1995 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

1-12-1995

USA v Jacobs

Precedential or Non-Precedential:

Docket 93-3644

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1995

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova

University School of Law Digital Repository. It has been accepted for inclusion in 1995 Decisions by an authorized administrator of Villanova

University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.

Recommended Citation

"USA v Jacobs" (1995). 1995 Decisions. Paper 11.

http://digitalcommons.law.villanova.edu/thirdcircuit_1995/11
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 crossexamination 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.)