Monday, March 28, 2011

Writ of Mandamus issues when District Court refuses to instruct jury on all elements of charged offense.

While reiterating its general rule that mandamus is “a drastic remedy that is seldom issued and its use is discouraged,” the Third Circuit nevertheless found “the kind of extraordinary situation in which we are empowered to issue the writ of mandamus,” in United States v. Higden, No. 10-3882 (March 17, 2011).

Defendant was tried for violating 18 U.S.C. § 922 (g)(1), which has three elements: (1) that defendant possessed a firearm; 2) that defendant was a convicted felon; and 3) that the firearm had traveled in interstate commerce. Before trial, Defendant and the Government stipulated that Defendant had satisfied the last two of those three elements, and that the jury should be informed of that stipulation. The District Court refused to permit the Government to mention the stipulation during voir dire, and instructed the jury without mentioning either the convicted felony or interstate commerce elements of the charge. Similarly, at trial, despite several requests by the AUSA, the District Court refused to permit the jury to hear about the stipulation or provide a more complete instruction on the elements of the charged offense. At the end of the trial, the District Court refused again to instruct the jury on all elements of the charge, charging only that “”your job is to decide whether the evidence which was actually presented does or does not establish beyond a reasonable doubt that the defendant, Mr. Higden, had possession of this firearm, that he knew he had possession and knew it was a firearm.”

After a day of deliberation, the jury reported a deadlock. The District Court proposed that the parties accept a majority vote for a verdict. Both counsel rejected the proposal, noting the requirement of a unanimous verdict in criminal cases.

The District Court then scheduled a second trial. Before the second trial, the Government filed a motion in limine to ensure that the jury was properly instructed on all three elements of the charge, and that the Government could present evidence (including the stipulation) on all three elements. The District Court denied the motion. The Government appealed and petitioned for mandamus.

As a threshold matter, the Court of Appeals addressed its jurisdiction. It ruled, first, that it had jurisdiction to hear the Government’s interlocutory appeal concerning the stipulation, because it was a pretrial evidentiary ruling to exclude evidence, under 18 U.S.C. § 3731, but that it did not have jurisdiction to hear an appeal on the refusal to charge the elements of the offense. The Court ruled, however, that it did have jurisdiction to consider the refusal to charge for purposes of mandamus.

On the merits of the appeal, the Third Circuit ruled 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. So, while a defendant’s stipulation can prevent the jury from hearing the underlying facts of the prior felony, it cannot prevent the jury from hearing the fact of the prior felony conviction. The Court noted that “an appropriately forceful limiting instruction” can cure any prejudice arising from evidence of the prior felony.

As for mandamus, the Court ruled that the Government had met both requirements for issuing a writ: 1) that the Government had no other adequate means for relief; and 2) that the Government’s right to the writ was clear and indisputable. The Court stated that “it is crystal clear” that the Government had no other avenue to compel the District Court to instruct the jury on all three elements of the charge. And the Court stated further that the District Court’s insistence on giving an improper jury charge was “clear and indisputable error”. Therefore, finding this “an extraordinary situation”, the Court granted the petition for mandamus, and remanded, directing the Chief Judge of the Eastern District of Pennsylvania to reassign the case to another district court judge.

Finally, on an editorial note, it is clear from Chief Judge McKee’s opinion that the Court granted the petition for mandamus because of the extreme circumstances, characterizing the situation “as unfortunate as it is regrettable.” Although stating that the Court was “simply at a loss to explain the [district] court's behavior," the Court did observe that “Judge Fullam is a very experienced and hard working jurist and he has devoted decades of service to the federal bench.” Six days after this decision was issued, Judge Fullam stated his intention to resign.

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