deprived the government of a jury trial on the crime as charged,

id. at 28. In support of our conclusion, we added by way of

dictum that "even in the face of an offer to stipulate, the

2 We note that the court endeavored to minimize any prejudice.
It received into evidence a certified copy of Tavares' 1988
conviction, but did not permit the government to read the
document to the jury. The court also repeatedly instructed the
jury that the evidence was relevant only as proof of the prior
felony element of the charge.

-4-

government may choose to present evidence on the one felony

necessary to prove the crime charged," id. at 28.

Although we stand by and reaffirm the proposition central in

Collamore, that a defendant may not use a stipulation or any

other procedural device, including bifurcation, to remove from

his felon-in-possession prosecution the fact of his prior

conviction, we now realize upon reconsideration that our dictum

rested on a shaky foundation. In Collamore, we relied on three

cases, two from the Sixth Circuit, United States v. Blackburn,

592 F.2d 300, 301 (6th Cir. 1979); and United States v. Burkhart,

545 F.2d 14, 15 (6th Cir. 1976); and one from the Eighth Circuit,

United States v. Bruton, 647 F.2d 818, 825 (8th Cir. 1981), which

in turn ultimately relied upon United States v. Brickey, 426 F.2d

680, 685-86 (8th Cir. 1970).3 The question in Brickey was

whether, in proving the crime giving rise to the instant

prosecution, the government may be forced to accept a stipulation

("a naked admission") in lieu of presenting a full picture of the

events and mind sets in question. The defendant in Brickey

had been indicted for mail fraud and sought to stipulate to the

fact that he had diverted funds so as to exclude evidence about

his personal use of the money. The Brickey panel found no abuse

of discretion in the trial court's refusal to require the

government to accept the stipulation, and quoted the following

3 Burkhart and Bruton actually cited United States v. Smith, 520

F.2d 544 (8th Cir. 1975), which, in turn, relied upon Brickey.

-5-

passage from Parr v. United States, 255 F.2d 86, 88 (5th Cir.

1958):

"It is a general rule that `A party is not required to
accept a judicial admission of his adversary, but may
insist on proving the fact.' 31 C.J.S. Evidence 299,
p. 1068. The reason for the rule is to permit a party
`to present to the jury a picture of the events relied
upon. To substitute for such picture a naked admission
might have the effect to rob the evidence of much of
its fair and legitimate weight.'"

426 F.2d at 686.

Brickey, the sole underpinning of the cases on which we

relied in Collamore, is critically different from the case before

us. While the stipulation there concerned facts directly

relevant to the instant crime, the case before us involves a

stipulation to facts establishing only the defendant's status.

This difference is so significant that we no longer deem

Collamore's dictum to be compelling in cases such as this.

As we now reconsider the issue fully, we begin our analysis

by reiterating its limited scope. A decision to honor a

stipulation concerning the predicate crime in a felon-in-

possession case in no way trenches upon the right of the

prosecution to make a full presentation of the crime currently

charged. We fully concede the government's "right to `present to

the jury a picture of the events relied upon,'" United States v.

Doherty, 675 F. Supp. 714, 717 (D. Mass. 1987), aff'd in part and

rev'd in part, 867 F.2d 47 (1st Cir. 1989), including proof of

all elements of the crime for which the defendant has been

brought to trial. The prosecution ordinarily may not be forced

to eliminate gruesome details of a killing, the quantity of

-6-

drugs, or the degree of malevolence exhibited by the defendant

through a defense-proffered stipulation.

This well-established right of the government to present its

case as it sees fit is in no fashion weakened by requiring a

stipulation to establish the defendant's status as a felon. The

status element is a discrete and independent component of the

crime, a requirement reflecting a Congressional policy that

possession of a firearm is categorically prohibited for those

individuals who have been convicted of a wide assortment of

crimes calling for a punishment of over a year's imprisonment. A

defendant falls within the category simply by virtue of past

conviction for any crime ranging from possession of short

lobsters, see 16 U.S.C. 3372, to the most aggravated murder.

The predicate crime is significant only to demonstrate status,

and a full picture of that offense is -- even if not prejudicial

-- beside the point.

This is not a situation in which there is only one way to

prove this status, e.g., by the full record conviction including

the nature of the offense. Other ways include a redacted record,

testimony by a clerk, stipulation, a defendant's affidavit, or

even, in the absence of controversy, judicial notice of the prior

conviction. None of these alternatives is tainted by the

inclusion of the prejudicial information.

The government suggests that, beyond establishing status,

the predicate crime serves to crystallize the culpability of the

defendant as a serious offender. It asserts that knowledge of

-7-

the nature of the predicate crime in this way bears on the jury's

ability to evaluate the defendant's guilt on the felon-in-

possession charge, and thus is relevant to its deliberations.

We fail to see this connection. Relevant evidence, we are

told by Federal Rule of Evidence 401, "means evidence having any

tendency to make the existence of any fact that is of consequence

to the determination of the action more probable or less probable

than it would be without the evidence." The fact concerning

defendant's prior criminal record that 922(g)(1) explicitly

makes "of consequence" is whether it includes a crime carrying a

penalty of more than a year's imprisonment. It does not embrace

additional facts such as a particular kind of felony. Congress

required no gradation for seriousness, numerosity or recency,

although such distinctions have in other contexts been given

significance. See, e.g., 18 U.S.C. 924(c) (penalizing use of

firearm in connection with crime of violence or drug trafficking

crime); 924(e)(1) (increasing firearms possession penalty for

defendant convicted of multiple violent felonies or "serious"

drug offenses).

In effect, we understand the government to claim relevance

in revelation of a crime that is particularly egregious (murder),

socially opprobrious (pornography), systemically dangerous

(organized crime), or similar to the crime occasioning the

present prosecution (possession of firearms). It is, of course,

highly likely that such evidence would influence the jury's

perception of the defendant, suggesting that he is a sufficient

-8-

threat to society to warrant additional incarceration. Such

information, however, has no tendency to make more or less

probable the existence of the fact of a prior conviction, which

is the only information that Congress has deemed of consequence

concerning the defendant's criminal record. And it is precisely

the tendency of such evidence to prejudice the jury's

deliberations that makes it suspect.

Moreover, the government's right to introduce the nature of

a particularly prejudicial prior felony would have to be matched

by the defendant's right to introduce evidence that his prior

conviction was for a technical, nonviolent or white collar crime.

In such a case, the jury might tend to minimize the defendant's

culpability and be less inclined to impose the severe penalty

associated with a felon-in-possession conviction. This would be

no more appropriate than the reverse tendency. Either way,

Congressional policy would be subverted. The neutral role

intended to be played by the prior felony element of 922(g)(1)

would be replaced by a two-tier system of guilt determination.

Additionally, because the nature of the predicate felony is

wholly unrelated to the crime for which the defendant is on

trial, excluding the extraneous information concerning its nature

should create no burden for either the court or the government.

The defendant's unadorned stipulation could be read to the jury

or, if the government preferred, a redacted judgment of

conviction could be introduced into evidence. Severing the

-9-

admissible evidence from the inadmissible thus would require

neither sensitive nor difficult judgments.

We have focused here only on the kind of case represented at

bar, where there exists no reason, other than the government's

desire to color the jury's perception of the defendant's

character, for revealing the nature of the defendant's prior

felony. Although we cannot now conceive of circumstances in

which the probativeness of the facts surrounding the prior

conviction would outweigh the prejudice to the defendant from

admission of those details, there may be permutations that

presently escape our vision. We therefore do not announce a per

se rule of exclusion. Even in such unusual circumstances,

however, evidence beyond the fact of the prior conviction is

inadmissible absent adequate trial court findings that its

noncumulative relevance is sufficiently compelling to survive the

balancing test of Fed. R. Evid. 403. ("[E]vidence may be excluded

if its probative value is substantially outweighed by the danger

of unfair prejudice . . . .").

Our conclusion on this issue is supported by a considerable

number, though not all, of the other circuits. The Eleventh

Circuit applies the same abuse of discretion standard that we

adopt today. See United States v. O'Shea, 724 F.2d 1514, 1516-17

(11th Cir. 1984). The D.C. Circuit also has held in a felon-in-

possession case that "the Government's right to introduce its

proof is always subject to the trial court's responsibility under

Fed. R. Evid. 403 to limit unduly prejudicial or cumulative

-10-

evidence." See United States v. Dockery, 955 F.2d 50, 54 (D.C.

Cir. 1992). And the Fifth and Tenth Circuits similarly have

recognized the district court's authority to decide on the

admissibility of prior crimes evidence. See United States v.

Brinklow, 560 F.2d 1003, 1006 (10th Cir. 1977) (case involving

interstate transportation of explosives by a convicted felon);

United States v. Spletzer, 535 F.2d 950, 955-56 (5th Cir. 1976)

(case involving escape).

The Second and Fourth Circuits affirmatively reject

admission of evidence concerning the nature of the prior crime,

see United States v. Gilliam, 994 F.2d 97, 103 (2d Cir. 1993);

United States v. Poore, 594 F.2d 39, 41-43 (4th Cir. 1979), while

panels in both the Ninth and Seventh Circuits have signalled that

it is within a court's discretion to accept a defense stipulation

to the fact of a prior felony conviction, see United States v.

Barker, 1 F.3d 957, 959 n.3 (9th Cir. 1993) (underlying facts of

prior conviction irrelevant); United States v. Pirovolos, 844

F.2d 415, 420 (7th Cir. 1988) (defense's proffered stipulation to

prior felony sufficient). But see United States v. Breitkreutz,

8 F.3d 688, 692 (9th Cir. 1993) (rejecting stipulation as an

alternative form of proof and noting "the rule that the

prosecution has a right to refuse a stipulation").4 On the

4 In concurring in Breitkreutz, Judge Norris noted that the

majority's assumption that the nature of the past conviction is
relevant in a 922(g) prosecution conflicted with Barker. 8

F.3d at 693.

-11-

other side, as noted earlier, are the Sixth and Eighth

Circuits.5

We want to be crystal clear about what we are not saying.

First, we are not saying that the fact of the prior predicate

felony can be kept from the jury. Second, the prosecution

ordinarily cannot be forced to accept a stipulation if it prefers

to introduce a judgment of conviction properly redacted. The

trial court would retain the discretion, however, to exclude this

document if the nature or number of redactions would invest it

with prejudicial overtones. In some circumstances, where

documentary evidence is unavailable, properly circumscribed oral

testimony would be permissible.

Third, in response to the government's apprehension that a

defendant might, in closing argument or otherwise, insinuate that

the prior felony conviction was benign, we note the

inappropriateness of limiting our options based upon a concern

that counsel irresponsibly would contrive to abuse our chosen

procedure. We add that any such conduct would be subject to the

trial court's sanctioning power. We have every confidence in the

court's ability to convey in neutral fashion both Congress's

determination that any prior felony provides a sufficient basis

for subsequent punishment for possession of firearms, and the

5 The decision of the Third Circuit in United States v. Williams,

612 F.2d 735, 740 (3d Cir. 1979), also facially supports the
government's position. The stipulation at issue there, however,
concerned the fact of the prior conviction, and the decision

therefore simply may reflect agreement with our conclusion in
Collamore that a defendant may not modify a statute by

eliminating one of its elements from the jury's consideration.

-12-

jury's obligation to accept that judgment and not speculate on

the nature of the earlier crime.

Fourth, we acknowledge that in some cases evidence

concerning the nature of the prior conviction will be admissible

for impeachment or other reasons, despite its lack of probative

value on the prior conviction element of the crime. See O'Shea,

724 F.2d at 1516-17.

Finally, we reject the notion that the course we set here is

a risky one, setting the stage for similar reasoning to be

applied in contexts where greater hazards might lie. In the

first place, a stipulation to a defendant's status as a felon is

easily and obviously distinguishable from those relating to his

actions or state of mind in committing the crime. In the second

place, the evidence we exclude has no legitimate claim to

relevance. In the third place, the unnecessary risk of unfair

prejudice looms as clear and likely in this context. Finally,

our holding allows the trial court to recognize and articulate

any special circumstances justifying admission of evidence of the

nature of the predicate offense.

In this case, the government has added the claim that

admitting evidence of the nature of the predicate crime, if

error, was harmless. We cannot agree. The government's case

rested heavily on the testimony of two witnesses, Blake and Hunt,

who identified Tavares as the gun-wielding assailant. Tavares's

defense strategy relied on challenging the credibility of these

witnesses and suggesting that the actual perpetrators were

-13-

connected to Blake's drug dealing. The fact that defendant's

prior conviction involved the unlawful acquisition of a firearm

could not help but influence the jurors' attitude toward his

claim that, this time, someone else had the gun. See United

States v. Torres, 610 F. Supp. 1089, 1093 (E.D.N.Y. 1985) (in

felon-in-possession case, evidence of prior convictions for

manslaughter with a gun and illegal possession of a gun "would

surely prejudice almost any jury, no matter how conscientious").

Adding to our conviction that the error was harmful is the

fact that two close evidentiary points were resolved against the

defendant, resulting in admission of other prejudicial facts

about his criminal disposition. Over defendant's objection, the

court allowed testimony from a witness who claimed to have seen

defendant steal the car radio and testimony about defendant's

destructive behavior at the police station after his arrest.

Whether or not this evidence was properly allowed,6 there

is little doubt that the inadmissible testimony concerning

Tavares's prior felony added fuel to an already brewing fire and

increased the risk that the jury drew upon defendant's

disposition in reaching its verdict. In these circumstances, we

cannot say that "it is `"highly probable"' that the error did not

6 Both the eyewitness testimony explicitly identifying Tavares as
the radio thief and the testimony about defendant's police
station behavior create some risk of injecting unfair prejudice
for the defendant without adding significant weight to the
prosecution's case. If the government seeks to re-introduce this
evidence in a new trial, we urge the district court to "remain
vigilant" as to whether it survives the Rule 403 balancing, see

United States v. Williams, 985 F.2d 634, 638 (1st Cir. 1993).

-14-

contribute to the verdict," United States v. Figueroa, 976 F.2d

1446, 1455 (1st Cir. 1992) (citations omitted).

The judgment of conviction is therefore VACATED, and the

case remanded to the district court for a new trial.

Concurrence follows.

-15-

SELYA, Circuit Judge, with whom Campbell, Senior Circuit

Judge, joins (concurring). I write separately, not because I

harbor reservations about the result reached in this case, but

because I fear that the court's opinion may be read by some to

recalibrate the balance that Fed. R. Evid. 403 demands. I have

three qualms.

First: I think that the court, in endeavoring to
First:

distinguish between the fact of a prior conviction and the basic

facts necessary to give that conviction content, suggests an

uncomfortably cramped and somewhat artificial definition of

relevance. In my view, the disputed evidence is relevant

albeit perhaps marginally so but nonetheless inadmissible under

a proper application of Rule 403.

Second: I question the court's approach to Rule 403 in this
Second:

situation. The rule does not state, nor should it be construed

to mean, that prejudicial evidence may be admitted at trial only

if its harmful effect is substantially outweighed by its

relevance. Rather, the presumption works the other way,

mandating the admissibility of relevant evidence unless good

reason appears for its exclusion. See United States v. Foley,

871 F.2d 235, 238 (1st Cir. 1989). The court here seems to

reverse this presumption, see, e.g., ante at 8, 10, thereby

putting the shoe on the wrong foot.

Third: I fervently believe that the Rule 403 balance is
Third:

best struck on a case by case basis, and that, in almost all

instances, the strikers of the balance should be the district

-16-

courts as opposed to the court of appeals. See, e.g., Freeman v.

Package Mach. Co., 865 F.2d 1331, 1340 (1st Cir. 1988) ("Only

rarely and in extraordinarily compelling circumstances will

we, from the vista of a cold appellate record, reverse a district

court's on-the-spot judgment concerning the relative weighing of

probative value and unfair effect."). I worry that today's

opinion undervalues this discretion and that the court's words,

though correct in the context of the case before us, may be taken

by some as a command that will prompt the district courts to

micro-manage trials and thereby dispense justice of a superficial

variety (which is to say, dispense injustice). In the last

analysis, a trial is not an exercise in computer science, but,

rather, a recreation of flesh-and-blood events for the

edification of the factfinder. The law is not so fastidious as

to demand that all taste be squeezed from a piece of evidence

before a jury can chew on it. To the contrary, although "[a]

controlled environment for the reception of proof is essential, .

. . an artificially sterile environment is neither necessary nor

desirable." Wagenmann v. Adams, 829 F.2d 196, 217 (1st Cir.

1987).

In sum, while I agree that this is the rare situation in

which evidence, though relevant, is unfairly prejudicial and must

be excluded, and while I share many of Judge Coffin's sentiments,

I think the district courts would be well advised to avoid any

attempt to extrapolate a general rule from the court's case-

specific holding.

-17-