USCA1 Opinion
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 92-2052
UNITED STATES OF AMERICA,
Appellee,
v.
DANIEL D. TAVARES,
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Jose Antonio Fuste,* U.S. District Judge]
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Before
Breyer, Chief Judge, Coffin and Campbell, Senior Circuit Judges,
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Torruella, Selya, Cyr, Boudin and Stahl, Circuit Judges.
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Owen S. Walker with whom Peter B. Krupp was on brief for
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appellant.
Michael J. Pelgro, Assistant U.S. Attorney, with whom Donald K.
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Stern, United States Attorney, was on brief for appellee.
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OPINION EN BANC
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April 12, 1994
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*Of the District of Puerto Rico, sitting by designation.
COFFIN, Senior Circuit Judge. A jury found defendant Daniel
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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
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United States v. Donlon, 909 F.2d 650 (1st Cir. 1990), the court
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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
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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
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1Although the predicate crime may not be a felony, the common
reference which we adopt is a "felon-in-possession" offense.
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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
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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
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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
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Collamore, decided a year earlier, the question before us was
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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
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dictum that "even in the face of an offer to stipulate, the
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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.
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government may choose to present evidence on the one felony
necessary to prove the crime charged," id. at 28.
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Although we stand by and reaffirm the proposition central in
Collamore, that a defendant may not use a stipulation or any
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other procedural device, including bifurcation, to remove from
his felon-in-possession prosecution the fact of his prior
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conviction, we now realize upon reconsideration that our dictum
rested on a shaky foundation. In Collamore, we relied on three
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cases, two from the Sixth Circuit, United States v. Blackburn,
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592 F.2d 300, 301 (6th Cir. 1979); and United States v. Burkhart,
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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
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in turn ultimately relied upon United States v. Brickey, 426 F.2d
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680, 685-86 (8th Cir. 1970).3 The question in Brickey was
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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
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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
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of discretion in the trial court's refusal to require the
government to accept the stipulation, and quoted the following
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3 Burkhart and Bruton actually cited United States v. Smith, 520
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F.2d 544 (8th Cir. 1975), which, in turn, relied upon Brickey.
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passage from Parr v. United States, 255 F.2d 86, 88 (5th Cir.
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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
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relied in Collamore, is critically different from the case before
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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.
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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.
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Doherty, 675 F. Supp. 714, 717 (D. Mass. 1987), aff'd in part and
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rev'd in part, 867 F.2d 47 (1st Cir. 1989), including proof of
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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
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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.
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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
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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
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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
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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
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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
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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
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(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
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evidence." See United States v. Dockery, 955 F.2d 50, 54 (D.C.
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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.
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Brinklow, 560 F.2d 1003, 1006 (10th Cir. 1977) (case involving
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interstate transportation of explosives by a convicted felon);
United States v. Spletzer, 535 F.2d 950, 955-56 (5th Cir. 1976)
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(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);
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United States v. Poore, 594 F.2d 39, 41-43 (4th Cir. 1979), while
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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.
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Barker, 1 F.3d 957, 959 n.3 (9th Cir. 1993) (underlying facts of
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prior conviction irrelevant); United States v. Pirovolos, 844
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F.2d 415, 420 (7th Cir. 1988) (defense's proffered stipulation to
prior felony sufficient). But see United States v. Breitkreutz,
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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
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4 In concurring in Breitkreutz, Judge Norris noted that the
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majority's assumption that the nature of the past conviction is
relevant in a 922(g) prosecution conflicted with Barker. 8
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F.3d at 693.
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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
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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
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5 The decision of the Third Circuit in United States v. Williams,
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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
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therefore simply may reflect agreement with our conclusion in
Collamore that a defendant may not modify a statute by
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eliminating one of its elements from the jury's consideration.
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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,
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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
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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
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States v. Torres, 610 F. Supp. 1089, 1093 (E.D.N.Y. 1985) (in
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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
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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
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United States v. Williams, 985 F.2d 634, 638 (1st Cir. 1993).
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contribute to the verdict," United States v. Figueroa, 976 F.2d
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1446, 1455 (1st Cir. 1992) (citations omitted).
The judgment of conviction is therefore VACATED, and the
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case remanded to the district court for a new trial.
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Concurrence follows.
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SELYA, Circuit Judge, with whom Campbell, Senior Circuit
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Judge, joins (concurring). I write separately, not because I
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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:
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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:
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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,
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871 F.2d 235, 238 (1st Cir. 1989). The court here seems to
reverse this presumption, see, e.g., ante at 8, 10, thereby
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putting the shoe on the wrong foot.
Third: I fervently believe that the Rule 403 balance is
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best struck on a case by case basis, and that, in almost all
instances, the strikers of the balance should be the district
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courts as opposed to the court of appeals. See, e.g., Freeman v.
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Package Mach. Co., 865 F.2d 1331, 1340 (1st Cir. 1988) ("Only
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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.
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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.
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