                                                           NOT PRECEDENTIAL

                    UNITED STATES COURT OF APPEALS
                         FOR THE THIRD CIRCUIT


                                   No. 10-4039


                        UNITED STATES OF AMERICA,

                                                     Appellant.

                                          v.

                         HAROLD SIDNEY BRUNSON


                  On Appeal from the United States District Court
                     for the Eastern District of Pennsylvania
                          (D. C. No. 2-07-cr-00625-001)
                       District Judge: Hon. John P. Fullam


                           Argued on January 27, 2011

            Before: FUENTES, CHAGARES and ROTH, Circuit Judges

                          (Opinion filed: March 3, 2011)


Zane D. Memeger, Esquire
Thomas M. Zaleski, Esquire
Robert Z. Zauzmer, Esquire (Argued)
Office of United States Attorney
615 Chestnut Street, Suite 1250
Philadelphia, PA 19106

                  Counsel for Appellant
Roland B. Jarvis, Sr., Esquire (Argued)
230 South Broad Street, Suite 700
Philadelphia, PA 19102

                     Counsel for Appellee




                                       OPINION


ROTH, Circuit Judge:

       The government, in prosecuting seven robberies committed by Harold Sidney

Brunson, brings this interlocutory appeal and petition for writ of mandamus to address

errors it contends the District Court committed in ruling on the admissibility of evidence

and in instructing the jury on the elements of the relevant offenses. Grave errors in the

rulings of the District Court compel us to grant the petition and direct this case to be

reassigned.

I. Background

          Brunson was first indicted on October 2, 2007 for a string of robberies. The

matter was assigned to a long-standing and respected judge, John P. Fullam. (App 2.)

On January 21, 2010, the government filed a fourteen-count superseding indictment,

alleging that Brunson and an uncharged individual committed seven armed robberies in

Northeast Philadelphia, between August 2006 and April 2007. (App. 22-37.) Brunson

was charged with seven counts of Hobbs Act robbery, in violation of 18 U.S.C. §

1951(a), and seven counts of using and carrying a firearm during and in relation to a

crime of violence, in violation of 18 U.S.C. § 924(c).

                                              2
       A. The Seven Robberies and Their Similarities

       The government identified the seven robberies with which Brunson was charged

as follows:

              1.   August 5, 2006, 11:30 p.m.: Primo‟s Pizza
              2.   August 19, 2006, 11:45 p.m.: Galaxy Pizza
              3.   September 4, 2006, 2:00 a.m.: The Ashton Pub
              4.   April 13, 2007, 2:40 p.m.: Maxim Hair Studio
              5.   April 13, 2007, 3:35 p.m.: Vince‟s Service Center
              6.   April 15, 2007, 10:00 p.m.: Bill‟s Family Pizza
              7.   April 19, 2007, 9.30 p.m.: Alfred‟s Beverage Corporation

Brunson was arrested while attempting to flee from the scene of the seventh robbery.

The following day, police recovered a small silver handgun and vomit near the spot

where Brunson was arrested. Subsequent DNA tests matched the vomit to Brunson.

Items taken in the final robbery also were found at this location. (App. 211-18.)

       The government points to several similarities between the seven robberies: (1) all

the robberies were committed by two men; (2) one robber was described as taller with

dark skin, and the other (Brunson) as shorter with lighter skin; (3) except in one instance,

both held and pointed guns, with one gun described as a small silver handgun (which fit

the description of the gun recovered in the area where Brunson was arrested), and the

other as a larger black handgun; (4) in nearly every robbery, the victims were ordered to

lie on the ground; (5) victims who resisted were typically beaten by the taller robber, and

in one instance a victim was shot by Brunson; (6) after ordering those present to lie

down, the robbers would take money from the store‟s cash register and other locations

where cash would be held; (7) the robbers would eventually turn to the employees and

customers present, searching them for wallets, cellular phones, and jewelry; (8) before

                                             3
leaving, the robbers would order the employees and customers to the back of the store,

instructing them to kneel or lie down and to remain on the ground; and (9), the stores

targeted were all small independently owned businesses in the general vicinity of

Northeast Philadelphia, and nearly all were robbed just before closing time. (App. 60-

61.)

       The government proffers significant evidence tying these robberies together and

Brunson to them all. A shell casing recovered from the first robbery, where an employee

of Primo‟s Pizza was shot in the stomach while attempting to flee, matched the small,

silver handgun recovered in the area where Brunson was arrested after the seventh

robbery. (App. 61.) Additionally, Brunson also took and held onto items from his

victims. When he was arrested for the final and seventh robbery, Brunson was wearing a

gold chain taken from one of the victims of the sixth robbery. A subsequent search of

Brunson‟s residence turned up ammunition that matched the small, silver handgun found

near where Brunson was arrested, a Social Security card taken from a victim of the fifth

robbery, and a cellular phone taken from a victim of the third robbery. (App. 61.)

       The government‟s attempt to proceed with a rather straightforward trial of these

connected robberies was unfortunately thwarted by a pattern of unreasonable and largely

unexplained rulings by the District Court.

       B. The Severance Decision

       The trouble started when the District Court decided sua sponte that it would be

unfair to try all of Brunson‟s robberies in a single case. At a hearing on the day

Brunson‟s trial was set to begin, the District Court – for the first time and without

                                              4
prompting from either party – expressed its skepticism that the seven counts for armed

robbery in the indictment could be tried in one trial, asking “[h]ow can we possibly try

seven different crimes in one trial before the same jury?” (App. 39.) While the

government asserted that the robberies were all part of the same series of offenses,

Brunson took the hint and moved to sever the counts. The District Court chided Brunson

for not moving earlier for separate trials, asking, “[w]hy didn‟t you file a motion for

separate trials for heaven‟s sake? It seems to me that it inevitably prejudices the jury

against the Defendant to know that he‟s charged with seven different offenses.” (App.

40.) The government disagreed with the District Court and insisted that it would be

proper to try all seven counts together, as the robberies were all carried out in the same

manner, and evidence from all of the robberies is relevant to each count. (App. 40-41.)

The government further noted that if the District Court decided to sever the counts, it

would file a Rule 404(b) motion to admit evidence from the other counts at trial. (App.

40.)1 The District Court ultimately ruled that all seven could not be tried together in one

trial and gave the government a ten-minute recess to decide which count to try first.

(App. 46.)

       Following the recess, the government informed the District Court that if it had to

choose one robbery to try it would try the robbery underlying the final and seventh count

of the indictment: the robbery of Alfred‟s Beverage Corporation (Alfred‟s), after which

1
       During this exchange, the Court inquired if any discussion had taken place as to a
possible trial of one case, and in that case, if the jury were to return a guilty verdict, there
would be an agreed upon disposition on the remaining charges. (App. 44-45.) The
parties acknowledged that they had not discussed that option and that plea discussions
had not been productive. (App. 45.)
                                               5
Brunson was arrested. (App. 47.) When the government indicated that, in light of the

District Court‟s ruling, it would make a formal Rule 404(b) motion to introduce evidence

of the other robberies at the first trial, a heated exchange ensued:

       Government: In addition, if I was proceeding on one robbery, I would
                   also make a formal 404(b) motion to introduce evidence of
                   the other robberies as well because I think it goes to
                   identity.
       The Court:      No, you would not.
       Government: I‟m sorry?
       The Court:      No, you would not.
       Government: Well, I have the right to make a motion, Your Honor.
       The Court:      You have the right to make a motion, yes. Did you ever try
                       a case before?
       Government: Yes, your honor.
       The Court:      Did you ever consider the possibility that the Defendant is
                       entitled to a fair trial?
       Government: He is absolutely is entitled to a fair trial, and that‟s what
                   we‟re giving him in this case.
       The Court:      Then why did you include seven different crimes in one
                       indictment?
       Government: Because he committed seven different robberies. He
                   actually committed probably more than that, but we charged
                   seven different robberies. We do that all the time, Your
                   Honor. There‟s nothing unusual about this.
       The Court:      The fact that you do it all the time doesn‟t make it right.
       Government: Well, it‟s certainly allowed under the law.
       The Court:      So what is the situation as we speak? It is now ten after
                       11:00 on a Monday morning. The case was scheduled to
                       start an hour ago.
       Government: Your Honor, I will formally move under 404(b) to introduce
                   evidence of the other robberies to show both identity –
       The Court:      And that motion is denied.
       Government: Okay. Your Honor, then I will –

                                              6
The Court:     When you file it, it will be denied.
Government: Your Honor, then I must inform the Court that we will file a
            notice of appeal. We have the right to appeal adverse
            evidentiary decisions at pretrial; and therefore, I think this
            proceeding cannot go forward.
The Court:     You‟re running the risk of having the case dismissed for –
               under the Speedy Trial Act, you realize.
Government: I do not believe that‟s true because while an appeal is
            pending, the speedy trial clock is tolled.
The Court:     Well –
Government: And, Your Honor, I have spoken with our appellate
            supervisor on this. He agrees with me –
The Court:     I don‟t care who your appellate supervisor is. We‟re doing
               [sic] to try this case is [sic] a manner which is fair to the
               Defendant, if at all possible.
Government: Well, Your Honor, I – let me inform the Court we will file a
            notice of appeal today and that will automatically stay these
            proceedings.
The Court:     At such time that you file it, I will consider whether it has
               any effect on the current situation.
Government: Okay.
The Court:      As I understand it, the Government is not prepared to
               proceed.
Government: Well, Your Honor, I mean, we‟re asking for a stay.
The Court:     A stay of what?
Government: So that the appeal may be resolved.
The Court:     Appeal of what?
Government: Appeal of your evidentiary decision under 4 –
The Court:     Where on earth did you get the idea you can do that?
Government: The Government has the right to appeal pretrial evidentiary
            decisions.
The Court:     Well, first of all, you haven‟t filed any motion that I‟m
               aware of.
Government: Well, I – I –
The Court:     You said you were going –
                                      7
       Government: -- filed – I‟m sorry, Your Honor.
       The Court:     An oral motion?
       Government: Yes. There was no severance motion filed either.
       The Court:     Pardon?
       Government: There was no severance motion filed either.

       The Court:     No. I‟m granting the severance. I would recess for another
                      ten minutes and suggest that you‟d better be ready to
                      proceed with at least one count in this indictment by the end
                      of that period. Either that or file something which makes
                      sense, which I can rely upon to see whether there‟s possibly
                      an appealable order, which I doubt. Ten minute recess
                      while you decide what you‟re going to do before I throw the
                      whole case out if you‟re not careful.

(App. 47-51.)

       When the District Court reconvened, the interim United States Attorney for the

Eastern District of Pennsylvania, Michael Levy, appeared on behalf of the government.

(App. 51-52.) Since no formal severance motion had been filed, Mr. Levy requested an

opportunity to brief the issue of severance. The District Court granted Mr. Levy‟s

request and continued the case for a week. (App. 53.)

       On February 4, 2010, the government submitted a written opposition to severance.

(App. 57-73.) The government argued that the multiple offenses were properly joined

under Federal Rule of Criminal Procedure 8(a), and that there was insufficient

justification to sever the counts in the superseding indictment pursuant to Federal Rule of

Criminal Procedure 14(a). (App. 62.) To support its argument, the government cited the

Third Circuit Model Jury Instructions addressing multiple criminal counts for the same

defendant, noted that there have been hundreds of indictments in which defendants have


                                             8
been charged with multiple robberies, and stated that it was not aware of any case in

which multiple robbery counts were severed as to the same defendant. (App. 65-68.) In

the alternative that the counts were severed, the government requested that evidence

relating to the other robberies be admitted at each of the individual trials pursuant to

Federal Rule of Evidence 404(b). (App. 68-72.) Brunson filed a response to the

government‟s opposition. To support severance of the counts, Brunson cited primarily

the prejudice that would result from a “spillover effect” and disputed the connection or

similarities between the counts. (App. 74-76.)

       On February 8, 2010, the parties returned to court. The District Court asked the

government which count it wished to proceed with first. The government then indicated

that it would try the last of Brunson‟s alleged robberies, the robbery of Alfred‟s, but

inquired into the status of its motion opposing severance. (App. 81.) The District Court

responded, “I‟ve already ruled twice, at least, I don‟t have to chew my cabbage that many

times. I said that the government could decide which case they wanted to proceed with,

but we would sever it – the cases.” (App. 81.) The District Court did not explicitly

address the government‟s Rule 404(b) motion, but it did not correct the government‟s

statement that “the evidentiary motion is denied, I assume.” (App. 81.)

       C. First Trial

       That same day, the parties selected a jury and began trial. The government

presented evidence of the Alfred‟s robbery that was consistent with the identity and plan

of the robberies described above but no evidence of the other robberies was admitted.

(See, e.g., App. 106-21, 132-49.) Two men, one described as taller and black and the

                                              9
other as Hispanic, entered Alfred‟s shortly before 10:00 p.m. Both wore hooded jackets

with the hoods pulled up. According to the store clerk and his friend, the only two

present in the store at the time of the robbery, the robber described as Hispanic (identified

as Brunson) had a silver handgun and the robber described as black was armed with a

black handgun. (App. 106-11, 133-38.) The black robber demanded money from the

store clerk, who turned over money from the register and lottery machine. (App. 134-

35.) The Hispanic robber demanded money from the store clerk‟s friend, who turned

over $18. (App. 107-08.) The robbers then forced the two men towards the rear freezer

area. (App. 108-09; 135-36.) As he was being forced to the back of the store, the clerk

activated a silent alarm that alerted police. (App. 135.) In the back of the store, the

robbers forced – at gunpoint – the store clerk and his friend to their knees. The black

robber emptied the store clerk‟s pockets and asked if he knew the combination to the

safe. He responded that he did not know, and that only the owner and the manager knew

it. (App. 137-39.) The black robber then hit the store clerk in the back of the head with

his gun. (App. 110-11; 137-38.) Fearing for his life, the store clerk remembered that

there was an envelope with additional cash underneath the register and told the robbers

about it. (App. 137-38.) The robbers retrieved the cash. (App. 111.) A police car

driving by with the siren on startled the robbers, and the robbers quickly left by the front

door. (App. 111.)

       Two officers arrived at the store just as Brunson was exiting. (App. 110-11, 134-

35.) Officer Kruse was able to grab Brunson briefly and see his face, but Brunson broke

away by slipping off his outer layers of clothing. (App. 161-62.) The police recovered

                                             10
Brunson‟s sweatshirt and found $18 in it. Minutes later, another officer found Brunson

hiding behind a vehicle in front of a nearby house. (App. 184-86.) That night, both

Officer Kruse and the clerk‟s friend who was present in the store identified Brunson as

one of the robbers. (App. 111-13, 171-72.) The store clerk could not positively identify

Brunson as one of the robbers at that time. (App. 144-45.)

       The next morning a detective returned to the area where Brunson was arrested and

spotted vomit on the ground next to the SUV behind which Brunson was found. (App.

211, 213.) A DNA expert testified that Brunson was the source of this vomit. (App. 245,

248.) The detective looked underneath the SUV and found two black gloves and two

envelopes in the engine compartment. (App. 215-216.) One glove contained a loaded,

silver .22 caliber semi-automatic handgun, and the other contained cash. (App. 215-216.)

An employee of Alfred‟s identified the envelopes as having been taken from the business.

(App. 146-47, 215-16.) The owner of the SUV, who lived at the house in front of which

Brunson was arrested, testified that she had never before seen the recovered items. (App.

202-03.)

       The jury found Brunson guilty on both counts charged, 18 U.S.C. §§ 924(c),

1951(a). (App. 35-36, 318.) Immediately after the verdict, the District Court called the

parties to sidebar and asked the parties if there was any possible way of reaching a plea

agreement, even suggesting certain ways the parties could reach an agreement. (App.

319-321.) The parties could not reach an agreement, and Brunson requested a

continuance to consider his next move. (App. 321-22.) After unsuccessfully arguing

one post-trial motion for judgment of acquittal or new trial and a separate motion

                                            11
challenging five of the remaining indictments, defense counsel for Brunson filed a

motion to withdraw as counsel. (App. 18, 325-28.) The motion was granted and present

defense counsel was appointed. (App. 19.)

       D. Second Trial

       In the second trial, the District Court‟s pattern of unreasonable decisions

reappeared. The government chose for Brunson‟s second trial the robbery of Vince‟s

Service Center (Counts 9 and 10 of the superseding indictment). Prior to trial, the

government filed a motion in limine to admit evidence pertaining to Brunson‟s possession

of a firearm in connection with the robbery of Alfred‟s, the subject of the first trial.

(App. 337-43.) The government argued that evidence showing that the same gun was

used in all of the robberies was intrinsic evidence demonstrating that Brunson had used a

real gun and participated in each of the robberies. (App. 339-340.) As an alternative

basis for admission, the government argued that evidence of Brunson‟s possession of a

handgun in the robbery of Alfred‟s was admissible under Rule 404(b). (App. 341.) In

response, Brunson argued that the government sought to “back door” the District Court‟s

previous decision granting severance and that admission under Rule 404(b) would lead to

an unfair trial. (App. 346.)

       On August 2, 2010, the trial relating to the robbery of Vince‟s Service Center

began. The District Court did not rule on the government‟s motion in limine before trial,

waiting until the government pressed the point at a sidebar held after opening statements

and some testimony. (App. 423-24.) The government pointed out that defense counsel in

his opening statement claimed that no gun was recovered in the present case, thereby

                                              12
opening the door to admission of the fact that a gun was recovered from the seventh

robbery.2 (App. 424). Defense counsel maintained that he had not opened the door

because he had stated only that no gun was found during the execution of the search

warrant on Brunson‟s apartment. (App. 424.) Without explanation, the District Court

ruled that evidence of the gun‟s recovery was inadmissible. (App. 425.) Upon

prompting from the government, the District Court also directed that Brunson could not

proffer evidence that no gun was found during the search of his apartment. (App. 426.)

The District Court, however, reversed this decision after testimony from a detective that

he recovered .22-caliber ammunition at Brunson‟s house. (App. 438-40.) After calling

counsel to sidebar, the District Court stated to defense counsel, “in view of this

testimony, I will change my ruling if you want to get in the absence of the gun. It‟s all

right with me.” (App. 441.) In closing, defense counsel pointed out that the jury “didn‟t

hear about a firearm being found in my client‟s apartment,” and that, “if there was a

firearm, and [Brunson] was concerned about it being found, . . . it would have been hid . .

. with the other items.” (App. 506.) (Of course, the gun had been recovered prior to the




2
       In his opening, defense counsel stated:

       So the Government‟s going to ask you to find my client in possessing [sic]
       two firearms, neither of which – excuse me – neither of which was seized in
       this case, neither of which will be presented to you in this case, none of
       which you will be able to rely on in terms of establishing that my client was
       there, that my client possessed a firearm and much less that my client
       participated in any robbery.

(App. 359).
                                             13
search of Brunson‟s apartment.) The government objected and requested a sidebar. The

District Court denied the objection and declined to hold a sidebar. (App. 506.)

       At the end of closing arguments, the District Court instructed the jury without

holding a formal charging conference. (App. 514-17.) In place of instructing the jury as

to all of the elements of the offenses, the District Court gave a condensed jury charge

(App. 514-18), shorter than the charge it gave after the first trial (App. 305-12). The

District Court did not instruct the jury as to all elements of the Hobbs Act robbery count

(18 U.S.C. § 1951(a)) or use of a firearm in relation to a crime of violence count (18

U.S.C. § 924(c)). (App. 514-18.) Among other omissions, the District Court failed to

provide any definition for robbery, which is an element pertinent to both counts. (Id.)

The District Court directed the jury as follows:

              This is actually a quite simple case. There are two charges against
       the defendant. One is using a firearm to commit a robbery and the other is
       aiding and abetting the other alleged robber in interfering with interstate
       commerce through robbery
              ....
              And the issue is was this defendant one of the two men that
       committed the robbery? If you accept the testimony of the Government
       witnesses to the effect that a robbery did take place, then the question is,
       was this defendant one of the two men who committed it? And in that
       regard, you have the evidence which you should analyze very carefully and
       decide whether it convinces beyond a reasonable doubt.

(App. 515.)

       The District Court also stated, “there are two, two crimes charged here, but under

the evidence, your verdict has to be the same as to both. So either the defendant is to be

found guilty of both counts or of neither.” (App. 517.) However, the District Court

immediately added that, “if you conclude that this defendant was one of the two robbers,

                                            14
then he would be guilty under both counts. But unless you find that beyond a reasonable

doubt, you must find him guilty – not guilty on either count.” (App. 517.)

       The District Court then called a sidebar. (App. 517.) At that time, the government

expressed its concern about the District Court‟s instruction to the jury: “I‟m concerned

about the instruction that they have to find the same thing on both counts. I think they

need to be instructed to the elements separately, and I‟ll let Mr. Jarvis argue this, but I

think they need to be instructed separately on the elements . . . .” (App. 518.) The

District Court interrupted, stating, “[t]hey‟re not going to be,” and then proceeded to

commit the case to the jury. (App. 518.) Brunson did not object to the jury instructions.

(App. 518.) The jury returned a verdict of guilty on both counts. (App. 520.)

       E. The Latest Motion in Limine

       Shortly before the third scheduled trial, the District Court made clear that it

intended to adhere to its previous decisions to exclude evidence from other robberies and

to provide informal and incomplete jury instructions. The third trial was scheduled to

begin October 12, 2010, on counts three (violation of 18 U.S.C. § 1951(a)) and four

(violation of (18 U.S.C. § 924(c)) of the superseding indictment, which related to the

robbery of Galaxy Pizza. On September 28, 2010, the government filed a motion in

limine to admit evidence at the third trial of the robbery of Alfred‟s (the first trial),3 and

to provide jury instructions on all of the elements of the charged counts. (App. 527, 541-

58.)

3
        The government explained in its motion that it “continue[d] to believe that
evidence of all of the robberies charged in the indictment is admissible to prove any one .
. . .” (App. 542 n.7.)
                                              15
       In its motion, the government proffered that the robbery of Galaxy matched in

identity and plan the robbery of Alfred‟s. The Galaxy robbery occurred at 11:45 p.m.

Two men, one of whom matched the description of Brunson, entered Galaxy and pointed

guns. One of the guns was described as a small silver handgun. The robbers took

approximately $2,000 from the cash register as well as cash and personal possessions

from the employees. The two robbers forced the employees, at gunpoint, to the rear of

the business‟s back storage area, and then fled the scene. Later, one employee who was

present during the robbery identified Brunson in a photo spread as one of the robbers.

(App. 541.)

       In his written response to the government‟s motion in limine, Brunson argued that

“the government is seeking to „back door‟ the [c]ourt‟s previous decisions granting

defendant‟s motion to sever the multiple [c]ount [i]ndictment and denying the admission

of Rule 404(b) [e]vidence; attempting to circumvent defendant‟s constitutional right to a

fair trial.” (App. 562-63.) Brunson did not contest the government‟s request for the

District Court to instruct the jury on all elements of the charged offenses. (App. 562-64.)

The District Court summarily denied the government‟s motion in limine in a two-page

order issued on October 7, 2010. The District Court did not explain its reasoning in an

opinion. Rather, the District Court edited by hand the government‟s proposed order –

striking through certain words and inserting others – before signing and filing it. The

order provided that, “[a]t trial of Counts 3 and 4 in the indictment, the Court will advise

and instruct the jury regarding each of the disputed elements of the charged offenses

under 18 U.S.C. § 1951 and 18 U.S.C. § 924(c).” (App. 6.) (emphasis added). The order

                                             16
further stated “that the government will not be permitted to present evidence regarding

the April 19, 2007, robbery of Alfred‟s” because “proof regarding that robbery is not

relevant to establish the identity of the defendant as a participant in the offenses on trial,

and to prove his use and carrying of a gun in those offenses, and any prejudicial impact

does substantially outweigh the probative value of the evidence.” (App. 6.) On October

8, 2010, the government filed a notice of appeal and a petition for writ of mandamus.

(App. 3-4.) Counsel for Brunson supports the granting of the petition for writ of

mandamus.

II. Jurisdiction and Standard of Review

       The District Court had jurisdiction pursuant to 18 U.S.C. § 3231, and this Court

has the authority to issue a writ of mandamus pursuant to the All Writs Act, 28 U.S.C. §

1651(a). See In re Briscoe, 448 F.3d 201, 211 (3d Cir. 2006). Furthermore, pursuant

either to 28 U.S.C. § 1651(a) or our supervisory powers as enumerated in 28 U.S.C. §

2106, we have authority to order a case reassigned to another district court judge. See

Alexander v. Primerica Holdings, Inc., 10 F.3d 155, 167-68 (3d Cir. 1993). And finally,

18 U.S.C. § 3731 provides us with jurisdiction to review the District Court‟s pretrial

exclusion of evidence.

III. Discussion

       With regrettable clarity, this case compels us to issue a writ of mandamus in order

to correct the repeated errors of a judge in refusing to instruct the jury on all elements of

the charged offenses.



                                              17
       We begin by recognizing that a writ of mandamus “constitutes a „drastic remedy

that a court should grant only in extraordinary circumstances in response to an act

amounting to judicial usurpation of power[.]‟” In re Pressman-Gutman Co., Inc., 459

F.3d 383, 389 (3d Cir. 2006) (quoting Hahnemann Univ. Hosp. v. Edgar, 74 F.3d 456,

461 (3d Cir. 1996)). The Supreme Court requires three conditions be met to uphold the

issuance of a writ of mandamus:

       First, “the party seeking issuance of the writ [must] have no other adequate
       means to attain the relief he desires,” – a condition designed to ensure that
       the writ will not be used as a substitute for the regular appeals process.
       Second, the petitioner must satisfy “the burden of showing that [his] right
       to issuance of the writ is „clear and indisputable.” Third, even if the first
       two prerequisites have been met, the issuing court, in the exercise of its
       discretion, must be satisfied that the writ is appropriate under the
       circumstances.

Cheney v. U.S. Dist. Ct. D.C., 542 U.S. 367, 380-81 (2004) (internal citations omitted).

See also In re Pressman-Gutman, 459 F.3d at 399 (citing Cheney, 542 U.S. at 380-81).

       Here, the government has “no other adequate means” to correct the District

Court‟s unwillingness to charge the jury as to all elements of the relevant offenses, and

the improper jury charge constitutes “clear and indisputable error.” Cheney, 542 U.S. at

380-81.

       It is evident that the government has exhausted its options. As this Court has

recognized, “the adoption of a clearly erroneous jury instruction 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,


                                             18
129 (3d Cir. 1994). The government sought to protect its interests by filing a motion in

limine to require the District Court to provide instructions to the jury consistent with the

Third Circuit Model Criminal Jury Instructions. The government took this step only after

the District Court failed to charge the jury as to all elements of the relevant offenses in

the second trial. The District Court‟s actions left the government between a rock and a

hard place: any conviction obtained based on a flawed jury charge would be subject to

reversal and retrial, while an acquittal after a flawed jury charge would be practically

unassailable as a result of the Double Jeopardy Clause. See Wexler, 31 F.3d at 128.

        Although in Wexler we acknowledged that our decision to grant the writ “does

not authorize the use of mandamus whenever the government objects to criminal jury

instructions,” 31 F.3d at 128 n.16, mandamus is warranted in this case because the

District Court made clear that it has no intention of providing complete and proper

instructions to the jury.   The risk of failure that could result from an improper jury

instruction is magnified in the present case by the multiple trials the District Court has

forced the government to conduct. Improper jury instructions that lead to convictions,

and then to multiple reversals and retrials, would expose the government to the prejudices

inherent in trying a case repeatedly and years after the fact. Thus, the intransigence of the

District Court has left the government with no other adequate means to seek relief other

than by writ of mandamus.

       Furthermore, it is beyond dispute that the failure to instruct the jury on all

elements of the charged offense is clear error. We are mindful that “[w]e may issue the

writ „only if the district court committed a „clear error of law‟ at least approaching the

                                              19
magnitude of an unauthorized exercise of judicial power, or a failure to use that power

when there is a duty to do so.‟” In re Briscoe, 448 F.3d at 216 (quoting In re Federal-

Mogul Global, Inc., 300 F.3d 368, 384 (3d Cir. 2002)). A court‟s failure to so instruct the

jury unquestionably constitutes error. See United States v. Haywood, 363 F.3d 200, 207

(3d Cir. 2004) (“Although we have not adopted a per se rule, we have held that „the

omission 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))). This

is consistent with the Supreme Court‟s recognition of criminal defendant‟s entitlement

under the Sixth Amendment “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, 476-77 (2000) (quoting United States v. Gaudin, 515 U.S. 506, 510

(1995)). Here, the prosecution and defense both agree that the District Court erred and

threatens to err in a manner that merits the issuance of the writ.

       During the second trial, the District Court did not instruct the jury as to all

elements of the Hobbs Act robbery count (18 U.S.C. § 1951(a)) or the use of a firearm

count (18 U.S.C. § 924(c)). (App. 514-18). The District Court did not even define the

element of robbery contained in the § 1951(a) count, and almost entirely excluded the

elements of the § 924(c) count. See generally Third Circuit Model Jury Instructions §§

6.18.924B, 6.18.1951. Moreover, the District Court incorrectly suggested to the jury that

its verdict had to be the same as to both counts, “[s]o that either the defendant is to be




                                              20
found guilty of both counts or neither.”4 (App. 517.) Thus, in failing to instruct the jury

on all elements of the charged counts and erroneously informing the jury that it had to

find the same verdict for both counts, the District Court blundered.5 The District Court‟s

indication that it intends to repeat such error only compounds the problem. When the

District Court denied the government‟s motion in limine requesting the court to read the

full charge, the District Court instead provided that it would “instruct the jury regarding

each element of the disputed elements of the charged offenses.” (App. 6) (emphasis

added.) In short, this course of conduct is clearly and indisputably incorrect.

       At this stage of the analysis, with two prerequisites for the issuance of the writ

already met, we still retain discretion to determine the appropriateness of the writ. Yet, it

is without hesitation that we find the present case deserving of such an extraordinary

measure. From the conduct of the court described above, we have grave concern about

the ability of the judge to fairly rule on the various matters that have been and will be

raised in this case. Accordingly, we will grant the petition for a writ of mandamus, and

direct that the District Court be required to instruct the jury as to all elements of the

charged offenses.

       The government has moved for a reassignment of the case to another District

Judge. Under different circumstances, we would remand this case to the same judge. In


4
       The District Court elaborated, “if you conclude that this defendant was one of the
two robbers, then he would be guilty under both counts.” (App. 517.) This still does not
account for the possibility that the jury could find that the government failed to prove that
Brunson possessed a firearm as he participated in the robbery.
5
       As it is not subject to appeal before us, we express no view as to whether this error
merits reversal.
                                              21
view, however, of the proceedings we have described above, we further exercise our

authority to direct the Chief Judge of the Eastern District of Pennsylvania to reassign the

case to another district court judge. See Alexander v. Primerica Holdings, Inc., 10 F.3d

155, 167-68 (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.”). All indicators suggest that the District Court will refuse to alter its

course, as it has been forced to confront its errors repeatedly, and in each instance, has

run headlong into error again. In light of our decision to order reassignment of this case,

we direct the newly selected district court judge to revisit the rulings that have been made

on severance and on admission of evidence.

IV.    Conclusion

       For the reasons stated above, we will grant the petition for a writ of mandamus to

instruct the jury as to all elements of the charged offenses and order that the case be

reassigned to another District Judge.




                                             22
