United States v. Higdon

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 10-3882

_____________

UNITED STATES OF AMERICA

Appellant

v.

JOEMON D. HIGDON

A/K/A JOEMON D. HIGDEN

A/K/A JOEMON HIGDOM

A/K/A JOEMON DEANDRE HIGDON

Appellee

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

Argued January 26, 2011

Before: McKEE, Chief Judge, SMITH, Circuit Judge,

and STEARNS, District Judge

(Opinion Filed: March 17, 2011)

Francis C. Barbieri, Jr. Esq.

Andrew J. Schell, Esq., Jeffery W. Whitt, Esq.

Robert A. Zauzmer, Esq. (Argued)

Office of United States Attorney

615 Chestnut Street

Honorable Richard G. Stearns, District Court Judge, United

States District Court for the District of Massachusetts, sitting

by designation.

1

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

OPINION

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.

I. Factual Background

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).1 The matter was assigned on

1

Higden‟s last name has been spelled in the record as Higdon

as well as Higdom. We adopt the spelling that Higden used

2

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

in his brief as well as that which his counsel used during the

voir dire. See App. 27.

3

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).

App. 20–22.

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.

App. 27-28.

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.

4

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 government had to prove beyond a

reasonable doubt to convict Higden of violating § 922(g).

At the conclusion of the trial, before the court instructed the

jury, the prosecutor reiterated his request that the court colloquy the

defendant about the effect of the stipulations. The prosecutor asked

for “a very brief colloquy that [the defendant] understands that he

agrees to give up his right to have the jury decide the other two

5

elements.” App. 158. The court denied the request, explaining

“[b]ecause he‟s agreed – defendant has already agreed to those.

We‟ve been over this enough. Please be seated. You‟re wasting our

time.” App. 158.

In the parties‟ proposed jury instructions, both Higden and the

government agreed that the jury should be instructed on all of the

elements of the offense. The language that the attorneys agreed to

largely tracked the Third Circuit model jury instructions, which

addresses all of the elements of § 922(g)(1).2 However, the

instruction that the court actually gave deviated significantly from

the model instructions, and consisted mostly of boilerplate language

pertaining to the definition of “evidence,” the presumption of

innocence, and reasonable doubt. The court‟s entire instruction on §

922(g)(1) was as follows:

The issue in this case, as you

know by now, is does the

evidence establish beyond a

reasonable doubt that the

defendant, Mr. Higd[e]n, had

possession of this firearm at the

time in question, namely, last

September 20, 2009.

***

I‟m sure that when you carefully

consider the evidence and the

arguments of counsel that are

based on that evidence, you will

have little difficulty in

understanding that your job is to

2

The Third Circuit‟s model jury instruction regarding a

stipulation is as follows:

“The Government and the defendant(s) have agreed that (set

forth stipulated fact(s)) (is)(are) true. You should therefore

treat (this fact)(these facts) as having been proved. You are

not required to do so, however, since you are the sole judge of

the facts.”

Model Third Circuit Crim. Jury Instruction 4.02.

6

decide whether the evidence

which was actually presented does

or does not establish beyond a

reasonable doubt that the

defendant, Mr. Higd[e]n, had

possession of this firearm, that he

knew he had possession and knew

it was a firearm.

App. 203-04. Thus, not only did the court fail to inform the jury of

the fact of a prior felony and the need to find that the gun travelled in

interstate commerce, which were two of the three elements of the

charged offense, but the court also offered no instruction on the

meaning of “possession.”3

After nearly a day of deliberation, the jury pronounced that it

was deadlocked. App. 229. Judge Fullam responded by taking the

highly unusual step of proposing the following: “[A]ssuming that the

jury is somewhat evenly divided, would there be any consideration

in accepting a majority vote for the jury?” App. 227. The

government rejected the idea and reminded the court that a criminal

jury‟s verdict must be unanimous. App. 228. Defense counsel

stated that he “could not in good conscience” agree to the court‟s

suggestion without knowing the vote. App. 227-28. The court

responded by telling the attorneys that “both sides are entitled to the

same information,” but noting: “[s]o far you‟ve been informed that

it‟s fairly even.” 4 App. 227. Afterwards, the court informed the

3

“Possession” is clearly a common term and it may not, at

first, appear to require definition. However, that is not the

case when a defendant is charged with a possessory offense,

especially where, as here, the contraband was not found on

his person. Thus, the term should have been explained to the

jury. See United States v. Weatherly, 525 F.3d 265, 270 (3d

Cir. 2008).

4

The court added: “I don‟t propose to let you know what the

ultimate outcome would be by a majority vote. I don‟t think

that‟s fair to either side, unless – unless you want it. I don‟t

know.” App. 227. When neither attorney responded, the

court observed: “I hear a deafening silence.” App. 228.

Defense counsel finally told the court that he “did not have

the guts . . . to recommend that to [his] client[;]” and the court

7

parties that the vote was 7 in favor of guilty and 5 in favor of not

guilty. The court scheduled a second trial for September 27, 2010,

pointing out that it would “retry it at vast expense and effort.” App.

228.

In advance of the scheduled retrial, the government filed a

motion in limine on September 15, 2010, in which it moved: (1) that

the court advise the jury at the outset that the charge in this case is

possession of a firearm by a convicted felon, in violation of 18

U.S.C. § 922(g)(1); (2) that the government be permitted to present

to the jury evidence and argument regarding each of the elements of

the § 922(g)(1) offense, including stipulations regarding two of the

elements; and (3) that the court instruct the jury at the conclusion of

the trial regarding each of the elements of the offense. App. 236-57.

Although Higden had originally agreed with the government that the

jury should be instructed about the stipulations, he now opposed the

government‟s motion arguing that the government sought to

prejudice his case. App. 259-62.

The district court denied the motion in limine. In doing so,

Judge Fullam explained that at the first trial, he followed his “normal

procedure,” App. 7, of informing the jury that the defendant was not

lawfully permitted to have possession of a firearm on the occasion in

question, and that he intended to follow this practice at the second

trial as well.5 Judge Fullam asserted that the “only conceivable

purpose,” App. 7-8, for the government‟s desire to inform the jury

asked the AUSA: “[i]s the government counsel any more

courageous?” App. 228.

5

Judge Fullam has adopted this practice in at least two other

cases. In United States v. Harold Brunson, No. 10-4039,

2011 WL 758839 (3d Cir. Mar. 3, 2011), Judge Fullam

denied the government‟s motion in limine to instruct the jury

about all of the elements of the § 922(g)(1) offense. The

government filed an appeal and petition for writ of

mandamus, which has been granted. In United States v.

Darrell Bell, No. 10-454 (E.D. Pa.), in the wake of the

Higden case, the government filed a motion in limine

requesting that the court advise the jury regarding each

element of the § 922(g)(1) offense. Judge Fullam entered an

order continuing the case pending our decision in the present

appeal.

8

about the felony conviction would be to prejudice Higden. Rather

than proceed with the trial, the government filed this appeal and

petitioned for mandamus.

Higden subsequently filed a motion to bifurcate the evidence.

App. 271-72. He asked that the jury be informed of the prior

conviction if, and only if, it first concluded that he possessed the

firearm in question. The government filed a response opposing the

motion and the district court stayed the case because the

government‟s appeal was pending. App. 276-81.

II. Standard of Review

The district court‟s decision regarding the admissibility of

evidence is reviewed for abuse of discretion. United States v.

Serafini, 233 F.3d 758, 768 n.14 (3d Cir. 2000). We apply the same

standard in reviewing a district court's determination that the risk of

unfair prejudice does not substantially outweigh the probative value

of otherwise admissible evidence. See United States v. Mathis, 264

F.3d 321, 326-27 (3d Cir. 2001).

III. Discussion

A. Jurisdiction

The Criminal Appeals Act, 18 U.S.C. § 3731, governs when

the government can take an interlocutory appeal. Higden maintains

that this appeal falls outside of the permission granted in that Act

and that we therefore lack jurisdiction. Section 3731 provides in

pertinent part:

An appeal by the United States

shall lie to a court of appeals from

a decision or order of a district

court suppressing or excluding

evidence or requiring the return of

seized property in a criminal

proceeding, not made after the

defendant has been put in

jeopardy and before the verdict or

finding on an indictment or

information, if the United States

attorney certifies to the district

9

court that the appeal is not taken

for purpose of delay and that the

evidence is substantial proof of a

fact material in the proceeding.

Higden argues that jurisdiction does not lie under § 3731

because the district court neither suppressed nor excluded any

evidence. However, the Supreme Court has explained that the

legislative history of § 3731 “makes it clear that Congress intended

to remove all statutory barriers to [g]overnment appeals and to allow

appeals whenever the Constitution would permit.” United States v.

Wilson, 420 U.S. 332, 337 (1975). This is consistent with the

language of the statute itself, which states that “[t]he provisions of

this section shall be liberally construed to effectuate its purposes.”

18 U.S.C. § 3731.

Here, the court refused to introduce stipulations regarding

Higden‟s prior felony and the fact that the firearm had traveled in

interstate commerce. The court then denied the government‟s

motion to introduce evidence about the stipulated facts at the retrial.

The court‟s order constituted an evidentiary ruling that effectively

suppressed proof of the facts set forth in the stipulation including

evidence of Higden‟s prior conviction.

Accordingly, we conclude that § 3731 confers appellate

jurisdiction to review the district court‟s order prohibiting the

stipulation being admitted into evidence. See United States v.

Helstoski, 576 F.2d 511, 521 (3d Cir. 1978) (“Section 3731 was

designed to allow appeals from [district court orders] to insure that

prosecutions are not unduly restricted by erroneous pre-trial

decisions to exclude evidence.”).

However, § 3731 does not allow us to exercise jurisdiction

over the district court‟s refusal to properly charge the elements of the

offense for which Higden was on trial. That ruling did not suppress

or exclude evidence. Rather, it prohibited the jury from learning the

definition of the crime with which Higden was charged. We know

of no authority that would allow us to stretch the parameters of §

3731 far enough to cover a court‟s refusal to inform the jury of the

elements of the crime(s) with which the defendant is charged.

Nevertheless, that does not end our jurisdictional inquiry

because the government claims that the court‟s refusal to properly

10

charge a jury is appropriate for mandamus relief pursuant to 28

U.S.C. § 1651. Higden contends that we lack jurisdiction to issue a

writ of mandamus because the district court did not exceed the

lawful exercise of its discretion. However, as we will explain, we

believe that this case is precisely the sort of “extraordinary” situation

where a writ of mandamus is warranted. Kerr v. United States Dist.

Court, 426 U.S. 394, 402 (1976); In re Nwanze, 242 F.3d 521, 524

(3d Cir. 2001).

B. The Stipulation

In order to establish a violation of § 922(g)(1), the

government must establish each of the following elements beyond a

reasonable doubt: (1) the defendant has been convicted of a crime

punishable by imprisonment for a term exceeding one year; (2) the

defendant knowingly possessed the firearm; and (3) the firearm had

travelled in interstate commerce. United States v. Dodd, 225 F.3d

340, 344 (3d. Cir. 2000). Here, the court only informed the jury

about the second element – whether Higden had possessed the gun

the government introduced into evidence.

We have previously rejected the idea that a defendant‟s

stipulation to an element of an offense removes that element entirely

from the jury‟s consideration. In United States v. Williams, 612 F.2d

735 (3d Cir. 1979), the defendant agreed to stipulate to his prior

conviction and asked the district court to preclude the government

from referring to his status as a convicted felon. Id. at 740.

However, the government refused to join the tendered stipulation,

and the district court did not require the government to do so. Id.

Rather, the government introduced evidence of the prior conviction

and the defendant subsequently appealed his conviction. On appeal,

we summarized the issue regarding the proposed stipulation as

follows:

Counsel for the appellant offered

in effect to modify the statute by

stipulating that the appellant was

a convicted felon and to preclude

thereby any mention to the jury of

the appellant's felony status either

by argument of counsel for the

government or through

instructions to the jury by the

11

court on the elements of the

crime. Counsel for government

refused to join in such a

stipulation, and the court refused

to require the government so to

do.

Id. We held that “[t]he court did not err.” Id. We explained that

“we perceive no authority for counsel or the court to modify a

criminal statute enacted by Congress by eliminating through

stipulation one of the elements of the crime.” Id. We further noted

that even if the stipulation “did not go so far as to constitute the

modification of a criminal statute, „[t]he Government was not

required to accept a judicial admission . . . of the defendant but had a

right to proffer proof on the point admitted.‟” Id. (quoting United

States v. Brickey, 426 F.2d 680, 686 (8th Cir. 1970)) (ellipsis in

original).

Our holding in Williams is consistent with the Supreme

Court‟s recognition that the protections of the Sixth Amendment

entitle every criminal defendant to “a jury determination that [he] is

guilty of every element of the crime with which he is charged,

beyond a reasonable doubt.” Apprendi v. New Jersey, 530 U.S. 466,

477 (2000). The constitutional right to trial by jury has, “as its most

important element, the right to have the jury, rather than the judge,

reach the requisite finding of „guilty.‟” Sullivan v. Louisiana, 508

U.S. 275, 277 (1993). That fundamental component of a jury trial

cannot be negated or abridged by stipulation. Therefore, although a

stipulation may provide a mechanism for proving facts that

constitute an element of an offense, it cannot prevent a jury from

performing its role as the ultimate finder of fact as to all those facts

required to prove the elements of an offense beyond a reasonable

doubt.

Every court of appeals that has addressed the issue before us

has reached the same conclusion. In United States v. Gilliam, 994

F.2d 97, 100 (2d Cir. 1993), the Court of Appeals for the Second

Circuit held that removing an element from the jury‟s consideration

upon a stipulation would offend the function of the jury. The court

explained that “[w]ithout full knowledge of the nature of the crime,

the jury cannot speak for the people or exert their authority.” Id. at

101. Indeed, the court emphasized that removing an element of the

12

crime from the jury‟s consideration “violates the very foundation of

the jury system.” Id. at 100.

Similarly, in United States v. Milton, 52 F.3d 78, 81 (4th Cir.

1995), the Court of Appeals for the Fourth Circuit held that

removing the prior felony element of the § 922(g)(1) offense from

the jury‟s consideration “prevents the government from having its

case decided by the jury, and changes the very nature of the charged

crime.” Accordingly, the court held that the district court must

instruct the jury of all the elements of the crime charged. Id.; see

also United States v. Barker, 1 F.3d 957, 959 (9th Cir. 1993),

amended, 20 F.3d 365, 366 (9th Cir. 1994); United States v.

Birdsong, 982 F.2d 481, 482 (11th Cir. 1993); United States v.

Collamore, 868 F.2d 24, 27-29 (1st Cir. 1989); United States v.

Bruton, 647 F.2d 818, 825 (8th Cir. 1981) (en banc); United States v.

Brinklow, 560 F.2d 1003, 1006 (10th Cir. 1977).

Higden counters by arguing that none of these cases are

relevant because they pre-date the Supreme Court‟s decision in Old

Chief v. United States, 519 U.S. 172 (1997), which Higden contends

is directly on point. There, as here, the defendant was a convicted

felon who had been charged with possession of a firearm in violation

of 18 U.S.C. § 922(g)(1). Id. at 175. The defendant stipulated to the

prior felony and moved for an order to prevent the government from

presenting evidence of his prior offense because of its likelihood to

prejudice the jury. Id. The district court denied the order and the

court of appeals affirmed, finding that the government was entitled

to introduce probative evidence to prove the prior offense, regardless

of the defendant‟s stipulation offer. Id. at 177. The Supreme Court

reversed. Id. at 192.

The Court held that the district court abused its discretion by

spurning the defendant‟s offer to stipulate to the prior offense

because the admissibility of the evidence would be prejudicial to the

defendant. Id. at 174. The Court was sensitive to the specific

problem raised by § 922(g)(1) and the prior felony conviction

element. The Court explained that “there can be no question that

evidence of the name or nature of the prior offense generally carries

a risk of unfair prejudice to the defendant.” Id. at 185. Therefore,

the Court reasoned that the trial court should have accepted the

stipulation because “[the defendant‟s] proffered admission . . .

presents the District Court with alternative, relevant, admissible and

13

seemingly conclusive evidence of the prior conviction,” Id. at 186,

that would allay the risk of unfair prejudice to the defendant.

However, Old Chief does not stand for the proposition that

evidence of a defendant‟s prior conviction is not admissible when a

defendant offers to stipulate to the conviction. Rather, the Court

held only that the “name or general character of that crime” need not

be disclosed because “the fact of the qualifying conviction is alone

what matters under the statute.” Id. at 190. In fact, the Court

anticipated that a jury would be informed of the stipulation about a

defendant‟s prior conviction. The Court explained that: “the most

the jury needs to know is that the conviction admitted by the

defendant falls within the class of crimes that Congress thought

should bar a convict from possession of a gun, and this point may be

made readily in a defendant‟s admission and underscored in the

court‟s jury instructions.” Id. at 190-91. Thus, the Supreme Court

did not hold, as Higden contends, that the jury need not be informed

of the fact of a prior conviction when that prior conviction is an

element of the charged offense. On the contrary, the Court affirmed

that the jury must still be made aware of the existence of a

defendant‟s prior conviction.6

6

Higden also cites to United States v. Mason, 85 F.3d

471 (10th Cir. 1996) in support of his position that a jury

should not be informed of a defendant‟s prior conviction,

even if it is an element of the charged offense. In Mason, the

defendant was prosecuted under 18 U.S.C. § 922(g) and the

parties stipulated to the prior felony conviction and interstate

commerce elements of the offense. Id. at 471-72. The

district court then instructed that because the parties

stipulated to these elements, “the government need not offer

proof as to these elements, and you should consider them

proven by the government.” Id. at 472.

On appeal, the defendant argued that the district court

erred by withholding the stipulated elements from the jury's

consideration. Finding no error in the district court's jury

instructions, the Court of Appeals for the Tenth Circuit

reasoned that “the jury need not resolve the existence of an

element when the parties have stipulated to the facts which

establish that element . . . the judge has not removed the

consideration of an issue from the jury; the parties have.” Id.

Higden‟s reliance on this case is wholly misplaced because

14

Our analysis of Old Chief is consistent with other post-Old

Chief decisions, which conclude that a district court may not entirely

exclude a stipulated fact from the jury‟s consideration when that fact

constitutes an element of an offense. In United States v. Chevere,

368 F.3d 120, 122 (2d Cir. 2004), the Court of Appeals for the

Second Circuit held that in a prosecution under § 922(g)(1), there are

“no circumstances” where a district court may remove the element

of a prior felony conviction entirely from the jury‟s consideration by

accepting a defendant‟s stipulation to that element. Consistent with

the holding in Old Chief, the court explained that “[a]lthough a

defendant may, by stipulating that he has a prior felony conviction,

prevent the jury from hearing the nature or underlying facts of the

conviction, he may not prevent the jury from learning the fact that he

has a prior felony conviction – a ‘crucial element’ of the offense.”

Id. at 121 (emphasis in original). Similarly, in United States v.

Amante, 418 F.3d 220 (2d Cir. 2005), the court quoted heavily from

its earlier opinion in Gilliam, 994 F.2d 100, in finding that

withholding an element of a crime from a jury‟s consideration places

the jury “in a position only to make findings of fact on a particular

element without knowing the true import of those findings.” Id. at

223. The court reasoned that a defendant‟s “prior conviction is a

„critical element‟ of § 922(g)(1) that cannot be divorced from the

crime.” Id.

Moreover, our reasoning here is informed not only by our

own precedent and the persuasive reasoning of our sister circuit

courts of appeals, but also by the practical implications of failing to

instruct a jury about all elements of this offense. Possession of a

firearm is ordinarily not a crime, and the emotions and fervor

surrounding efforts to restrict gun ownership are all too familiar to

require citation. Therefore, it is quite likely that a juror would be

concerned about prosecuting someone merely for possessing a

firearm, particularly if the juror is a gun owner. Although no one

other than the people on Higden‟s first jury can know why it

deadlocked, common sense suggests that it may well have been

the Tenth Circuit never found that the district court could

refuse to inform the jury of the prior conviction or the

elements that make up the charged offense. On the contrary,

the district court judge explicitly advised the jury of the

elements of § 922(g)(1), including the prior felony element,

and the Tenth Circuit found no error in that instruction. Id. at

471.

15

because of concerns about convicting someone for simply

possessing a gun. The fact that the first trial resulted in a hung jury

also suggests that at least some of the jurors may have been confused

about why Higden was on trial in the first place. See Old Chief, 519

U.S. at 189 (“People who hear a story interrupted by gaps of

abstraction may be puzzled at the missing chapters, and jurors asked

to rest a momentous decision on the story's truth can feel put upon at

being asked to take responsibility knowing that more could be said

than they have heard.”). Furthermore, the district court‟s jury

instructions were so cursory that it is entirely possible that the jury

surmised that Higden had been charged with an entirely different

offense altogether. For example, it is a federal crime for an illegal

alien to possess a gun. See 18 U.S.C. § 922(g)(5).

In addition, failing to instruct the jury about the prior felony

element of the § 922(g)(1) offense would have the impermissible

effect of allowing the district court to modify a congressionally

enacted criminal statute by eliminating an element of the crime

through stipulation. It is also contrary to fundamental concepts of a

jury trial. See United States v. Haywood, 363 F.3d 200, 207 (3d Cir.

2004) (“[O]mission of an essential element of an offense [in a jury

instruction] ordinarily constitutes plain error.‟”) (quoting United

States v. Xavier, 2 F.3d 1281, 1287 (3d Cir. 1993)) (emphasis in

original); United States v. Cornish, 103 F.3d 302, 307 (3d Cir. 1997)

(finding that the jury should be informed about a stipulated element);

Williams, 612 F.2d at 740 (rejecting the appellant‟s proffered

stipulation on grounds that it would modify a criminal statute).

We, of course, realize the danger of undue prejudice inherent

in any attempt to inform a jury that a defendant has a prior criminal

conviction. Such evidence can certainly create bias that could

increase the likelihood of a conviction on something other than

evidence. We have previously recognized that a government‟s

proffered reasons “to admit prior bad act evidence may often be [a]

Potemkin [Village], because the motive, we suspect, is often mixed

between an urge to show some other consequential fact as well as to

impugn the defendant's character.” United States v. Sampson, 980

F.2d 883, 886 (3d Cir. 1992). Here, however, Higden‟s prior

conviction is not merely a consequential fact, it is an element of the

crime charged. Thus, any prejudice results from the requirements of

16

the statute itself, and is best addressed by an appropriately forceful

limiting instruction.7

Nevertheless, we are not so naïve as to believe that a curative

instruction will always vitiate all possibility of prejudice in every

case. It will, however, help to balance the district court‟s obligation

to inform the jury about the charge at issue on the one hand, and the

defendant‟s right to a fair trial by an unbiased fact finder on the

other. See Zafiro v. United States, 506 U.S. 534, 540-41(1993)

(noting the presumption that jurors follow limiting instructions);

United States v. Liburd, 607 F.3d 339, 344 (3d Cir. 2010) (“[W]hile

curative instructions cannot repair every error, we do generally

presume that juries follow their instructions.”); Gilliam, 994 F.2d at

100 (“But where the district court issues a proper curative

instruction, we must presume that a conscientious jury will only use

the proof of the prior conviction to satisfy the element of the

crime.”).

7

We agree that courts must diligently attempt to prevent

the kind of prejudice that “clouds impartial scrutiny and

reasoned evaluation of the facts,” United States v. Starnes,

583 F.3d 196, 215 (3d Cir. 2009), by ensuring that

prosecutors do not attempt to exploit the defendant‟s record.

Thus, at the very least, forceful and carefully tailored curative

instructions will almost always be required.

For example, see Gilliam, 994 F.2d at 99, in which the

Second Circuit cited with approval the district court‟s limiting

instructions with respect to a § 922(g) offense:

Now, I want to firmly instruct you in this connection

that the prior conviction that is an element of the

charge here and is not disputed, is only to be

considered by you for the fact that it exists. And for

nothing else. You are not to consider it for any other

purpose, you are not to speculate as to what it was for

or anything else. It is not to be in any way considered

by you on whether it is more likely than not that the

defendant was in knowing possession of the gun that is

charged, which is the disputed element of the offense

here charged.

17

In addition, Higden‟s claim of undue prejudice here is further

undermined by the fact that evidence of a defendant‟s prior bad act

can be admitted as proof of motive, intent, knowledge, or any

number of other factors under Fed.R.Evid. 404(b). United States v.

Scarfo, 850 F.2d 1015, 1019 (3d Cir. 1988)). It is true that evidence

of prior bad acts is excluded under Rule 404(b) when it involves

“other crimes, wrongs, or acts.” Rule 404(b) (emphasis added).

However, Higden‟s prior conviction proves an element of the

charged offense and is therefore not evidence of some “other” crime.

C. Bifurcation of the Trial

As an alternative to the procedure that the district court

adopted in Higden‟s first trial, Higden contends that we should

approve a bifurcated second trial. Under the proposed bifurcated

procedure, the jury would learn about the prior conviction only after

determining whether Higden was in possession of a firearm. In his

motion to bifurcate, Higden contends that bifurcation “would allow

the government to present evidence regarding all elements of the

offense without predisposing the jury to resolve the element of

possession against Defendant on the basis of his prior record.” App.

271. In other words, Higden asserts that a bifurcated procedure

would help mitigate any undue prejudice that would arise by the jury

knowing of his prior conviction at the outset of the trial.

The district court did not rule on Higden‟s motion to bifurcate

the evidence because it stayed the case on the basis of the

government‟s appeal. Therefore, the bifurcation issue is not before

us. We will note, however, that we have rejected a bifurcated

procedure under similar circumstances. See United States v. Jacobs,

44 F.3d 1219, 1223 (3d Cir. 1995). 8

8

In Jacobs, we held that the trial court was not permitted

to sever the trial of a single § 922(g) offense to prevent the

jury from learning of a defendant‟s prior felony conviction

until it resolved other elements. We reasoned that bifurcation

would deprive the jury of knowledge of the very crime with

which the defendant was charged, which was an untenable

result. Id. Since our decision in Jacobs, every appellate court

that has addressed whether a single count indictment under §

922(g)(1) should be entitled to a bifurcated trial has rejected

the idea. See Amante, 418 F.3d at 225; United States v.

Clark, 184 F.3d 858, 866-68 (D.C. 1999); United States v.

18

D. Writ of Mandamus as a Remedy

The All Writs Act gives appellate courts the power to issue a

writ of mandamus “in exceptional cases where the traditional bases

for jurisdiction do not apply.” In re Pasquariello, 16 F.3d 525, 528

(3d Cir. 1994). The Act states that “[t]he Supreme Court and all

courts established by Act of Congress may issue all writs necessary

or appropriate in aid of their respective jurisdictions and agreeable to

the usages and principles of law.” 28 U.S.C. § 1651(a).

Traditionally, the writ of mandamus has been used “to confine an

inferior court to a lawful exercise of its prescribed jurisdiction or to

compel it to exercise its authority when it is its duty to do so.” Will

v. Calvert Fire Ins. Co., 437 U.S. 655, 661 (1978). The writ is a

drastic remedy that “is seldom issued and its use is discouraged.”

Lusardi v. Lechner, 855 F.2d 1062, 1069 (3d Cir. 1988).

Nevertheless, the need for a writ of mandamus is “obvious” in

certain very rare circumstances. Blasband v. Rales, 979 F.2d 324,

328 (3d Cir. 1992). “For example, mandamus is appropriate when a

district court has failed to adhere to the mandate of an appellate

court.” In re Chambers Development Co., Inc., 148 F.3d 214, 224

(3d Cir. 1998); see also Delgrosso v. Spang & Co., 903 F.2d 234,

237 (3d Cir. 1990).

Koskela, 86 F.3d 122, 125 (8th Cir. 1996); United States v.

Dean, 76 F.3d 329, 332 (10th Cir. 1996); Milton, 52 F.3d at

80-81; Birdsong, 982 F.2d at 482; Barker, 1 F.3d at 959;

Collamore, 868 F.2d at 28. As we explained in Jacobs,

bifurcation under these circumstances puts the jury in the

difficult position of deciding the guilt or innocence of a

defendant without knowing all of the elements of the crime

that is charged. Jacobs, 44 F.3d at 1222.

This does not, however, mean that other appropriate

steps cannot be taken to minimize the danger of undue

prejudice that could almost certainly result from the jury

learning of the defendant‟s prior felony conviction. Indeed,

courts should attempt to minimize and mitigate that danger,

but they must do so in ways that are appropriate, consistent

with precedent, and do not deprive the jury of the information

it needs to appropriately determine the defendant‟s guilt for

the charged offense.

19

In order for a court to issue the writ, (1) the petitioner must

have no other adequate means to obtain the desired relief, and (2) the

petitioner must meet its burden of showing that its right to the writ is

clear and indisputable. Cheney v. U.S. Dist. Ct. D.C., 542 U.S. 367,

380-81 (2004). Even when these prerequisites are met, however, the

issuance of a writ is “largely discretionary.” Hahnemann Univ.

Hosp. v. Edgar, 74 F.3d 456, 461 (3d Cir. 1996).

We find that both elements have been met here. First, it is

crystal clear that the government has “no other adequate means” of

compelling the district court to instruct the jury of all elements of the

§ 922(g) offense. As noted above, the prosecutor repeatedly asked

the district court, both in conferences held in chambers as well as in

the courtroom, to inform the jury of the relevant charge. The

prosecutor also requested on two occasions that the court colloquy

Higden to confirm that he agreed to waive his right to have all of the

elements of the crime found by a jury beyond a reasonable doubt.9

The court denied these requests. The prosecutor then asked for a

stay to permit consultation with his superiors regarding the

possibility of filing a petition for mandamus. That request was

similarly denied. The government then filed a motion in limine

requesting the district court to properly instruct the jury about each

of the elements of § 922(g)(1) at the conclusion of the trial. That

request was also denied by the district court. The government thus

exhausted all possible options, and was left with no alternative but to

allow the retrial to proceed under the same circumstances as the first

trial, or to seek relief by writ of mandamus.

The second requirement for mandamus relief is also satisfied

here. The court‟s insistence on giving an improper jury charge

constitutes “clear and indisputable” error, Cheney, 542 U.S. at 381,

especially given the district court judge‟s stated intention of

repeating his “usual practice” at the retrial. App. 7-8. We have

recognized that “the adoption of a clearly erroneous jury instruction

9

This request was apparently based upon the AUSA‟s

awareness that allowing the case to be submitted to the jury

based only upon the stipulation to two elements without

requiring (or allowing) any proof of those elements would be

tantamount to waiving the defendant‟s constitutional right to

a jury trial as to the two elements that were the subject of the

stipulations.

20

that entails a high probability of failure of a prosecution – a failure

the government could not then seek to remedy by appeal or

otherwise – constitutes the kind of extraordinary situation in which

we are empowered to issue the writ of mandamus.” United States v.

Wexler, 31 F.3d 117, 129 (3d Cir. 1994).

This is such an extraordinary situation. The district court

refused to abide by controlling precedent that a jury must be

instructed about all of the elements of an offense. The precedent is

not only clear, but is fundamental to the jury system. In addition, the

court‟s conduct placed the government in a very precarious situation.

On one hand, any conviction based on the flawed jury instruction the

court insisted on giving would almost surely have been reversed,

thereby subjecting the defendant to another retrial. On the other

hand, an acquittal after a flawed jury instruction would leave the

government with no ability to appeal because the protections of the

Double Jeopardy Clause would apply. See Wexler, 31 F.3d at 128.

The situation is especially problematic here because, as we

noted above, possession of a firearm is not a crime under ordinary

circumstances, and it is now clear that an individual has a

constitutional right to possess a gun. See District of Columbia v.

Heller, 554 U.S. 570, 635 (2008) (holding that the District of

Columbia‟s ban on handgun possession in the home violates the

Second Amendment, as there is an individual right to gun

ownership). A juror who is asked to convict someone merely for

possessing a gun under “these circumstances,” App. 27, with no

explanation about the “circumstances” that make possession a crime,

could well be both confused by the charges and reluctant to convict

for conduct that s/he knows is not ordinarily criminal. It is hard to

believe that some jurors would have been anything other than

puzzled as well as distrustful given the erroneous and incomplete

jury charge here.

We are also deeply troubled that the district court would even

entertain the notion of accepting a majority vote from the jury, in

clear violation of a defendant‟s constitutional right to a unanimous

jury verdict in a federal criminal trial. See McDonald v. City of

Chicago, 130 S.Ct. 3020, 3035 n.14 (2010) (explaining that the

Sixth Amendment right to trial by jury requires a unanimous jury

verdict in federal criminal cases); United States v. Beros, 833 F.2d

455, 461 (3d Cir. 1987) (“[J]ust as the [S]ixth [A]mendment requires

jury unanimity in federal criminal cases on each delineated offense

21

that it finds a defendant culpable, it must also require unanimity

regarding the specific act or acts which constitutes that offense.”

(internal citation omitted)) .10 Accordingly, we affirmatively

exercise our discretion and conclude that the circumstances here

merit mandamus relief. See Amante, 418 F.3d 220. In granting

mandamus relief, we are aware that another panel of this Court has

now decided the case of United States v. Harold Brunson. See note

6, supra.11 There, as here, the same district court judge refused to

follow the precedent of this circuit and instead insisted upon

conducting a trial according to his own personal view of the law and

his own custom.

The resulting situation is as unfortunate as it is regrettable.

We noted at the outset that Judge Fullam is a very experienced and

hard working jurist and he has devoted decades of service to the

federal bench. Nothing we have said in this opinion should detract

from that. However, neither this court, nor any other court, can

tolerate a situation where a judge decides to follow his/her own

custom and concepts of justice rather than the precedent of the

applicable appellate court or the United States Supreme Court. Ours

is a nation of laws, not judges.

In granting relief, we have acknowledged that human frailties

may well predispose jurors against a defendant charged with

violating § 922 and result in a conviction based primarily upon a

10

Indeed, the district court judge‟s suggestion that defense

counsel and the AUSA consider agreeing to decide the

outcome by a majority vote of a closely divided jury is so

bizarre that it is tempting to assume that the court was simply

joking. However, the judge did nothing to correct the

impression that he was serious and neither side interpreted the

court‟s overture as anything other than a serious suggestion.

Both attorneys responded as if the court was serious and

nothing suggests that they were mistaken in doing so.

11

Brunson is a nonprecedential opinion. However, we do

not refer to it here by way of authority. Rather, our reference

is only intended to provide the context of this appeal and

mandamus petition. Moreover, given the conclusion of the

unanimous panel in Brunson, it is clear that this case must be

assigned to a different judge on remand.

22

prior criminal record even where the evidence might not otherwise

support a conviction. Nonetheless, we cannot accept a situation of a

judge taking it upon himself/herself to mitigate prejudice in a

manner that undermines the very laws the judge has taken an oath to

uphold and defend.

Nor can all that happened here be dismissed as the result of

the court‟s concern for ensuring that Higden received a fair trial. We

can think of few procedures that would be more prejudicial to a

defendant‟s constitutional rights, nor more inimical to the concept of

a right to a jury trial embodied in the Sixth Amendment, than the

court‟s suggestion that this case be decided by a majority vote of a

closely divided jury. We are therefore simply at a loss to understand

the court‟s behavior.

Finally, we are not convinced that the district court was

justified in believing that the government‟s only intent in eliciting

proof of Higden‟s prior conviction was to unduly prejudice him.

Although that may sometimes be the case, nothing on this record

suggests that the prosecutor here was concerned about anything

other than informing the jury of the elements of the charged offense

as defined by Congress when he asked to inform the jury of the

existence of the prior felony conviction.12

In light of these unfortunate circumstances, we will grant the

petition for mandamus. We must also exercise our authority to

direct the Chief Judge of the Eastern District of Pennsylvania to

reassign the case to another district court judge on remand. See

12

We realize that there are certainly instances where the

government may seek to admit a defendant‟s prior bad acts in

an effort to prejudice the jury. While referring to

admissibility of prior bad acts under Fed. R. Evid. 404(b), we

have noted that there are “obvious dangers inherent in

evidence of uncharged bad acts, and the adversarial tendency

of the proponents of such evidence to be less than candid

about their motives for offering evidence that suggests that a

defendant's character is suspect.” United States v. Morley,

199 F.3d 129, 139 (3d Cir. 1999). However, an examination

of the record in this case makes clear that the prosecutor

merely sought to make the jury aware of the elements of the

charged offense.

23

Alexander v. Primerica Holdings, Inc., 10 F.3d 155, 167 (3d Cir.

1993) (“We are authorized to order the reassignment of this case to

another district court judge pursuant either to the All Writs Act, 28

U.S.C. § 1651(a) or 28 U.S.C. § 2106.”). Although we recognize

that “[t]he decision to remove a judge from an ongoing trial should

be considered seriously and made only rarely,” Huber v. Taylor, 532

F.3d 237, 251 (3d Cir. 2008), the district court‟s troubling actions in

this case leave us with no alternative.

IV. Conclusion

For the foregoing reasons, we will grant the writ of

mandamus and remand for additional proceedings consistent with

this opinion. In doing so, we will direct the Chief Judge of the

District Court for the Eastern District of Pennsylvania to assign this

case to a different judge.

24