Opinion
CR No. 00-135-FR
October 22, 2001
Michael W. Mosman, United States Attorney, Frank Noonan, Assistant United States Attorney, Portland, Oregon; Attorneys for Plaintiff.
Thomas E. Price, Price Price, Salem, Oregon; Attorneys for Defendant.
ORDER
IT IS HEREBY ORDERED that the defendant's motion in arrest of judgment and for new trial (#86) is DENIED.
OPINION
The matter before the court is the defendant's motion in arrest of judgment and for new trial (#86).
On March 8, 2000, the grand jury returned an indictment charging the defendant, Davonne Lamar Howard, with three counts as follows: Count 1 — Felon in Possession of a Firearm in violation of 18 U.S.C. § 922(g)(1); Count 2 — Possession with Intent to Distribute a Controlled Substance in violation of 21 U.S.C. § 841(a)(1); and Count 3 — Possession of a Firearm with an Obliterated Serial Number.
In an Opinion and Order filed on April 5, 2001, this court denied the defendant's motion to suppress evidence and set forth the facts in this case as follows:
On September 17, 1998, two officers of the Portland Police Bureau responded to adisturbance call near 5437 N.E. 40th Avenue, Portland, Oregon. The officers observed the defendant walking from the house at 5437 N.E. 40th Avenue toward a black Nissan automobile which was parked in the wrong direction in front of the house. The officers observed the defendant put something inside the automobile, and then observed him bend over near the rear of the automobile.
One of the officers approached the defendant and engaged him in conversation. The officer asked the defendant for his date of birth. The defendant told the officer that there was a warrant outstanding for his arrest. The officer took the defendant into custody. A pat down search of the defendant's person disclosed $1250 in cash.
The officers immediately recovered a .38 caliber bullet and a baggie of crack cocaine near the rear of the automobile where the officers had observed the defendant bend over near the rear of the automobile. One of the officers approached the automobile and observed a bullet similar to the one found outside of the automobile on the front passenger seat.
The officers went into the unlocked automobile to secure the bullet on the front passenger seat and observed a 30-round magazine which was loaded with 9 mm rounds on the back seat. In a subsequent search of the back seat, the officers found an Intratec 9 mm semi-automatic pistol. In a search of the trunk, the officers found more cocaine and money.
Opinion and Order dated April 5, 2001, p. 2.
On June 12, 2001, this court commenced a jury trial on all counts of the indictment. At the close of the government's case, the jury was informed that "[t]here is a stipulation in this case by the parties that the defendant in this case is a convicted felon." Transcript of Jury Trial Proceedings, p. 204. The government rested, and the defendant moved for dismissal under Rule 29 of the Federal Rules of Criminal Procedure on the grounds of insufficient evidence. The court denied the defendant's motion to dismiss, and the case proceeded to closing arguments. Prior to deliberations, the court instructed the jury, in part, as follows: "You have heard a stipulation that defendant Howard has previously been convicted of a felony. You may not consider this prior conviction as evidence of anything other than proof of one element of the crime of felon in possession of a weapon." Jury Instruction No. 8.
On June 13, 2001, the jury returned a verdict finding the defendant guilty as charged as to all counts in the indictment.
On September 13, 2001, the defendant moved the court for a new trial and for an arrest of the judgment on the ground of the ineffective assistance of counsel and upon the ground that the court lacked jurisdiction to enter the jury's verdict and to enter a judgment of conviction against him.
Sentencing is set before this court on November 19, 2001. The judgment of conviction has not yet been entered.
CONTENTIONS OF THE PARTIES
The defendant contends that the joinder of the charge in Count 2 of the indictment, Delivery of a Controlled Substance, with the charge in Count 1 of the indictment, Felon in Possession of a Firearm, unfairly prejudiced his right to a fair trial on the grounds that 1) the defendant had a prior conviction for delivery of drugs; 2) evidence of a firearm and bullets was offered in the course of the defendant's trial on Count 2 for the delivery of illegal drugs; 3) the other evidence offered to prove that the defendant delivered illegal drugs was weak; and 4) the defendant is black, and all of the jurors were white.
The defendant further contends that his constitutional rights were violated because his defense counsel rendered ineffective assistance 1) by failing to move for severance of the trial of the drug charges in Count 2 from the trial of the gun charges in Counts 1 and 3; and 2) by failing to request an instruction to the jury that it must refrain from considering the stipulation that the defendant is a convicted felon as evidence against the defendant in the drug charges in Count 2.
The government contends that the defendant's motion for a new trial was not timely filed. In addition, the government contends that the motion has no merit in that all three counts in the indictment were properly joined for trial, and the defendant has failed to show that the assistance provided by his counsel was ineffective.
APPLICABLE LAW
Rule 33 of the Federal Rules of Criminal Procedure provides, in relevant part:
On a defendant's motion, the court may grant a new trial to that defendant if the interests of justice so require. . . . A motion for a new trial based on any . . . grounds [other than newly discovered evidence] may be made only within 7 days after the verdict or finding of guilty or within such further time as the court may fix during the 7-day period.
ANALYSIS
1. TimelinessThere is no claim of newly discovered evidence made in the defendant's motion for a new trial. Several months lapsed between the verdict returned on June 15, 2001 and the filing of the motion for a new trial on September 13, 2001. The motion for a new trial was not timely filed. However, new counsel has been appointed. The defendant argues that he is entitled to a new trial on the grounds that his former trial counsel provided ineffective assistance. In the interest of justice, the court will address the merits of the defendant's claim that his trial counsel was ineffective.
2. The Merits
The defendant contends that his counsel at trial was ineffective because she failed to move to sever the trial of Count 2 charging him with the crime of possession with the intent to distribute a controlled substance from the trial of Count 1 charging him with the crime of felon in possession of a firearm and Count 3 charging him with possession of a firearm with an obliterated serial number. The defendant argues that evidence of his prior conviction would be inadmissible in the prosecution of Count 2 for distribution of a controlled substance. The defendant further contends that evidence of a gun and ammunition is not necessary to prove a drug charge. The defendant contends that
the innuendo that these "bad acts," (F.R.E. 404(b)), of being an ex felon and carrying a gun support the conclusion that defendant must be guilty of the drug charges. The result is obvious. Defendant was convicted of delivery of the drugs because that is what any juror would automatically assume a felon who possesses a firearm must be up to. No instruction to the jury would prevent this conclusion from operated upon in the minds of jurors to reach such a verdict given the particular circumstances of defendant's case.
. . . .
The circumstances speak for themselves and there is no need for a prosecutor to emphasis them:
1) the defendant had a prior conviction;
2) bullets were found near a convicted felon defendant;
3) a firearm was found near a convicted felon defendant; and
4) drugs were found near a convicted felon defendant.
Couple these circumstances with the fact that defendant is black and this was an all-white jury simply means that any other conviction joined to the firearm count is almost certain to result in an additional conviction.
Memorandum in Support of Motion for a New Trial and Motion to Vacate and Set Aside Judgment of Conviction and Sentence, pp. 8-9 (emphasis in original).
Rule 8(a) of the Federal Rules of Criminal Procedure provides, in relevant part: "Two or more offenses may be charged in the same indictment . . . in a separate count for each offense if the offenses charged . . . are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan."
The three counts charged in the indictment were based upon the arrest of the defendant and the immediate search of his automobile. The guns and ammunition were found at the same time as the drugs. The same facts must be adduced to prove each of the joined offenses in this case, with the exception of the stipulation that the defendant had previously been convicted of a felony. Joinder of these three counts in the indictment was appropriate under Rule 8(a).
To prevail on a claim of the ineffective assistance of counsel, a petitioner must show both (1) that the attorney's performance fell below an objective standard of reasonableness; and (2) that the performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687, 688 (1984). There is a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. Id. at 689. To establish the second prong of the Strickland test, the defendant must show that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694.
The defendant identifies two ways in which he claims the performance of his trial counsel fell below an objective standard of reasonableness, which are as follows: 1) trial counsel failed to move to sever the trial of the drug charges in Count 2 from the trial of the gun charges in Count 1 and Count 3 in order to prevent the jury from hearing evidence of firearms, ammunition and the prior felony conviction in the trial on Count 2; and 2) trial counsel failed to request that the court give a more detailed and explicit jury instruction.
A. Evidence in a Separate Trial on Count 2
The defendant explains that a separate trial on the drug charges in Count 2 would have prevented the jury in the Count 2 drug trial from hearing evidence that bullets and a firearm were found in the search of the vehicle, as well as evidence that the defendant was a convicted felon.
The evidence of the firearm, its ammunition, and the drugs were inextricably intertwined in this case. The evidence of the firearm and ammunition would have been admissible in a separate trial of Count 2 for distribution of a controlled substance. Severing the drug trial of Count 2 from Counts 1 and 3 would not have prevented the jury from seeing and hearing about evidence of a gun and ammunition. Failing to move for severance of the trial of Count 2 in order to prevent the jury in a separate trial on Count 2 from hearing evidence of a firearm and ammunition was not outside the wide range of professional competence and did not prejudice the defendant.
The defendant correctly contends that the stipulation that he was a convicted felon would be inadmissible in a separate trial of the Count 2 drug charge in order to prove guilt. However, the court instructed the jury as follows: "You have heard a stipulation that defendant Howard has previously been convicted of a felony. You may not consider this prior conviction as evidence of anything other than proof of one element of the crime of felon in possession of a weapon." Jury Instruction No. 8. This instruction clearly stated the limitations of the admission of the evidence of the prior felony.
The firearms, bullets and drugs were found in and around the same automobile, and there was strong evidence associating the defendant with the automobile. There are no facts or inferences in this case to support the assertion of the defendant that the jury "automatically" assumed he was guilty of the drug charge in Count 2 because he was a convicted felon. There is not a reasonable probability that a separate trial on Count 2 charging possession with the intent to distribute cocaine would have produced a different result.
B. More Detailed Jury Instruction
The defendant contends that his trial counsel's performance fell below an objective standard of reasonableness because counsel should have requested a "far more detailed and explicit" jury instruction. Memorandum in Support of Motion for a New Trial and Motion to Vacate and Set Aside Judgment of Conviction and Sentence, p. 3. The defendant relies upon the instruction given by the court in United States v. Nguyen, 88 F.3d 812 (9th Cir. 1996), as follows:
The Defendant is charged in the second indictment, . . . with being a felon in possession of a firearm. You have heard the evidence that the Defendant has previously been convicted of a felony. You may consider that conviction only for the limited purpose of deciding whether Defendant has a prior felony conviction.
In the first indictment, . . . you may not consider Defendant's prior conviction as evidence that he conspired to transfer the shotgun or aided and abetted the transfer of the shotgun.
In the second indictment, . . . you may not consider Defendant's prior conviction as evidence that he possessed the firearm. You are forbidden to use this kind of evidence for that purpose — or for those purposes.
Nguyen, 88 F.3d at 817 (emphasis in original).
Memorandum in Support of Motion for a New Trial and Motion to Vacate and Set Aside Judgment of Conviction and Sentence, pp. 3-4.
The court clearly instructed the jury in this case that "[y]ou may not consider this [stipulation that defendant Howard has previously been convicted of a felony] as evidence of anything other than proof of one element of the crime of felon in possession of a weapon." Jury Instruction No. 8. This was the only instruction requested by the defendant. The decision of trial counsel not to request any further detailed instruction was a strategic choice made by trial counsel which does not fall outside the range of professionally competent assistance. The instruction given by the court specifically identified the limitation of the stipulation. The instruction in Nguyen does not add anything significant which would cause this court to conclude that there is a reasonable probability that a different instruction would have produced a different result.
CONCLUSION
The defendant's motion in arrest of judgment and for new trial (#86) is denied.