Appeal from the United States District Court for the Eastern District of Pennsylvania (No. 2-09-cr-00742-001) District Judge: The Honorable John P. Fullam
Before: McKEE, Chief Judge, SMITH, Circuit Judge, and STEARNS, District Judge
Suite 1250 Philadelphia, PA 19106
Attorneys for Plaintiff-Appellant Paul M. George, Esq. (Argued) McKinney & George 239 South Camac Street Philadelphia, PA 19107 Attorney for Defendant-Appellee
McKEE, Chief Circuit Judge.
The United States appeals the district court‟s refusal to inform a jury about a stipulation that was entered into with defense counsel. The government also petitions this court for a writ of mandamus directing the United States District Court for the Eastern District of Pennsylvania to properly instruct a jury on the elements of the crime of illegal possession of a firearm by a convicted felon, in violation of
18 U.S.C. § 922(g)(1), that was charged in this case. Although mandamus is an exceptional remedy, we conclude that the troubling circumstances of this case require granting the writ to correct the trial court‟s continuing abuse of discretion in failing to inform the jury of the elements of the charged offense. Accordingly, we will grant the petition and remand the case for trial. We also find that we have jurisdiction to review the court‟s refusal to inform the jury about the stipulation. Given the district court‟s conduct in this case, we feel that we have no alternative but to direct the Chief Judge of the District Court to reassign this matter to a different judge on remand.
Joemon D. Higden, a previously convicted felon, was indicted for possessing a firearm in or affecting interstate commerce, in violation of 18 U.S.C. § 922(g)(1).*fn1 The matter was assigned on July 20, 2010 to United States District Court Judge John P. Fullam, a very experienced and hard working senior judge.
At trial, the government called Lisa Walker, who testified that Higden came to her home on the night in question with a gun, and that she called the police after Higden fired the gun in the street. Two police officers responded to the call. The officers testified that they observed Higden crouched over on the street. They also said that they heard a clanking noise, and later found a gun in the same area where Higden had been.
Prior to trial, Higden stipulated that he had been previously convicted of a felony and that the gun the police retrieved in this case had traveled in interstate commerce. Higden did not initially object to introducing the stipulations at trial. They included the following:
The firearm listed in the Indictment -- a 9mm Taurus semi-automatic handgun, Model PT92AFS, serial number TAR1146, loaded with 14 rounds of 9mm ammunition -- has been test-fired, is operable, and is a "firearm" as defined within Title 18, United States Code, Sections 922(g)(1) and 924(e).
The firearm listed in the Indictment - a 9mm Taurus semi-automatic handgun, Model PT92AFS, serial number TAR1146, loaded with 14 rounds of 9mm ammunition -- was manufactured outside of the Commonwealth of Pennsylvania and was therefore "in or affecting [interstate] commerce" within the meaning of Title 18, United States Code, Sections 922(g)(1) and 924(e) on or about September 20, 2009.
Prior to September 20, 2009, defendant Joemon D. Higd[e]n had been convicted in a court of the Commonwealth of Pennsylvania of a felony crime, punishable by imprisonment for a term exceeding one year, within the meaning of Title 18 United States Code, Sections 922(g)(1) and 924(e).
Despite both parties agreeing that the jury would be informed about these stipulations, the district court did not permit the government to mention them to the jury. Rather, during voir dire, the judge only told the potential jurors:
Now the charge brought by the Government is that the defendant, Mr. Higd[e]n, had possession of a firearm which it was illegal for him to possess in those circumstances . . . . The charge is that the defendant was not legally permitted to have possession of a firearm, and the Government says on a particular occasion he did have possession of a firearm.
The Assistant United States Attorney ("AUSA") prosecuting the case repeatedly objected to the district court‟s refusal to inform the jury of the relevant charge.
On the first day of trial, the AUSA asked Judge Fullam in chambers whether he could refer to the prior felony conviction in his opening statement. The AUSA apparently made that request because Judge Fullam described Higden‟s offense to the potential jurors as simply "possession of a firearm which  was illegal for him to possess in those circumstances," App. 27, without mentioning the other two elements of § 922(g)(1). Judge Fullam denied the request and told the prosecutor that Higden‟s stipulation about his prior conviction would not be sent to the jury.
The following morning, the judge held another conference in chambers at the prosecutor‟s request. The AUSA again asked if he could inform the jurors of the elements of the charged offense, and cited precedent of this court. The AUSA argued that, at a minimum, the court should colloquy the defendant to ensure that he had agreed to waive his right to have all of the elements of § 922(g) established by proof beyond a reasonable doubt to the jury. The court denied both requests.
After returning to the courtroom, the court reiterated that the stipulation regarding Higden‟s prior convictions would not be provided to the jury "in spite of the Government‟s position." App. 126. The court then cut off the prosecutor‟s attempts to make a record, asking the AUSA: "Are you getting paid by the day or what[?]" App. 127. The prosecutor then requested a brief stay to consult with superiors in his office about the possibility of filing a petition for mandamus. App. 124. The court refused and chided the prosecutor, stating: "You go right ahead, but you‟re not going to get a stay. You‟re expected to act like human beings." App. 124.
As promised, during the trial, the court refused to permit the government to inform the jury of any of the stipulations. Thus, the jury was not informed that the defendant had a prior felony conviction, nor was the government allowed to present evidence to establish that the firearm had travelled in interstate commerce -- two of the three elements that the ...