Howell Did We Get Here?

         Only 2% of federal criminal cases are resolved by trial. As a result, there are few appellate opinions about the rules of evidence or issues that arise at trial.

Gene Howell is one of the few people charged in federal court who took his case to trial. He was charged and convicted of armed bank robbery, brandishing a firearm during a bank robbery, attempted armed robbery, discharging a firearm during the attempted armed robbery, and being a felon in possession of a firearm. The appeal that followed resulted in the rare opinion that provides some guidance about how the Rules of Evidence and the Rules of Criminal Procedure operate, as well as a reminder about why there are so few appeals from trials.

Before trial, Howell’s attorney moved in limine to prevent the prosecutor from introducing evidence of his prior convictions. He also asked the court to hold separate trials for the armed robbery and for the felon-in-possession charge because, to prove that charge, the government must introduce evidence of a prior felony conviction. Typically, in felon-in-possession cases, defendants stipulate to the fact of a prior felony conviction to prevent jurors from learning about the type of conviction.

It’s easy to understand why a person accused of a crime would not want the jury to know about his prior convictions. We try to prevent jurors from thinking “once a criminal, always a criminal” or wishing to punish the person for the prior crime. Although the law presume jurors are capable of considering convictions for a limited purpose, jurors are just people, after all. Few people are actually capable of ignoring the elephant in the room.

The Rules of Evidence are written to prevent this type of prejudice to the accused. Typically, evidence of prior convictions is not admissible. If a defendant testifies at trial, Rule 609 permits the prosecution to introduce prior convictions for the sole purpose of impeaching the defendant’s character for truthfulness. Rule 404 prohibits the use of prior bad acts to prove the defendant’s bad character “in order to show that on a particular occasion the person acted in accordance with the character.”

Understandably, a defendant would want to know before taking the stand if his history will be on display for the jury. But Howell had no way to prevent the jury from hearing about his past. The judge denied the motion for separate trials.  

Howell also did not get the benefit of any clear answer from the judge about how many or which of his prior convictions the jury would know about. Rather than rule on the motion to exclude the prior convictions, the judge reserved ruling to see how the trial progressed. In the end, Howell chose not to take a chance that the jury would hear about his prior convictions and opted not to testify. As a result, the jury heard that Howell had been convicted of a felony before but did not get the benefit of his side of the story.

On appeal, Howell challenged the judge’s decision not to bifurcate the trial or to issue a clear ruling about the admissibly of his prior convictions. But the Sixth Circuit found no problem with how these decisions affected Howell’s trial. In fact, it held that Howell could not challenge the trial court’s decision not to offer a clear ruling because he did not testify, reasoning that they would have to know what he would have said to determine if the introduction of his prior convictions was harmful. Even a summary of Howell’s proposed testimony would not suffice to permit him to challenge the non-existent evidentiary ruling. The result is an odd circumstance where Howell could not make an informed decision about whether to testify, but he also cannot challenge the bind he was in without risking self-incrimination.

The court also found no error in the trial court’s decision to combine armed robbery and felon-in-possession charges in one trial. Federal Rule of Criminal Procedure 8(a) allows the prosecution to try multiple charges together if the offenses are (1) “of the same or similar character”; (2) “based on the same act or transaction”; or (3) “connected with or constitute parts of a common scheme or plan.” Because Howell necessarily was a felon in possession of a firearm when he brandished and discharged the firearm during the robbery, there wasn’t a problem with the joinder of offenses.

Nevertheless, charges should not be tried together if having the jury hear evidence of the charges would prejudice the defendant. This is where the law does not mirror reality. As long as the judge tells the jury not to consider the defendant’s prior felony conviction for any other purpose other than to determine if he was a felon when he possessed the firearm, the law presumes no prejudice. And the same was true for Howell.

In addition, before trial, Howell challenged the introduction of one of the bank teller’s testimony that she believed he was the robber. Immediately after the robbery, the teller told police that she could not identify the robber and that she only knew the robber was a man. A few months later, however, the teller saw Howell on the evening news after his arrest for the attempted robbery of a different bank. When the teller saw Howell’s photo on the evening news, she concluded that he was the same person based on what sounded like a modus operendi to her.

The trial judge allowed the teller to explain to the jury why she believed Howell was the robber, and Howell challenged that ruling on appeal. Rule 701(a) requires opinion testimony be “rationally based on the witness’s perception” and assist the jury understand something they otherwise would not be able to figure out. The Sixth Circuit held that the teller’s opinion testimony was impermissible because she offered no description of the robber before she saw Howell on the news. In addition, her opinion was minimally useful to the jurors who could figure out on their own whether Howell committed both robberies.

Although Howell successfully identified an error at his trial, he did not get a new trial. The Sixth Circuit held that the evidence of his guilt was so overwhelming that the teller’s opinion testimony was “harmless.” His accomplice testified against him, and, according to the court, the instruction to the jury about the dangers of identification when there is limited time to observe were enough to fix the harm caused.

This opinion provides a helpful practice tip for trial lawyers. If you file a motion in limine to exclude certain evidence, there is no need to object when the prosecution introduces the evidence at the trial so long as the trial judge issued a clear, definitive ruling.

Theoretically, Due Process protects against being punished for exercising a constitutional right. But it happens all the time. When Howell decided he wanted a trial, the prosecutor added a felon-in-possession charge. On appeal, Howell argued that the addition of the charge was vindictive. But the Supreme Court has said that the addition of charges or increase in punishment is not presumptively vindictive unless the defendant shows that the prosecutor has a stake in chilling the exercise of a right and that the conduct was unreasonable.

Even though the prosecutor waited 15 months to add the charge, the Sixth Circuit concluded that the prosecutor didn’t have any personal stake in pressuring the defendant not to have a trial.

Once again, the law and reality part ways. The Supreme Court has justified the system of pleas that has become the criminal legal system by exhausting the benefits of “efficient justice.” And Professor Carissa Byrne Hessick recently published a book reexamining whether this system of pleas is the type of system we want. But it is difficult to understand how courts can believe prosecutors who work hard to deter trials don’t have a stake in lighter caseloads and fewer nights preparing for trials.

The Sixth Circuit also found the prosecutor had a good reason to add a charge late in the game. Fifteen months after the grand jury issued the indictment, the prosecutor received the ballistics report, which the Sixth Circuit said helped confirm an element of the offense: that the firearm had crossed state lines or affected interstate commerce. That reasoning is hard to accept at face value given that there are few if any guns manufactured entirely within one state. And even if, in Howell’s case, every part of the gun were manufactured in Tennessee, it’s not clear the government would have difficulty showing an effect on interstate commerce. The Supreme Court concluded that home-grown marijuana affected the market for cannabis.

Howell is now serving a 466-month sentence—close to 39 years. His sentence surely would have been lower had he pleaded guilty. His case is illustrates the many ways the law has developed to encourage guilty pleas. It’s easy to see why only 2% of people charged in federal court take that risk.