Appeal from the United States District Court for the District of Columbia (No. 91cr00253-02)
Before: Wald, Silberman and Rogers, Circuit Judges.
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 11, 1995
Opinion for the court filed by Circuit Judge Rogers.
The principal issue in this appeal is the harmfulness of informing the jury of the nature of the defendant's prior felony conviction in a prosecution under 18 U.S.C. Section(s) 922(g) *fn1 where the prior conviction is essentially identical to other charges in the indictment. On appeal, the government concedes that, in light of the defendant's offer to stipulate to the fact of his prior conviction, it was error to inform the jury of the nature of the prior felony. In accord with precedent in this circuit, we reverse in view of the undue prejudice to the defense and remand for a new trial.
Appellant Keith E. Jones was convicted by a jury of all six counts in an indictment that included the charge of possession with intent to distribute five grams or more of cocaine base in violation of 21 U.S.C. Section(s) 841(a)(1) and (b)(1)(B)(iii) (1988) and 18 U.S.C. Section(s) 2 (1994). The indictment also charged that Jones was a convicted felon whose possession of a firearm violated 18 U.S.C. Section(s) 922(g)(1) (1994). *fn2 The prior felony conviction was for possession with intent to distribute cocaine, the same charge as in one count of the indictment and closely related to the other counts alleging Jones' participation in a drug-distribution scheme.
The government's evidence showed that when the police executed a search warrant at an apartment at 3912 Wheeler Road, in Southeast Washington, D.C., on January 30, 1991, they initially encountered Troy Holder. Upon entering the kitchen, the police saw Jones seated at a table, talking on the telephone. Jones had a plastic bag of crack cocaine in his hand. Several similar packets were on a plate in front of him, and a razor blade was lying next to the plate. The packets appeared to be of a size common in street sales, and there were several empty plastic bags. The police searched Jones and found one plastic bag of crack and one hundred dollars in cash. They also searched the apartment and found three guns in various locations and large quantities of cocaine and phencyclidine (PCP). In a bedroom, the police found several photos with Jones in them, as well as a pay stub in Jones' name between the mattress and box spring of a bed. A slip of paper found on Jones was the same size and had similar coloring as paper found in a locked tool box that contained drugs and a gun and was found in the apartment.
Jones' defense was that he did not live in the apartment and was not part of the drug operation, but was merely a customer who happened to be in the wrong place at the wrong time. According to Jones, Troy Holder, the true drug dealer, had permitted his customer Jones to use the telephone in the apartment to call Jones' girlfriend. Jones' girlfriend testified that Jones had called her and was planning a date when the call was interrupted by the police. Jones' aunt testified that Jones had lived with her at the time of his arrest.
Prior to trial, Jones' attorney had offered to stipulate to the fact that Jones had a prior felony conviction, and he moved to exclude evidence of the nature of the prior conviction pursuant to Rule 403 of the Federal Rules of Evidence. *fn3 The prosecutor argued that the nature of the prior felony was admissible because the government had the burden of proving the specific prior conviction charged in the indictment. The district court deferred ruling on the defense request, but ordered the prosecutor not to refer to the nature of the prior felony in opening argument. Almost immediately thereafter, however, the district court read the indictment to the jury, including the nature of the prior felony set out in the Section(s) 922(g) charge. *fn4
At trial, Jones objected when the prosecutor attempted to elicit the nature of his prior conviction from a government witness. During a bench conference, the district court advised Jones' counsel that "the cat is probably out of the bag" because the court had read all of count six of the indictment to the jury and overruled the objection. The witness proceeded to describe the nature of the prior felony and also identified a certified copy of the judgment of Jones' conviction for possession with intent to distribute cocaine. The district court then gave a limiting instruction. *fn5 The court also included a similar ...