chooses to join such counts, it must be prepared to justify the joinder to the trial judge by some showing that the prior convictions would be admissible even absent joinder." Id. at 585 n. 9.
Rather than arguing that defendant's prior conviction would be independently admissible in the trial of Counts One and Two, however, the government argues that Busic need not be followed because in that case the above-cited criteria are dicta since the court concluded that the failure to sever was harmless error. The government further argues that any prejudice that will result from not severing Count Three can be corrected by curative instructions.
The court, however, does not read the Busic decision so loosely and concludes that severance is appropriate in the present case since the government failed to provide any indication that the evidence of Edwards' prior felony conviction would be admissible for some purpose in relation to Counts One and Two.
The issue remains, however, as to the appropriate procedure to be utilized once severance is granted. Our Court of Appeals in Busic noted that a district court had taken a "novel" approach to the problem by providing for a two-stage trial "whereby the jury, having reached a verdict on the other counts, would then proceed to consider the counts requiring proof of prior convictions." 587 F.2d at 585 (citing United States v. Franke, 331 F. Supp. 136 (D.Minn. 1971)). However, this court believes that such a procedure raises the same possibility of prejudice as would exist if the third count were not severed. Rather than determining the guilt or non-guilt of the defendant as to Counts One and Two with knowledge of a prior felony conviction, the jury would determine the guilt or non-guilt of the defendant as to Count Three after having heard testimony relating to, and possibly convicting the defendant of Counts One and Two. Accordingly, the court will not follow such a procedure. Instead, Count Three will be severed and tried at a time to be set by the court following the trial of this case.
An appropriate order will be entered.
ORDER of COURT
AND NOW, this 8th day of November, 1988, for the reasons stated in the opinion filed this day, IT IS ORDERED that defendant's motion for severance be, and the same hereby is, granted.