On Appeal From the District Court of the Virgin Islands. (D.C. Crim. Action No. 90-00157)
Before: Stapleton, Hutchinson and Nygaard, Circuit Judges
STAPLETON, Circuit Judge:
The indictment in this case includes a charge of armed bank robbery, weapons charges in connection with the bank robbery, and a charge of possession of a firearm by a convicted felon. The defendant challenges the district court's refusal to sever the possession charge, and the fine and sentence imposed by the court.
In November 1990, a masked man robbed the First Pennsylvania Bank on St. Thomas, Virgin Islands at gun point. According to witnesses, the robber carried a silver, semi-automatic pistol with which he threatened bank employees and customers. He pointed the pistol as well as the revolver that he had taken from the bank guard at the heads of several tellers, ordering them to stuff money into a brown canvas bag.
A witness saw the robber leave the bank, remove his mask, and drive off in a white car. He noted the car's license number which was immediately provided to the Virgin Islands Police through the bank manager. A squad car pursued the vehicle on a high speed chase through a residential area. Minutes later, after he had sideswiped several unfortunate cars in his path, the robber lost control of his vehicle, and it flipped. One of the officers later testified that, as he and his partner approached the car, the robber reached for his nine-millimeter pistol, which the officer managed to secure before the robber reached it. The police found in the car the bank guard's revolver and a brown bag containing approximately $19,000. A number of nine-millimeter ammunition rounds and a mask were found in the suspect's pockets. The apprehended suspect was later identified as the defendant, Aubrey Joshua.
Joshua was charged in a four count indictment as follows: Count One - armed bank robbery, 18 U.S.C § 2113(a) & (d)*fn1 ; Count Two - use of a firearm during a crime of violence, 18 U.S.C. § 924(c)(1); Count Three - receipt of a firearm with an obliterated serial number, 18 U.S.C. §§ 922(k) & 924(a)(1)(B); and Count Four - possession of a firearm by a convicted felon, 18 U.S.C. § 922(g)(1) and § 924(e).*fn2
Prior to trial, Joshua moved to sever the trial of Count Four of the indictment from the remaining counts. He feared that exposure of the jury to evidence of his prior criminal record might unfairly influence its decision concerning the first three counts. The government acquiesced in this motion. The court denied the motion but ordered a bifurcated trial. The jury first heard evidence and deliberated concerning the first three counts, and then heard evidence of the defendant's criminal record and deliberated concerning Count Four.
After the presentation of the evidence on the first three counts, the jury was unable to reach verdicts on Counts One and Two and returned a verdict of not guilty on Count Three. The government then tendered to the jury a stipulation that the defendant was a convicted felon. After closing arguments and instructions on Count Four, the jury returned a verdict of guilty.
Before Counts One and Two could be retried, Joshua and the government entered a plea agreement under which they exchanged a guilty plea to armed bank robbery for a dismissal of the charge of use of a firearm during a crime of violence. The court sentenced Joshua to 300 months in prison for the armed bank robbery charge. On Count Four, he received a sentence of 365 months in prison. The court also assessed a $3,000 fine and ordered that the sentences of imprisonment be served concurrently.
The district court had jurisdiction under 48 U.S.C. § 1612(a). We review the final judgment of conviction and sentence pursuant to 28 U.S.C. § 1291.
Joshua's first argument*fn3 is that the district court erred in denying his uncontested motion to sever Count Four -- felon in possession of a firearm -- from the remaining counts of the indictment.*fn4 Severance decisions under Rule 14 require the district court to weigh the potential for prejudice to the defendant from joinder against the conservation of judicial resources that joinder will occasion. Striking the appropriate balance is within the sound discretion of the district courts. Accordingly, we review such decisions for an abuse of that discretion. United States v. Sandini, 888 F.2d 300, 305 (3d Cir. 1989), cert. denied, 494 U.S. 1089 (1990).
Joshua maintains that the district court's procedure prejudiced him because the same jury that heard the evidence in the first part of the trial was then asked to decide Count Four--raising the possibility of improper spill-over of evidence. Moreover, he claims that severance was mandated by our opinion in United States v. Busic, 587 F.2d 577 (3d Cir. 1978), rev'd on other grounds, 446 U.S. 398, 64 L. Ed. 2d 381, 100 S. Ct. 1747 (1980).
In Busic, we dealt with a similar factual situation. The defendant was charged with various drug offenses and with being a felon in possession of a firearm. Claiming prejudice if the jury were aware of his prior convictions, the defendant moved to sever the weapons possession charge. The district court denied the defendant's motion and he appealed. This court upheld the district court's decision on the grounds that the evidence was independently admissible on the other counts of the indictment and additionally that any error was harmless beyond a reasonable doubt. However, we went on to advise the district courts that:
We think that in ruling on a pre-trial motion to sever the district court should determine whether evidence of the prior convictions would be independently admissible on the other counts. If it is determined that the convictions would not be admissible on the other counts--that were these counts to be tried alone the jury would not hear this evidence--then severance should be granted.
Id. at 585 (footnote omitted).*fn5 We recognized that the district courts may have difficulty making these determinations in a pre-trial setting; however, "if the government chooses to join such counts, it must be prepared to justify the joinder to the trial Judge by showing that the prior convictions would be admissible even absent joinder." Id. at 585 n.9.
The parties disagree on whether the procedure followed in this case was condoned or forbidden by Busic. Although in Busic we noted that bifurcation was a "novel approach" to the problem, id. at 585 (citing United States v. Franklin, 331 F. Supp. 136 (D. Minn. 1971)), we have not yet squarely addressed the issue of its propriety. Moreover, the district courts in this circuit have reached contrary Conclusions on that issue. In United States v. Vastola, 670 F. Supp. 1244, 1263 (D.N.J. 1987), the court interpreted our reference to bifurcation as a "novel approach" to mean that we approved of this procedure. However, in United States v. Edwards, 700 F. Supp. 837, 838 (W.D.Pa. 1988), the court refused to read Busic "so loosely" and held that the bifurcated trial procedure replaced one kind of prejudice to the defendant with another:
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 hearing testimony relating to, and possibly convicting the defendant of Counts One and Two.
We conclude that the procedure adopted by the district court here strikes an appropriate balance between the concern about prejudice to the defendant and considerations of judicial economy. Our concern in Busic was that the necessity of introducing evidence of the defendant's criminal record in order to prove the weapons possession charge would prejudice the defendant during the jury's deliberations on other counts. The bifurcated trial procedure adopted here addresses that concern. The defendant's criminal past is not made known to the jury until after they have reached a verdict with respect to the other ...