The opinion of the court was delivered by: SHAPIRO
Defendant, Drax Quatermain, is charged in Indictment No. 78-308 with possession of a firearm as a convicted felon in violation of 18 U.S.C.App. § 1202(a)(1) (Count I) and certain offenses relating to the manufacture and distribution of a firearm silencer in violation of 26 U.S.C. § 5861(d), (e), (f) and (i) (Counts II-V). Defendant's motion for a bill of particulars having been withdrawn, there remain for the Court's pre-trial consideration:
1) Defendant's application for relief from prejudicial joinder, or in the alternative, to limit the government's trial proof;
2) Defendant's motion to suppress physical evidence and return seized property;
3) Defendant's motion to dismiss; and
4) Defendant's application to determine admissibility of mechanical recordings.
APPLICATION FOR RELIEF FROM PREJUDICIAL JOINDER
Defendant's application for relief from prejudicial joinder is an appeal to the discretion of the Court pursuant to Federal Rule of Criminal Procedure 14.
Defendant concedes that Counts I-V may be charged in the same indictment pursuant to Federal Rule of Criminal Procedure 8, but argues that the prejudice arising from the joinder requires relief in the interests of justice. The principal consideration in ruling on a severance motion is whether a consolidated trial would be so prejudicial to a defendant that it outweighs the convenience, economy, and efficient administration of justice which the government and all defendants deserve. United States v. Kulp, 365 F. Supp. 747, 765 (E.D.Pa.1973), Aff'd mem., 497 F.2d 921 (3d Cir. 1974).
In this case the defendant believes it will be difficult for a jury to separate from their consideration of Counts II-V the defendant's criminal conviction introduced as an element of Count I. If there is no severance and defendant does not testify, the jury will be required to consider evidence of a felony conviction on one count and to disregard it on all others. If defendant does testify and if cross-examination of defendant as to his conviction is permitted, the jury will be required to consider evidence of the felony on one count for one purpose and on other counts for a different purpose altogether. The difference in purpose for which the evidence under consideration would be admitted could not be distinguished or intelligently applied by the average juror and would lead to the danger of letting the trier of fact convict the defendant because of his prior record. See U. S. v. Cook, 538 F.2d 1000, 1004 n.12 (3d Cir. 1976), where Judge Adams for the Court notes the Kalven and Zeisel study, The American Jury, reporting:
". . . a statistical study showing that when a defendant's criminal record is known and the prosecution's case has contradictions the defendant's chances of acquittal are 38%, compared to 65% Otherwise."
Cf. U. S. v. Marshall, 360 U.S. 310, 79 S. Ct. 1171, 3 L. Ed. 2d 1250 (1959) (publicity or inadmissible evidence regarding prior record is especially prejudicial).
Moreover, Count I has a penalty of only two years' imprisonment. If tried with the other counts, defendant's prior conviction of a felony, a necessary element of the offense charged in Count I, may convince the jury to convict defendant on Counts II-V which are punishable by ten years' imprisonment each. Therefore, a fair determination of defendant's guilt or innocence on these offenses may not be achieved if the offenses are tried together.
This prejudice to the defendant resulting from the joinder of charges will clearly be alleviated by separate trials; the burden to the government is not great. A separate trial on Count I would be a short and simple one and not unduly wasteful of judicial and court economy. Neither will severance result in two separate trials consisting of essentially the same evidence. The government will be allowed to prove the prior felony conviction in a trial of Count I even though the conviction is not an element of the offenses charged in Counts II-V. Therefore, this is not a case where the evidence necessary to prove the allegations on all counts would be essentially the same; Compare U. S. v. Vignola, 464 F. Supp. 1091 (E.D.Pa.1979), where Chief Judge Lord, denying a post trial motion attacking his refusal to sever, found no prejudice on account of the cross-admissibility of evidence on all counts.
American Bar Association Standards Relating to the Administration of Criminal Justice, Joinder and Severance, 13-3.1(b)(i) (2d Ed.Tent. Draft, Summer, 1978), state that the court should grant a severance of related offenses before trial, "wherever severance is deemed to promote a fair determination of a defendant's guilt or innocence of each offense." The Court, therefore, finds that more prejudice will result to defendant if Counts II-V are tried with Count I than to the government if Count I is tried separately. Accordingly, defendant's application for relief from prejudicial joinder pursuant to Rule 14 is GRANTED.
The law requires that items which are to be seized pursuant to a lawfully obtained search warrant must be set forth within such search warrant with particularity. Marron v. United States, 275 U.S. 192, 48 S. Ct. 74, 72 L. Ed. 231 (1927); accord, Stanford v. Texas, 379 U.S. 476, 85 S. Ct. 506, 13 L. Ed. 2d 431 (1965). The search warrant in the instant case contained the following description of property to be seized:
"A red vise, hacksaw, copper pipe, steel wool, swagging tool and other tools and materials used in the production of a silencer in violation of 26 U.S.C. § 5861."
Defense counsel concedes probable cause for the seizure of the specified items; however, defense counsel attacks the remaining language as being too general and allowing for a general search of defendant's property. Therefore, defendant argues that the search warrant did not specify items to be seized with ...