Opinion
Case No. S1-4:04CR0538 JCH (AGF).
August 29, 2005
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
This matter is before the Court on the motion to sever filed by Defendant, Lorenzo Brooks. Pretrial matters were referred to the undersigned United States Magistrate Judge under 28 U.S.C. § 636(b). Defendant was originally indicted on one count of being a felon in possession of a firearm. The government thereafter filed a superseding indictment charging, in Count II, that Defendant committed perjury when he testified at the suppression hearing that he had not previously possessed a firearm in connection with several specified prior offenses for which he had been convicted and had never possessed a firearm. Currently before the Court is Defendant's motion, related to the superseding indictment, seeking to sever Counts I and II for separate trials. A hearing on Defendant's motion was held on August 11, 2005, at which counsel offered argument. The parties were thereafter granted leave to file post-hearing memoranda, after which the matter was taken under submission.
Findings of Fact
Defendant was indicted on September 23, 2004, in a one-count indictment charging him with being a felon in possession of a firearm, arising out of his alleged possession of a shotgun on July 11, 2003. The facts related to that alleged possession are set forth fully in this Court's prior Report and Recommendation (Doc. #34) and will not be repeated here. Defendant filed a motion to suppress the firearm and statements made, on Fourth and Fifth Amendment grounds. The undersigned heard testimony on Defendant's motions on January 19 and January 26, 2005. At the January 26, 2005 hearing, Defendant testified primarily as to facts bearing on what constituted the curtilage and the manner in which the officers had entered the premises.In cross-examination, the government asked certain questions in which it sought to establish that Defendant had a "problem" with police officers and was "familiar" with firearms. Because the parties are not in agreement as the nature of Defendant's testimony, both the specific answers on which the perjury counts are based, as well as the testimony leading up to those answers, are recited below:
Q. Your resisting arrest and interfering with police officer convictions, Mr. Brooks, you have those in addition to your other convictions. I would assume you're not a — considering your criminal history — a big fan of police officers?
A. Well, I don't have no problems with them.
Q. You don't have any problem with police officers?
A. No, sir.
Q. But you've resisted arrest one time, you've interfered with an arrest another time?
A. Yes, sir.
Q. And you're approximately 45 years old, sir?
A. 46.
Q. You're 46 now?
A. Yes, sir.
Q. Also, considering your criminal history, sir, you've become familiar with guns over the course of the last 28 or 30 years; is that right?
A. You say I've come familiar with them?
Q. With guns.
A. In what aspect are you saying?
Q. Well, sir, you've been convicted of various offenses that involved — several offenses that involved firearms; is that correct?
A. No, sir.
Q. None of those offenses involved firearms?
A. No, sir.
Q. Not the robbery first degree?
A. No.
Q. Not the attempted robbery?
A. No, sir.
Q. You've been convicted of possessing a controlled substance on more than one occasion?
A. Yes, sir.
Q. Sale of PCP?
A. Yes, sir.
Q. Stealing?
A. Yes, sir.
Q. In the course of none of those convictions did you become familiar at all with firearms?
A. No, sir.
Q. In the course of your experience in those drug cases, sir, did you become familiar with other people who were involved in the drug trade?
A. You say did I become familiar with other people?
Q. Yes, sir. For example when you were selling PCP?
A. Okay. Define what you're saying. Did I meet other people that were selling drugs?
Q. Yes, sir.
A. Yes, sir.
Q. And is it common in the drug trade for people to carry guns?
A. Well, they might — yes, sir, I guess you can say that.
Q. Yeah, that's a common practice by a drug dealer, right?
A. Right.
Q. But you're not all that familiar with guns?
A. No sir. I mean, I have, you know, you be familiar with them, but what you're saying as far as in my possession, no, sir.
Q. Okay. Never possessed a firearm?
A. No, sir.
Q. Never in your life?
A. No, sir.
Based upon this testimony, a superseding indictment was filed on July 27, 2005, adding Count II, which alleges the making of a false declaration before a court, in violation of 18 U.S.C. § 1623(a). (Doc. #50). Specifically, Count II of the indictment charges that Defendant falsely stated that none of his prior convictions, and three such convictions in particular, involved firearms, and that he falsely stated that he had never possessed a firearm, as follows:
"[N]one of the offenses for which he had been convicted involved a firearm, his robbery first degree conviction did not involve a firearm, his attempted robbery conviction did not involve a firearm, his assault first degree conviction did not involve a firearm, he never possessed a firearm, and he never possessed a firearm in his life."
CONCLUSIONS OF LAW
"When a defendant moves for a severance, the [Court] must first determine whether joinder is proper under Federal Rules of Criminal Procedure 8. If joinder is proper, the Court still has discretion to order a severance under Federal Rules of Criminal Procedure 14." United States v. Darden, 70 F.3d 1507, 1526 (8th Cir. 1995). These rules are to be liberally construed in favor of joinder. Id.; United States v. Rock, 282 F.3d 548, 552 (8th Cir. 2002).Rule 8(a) provides that the indictment may charge a defendant in separate counts with two or more offenses if the offenses charged "are of the same or similar character, or are based on the same act or transaction, or are connected with or constitute parts of a common scheme or plan." See United States v. Moeckly, 769 F.2d 453, 464-65 (8th Cir. 1985). The determination of whether joinder is proper is made from the face of the indictment, United States v. Bledsoe, 674 F.2d 647, 655 (8th Cir. 1982), and is reviewed de novo on appeal, United States v. Tyndall, 263 F.3d 848, 849 (8th Cir. 2001). Among the factors the courts examine is the extent to which the evidence related to the different counts overlaps.Id.
The government asserts that joinder is proper here because Defendant's possession of the firearm and his denial of ever possessing a firearm at the suppression hearing are part of the same act or transactions. The government further asserts the counts will require substantially the same proof, contending that Defendant's false declarations denying possessing a firearm "goes to defendant's consciousness of guilt on the underlying felon-in-possession charge," and that evidence of both Defendant's felon in possession charge and his prior convictions will be relevant to establish motive for the perjury charge, citing United States v. Berardi, 675 F.2d 894, 900 (7th Cir. 1982). The government cites to numerous cases which have held that substantive charges are properly joined with charges of perjury or some form of obstruction of justice pertaining to those charges. See, e.g., Moeckly, 769 F.2d at 464-65 (joinder of perjury charge with smuggling conspiracy charge proper where perjury before grand jury helped conceal participation in the conspiracy); United States v. Jamar, 561 F.2d 1103, 1105-06 (4th Cir. 1977) (counts of unlawfully possessing and uttering stolen Treasury check properly joined with perjury at preliminary hearing); United States v. Pacente, 503 F.2d 543, 545 (7th Cir. 1974) (en banc) (extortion charge based on receipt of check properly joined with charge that defendant falsely denied before grand jury that he received the check).
Defendant asserts that the two events are not part of the same act or transaction. They occurred 18 months apart, and Defendant's testimony, he contends, had nothing to do with the alleged firearm possession charged in Count I, but rather was elicited to show Defendant's familiarity with firearms based solely on Defendant's prior offenses and drug dealing. He further asserts that government's cases are distinguishable because Defendant's testimony occurred post-indictment, in connection with a suppression motion, while the cases cited by the government primarily involved testimony given pre-indictment, and all involved efforts by the defendant to frustrate the investigation and prosecution of the specific offenses charged.
The Court is not wholly persuaded by Defendant's argument that the testimony at the hearing is factually unrelated to the charge in Count I. While the bulk of the testimony alleged to be untrue relates to Defendant's prior convictions for other crimes — which apparently occurred some 25 years earlier — Defendant also testified that he had never possessed a firearm in his life. Although Defendant may well have thought, given the context of the examination leading up to this interchange, that the government's counsel was focusing on events prior to the July 2003 event, the fact remains that his testimony on January 26, 2005, that he had never possessed a firearm in his life, is surely broad enough to include a denial that he did not possess a firearm on July 11, 2003.
To the extent Defendant's testimony may be seen as a denial under oath of his possession of the firearm charged in Count I, the cases cited by the government would support a finding of proper joinder. The Court notes, however, that the case for proper joinder is far weaker here than in the cases cited by the government, for two separate reasons. First, the cases cited by the government in support of joining the substantive offense with the perjury charge primarily occurred during the investigative phase and could properly be characterized as an attempt to avoid the charges, or, as inRock, were outright attempts to obstruct the proceedings. See Rock, 242 F.3d at 550. Although the allegedly false testimony in Jamar occurred after the initial charge, it was given at a preliminary hearing at which, similar to a grand jury proceeding, the determination of probable cause was still to be made. Here, it is far more difficult to characterize the testimony as an attempt to avoid the charges; the indictment had already issued, and the testimony was offered solely in support of a suppression motion and essentially constituted a denial of the charge.
Secondly, the cases cited by the government involve situations where the alleged false statement related solely to the substantive charge or evidence underlying the charge. Here, the bulk of the false statements asserted in Count II have nothing to do with the felon-in-possession charge. Rather, they relate to whether Defendant possessed a firearm in connection with his robbery first conviction, his attempted robbery first conviction, and his assault first conviction, all of which occurred on or about March 30, 1977. As the government correctly notes, however, "complete, mutual admissibility . . . is not a requirement for valid joinder of offenses." Jamar, 561 F.2d at 1108 n. 8 (citing Baker v. United States, 401 F.2d 958, 974-75 (D.C. Cir. 1968). In light of the mandate that Rule 8(a) be liberally construed in favor of joinder, this Court finds — with some reservation — that joinder is proper.
At the suppression hearing, the government introduced a certified copy of Defendant's conviction for attempted robbery, first degree, Ex. V, which suggests that Defendant used a firearm in connection with that offense.
Even if joinder is proper, Rule 14 provides that the court may order separate trials of counts or provide other relief if the joinder of offenses appears to prejudice the defendant or the government. Fed.R.Crim.P. Rule 14(a). The determination of whether to grant or deny severance is committed to the sound discretion of the trial court, and requires a balancing of the interest in judicial economy against the risk of prejudice.Zafiro v. U.S., 506 U.S. 534, 541 (1993); United States v. Felici, 54 F.3d 504, 506 (8th Cir.), cert. denied, 517 U.S. 897 (1995).
A joint trial of the two charges here will promote judicial economy to some degree, as in separate trials the government would need to repeat evidence regarding Defendant's possession of the firearm on July 11, 2003, to prove the falsity of that portion of his testimony. The Court notes, though, that little repetition of evidence may ultimately be required if the trial on Count I proceeds first, and Defendant is convicted on that count. Against these interests, courts have recognized that severance may be appropriate under Rule 14 where damaging evidence related to one count would not be admissible in a separate trial of the other count. United States v. Aldrich, 169 F.3d 526, 528 (8th Cir. 1999). In assessing this possible prejudice, the government focuses primarily on the fact that evidence related to Defendant's charge of being a felon in possession of a firearm would be admissible in a separate trial of the perjury charge. What concerns this Court, however, is that evidence regarding Defendant's prior convictions that otherwise would not be admissible in a separate trial of Count I, would necessarily be admitted were Count II to be tried together with Count I.
In a joint trial, in light of the particular perjury alleged here, the government would be free to introduce evidence that Defendant has been convicted of at least three prior offenses and detail the facts surrounding each of those offenses. The extremely prejudicial nature of evidence of this sort has long been recognized by the courts. See Michelson v. United States, 335 U.S. 469, 476 (1948) (such evidence can "weigh too much with the jury and . . . overpersuade them as to prejudge one with a bad general record and deny him a fair opportunity to defend against a particular charge"); Aldrich, 169 F.3d at 528 (citing cases). As the Eighth Circuit stated in Aldrich:
"It cannot be gainsaid that there is `a high risk of undue prejudice whenever, as in this case, joinder of counts allows evidence of other crimes to be introduced in a trial of charges with respect to which the evidence would otherwise be inadmissible.'"169 F.3d at 528 (quoting United States v. Daniels, 770 F.2d 1111, 1116 (D.C. Cir. 1985)).
Thus, courts have often recognized the need to sever felon-in-possession charges from other substantive charges, in order to prevent the jury from hearing evidence of a defendant's prior felony conviction in connection with their consideration of the defendant's guilt or innocence of the other offense.Aldrich, 169 F.3d at 528 (citing United States v. Jones, 16 F.3d 487, 493 (2d Cir. 1994)); cf. Rock, 282 F.3d at 552 (prejudicial effect of joining felon-in-possession charge with witness tampering charge minimized by parties' stipulation to the fact of prior felony conviction, with no details).
If Count I were tried separately, the jury would not be privy to either the number of Defendant's prior felony convictions or the details surrounding those offenses. See Old Chief v. United States, 519 U.S. 172, 190-91 (1977); United States v. Crawford, 130 F.3d 1321, 1323 (8th Cir. 1997). Under Old Chief, the only relevant fact would be that Defendant in fact had a prior felony conviction. Old Chief, 519 U.S. at 186, 190-91. A joint trial would therefore deprive Defendant of the protections to a fair trial afforded by Old Chief.
And, although Defendant suggests that in a separate trial of Count I, Defendant's denial that he ever possessed a firearm would be admissible in the nature of a false exculpatory statement, the Court disagrees. Where, as here, the testimony is given in connection with a motion to suppress, special protections apply. In order to preserve the ability of a Defendant to assert his Fourth Amendment rights, the Supreme Court has unequivocally held that "when a defendant testifies in support of a motion to suppress evidence on Fourth Amendment grounds, his testimony may not thereafter be admitted against him at trial on the issue of guilt unless he makes no objection."United States v. Simmons, 390 U.S. 377, 394 (1968). The government is correct that the courts have refused to extend the reasoning of Simmons to require such things as separate trials of the guilt and penalty phases in capital cases, see McGautha v. California, 402 U.S. 183, 212 (1971), or to prohibit use of the testimony for purposes of impeachment when a defendant elects to testify at trial, see United States v. Beltran-Gutierrez, 19 F.3d 1287, 1289 (9th Cir. 1994). But the Supreme Court has reaffirmed the holding of Simmons which prohibits the admission of testimony given by a defendant in support of a motion to suppress as evidence of guilt at trial.See United States v. Salvucci, 448 U.S. 83, 88-90 (1980);Beltran-Gutierrez, 19 F.3d at 1289. And even the government admits that it remains good law. A joint trial asserting perjury arising out of Defendant's denial at a suppression hearing that he committed the offense at issue would place Defendant in the very same precarious position the Supreme Court sought to avoid in Simmons, and undercut the protections afforded by that case as well.
The judgment in McGautha was vacated in Crampton v. Ohio, 408 U.S. 941 (1972), in accordance with the Court's opinion in Furman v. Georgia, 408 U.S. 238 (1972), and the federal statute now requires bifurcated proceedings.
In addition, the Court notes that inasmuch as Defendant apparently believes that the allegedly untrue statement he made was unrelated to the events of July 11, 2003, he might decide to testify in a separate trial of the perjury charge, in order to explain what he meant, while testimony might not be in his interest at a trial on the felon-in-position charge.
CONCLUSION
While joinder may be permissible, a joint trial here would not only permit the admission of extremely prejudicial evidence related to Defendant's prior convictions that otherwise would not be permissible in a separate trial of Count I, it would also circumvent the important policies underlying the Supreme Court decisions in Old Chief and Simmons. This prejudice far outweighs whatever judicial economy may be gained from a joint trial. As such, the undersigned recommends that the trial of Count II be severed under Rule 14, or that the proceedings be bifurcated to permit a trial of Count II following the trial of the charge in Count I.
Accordingly,
IT IS HEREBY RECOMMENDED that Defendant's Motion to Sever [Doc. No. 57] be granted, or that the proceedings be bifurcated.
The parties are advised that they have eleven (11) days in which to file written objections to this report and recommendation pursuant to 28 U.S.C. § 636(b)(1), unless an extension of time for good cause is obtained, and that failure to file timely objections may result in a waiver of the right to appeal questions of fact. See Thompson v. Nix, 897 F.2d 356 (8th Cir. 1990).