Tenth Circuit Cautionary Note On Proving Prior Felonies

In a cocaine base (crack) prosecution which included the charge that the defendant was a felon in possession of ammunition, admitting the defendant's “penitentiary pack” into evidence as relevant to whether the defendant had suffered prior felony convictions, because the defendant would not stipulate to his past convictions, compelling the prosecutor to prove that element, in United States v. Bagby, __ F.3d __ (10th Cir. Oct. 17, 2012) (11-5050)

Where the defendant refuses to stipulate to past convictions in a prosecution for being a felon in possession of a firearm or ammunition, the government must prove to the fact finder, beyond a reasonable doubt, that the defendant previously had been convicted of a felony. 18 U.S.C.A. § 922(g)(1). The prosecution has a variety of means of doing this, depending upon whether the defendant disputes the previous felony convictions, or simply fails to cooperate to remove that issue from the trial. As a recent Tenth Circuit case suggests, using a most direct method – introducing into evidence the defendant's “penitentiary pack” in some circumstances – could end up in findings of unfair prejudice under FRE 403 if care is not taken.

In the case, defendant Bagby was convicted of possession of cocaine base with intent to distribute. The defendant represented himself and upon conviction, having suffered prior felony drug convictions, the defendant was sentenced to the mandatory minimum sentence of life in prison. He appealed both his conviction and sentence. One issue he identified on appeal was whether he had been unfairly prejudiced by the admission into evidence of his prior convictions as found in the "penitentiary pack” the prosecution introduced and which was admitted into evidence.

The defendant had been asked to "stipulate to his past convictions, in connection with the ammunition charge," for which a life sentence was possible. This decision needed to be resolved because, absent the stipulation, the prosecution would have to prove that the defendant had previously been convicted of a felony. The defendant's refusal to stipulate left the prosecutor the burden of having to prove the defendant had prior felony convictions. 18 U.S.C. § 922(g)(1). But this burden did not license the prosecution to exploit the defendant's past criminal record.

At trial, the prosecutor presented the defendant's prior felony conviction evidence through expert testimony. The expert matched the defendant's fingerprints with the prints on a fingerprint card in the defendant's “penitentiary pack” - a "certified copy of the State of Oklahoma’s record of an individual’s correctional history." The penitentiary pack was admitted into evidence and apparently not redacted. The defendant failed to object. According to the circuit, the packet that was entered into evidence disclosed not merely the "judgments against him in his three state drug felonies,” but also included miscellaneous prison-related items, such as the defendant's "prisoner records, records relating to his parole and release, and two fingerprint cards."

On appeal, the defendant contended that the admission of the penitentiary pack into evidence "on the [prior] drug charge was so weak” that learning of the defendant's “prior correctional history … so prejudiced the jury against [Mr.] Bagby that a conviction on [the drug charge] was guaranteed.” United States v. Bagby, __ F.3d at __.

The circuit disagreed. It cautioned that the case law did not support the contention that "where a defendant both refuses to stipulate to the fact of his prior convictions and fails to object to the introduction of extraneous information about those convictions, the district court is nevertheless compelled, sua sponte, to exclude such evidence," as is disclosed in a penintentiary pack. Rather, in the defendant's case, it was clear that use of the pack was not an attempt by the prosecutor to get other crimes evidence in the record -- that is, the precise nature of the prior crimes for which he had been convicted, into evidence.Bagby, __ F.3d at _ (citing United States v. Dean, 76 F.3d 329, 335 (10th Cir. 1996) (finding no plain error in admission of records of conviction, where the Government “properly curtailed its use of the prior crimes evidence; it did not parade [the defendant’s] convictions before the jury or exploit them in any prejudicial fashion”) (internal quotation marks omitted)).

The circuit cited from the defendant's trial record various instances where it was clear the prosecution had no intention to “parade” the record of prior crimes before the jury. Yet, the circuit also included a note of caution. It noted that the pack had not been redacted. The penintentiary pack included information that was potentially not relevant to the case, as “it contained descriptions of all of Mr. Bagby’s prior felony convictions (including three drug felonies), the sentences and fines previously imposed upon him, excerpts from his prison disciplinary record (including a statement that Mr. Bagby was a maximum security inmate), the fact of two denials of parole, and the fact that he was on parole when he committed the offense for which he was now being tried. Bagby, __ F.3d at _

The circuit found no error, but cautioned that this was merely circumstantial. The evidence against the defendant was too overwhelming to believe that had the penintentiary pack not been introduced in evidence, the defendant was likely to be found not guilty. The circuit cautioned that it examined the admission of the penintentiary pack for whether this was plain error, as the defendant had not objected to admission of the pack trial. According to the circuit, while it found

“there was no plain error in the admission of this apparently unredacted penitentiary pack, we caution the Government that … only the fact of prior conviction is relevant to a § 922(g) charge—is persuasive even where the defendant refuses to stipulate to that fact. We emphasize that “evidence concerning the nature of the predicate crime in a felon in possession case is irrelevant and prejudicial,” and should be “excluded if possible by use of a redacted record. Similarly, we discern no reason why the Government needed to introduce irrelevant evidence of Mr. Bagby’s disciplinary record in prison or his parole status in order to prove that Mr. Bagby had violated 18 U.S.C. § 922(g). To establish the first element of a § 922(g) offense, the Government needed only to establish the fact of a single prior felony conviction. And although erroneous introduction of prior convictions is subject to harmless-error analysis where the defendant objects below,we leave open the possibility that, on different facts, and under a different standard of review, introduction of an unredacted penitentiary pack might be reversible error.

Bagby, __ F.3d at __ (emphasis added) (citing United States v. Wacker, 72 F.3d 1453, 1472 (10th Cir. 1995) (the nature and substance of prior convictions are irrelevant to proving guilt under 18 U.S.C. § 922(g)), United States v. Kitchell, 653 F.3d 1206, 1228 (10th Cir. 2011) (“To obtain a conviction under [18 U.S.C. § 922(g)(1)], the government must establish three elements beyond a reasonable doubt: (1) the defendant was previously convicted of a felony; (2) the defendant thereafter knowingly possessed a firearm; and (3) the possession was in or affecting interstate commerce.”) (internal quotation marks omitted)), United States v. Wilson, 107 F.3d 774, 784-85 (10th Cir. 1997)).

The circuit noted that many times problems of this sort are avoided by requesting the trial court to take judicial notice of the public record, such as a penintentiary pack. This practice has been adopted in other circuits as well. See, e.g., Guttman v. Khalsa, 669 F.3d 1101, 1127 n.5 (10th Cir. 2012) (“We recognize some documents filed in the district court are not part of the record on appeal. Nevertheless, we have authority to review them because we may take judicial notice of public records, including district court filings.”); United States v. Smalls, 605 F.3d 765, 768 n.2 (10th Cir. 2010). The Tenth Circuit also noted that several circuits have held that a certified penitentiary packet is admissible as a self-authenticating public record under Fed. R. Evid. 902(2) and (4). See United States v. Watson, 650 F.3d 1084, 1089-91 (8th Cir. 2011); United States v. Weiland, 420 F.3d 1062, 1073 (9th Cir. 2005); United States v. Dancy, 861 F.2d 77, 79 (5th Cir. 1988). The Tenth Circuit noted that it joined this trend as "[t]his Court recognizes its authority to take judicial notice of public records. See Guttman v. Khalsa, 669 F.3d 1101, 1127 n. 5 (10th Cir. 2012) (DME panel).

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