The opinion of the court was delivered by: Gene E.K. Pratter, J.
Willie Brooks has been indicted on two counts of possession of a firearm by a convicted felon in violation of 18 U.S.C. §922 (g)(1). The Government alleges that on December 6, 2006, and again on July 13, 2007, Mr. Brooks (who has previously been convicted of a felony) possessed a Smith & Wesson 9mm handgun, serial number TZU2788. In anticipation of his upcoming jury trial, various motions have been presented for resolution.*fn1
Mr. Brooks filed a Motion to Sever Counts I and II of the Indictment (Doc. No. 35) and a Motion in Limine to Exclude Evidence (Doc. No. 42), directed at excluding evidence of alleged burglary tools seized by police from a black duffle bag they searched following Mr. Brooks's arrest, both of which motions the Government opposes (Doc. No. 43). The Government has presented a Motion in Limine to Admit Prior Convictions Under Federal Rules of Evidence 404 (b) and 609 (Doc. No. 34), which Mr. Brooks opposes (Doc. Nos. 40 and 41). For the reasons briefly summarized below, the Court denies the severance motion and the motion to exclude from trial the burglary tools seized by the police. The Court will reserve decision on the Government's motion to present evidence of Mr. Brooks's prior burglary convictions, pending the commencement of trial in order to permit the Court and counsel to have a better understanding of what issues may be relevant to the case.
This case concerns criminal conduct allegedly undertaken by Mr. Brooks on two occasions, one occurring in Radnor Township on December 6, 2006, and the second on July 13, 2007 in Newtown Township. As to the latter incident, according to the Government, in the early morning hours of July 13, 2007 police officer Paul Deppi observed a gray minivan speed through a red light. When Officer Deppi gave chase, the driver of the minivan fled. Another police officer soon joined the effort. While fleeing, the minivan driver drove into Tyler State Park and collided with the police cars before eventually being halted by the officers. The driver (later identified as Mr. Brooks) refused to yield or to cooperate with the officers. This conduct allegedly prompted the second officer to draw his gun and approach the minivan, while Officer Deppi opted for his taser as an effort to use the minimum force reasonable under the circumstances to subdue and secure Mr. Brooks. Eventually, Mr. Brooks was handcuffed.
The officers conducted an immediate search of Mr. Brooks who was wearing work-type overalls. On his person they found a screwdriver, flashlight and gloves. It was determined that the minivan was registered in Mr. Brooks's name, and it was towed to a secured lot. Law enforcement authorities also learned in relatively short order that Mr. Brooks was on probation in Bucks County and that he had a lengthy history of prior residential burglary convictions. After obtaining a search warrant for the minivan, the police seized from the vehicle a large black duffel bag in which they found a 9mm handgun, serial no. TZU2788 (registered to Mr. Brooks's live-in girlfriend), that was loaded with 15 rounds. They also found in the bag a Pennsylvania license plate (subsequently determined to have been stolen), along with a camouflage mask, an orange mask mimicking "The Thing," a buck knife, binoculars, two pairs of gloves, various maps of Mid-Atlantic states, another loaded magazine for the gun, and a backpack. Elsewhere in the minivan, the search also resulted in seizure of a wallet containing Mr. Brooks's driver's license and credit cards, as well as the vehicle registration in Mr. Brooks's name, $25 cash, another pair of gloves and a cell phone.
The police processed the gun through the state police's crime lab where it was apparently determined to be a ballistics match to bullets fired at police during an incident in Radnor Township on December 6, 2006, some seven months earlier. The Radnor incident had concerned an early morning hour emergency call to police in order to report a prowler in a residential neighborhood. The prowler had opened fire on the police but escaped apprehension. No witness specifically identified Mr. Brooks as the prowler, though a description of clothing and other physical characteristics was provided. According to the Government, the evidence to be presented will include reference to a cellular phone call from Mr. Brooks to his girlfriend concerning the Radnor incident. The Government contends that Mr. Brooks made incriminating statements during that call.
Any consideration of a motion to sever must begin with Federal Rule of Criminal Procedure 8(a) which sets a high wall for Mr. Brooks to try to scale in order to achieve the requested severance.
Rule 8(a) itself offers considerable flexibility for the joiner of offenses in a single indictment and prosecution, as long as there is some logical relationship between the charges articulated by the Government. Moreover, even if that logical relationship is lacking, in order to achieve severance "a defendant claiming an improper joinder under [Rule 8(a)] must prove actual prejudice from the misjoinder." United States v. Gorecki, 813 F.2d 40, 42 (3d Cir. 1987).
In this case, the Court concludes that there is a sufficient basis for the Government's claim of a nexus between the two counts of the indictment to permit the case to proceed in tact, notwithstanding the seven-month separation of the two alleged incidents. Both counts charge a violation of 18 U.S.C. § 922(g)(1) emanating from confrontations with police in which the same handgun was implicated, attended by physical evidence and conduct consistent with actual or potential early-morning residential burglary activity in areas experiencing a rash of such criminal conduct. Both events involve an adult male wearing work overalls who, when confronted by police, responded with aggression.
Although the two events were separated by seven months and more than a few miles in two different Philadelphia suburbs, they sufficiently share enough connection to invoke the presumption of judicial economy and service to the public interest addressed by joinder of offenses for a single trial. Zafiro v. United States, 506 U.S. 534, 539 (1993). In short, the charges share, while certainly not overwhelming identity, nonetheless sufficient "transactional nexus" to permit them to go forward together to trial. United States v. McGill, 964 F.2d 222, 241 (3d Cir. 1992), cert. denied, 506 U.S. 1023 (1992).
Mr. Brooks has not demonstrated the risk of unacceptable prejudice (recognizing that any criminal charges presented for trial "prejudice" a defendant in some regard) to overcome the favor that the procedural rules and case law hold for a single trial in circumstances such as those presented here. Indeed, Mr. Brooks is obliged to demonstrate "clear and substantial prejudice" if he wishes to achieve severance of these counts, and he would need to persuade the Court that the risk of inconsistent verdicts is markedly less than the prejudice visited upon him by having to defend against the two counts. Gorecki, 813 F.2d at 43; United States v. Sebetich, 776 F.2d 412, 427 (3d Cir. 1985). Unless Mr. Brooks could show (which he has not) that a single trial of both of the pending counts would subject him to fundamental unfairness, the Court must deny this motion. United States v. Quintero, 38 F.3d 1317, 1343 (3d Cir. 1994).
The Court is confident that the defense concern of potential jury confusion between the two events will not come to pass inasmuch as the two incidents that form the cores of the two counts against Mr. Brooks will necessarily be described by the evidence (and counsel) according to their respective particulars. In addition, of course, the Court will admonish the jury to consider independently the two counts and the evidence relating to each of them. There is no reason to expect the jury to either refuse or be unable to follow such an admonition. Indeed, it may very well be that when the jury evaluates the evidence and contemplates the nature and basis of the two ...