Old Chief v. United States: Radical Change or Minor Departure? How Much Further Will Courts Go in Limiting the Prosecution's Ability to Try Its Case? - Scott Patterson

• Citation: Vol. 49 No. 3
• Publication year: 1998

Old Chief v. United States: Radical Change or Minor Departure? How Much Further Will Courts Go in Limiting the Prosecution's Ability to Try Its Case?

In Old Chief v. United States,¹ the United States Supreme Court held that a district court abused its discretion under rule 403 of the Federal Rules of Evidence ("Rule 403") when it refused a defendant's offer to stipulate to a prior assault conviction, and instead admitted the full record of the conviction, when the sole purpose of the evidence was to prove the prior conviction element of a felon in possession of a firearm charge.² The holding marks the first time the Supreme Court has limited the time-honored principal of allowing the prosecution the freedom to refuse offers to stipulate and to try its case as it sees fit.

I. FACTUAL BACKGROUND

Petitioner Old Chief was arrested in 1993 after an altercation involving the discharge of a firearm. Old Chief was charged with the crimes of assault with a dangerous weapon, using a firearm in relation to a crime of violence, and violating 18 U.S.C. Sec. 922(g)(1).³ The violation of 18 U.S.C. Sec. 922(g)(1) was the focus of the litigation. The statute makes it a crime for anyone who has been convicted of a felony punishable by more than a year in prison to possess any firearm.⁴ Old Chief had previously been convicted of this type of a felony—assault causing serious bodily injury.⁵

Before trial Old Chief moved for an order requiring the government to refrain from mentioning or offering any evidence of the prior conviction except to say he had been convicted of a crime that was punishable by imprisonment exceeding one year. The Assistant United States Attorney refused to accept Old Chief's stipulation, arguing that the Government had a right to prove its case in its own way. The United States District Court for the District of Montana agreed and allowed the Government to introduce the order of judgment and commitment for Old Chief's prior conviction. The order revealed that Old Chief knowingly and unlawfully assaulted Rory Dean Fenner, causing serious bodily harm, and that Old Chief was sentenced to five years imprisonment. Old Chief was convicted on all counts, and he appealed.⁶ The Ninth Circuit, in a rather cursory decision, stated that the Government had the right to prove a prior felony conviction by introducing probative evidence regardless of whether the defense offered to stipulate to the conviction.⁷ Furthermore, the Ninth Circuit stated that offers to stipulate have "no place in the Rule 403 balancing process," and therefore the district court did not abuse its discretion by allowing evidence of Old Chief's prior conviction to be introduced to "prove that element of the unlawful possession charge."⁸

The Supreme Court granted certiorari to resolve a sharp division among the courts of appeals in the treatment of a defendant's efforts to exclude the introduction into evidence of the name and nature of prior convictions in situations similar to the case at bar.⁹ The Supreme Court resolved the conflict, reversed the judgment, and remanded the case to the Ninth Circuit.¹⁰ The Court held that in cases in which the prior conviction is likely to support a jury verdict based on improper considerations, the risk of unfair prejudice substantially outweighs the probative value of the evidence of the name and nature of the offense.¹¹ It was therefore an abuse of discretion to admit the record of the prior conviction when the defendant offered to stipulate.¹²

II. LEGAL BACKGROUND

The courts of appeals of the various circuits have been divided on the issue of whether and under what circumstances a defendant may stipulate to an element of the offense charged in an attempt to prevent the name and nature of a prior conviction from being introduced into evidence.¹³ The Supreme Court decision to grant certiorari was a direct consequence of this sharp division.¹⁴

On one side of the line were the Sixth,¹⁵ Eighth,¹⁶ and Ninth¹⁷ Circuits, which recognized the right of the prosecution to refuse a defense stipulation and to present evidence of prior offenses as they saw fit.¹⁸ Indicative of the reasoning in these circuits were the decisions in United States v. Smith¹⁹ and United States v. Breitkreutz.²⁰ In Smith the Eighth Circuit held that the Government was not required to accept any of the defendant's stipulations, nor was it limited to establishing only one of two prior felony convictions.²¹ Defendant Robert Smith was convicted in the District Court of Minnesota of unlawfully receiving a firearm pursuant to 18 U.S.C. app. Sec. 1202(a)(1).²² Under section 1202(a)(1), the Government had to establish that defendant had been convicted of at least one prior felony.²³ Having been convicted of two prior felonies, defendant offered to stipulate, in lieu of the introduction into evidence of a 1970 conviction for felony possession, that the jury may accept as fact that he had been convicted of a prior felony. Alternatively, defendant offered to stipulate to a 1961 felony conviction in an effort to prevent introduction of the 1970 conviction. The Government refused to accept either stipulation, and defendant appealed, arguing that the district court erred in admitting evidence of the 1970 conviction without giving the jury a limiting instruction about how the evidence should be treated.²⁴ The majority pointed out that no limiting instruction was requested and that had the request been made, it would have been up to the discretion of the district court in deciding whether to give an instruction.²⁵ Furthermore, the majority held that the Government was not required to accept either of the defendant's stipulations, and the Government was not "necessarily" limited to establishing only one of the two prior felony convictions.²⁶ Though there may be an occasion when it might be prejudicial to allow the Government to prove multiple prior convictions, the majority stated that this was not one of those cases and that defendant was not substantially prejudiced by proof of the 1961 and 1970 convictions.²⁷

Eighteen years later, in United States v. Breitkreutz,²⁸ the Court of Appeals for the Ninth Circuit held fast to the notion that the Government, regardless of defendant's offer to stipulate to the existence of a prior offense, was not precluded from offering evidence of the prior offense.²⁹ Defendant Douglas Breitkreutz was convicted of being a felon in possession of a firearm in violation of 18 U.S.C. Sec. 922(g).³⁰ On appeal Breitkreutz raised two separate arguments based on Rule 403.³¹ First, he contended that the Government should not have been allowed to introduce evidence of any prior convictions because he had offered to stipulate that he was a convicted felon. Second, like the defendant in Smith, Breitkreutz argued that even if the Government could introduce evidence to prove the existence of prior felony convictions, it should have been limited to proving only one and not all three of Breitkreutz's felony convictions in order to satisfy its section 922(g) burden.³²

Regarding Breitkreutz's first argument, the majority held that it is a long-standing rule that the prosecution cannot be forced to accept a defendant's stipulation because doing so would allow the accused to "plead out" an element of the charged offense.³³ Furthermore, the majority stated that a stipulation was not an alternative means of proof and therefore had no place in the Rule 403 balancing process.³⁴ However, unlike the court in Smith, the majority agreed with defen-dant's second Rule 403 argument and held that once the Government had proved one prior conviction, proof of the other convictions would add very little probative value and thus would likely fail the Rule 403 balancing of probative value and unfair prejudice.³⁵

On the other side of the division between the circuits were the First,³⁶ Fourth,³⁷ Tenth,³⁸ and D.C.³⁹ Circuits. These circuits main- tained that a defendant's offer to stipulate to or admit...