Re: Joinder

United States v. Page, No. 10-3150-cr (2d Cir. September 16, 2011) (Walker, Hall, Chin, CJJ)

Defendant was tried on five drug counts and a felon-in-possession count. In the district court, he moved to sever the gun count so that the jury considering the drug charges would not learn that he had a felony conviction. The court denied the motion and the circuit, finding no prejudice, affirmed.

Background

In 2007 and 2008, Page was selling drugs – first crack, then heroin – in Norwich, Connecticut. During this time, he became involved in an altercation outside a bar, and brandished a gun; to avoid trouble, he stashed the gun at his girlfriend’s apartment. Agents raided the apartment the next day and found the gun and some drugs.

Page ultimately faced a six-count indictment; the first five counts alleged drug offenses – although the government ultimately dropped one of these – and count six charged the felon-in-possession. The district court refused to sever count six, noting that Page’s stipulation to the felony conviction did not describe its underlying facts, and that there would be a limiting instruction. These together assured a lack of undue prejudice. Page was convicted, and received a 210-month sentence.

The Circuit’s Decision

On appeal, Page argued that the gun count should have been severed, or at least bifurcated, from the others, citing United States v. Jones, 16 F.3d 487 (2d Cir. 1994). But the circuit found no abuse of discretion, particularly given the heavy burden of establishing prejudice by an allegedly improper joinder.

First, there was a “sufficient logical connection” between the drug counts and the gun count. The gun was recovered along with some of the drugs and Page admitted that both were his. For this reason, separate trials would have required “much of the same evidence.” Evidence of the presence of the drugs in his girlfriend’s apartment would have been probative of his knowing possession of the gun, while conversely, at a separate drug trial, evidence of the gun would have been admissible as a “tool of the trade.”

In addition, the district court took adequate measures to avoid prejudice. The stipulation was bare-bones and the limiting instruction was adequate, even though it did not specifically charge that the prior conviction could not be considered in relation to the narcotics counts.

Finally, there was overwhelming evidence against Page – his own confession and the testimony of the girlfriend.

The court also distinguished Jones on its facts. There, the felon-in-possession count appeared only in a superseding indictment after the jury deadlocked 10 to 2 for acquittal in a bank robbery case. Although the court reversed the bank robbery conviction because the felon-in-possession should have been severed, it did so because it looked to the court like the government had added the count only to “buttress its case” on the robbery. There was also a “retroactive misjoinder” problem with respect to a second felon-in-possession charge. But, since neither of those “unique circumstances” was present here, the district court did not abuse its discretion in refusing to follow Jones.

Jones does not stand for the proposition that a felon-in-possession count must always be severed or bifurcated from other charges. Where “there is a logical connection between” them, a “similarity in the evidence necessary to prove the different charges,” the trial court takes steps to limit the prejudice and gives a proper limiting instruction, and there is no unfair prejudice, it is not an abuse of discretion to refuse to sever or bifurcate. If, on the other had, the district court concludes that a bifurcation would “better protect the defendant from prejudice than a limiting instruction would” it is free to do so.