                                                                                                                           Opinions of the United
1995 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-12-1995

USA v Jacobs
Precedential or Non-Precedential:

Docket 93-3644




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           UNITED STATES COURT OF APPEALS
               FOR THE THIRD CIRCUIT
                    ____________

                     No. 93-3644
                     ____________

               UNITED STATES OF AMERICA

                          v.

                   ORLANDO JACOBS,
                      Appellant

                ____________________

  ON APPEAL FROM THE UNITED STATES DISTRICT COURT
     FOR THE WESTERN DISTRICT OF PENNSYLVANIA
           (D.C. Criminal No. 93-00141)
               ____________________

                Argued: June 7, 1994
Before:   MANSMANN, ALITO, and ROSENN, Circuit Judges

          (Opinion Filed: January 12, 1995)

                ____________________

              FREDERICK W. THIEMAN
              United States Attorney
              ALMON S. BURKE, JR. (Argued)
              Assistant United States Attorney
              BONNIE R. SCHLUETER
              Assistant United States Attorney
              Office of United States Attorney
              633 United States Post Office & Courthouse
              Pittsburgh, PA 15219

              Counsel for Appellee

              THOMAS S. WHITE
              Federal Public Defender
              W. PENN HACKNEY
              First Assistant Federal Public Defender

              KAREN SIRIANNI GERLACH (Argued)
              Assistant Federal Public Defender
              415 Convention Tower
              960 Penn Avenue
              Pittsburgh, PA 15222
Counsel for Appellant
                        ____________________

                        OPINION OF THE COURT
                        ____________________


ALITO, Circuit Judge:


          Orlando Jacobs has appealed the judgment imposed

following his conviction for possession of a firearm by a

convicted felon.   He argues:   (1) that the district court should

have bifurcated the elements of the offense with which he was

charged, (2) that, if this bifurcation was denied, the district

court should have prevented the jury from learning that the prior

felony conviction alleged in the indictment was for burglary, (3)

that the district court should have excluded evidence that his

possession of the firearm occurred during an aborted drug

transaction, (4) that the district court gave an erroneous

instruction on the requirement of proof beyond a reasonable

doubt, and (5) that the Sentencing Commission exceeded its

authority in promulgating the "Armed Career Criminal" provision

of the Guidelines, U.S.S.G. § 4B1.4.   We affirm the judgment of

the district court.



                                 I.

          Jacobs was indicted in the United States District Court

for the Western District of Pennsylvania for one count of

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

U.S.C. § 922(g)(1).   The indictment alleged that Jacobs possessed
a .357 magnum revolver on October 22, 1992, after having been

previously convicted in 1988 in the Court of Common Pleas of

Allegheny County, Pennsylvania, for the crime of burglary.

           Before trial, Jacobs' attorney filed a motion in limine

to exclude or limit evidence of Jacobs' prior convictions.

Noting that the government had stated in pretrial submissions

that Jacobs had two prior felony convictions (for burglary and

robbery) in addition to the conviction alleged in the indictment,

the defense made three separate requests.    First, the defense

asked the court "to sever the element of possession from the

element of a prior conviction so that the jury [would] determine

the issue of possession before being informed that Jacobs ha[d] a

prior conviction."   App. at 313-16 (citing United States v.

Joshua, 976 F.2d 844 (3d Cir. 1992), and United States v. Busic,

587 F.2d 577 (3d Cir. 1978), rev'd on other grounds, 446 U.S. 398

(1980)).

           Second, the defense requested that, if severance was

not granted, the court should nevertheless prevent the jury from

learning that the prior conviction charged in the indictment was

for burglary.   See id. at 320-21.   The defense argued that "to

inform the jury of the nature of his prior conviction [was]

unnecessary and [would] unfairly prejudice him in violation of

Rule 403 of the Federal Rules of Evidence and violate his right

to due process of law."   Id. at 320.
            Third, the defense argued that, if Jacobs chose to

testify, his prior convictions should not be admitted for

impeachment purposes under Fed. R. Evid. 609.   See id. at 321-

324.

            The district court denied these requests.   With respect

to severance, the court stated that Joshua and Busic were not

controlling because they "deal[t] with the issue of severing

other counts," not elements of a single offense.   App. 87-88.

Turning to the other issues, the court stated:
            I am going to permit the admission of the prior
          burglary conviction. We are not going to get into the
          details of how it occurred unless you open that door.
          But the government will offer, I assume, the state
          court papers reflecting the judgment in that court and
          the sentence, and I believe again that is appropriate
          under the circumstances, and I don't believe that any
          prejudice to the defendant exists under the
          circumstances, and if any prejudice does so exist, the
          probative value substantially outweighs any prejudice.


Id. at 88-89.

            At trial, the prosecution's evidence showed the

following.    On October 22, 1992, two undercover Pittsburgh police

officers, George Ciganik and Maurice Jones, were on patrol in an

unmarked car.    As they approached an intersection, they spotted

the defendant and two women, Alice Wright and June Coleman.      When

the officers slowed down, Wright yelled, "[A]re you holding [?]."

Jones interpreted this statement as referring to narcotics.

Ciganik answered "no," and Wright then asked, "[A]re you

looking?"    Ciganik responded "yes," and Wright told the officers
to pull over.   Wright then motioned and spoke to the defendant,

and walked to within a few feet of her.

           When Ciganik left the car, however, Wright recognized

him and shouted to the defendant, "[T]ask force, get out of

her[e]."   Ciganik took out his badge and shouted that he and his

partner were police officers, and the defendant then took two

steps back and appeared to swallow objects.   As Ciganik

approached with his gun drawn, the defendant pulled a .357 magnum

revolver from his waistband and pointed it at him.   However, the

defendant was subsequently disarmed and arrested.

           The defendant testified at trial on his own behalf and

disputed this version of the events.   He stated that just before

his arrest, Wright was arguing with the officers.    According to

the defendant, Ciganik jumped out of his car, put a gun in the

defendant's face, told him to open his mouth, "got real mad," and

then handcuffed him and threw him in the car.   The defendant

denied having seen the .357 magnum before the trial.   He also

testified that at the time of his arrest he had a cast on his arm

and was wearing sweat pants, and he said that the .357 magnum

could not have fit in the pants' waistband or pockets.     On direct

examination, the defendant admitted the 1988 burglary conviction,

stating that he had pled guilty because he was guilty, and on

cross-examination the prosecutor elicited a similar admission,

apparently for impeachment purposes.
          Coleman also testified for the defense, but her

testimony was sketchy.    She said that she, Wright, and the

defendant were walking together when Wright approached a car and

then motioned to the defendant.   Coleman said that she kept

walking and that, when she heard shouting and turned around,

Wright and the defendant were in custody.

          The jury found the defendant guilty.     Applying the

"Armed Career Criminal" provision of the Guidelines, U.S.S.G. §

4B1.4, the district court concluded that Jacobs' guidelines'

sentencing range was 262 to 327 months, and the court sentenced

him to imprisonment for 22 years.     This appeal followed.




                                II.

          The defendant's first argument is based primarily on

Busic and Joshua.   In Busic, we stated in dictum that, if a

defendant is charged with multiple offenses, including one

requiring proof of a prior felony conviction, the trial judge

should sever the latter offense unless the conviction would be

independently admissible with respect to the other charges.       See
Busic, 587 F.2d at 585.   We noted, however, that one district

court had addressed this problem by taking the "novel approach"

of conducting a "two-stage trial, whereby the jury, having

reached a verdict on the other counts, would then proceed to

consider the counts requiring proof of prior convictions."     Id.
            In Joshua, we specifically approved this latter

approach.    In that case, the defendant was charged with (count I)

armed bank robbery, (count II) use of a firearm during a crime of

violence, (count III) receipt of a firearm with an obliterated

serial number, and (count IV) possession of a firearm by a

convicted felon.    The district court conducted a bifurcated

trial.   "The jury first heard evidence and deliberated concerning

the first three counts, and then heard evidence of the

defendant's criminal record and deliberated concerning Count

Four."   Id. at 846.   On appeal, the defendant argued that the

district court should have severed count IV and conducted an

entirely separate trial on that charge, but we disagreed and

wrote:
              We conclude that the procedure adopted by the
            district court here strikes an appropriate balance
            between the concern about prejudice to the defendant
            and considerations of judicial economy . . . . The
            defendant's criminal past is not made known to the jury
            until after they have reached a verdict with respect to
            the other charges. At the same time, this procedure is
            considerably more efficient than conducting an entire
            new jury trial on the weapon possession charge at a
            later date.


Joshua, 976 F.2d at 848.

            Joshua is not directly applicable to this case because

here the defendant was charged in a single-count indictment, but

the defendant maintains that the logic of Joshua required a

bifurcated trial nevertheless. He argues:
            [W]here, as here, a prior conviction is an element of
          the offense, that element should be severed, and the
          jury should be permitted to determine the existence of
            the other elements, before learning that the defendant
            has a prior conviction. The goal of such severance
            would be the same as the goal for severance of counts:
            the insulation of the jury from prejudicial information
            to which it would not otherwise be exposed. It would
            therefore be a logical extension of Joshua to allow
            severance of elements of the offense.

Appellant's Br. at 9.


            This precise argument has been rejected by three other

courts of appeals, and we find their reasoning persuasive.     In

United States v. Collamore, 868 F.2d 24 (1st Cir. 1989), the
defendant, who had been indicted for possession of a firearm by a

convicted felon, "moved to bifurcate the possession element of

the crime from the element pertaining to his prior convictions."

Id. at 25-26.    The district court ruled in the defendant's favor

and entered an order providing that the issue of possession would

be tried first without any mention of the defendant's prior

convictions.    If the jury found that the defendant had possessed

the weapon, "the jury would be brought back to the courtroom and

the government would be provided a full opportunity to produce

any admissible evidence as to any aspect of th[e] defendant's
prior criminal record."    Id. at 26.

            The First Circuit, proceeding under its mandamus power,

reversed.    The court observed that neither the parties nor the

court had located "a single case allowing . . . bifurcation of a

trial by dividing it along the elements of the crime charged."

Id. at 27.    The court continued:
               The dearth of cases, we feel, is because such a
            procedure would result in serious problems.
            . . . [W]hen a jury is neither read the statute
          setting forth the crime nor told of all the elements of
          the crime, it may, justifiably, question whether what
          the accused did was a crime. The present case is a
          stark example. Possession of a firearm by most people
          is not a crime. A juror who owns or who has friends
          and relatives who own firearms may wonder why
          Collamore's possession was illegal. Doubt as to the
          criminality of Collarmore's conduct may influence the
          jury when it considers the possession element.

Id. at 28.


          The same issue was addressed by the Eleventh Circuit in

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

denied, 113 S. Ct. 2984 (1993).        Birdsong appealed his conviction

for possession of a firearm by a convicted felon and contended

that the district court had erred in denying his "motion to

bifurcate the possession issue from the other elements of the

crime charged."    Id. at 482.   Rejecting this argument, the

Eleventh Circuit noted that "[a] request to bifurcate the

presentation of evidence on different elements of a single

offense is extremely rare."      Id.   The court "specifically

adopt[ed] the reasoning of the First Circuit in Collamore and

[held] that the District Court did not err by failing to grant
the defendant's motion to bifurcate the trial on the elements of

the charge of possession of a firearm by a convicted felon."       Id.

          The Ninth Circuit reached a similar conclusion in

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

who likewise had been indicted for possession of a firearm by a

convicted felon, filed a motion in limine, requesting that the

trial judge "bifurcate the `possession' element of the crime from
the `felon' element of the crime," and the district court granted

his motion.     Id. at 958.   The district court proposed to instruct

the jury that "the parties have agreed that mere possession [of

the firearm] is criminal in this case and it is not for [the

jury] to decide the wisdom of such a law."      Id.   "If the jury

convicted Barker absent the felony element, Barker would [have]

then stipulate[d] to the prior felony conviction.       Under this

scheme, the indictment would not (and indeed could not) [have

been] read to the jury."      Id.

          The government sought review of the district court's

bifurcation order by means of mandamus, and the Ninth Circuit

granted the government's petition.      See id. at 959.   The court

observed that the charge against Barker "require[d] the

government to prove beyond a reasonable doubt that Barker ha[d]

been convicted of a prior felony" but that the district court's

order changed "the very nature of the charged offense."       Id.    The

court held that a "district court may not bifurcate the single

offense of being a felon in possession of a firearm into multiple

proceedings."    Id.

          While our court has not previously considered the

precise argument raised by the defendant in this case, we

rejected a very similar argument in United States v. Williams,
612 F.2d 735 (3d Cir. 1979), cert. denied, 445 U.S. 934 (1980).

There, the defendant was charged with receipt of a firearm by a

convicted felon.    His attorney offered to stipulate that the
defendant "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 court on the elements of the crime."   Id. at 740.

Holding that the government was not required to agree to the

stipulation, we wrote:
          First, 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. But even if the proffered stipulation
          did not go so far as to constitute the modification of
          a criminal statute, "The 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.), cert. denied, 400 U.S. 828 (1970)); see also United States

v. Gilliam, 994 F.2d 97, 102 (2d Cir.), cert. denied, 114 S. Ct.

335 (1993).

          In view of these authorities, we hold that the district

court in this case acted correctly in denying the defendant's

bifurcation request.


                              III.

          The defendant argues that, even if bifurcation was not

required, the district court erred in permitting the jury to

learn that his prior conviction was for burglary.   We reject this

argument as well.

          Some federal criminal offenses, including the offense

with which the defendant was charged in this case, have as one of
their elements the fact that the defendant was previously

convicted for another crime.   In a prosecution for an offense

having such an element, the government generally seeks to

establish the requisite prior conviction by offering a copy of a

prior judgment of conviction, and this judgment usually reveals

the specific offense for which the defendant was previously

convicted.   Because this judgment goes directly to one of the

elements needed for conviction, it is unquestionably relevant

under Fed. R. Evid. 402, but the defense often contends that the

judgment should nevertheless be excluded in whole or in part

under Fed. R. Evid. 403 because evidence regarding the specific

felony for which the defendant was previously convicted is not

necessary and may be unfairly prejudicial.   Instead of admitting

an unredacted judgment, it is often argued, the court should

require redaction of the judgment, require the government to

accept a stipulation that the defendant was previously convicted

for an undisclosed felony, or perhaps take judicial notice of the

fact that the defendant has a prior conviction for an unspecified

felony.   Faced with such arguments, the courts of appeals have

handed down decisions that fall into essentially three groups.

Several courts of appeals have taken the position that evidence

of the specific felony for which the defendant was previously

convicted should generally be kept from the jury.1   Other courts

1
 . The First and Fourth Circuits have so held, and the Second
Circuit has taken the same view in dictum. See United States v.
Lewis, Nos. 93-1819, 93-1820, 1994 WL 650268, at *14 (1st Cir.
November 14, 1994) (noting that the district court should have
of appeals have held that the question whether to admit such

evidence is committed to the discretion of the trial judge and

should be decided on a case-by-case basis.2   Finally, some courts

of appeals have held that such evidence should be admitted.3

          Our court has not squarely decided this question,4 but

our opinion in Williams, which we discussed above, appears most

closely aligned with the last group of decisions.   The defendant

in Williams offered to stipulate to a prior felony conviction,

but his proposal, rather than informing the jury that he had a

(..continued)
accepted the defendants' offers to stipulate that they were
felons); United States v. Rhodes, 32 F.3d 867, 870-871 (4th Cir.
1994); United States v. Tavares, 21 F.3d 1, 3-5 (1st Cir. 1994)
(in banc); United States v. Gilliam, 994 F.2d 97, 103 (2nd Cir.),
cert. denied, 114 S. Ct. 335 (1993); United States v. Poore, 594
F.2d 39, 41-42 (4th Cir. 1979).
2
 . See United States v. Brinklow, 560 F.2d 1003, 1006 (10th Cir.
1977) ("Whether the government should be required to accept
defendant's offer to stipulate as to the fact of a prior felony
conviction is a discretionary matter with the trial court."),
cert. denied, 434 U.S. 1047 (1978); United States v. O'Shea, 724
F.2d 1514, 1516-17 (11th Cir. 1984); see also United States v.
Dockery, 955 F.2d 50, 54 (D.C. Cir. 1992) (dictum).
3
 . See United States v. Breitkreutz, 8 F.3d 688, 690-93 (9th
Cir. 1993) (upholding the rule that "the prosecution has a right
to refuse a stipulation"); United States v. Flenoid, 718 F.2d
867, 868 (8th Cir. 1983); United States v. Blackburn, 592 F.2d
300, 301 (6th Cir. 1979).
4
 . The question at issue here -- the admission of evidence
regarding the type of felony for which a defendant was previously
convicted when the defendant is charged with an offense having as
one of the elements the fact that the defendant has a prior
felony conviction -- is distinct from the question of admitting
comparable evidence under Fed. R. Evid. 404(b). With respect to
the latter question, see, e.g., Government of the Virgin Islands
v. Archibald, 987 F.2d 180, 186 (3d Cir. 1993).
conviction for an undisclosed felony, would have prevented the

jury from learning that he had any prior felony conviction.     It

must be noted, however, that in holding that the Williams trial

judge had properly refused the defense proposal, we wrote broadly

that "`[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.'"   Williams, 612 F.2d at 740, (quoting United

States v. Brickey, 426 F.2d 680, 686 (8th Cir.), cert. denied,

400 U.S. 828 (1970)).

           In any event, we are not required in this case to

resolve the general question addressed by the other courts of

appeals.   As noted above (see typescript at 5), Jacobs elected to

take the stand, and he testified during both direct5 and cross-

examination that he had been convicted in 1988 for burglary.

Under Rule 609(a)(1), the fact that Jacobs had a prior felony

conviction and the type of felony involved6 were admissible for

5
 . There is authority for the proposition that this testimony on
direct examination constituted a waiver of any objection to the
admission of the conviction for impeachment, see United States v.
Williams, 939 F.2d 721, 723-25 (9th Cir. 1991), but since we hold
that it was admissible for impeachment, we need not reach that
issue here.
6
 . Case law firmly establishes that it is proper to admit
evidence of the type of felony involved in a prior conviction
used for impeachment under Fed. R. Evid. 609(a)(1). See 3 C.
Mueller & L. Kirkpatrick, Federal Evidence § 279 at 272 (1994
(citing cases); 3 J. Weinstein and M. Berger, Weinstein's
Evidence § 609[05] at 66-67 & n.20 (1994) (same); McCormick,
Evidence § 43 at 98 (1984) (same); M. Graham, Federal Practice
and Procedure § 6516 at 79 & n.1 (1992 & 1994 Supp.) (same);
United States v. Brown, 583 F.2d 659, 670 n.15 (3d Cir. 1978)
(noting that cross-examination can include "the essential facts
impeachment purposes, subject to Rule 403.   The district court's

ruling on the Rule 403 question is subject to review for abuse of

discretion,7   and we find no such abuse here.   Accordingly, there

was an independent basis for admitting the fact that the

defendant's prior conviction was for burglary.



                                IV.

          The defendant next argues that the district court erred

in admitting evidence suggesting that a drug transaction was

being negotiated just before he allegedly pulled out the revolver

and was arrested.   The defendant contends that this evidence was

not admissible under Fed. R. Evid. 402 and 404(b) and that it

should have been excluded under Fed. R. Evid. 403.    We disagree.

          Evidence tending to show that the defendant was a

participant in the selling of drugs was relevant under Rule 402

and was admissible under Rule 404(b) to show that the defendant

had a motive for carrying a firearm.   Moreover, exclusion of this

evidence under Rule 403 was not warranted, since this evidence

had significant probative value that was not substantially

outweighed by the danger of unfair prejudice.



(..continued)
of a prior crime"), cert. denied, 440 U.S. 909 (1979). But see
M. Graham, supra, § 6516 at 91-96 (suggesting limitation).
7
 . See United States v. Provenzano, 620 F.2d 985, 1003 n.23 (3d
Cir.), cert. denied, 449 U.S. 899 (1980); Wilson v. Groaning, 25
F.2d 581, 586 (7th Cir. 1994),
                                 V.

          The defendant maintains that the district court

violated due process by giving a jury instruction that diluted

the constitutionally required standard of proof beyond a

reasonable doubt.    The defendant specifically challenges the use

of the phrase "moral certainty" in the following portion of the

instructions:
          Proof beyond a reasonable doubt must, therefore, be of
          such a convincing character that you would be willing
          to rely and act upon it without hesitation in the most
          important of your own affairs.

          A reasonable doubt exists whenever, after a careful and
          impartial consideration of all of the evidence in this
          case or lack of it, you do not feel convinced to a
          moral certainty that the defendant is guilty of the
          charge.

App. 291 (emphasis added).


          Applying the Supreme Court's decision in Victor v.

Nebraska, 114 S. Ct. 1239 (1994), we hold that the district

court's use of the phrase "moral certainty," although

inadvisable, did not violate due process.    In Victor, the Supreme
Court reviewed the convictions of two men, Victor and Sandoval,

who had been convicted of murder and sentenced to death in two

separate jurisdictions.    Both men raised due process challenges

to jury instructions on reasonable doubt that used the phrase

"moral certainty."    In considering these arguments, the Supreme

Court first traced the original nineteenth century meaning of the

phrase "moral certainty" and concluded that it was essentially

the same as proof beyond a reasonable doubt.   Id. at 1246.    The
Court recognized that this phrase "is not a mainstay of the

modern lexicon," id. at 1246, and stated that it did not "condone

the use of the . . . phrase," id. at 1241, but the Court

concluded that due process had not been violated in either

Victor's or Sandoval's case because the instructions in each

case, taken as a whole, correctly conveyed the concept of

reasonable doubt to the jury.    See id. at 1243.

            Addressing a contention virtually identical to the one

now before us -- i.e., that the phrase "moral certainty" would be

"understood by modern jurors to mean a standard of proof lower

than beyond a reasonable doubt" -- the Court pointed to other

language in the instructions that should have dispelled such an

interpretation.   Id. at 1247.   In Sandoval's case, the Court

relied primarily on the statement in the instructions that proof

beyond a reasonable doubt required an "abiding conviction" in the

defendant's guilt.   Id. at 1247.   In Victor's case, the Court

relied, not only on this same phrase, see id. at 1250, but also

on additional language in the instructions.   The Court noted that

the instructions equated reasonable doubt with "a doubt that

would cause a reasonable person to hesitate to act."    Id. at
1250-51.    In addition, the Court observed that the jurors had

been told that they had to be "convinced of Victor's guilt after

full, fair, and impartial consideration of the evidence" and that

they should base their decision solely on the evidence introduced

at trial.   Id. at 1251.
          In the present case, we reach the same conclusion as

the Supreme Court did in Victor, i.e., that the instructions,

taken as a whole, adequately conveyed the concept of proof beyond

a reasonable doubt and therefore did not violate due process.

Here, as in Victor's case, the trial judge equated reasonable

doubt with a doubt that would cause a reasonable person to

hesitate to act.     See App. 291.   Furthermore, here, as in

Victor's case, the trial judge instructed the jurors that they

had to be convinced of the defendant's guilt after a careful and

impartial consideration of all the evidence and that they should

base their decision solely on the evidence presented.        See id. at

290, 291, 293.     While the trial court in this case did not use

the phrase "abiding conviction," the court stated that proof

beyond a reasonable doubt must be of a "convincing character,"

stressed the concept of the presumption of innocence, and

admonished that "a defendant is never to be convicted on mere

suspicion or conjecture."    Id. at 290-91.    Viewing the

instructions as a whole, we find them to be similar to those in

Victor's case and to comport with due process.

          Our conclusion is not altered by the district court's

statement that the jury should acquit the defendant if it viewed

the evidence "as reasonably permitting either of two conclusions,

one of innocence and the other of guilt."8 Id. at 291.       On


8
 . Immediately after the portion of the instructions quoted in
text, the district court stated:
appeal, the defendant attacks this statement, contending that its

implication to lay jurors was that they should acquit only "if

there [was] a 50-50 chance of innocence."   Appellant's Br. at 37.

In the district court, however, the defendant did not

specifically object to this language, much less explain the

rather subtle argument that he has advanced on appeal, and we

certainly do not think that the language at issue, standing

alone, constituted plain error.   Furthermore, to the extent that

the challenged language carries the implication ascribed to it by

the defendant, we do not think that the implication is a strong

one, and accordingly the inclusion of this language in the

instruction does not persuade us that the instructions as a whole

are constitutionally deficient.

          While we thus find no due process violation in this

case, we must make clear that the instructions employed should no

longer be given without modification.   In light of the Supreme

Court's criticism of the phrase "moral certainty," it goes

without saying that this antiquated phrase should no longer be

used.   We also note that the "two-inference" language attacked by

(..continued)
          So if you view the evidence in this case as reasonably
          permitting either of two conclusions, one of innocence
          and the other of guilt, you should adopt the conclusion
          of innocence and return a verdict of not guilty,
          because a defendant is never to be convicted on mere
          suspicion or conjecture.

Id. at 291. See 1 E. Devitt, C. Blackmam, M. Wolff, and K.
O'Malley, Federal Jury Practice and Instructions § 12.10 at 354
(1992).
the defendant has been criticized by the Second Circuit,9 and we

think that this criticism should be heeded as well when it is

specifically brought to the attention of trial judges in future

cases.



                               VI.

          The defendant's final argument is that the Sentencing

Commission lacked the authority to promulgate the "Armed Career

Criminal" provision of the Guidelines, U.S.S.G. § 4B1.4.     Citing

28 U.S.C. § 994(b)(1) and (c), which authorize the Commission to

promulgate guidelines for "categories of offenses," the defendant

contends that "the Commission is to establish guidelines for

substantive offenses only" and may not issue guidelines for

sentencing enhancement statutes.     See Appellant's Br. at 42.   The

defendant maintains that U.S.S.G. § 4B1.4 implements 18 U.S.C. §

924(e), which is a sentencing enhancement provision, see United

States v. Hawkins, 811 F.2d 210, 217-20 (3d Cir.), cert. denied,

484 U.S. 833 (1987), and that U.S.S.G. § 4B1.4, under which he

was sentenced, is therefore invalid.    We do not agree.

          The Sentencing Reform Act required the Commission to

establish a sentencing range "for each category of offense

9
 . See United States v. Inserra, 34 F.3d 83, 91 (2d Cir. 1994)
(noting that "the `two-inference' jury instruction on reasonable
doubt was improper"); United States v. Attanasio, 870 F.2d 809,
818 (2d Cir. 1989); United States v. Khan, 821 F.2d 90, 93 (2d
Cir. 1987). The defendant in this case did not call any of these
decisions to the attention of the trial judge or cite them in his
appellate brief.
involving each category of defendant."   18 U.S.C. § 994(b)(1)

(emphasis added).   Section 4B1.4 of the Guidelines defines a

particular category of defendants, armed career offenders, and

sets out special rules for calculating their offense levels and

criminal history categories.   Thus, in every case in which it

applies, this provision, together with whatever other sections of

the Guidelines are applicable in that case, establishes a

sentencing range for the relevant offense (the offense of

conviction) and the relevant category of defendants (armed career

offenders).   Accordingly, Section 4B1.4 falls squarely within the

Commission's authority.



                               VII.

          For the reasons explained above, we affirm the judgment

of the district court.
United States v. Jacobs, No. 93-3644

MANSMANN, concurring.
          I concur in the judgment of the majority and in its
opinion in all respects except one. I would apply the logic and
reasoning of our decision in United States v. Joshua, 976 F.2d
844 (3d Cir. 1992), to this case and hold that where a trial
court finds that the introduction of evidence of a defendant's
prior felony conviction would be unduly prejudicial, such
evidence may be severed from the trial of the remaining elements
of an 18 U.S.C. § 922(g)(1) offense.
          In ruling on Jacobs' motion to exclude or limit the
evidence pertaining to his prior conviction, the district court
found that Joshua was not controlling because it addressed
severance of counts of an indictment, rather than the severance
of elements of an offense, as Jacobs requested here. In
addition, the court did not believe that any prejudice to the
defendant existed under the circumstances and found that, even if
it did, the probative value substantially outweighed the
prejudice to the defendant under the circumstances. (App. 87-
88.)10
          Although Jacobs was charged in a single count
indictment, I find that the logic and reasoning of Joshua is
nonetheless applicable here. In Joshua we held that in order to
prevent prejudicing the jury, a count of a multi-count indictment
which charged possession of a gun by a convicted felon could be
severed to avoid exposing the jury to the defendant's previous
conviction for armed bank robbery. We found that the bifurcated
trial procedure adopted by the court struck the appropriate
balance between the concern about prejudice to the defendant and
considerations of judicial economy. 976 F.2d at 848.
          Our overriding concern in Joshua was the exposure of
the jury to prejudicial information. Specifically, our concern
was that the necessity of introducing evidence of the defendant's
criminal record, in order to prove the felon in possession of a

10
 .        In response to the district court's ruling, defense
counsel made an alternative request. This request, too, was
designed to limit the impact of prejudicial information. Defense
counsel asked the court to inform the jury that "Jacobs was
charged with being in possession of a firearm after having
received a conviction for a crime punishable by more than a year"
(which is the language of the statute), rather than informing the
jury that Jacobs had been convicted for burglary. The court
denied the request, responding, "I intend to read exactly what
the indictment charges, which I think is precise and to the
point." (App. 88-89).
weapon charge, would prejudice the jury's deliberations on other
counts. See also United States v. Busic, 587 F.2d 577 (3d Cir.),
rev'd on other grounds, 446 U.S. 398 (1980) (severance could be
granted where evidence of the prior conviction would not be
independently admissible with respect to the remaining counts of
the indictment).
          The potential for the type of prejudice that concerned
us in Joshua is the same potential for prejudice that exists in
this case. Thus, I do not see any reason for distinguishing
between a criminal defendant who faces multiple counts of an
indictment where one count of the indictment alleges a prior
conviction as an element of the offense, and a criminal defendant
who is charged in a single count with an offense that has a prior
conviction as one of its elements.11 Here, there was tremendous
potential for prejudice to Jacobs from the jury's hearing the
evidence regarding Jacobs' prior burglary conviction while it was
deciding whether or not Jacobs possessed the firearm. The entire
dispute, in this case, concerned whether Jacobs, in fact,
possessed the firearm. At trial, police officers George Ciganik
and Maurice Jones testified that Jacobs possessed a large
revolver which he pulled from his waistband and pointed at the
officers. (App. 165-66 and 129-30.) Jacobs took the stand and
testified that he did not have a gun. Another witness, June
Coleman (an unindicted co-conspirator of Jacobs), testified that
Jacobs did not have a gun and that he was wearing a cast on his
arm that night. (App. 229-30.) In deciding whether or not
Jacobs possessed the firearm, there was absolutely no need for
the jury to be informed that Jacobs had a prior criminal
record.12 In resolving this disputed issue of fact, it is

11
 .        I find the government's argument that the jury needed
all the elements of the offense before it prior to deliberating
on a single count, to be without merit. Severing the elements of
this offense, or adopting a bifurcated trial procedure, is no
different from the bifurcation which occurred in Joshua where the
jury returned verdicts on three counts of the indictment and then
returned to render a verdict on the fourth count which charged
possession of a firearm by a convicted felon.
12
 .        Because Jacobs' prior conviction was not relevant to
the specific issue of whether Jacobs possessed a revolver on
October 22, 1992, Joshua's requirement that the evidence of the
prior conviction not be otherwise independently admissible is
also satisfied. Indeed, after presentation of the government's
case-in-chief, (during which evidence of Jacobs' prior burglary
mentioned in the indictment was admitted), the district court
granted Jacobs' motion to exclude evidence of his additional
prior convictions, finding that the prejudicial value of these
possible, and maybe even probable, that the jury was unduly
influenced by the fact that Jacobs had been previously convicted
for burglary. Nonetheless, based on the cold record before us, I
cannot say that the district court abused its discretion in
refusing Jacobs' bifurcation or severance request. The district
court is obviously in the best position to decide whether the
fact or type of prior conviction would unduly influence a jury in
deciding other elements of an offense. It is within the district
court's discretion to decide what procedure should be employed,
and if any is necessary, to insulate a jury from prejudicial
information.
          It has always been within the district court's
discretion under Federal of Evidence 403 to exclude relevant
evidence if its probative value is substantially outweighed by
the danger of unfair prejudice. Moreover, control over the order
of proof at trial is a matter that is committed to the discretion
of the trial judge. United States v. Ammar, 714 F.2d 238, 246
(3d Cir.), cert. denied, 464 U.S. 936 (1983); United States v.
Continental Group, Inc., 603 F.2d 444, 456 (3d Cir. 1979), cert.
denied, 444 U.S. 1032 (1980). Although 18 U.S.C. § 922(g)
requires proof of a prior conviction as an element of this
offense, I see no reason why a trial court could not require that
the jury determine the issue of possession before being informed
that a defendant has a prior conviction. Accordingly, I would
extend Joshua's application to indictments which allege a prior
conviction as an element of the offense.




(..continued)
prior convictions outweighed their probative value. The court
found this evidence had "nothing to do with the issue of whether
the defendant possessed a revolver on October 22, 1992" and the
court did "not want to impede his [Jacobs'] ability to tell his
version of what happened." (App. 223-24.)
