10-3150-cr United States v. Page UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term 2010 Argued:…

10-3150-cr
United States v. Page
U NITED S TATES C OURT OF A PPEALS
FOR THE S ECOND C IRCUIT
August Term 2010
(Argued: May 16, 2011 Decided: September 16,2011)
Docket No. 10-3150-cr
U NITED S TATES OF A MERICA
v.
A NTHONY P AGE ,
Defendant-Appellant.
J OSEPHINE S ULLIVAN ,
Defendant.
Before:
W ALKER , H ALL , and C HIN , Circuit Judges.
Appeal from a judgment of the United States
District Court for the District of Connecticut (Robert N.
Chatigny, J.) convicting defendant-appellant of narcotics
violations and unlawful possession of a firearm.
AFFIRMED.
BRIAN P. LEAMING, Assistant United
States Attorney (Robert M.
Spector, Assistant United States
Attorney, of counsel, on the
brief), for David B. Fein,
United States Attorney for the
District of Connecticut, New
Haven, Connecticut, for
Appellee.

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JONATHAN J. EINHORN, New Haven,
Connecticut, for Defendant-
Appellant.
CHIN, Circuit Judge:
In this case, defendant-appellant Anthony Page was
charged in one indictment with narcotics violations and
possession of a firearm after he had previously been
convicted of a felony. The district court denied his motion
to sever the firearm count from the narcotics counts. Page
was tried on the counts together, and convicted on all
counts. On appeal, Page argues that he was denied a fair
trial because the jury was prejudiced when it heard that he
had a prior felony conviction. We hold that the district
court did not abuse its discretion when it declined to sever
the firearm count. Accordingly, we affirm.
STATEMENT OF THE CASE
A. The Facts
The evidence at trial established the following:
In November 2007, an individual (the "cooperating
witness," or "CW") was arrested in Norwich, Connecticut, on
narcotics charges, and began cooperating with authorities.
On December 4, 2007, the CW told investigators that he had
spoken with Page -- with whom he had a prior relationship --
about buying crack cocaine. Under the supervision of law

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enforcement, the CW arranged to purchase crack cocaine from
Page. The CW spoke to Page, and Page directed him to a
woman the CW knew to be Page's girlfriend, Josephine
Sullivan; the CW had previously purchased drugs from her
after making the arrangements with Page. Sullivan, who
testified at trial, had been a part of Page's drug
distribution business since the summer of 2007. The CW met
Sullivan at her apartment, on Boswell Street, and purchased
27.4 grams of crack cocaine for $800.
In the spring of 2008, Page stopped selling crack
cocaine and began selling heroin. Sullivan moved to 143
Hickory Street. She continued to assist Page by selling
heroin that he delivered to her at that location.
On July 23, 2008, there was an incident outside a
bar. Page became enraged and waved a gun. Later that
evening, Page and Sullivan returned to 143 Hickory Street.
Page was still agitated about the earlier incident, and
thus, as he was about to leave the apartment, Sullivan
suggested that he leave the gun to avoid any trouble. He
agreed, and Sullivan placed the gun in her bedroom, near the
mattress.
Early the next morning, law enforcement agents
executed a search warrant at Sullivan's apartment at 143
Hickory Street. Sullivan and her cousin were present. The

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agents seized heroin, marijuana, and a loaded Smith & Wesson
.45 caliber revolver. The gun was found in the bedroom,
next to the mattress. Some 77 bags of heroin were found in
the same bedroom.
Page was arrested later that day at a different
location. After being read his Miranda rights, he admitted
that the firearm and heroin belonged to him. DNA testing
would later show positive results for Page's DNA in the DNA
mixture found on the firearm.
Prior to July 24, 2008, Page had been convicted in
New Jersey of a crime punishable by imprisonment for more
than a year.
B. Proceedings Below
Page was initially charged, by himself, in a one-
count indictment with a narcotics violation. On October 30,
2008, the government filed a superseding indictment, against
Page and Sullivan, containing six counts. Counts One
through Five asserted narcotics violations; Count One named
Sullivan only, and Page was named in all of Counts Two
through Five, either alone or with Sullivan. Count Six
charged Page -- and only Page -- with possessing a firearm
after previously being convicted of a felony, in violation
of 18 U.S.C. § 922(g)(1).

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On January 22, 2009, Page moved to sever Count
Six. He argued that any limiting instruction would not
eliminate the "inherent[]" prejudice that would result from
the jury learning of his prior felony conviction. The
district court discussed the motion with the parties during
a conference on February 6, 2009, but it did not rule.
In the meantime, on February 5, 2009, Sullivan
pled guilty to selling five grams or more of crack cocaine.
Page's motion to sever was argued on September 8,
2009, before jury selection was to begin. The government
agreed to sever Count Three (which was later dismissed at
the government's request), but otherwise opposed Page's
motion. On September 16, 2009, the district court denied
the motion, holding:
The defendant has agreed to stipulate
that he has a prior felony conviction.
The jury will be made aware that he has
stipulated to having been convicted of a
prior felony, but no description of the
facts underlying his prior conviction
will be provided and no other mention
will be made of his criminal record
during the trial unless he chooses to
testify. Together with a limiting
instruction to the jury, this arrangement
will serve the interest in judicial
economy without unduly prejudicing the
defendant.
At trial, at the close of the evidence, the jury
was read a stipulation that "prior to July 24, 2008, Anthony
Page was convicted of a crime punishable by imprisonment for

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a term exceeding one year in New Jersey Superior Court,
Essex County, New Jersey." During the jury charge, while
instructing the jury on the first element of the felon-in-
possession count, the district court gave the following
limiting instruction:
[T]he defendant's prior conviction may be
considered only for the fact that it
exists and not for any other purpose.
You are not to consider it for any other
purpose. You are not to speculate as to
what the conviction was for nor may you
consider the prior conviction in deciding
whether the government has proven that
the defendant actually possessed the
firearm as alleged in the indictment.
On September 23, 2009, the jury found Page guilty
on all four of the remaining counts, including the felon-in-
possession count. On July 27, 2010, Page was sentenced to
210 months' imprisonment on each of Counts Two, Four, and
Five, and 120 months' imprisonment on Count Six, all to run
concurrently.
This appeal followed.
DISCUSSION
The sole issue presented on appeal is whether the
district court erred in denying Page's motion to sever Count
Six from the narcotics counts. Relying on this circuit's
decision in United States v. Jones, 16 F.3d 487 (2d Cir.
1994), Page argues that the inevitable spillover effect of

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his prior felony conviction required severance, or at least
bifurcation, of the felon-in-possession count from the
narcotics counts and that the court's limiting instruction
was insufficient to prevent the prejudicial effect of that
knowledge. We reject the argument.
A. Applicable Law
Rule 8(a) of the Federal Rules of Criminal
Procedure provides for the joinder of offenses when they
"are of the same or similar character, or are based on the
same act or transaction, or are connected with or constitute
parts of a common scheme or plan." Fed. R. Crim. P. 8(a).
"Joinder is proper where the same evidence may be used to
prove each count," United States v. Blakney, 941 F.2d 114,
116 (2d Cir. 1991), or if the counts have a "sufficient
logical connection," United States v. Ruiz, 894 F.2d 501,
505 (2d Cir. 1990).
Even if offenses are properly joined, in certain
circumstances severance may be warranted. Rule 14(a)
provides that where joinder of offenses for trial "appears
to prejudice a defendant or the government, the court may
order separate trials of counts, . . . or provide any other
relief that justice requires." Fed. R. Crim. P. 14(a).
Moreover, Rule 14 "leaves the tailoring of the relief to be
granted, if any, to the district court's sound discretion."

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Zafiro v. United States, 506 U.S. 534, 539 (1993). This is
because "Rules 8(b) and 14 are designed to promote economy
and efficiency and to avoid a multiplicity of trials, so
long as these objectives can be achieved without substantial
prejudice to the right of the defendants to a fair trial."
Id. at 540 (internal quotation marks and alterations
omitted). Accordingly, "less drastic measures [than
severance], such as limiting instructions, often will
suffice" to cure any risk of prejudice and permit joinder.
Id. at 539.
A district court's denial of a motion to sever is
reviewed "only for abuse of discretion, and will not be
overturned unless the defendant demonstrates that the
failure to sever caused him substantial prejudice in the
form of a miscarriage of justice." Blakney, 941 F.2d at
116 (internal citations omitted)(internal quotation marks
omitted); see also United States v. Amato, 15 F.3d 230, 237
(2d Cir. 1994) (defendant seeking severance "under Rule 14
carries a heavy burden of showing that joinder will result
in substantial prejudice" (internal quotation marks
omitted)). Hence, the defendant must show that unfair
prejudice resulted from the joinder, not merely that he
"might have had a better chance for acquittal at a separate
trial." United States v. Rucker, 586 F.2d 899, 902 (2d Cir.

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1978). In addition, "[a] defendant seeking severance must
show that the prejudice to him from joinder is sufficiently
severe to outweigh the judicial economy that would be
realized by avoiding multiple lengthy trials." United
States v. Walker, 142 F.3d 103, 110 (2d Cir. 1998).
Finally, we have rejected the notion that the fact
of a prior felony conviction is so prejudicial that it
necessarily precludes a fair trial, as we have held in a
single-count felon-in-possession case that "there are no
circumstances in which a district court may remove the
element of a prior felony conviction entirely from the
jury's consideration by accepting a defendant's stipulation
to that element." United States v. Chevere, 368 F.3d 120,
122 (2d Cir. 2004) (per curiam); accord United States v.
Amante, 418 F.3d 220, 223-24 (2d Cir. 2005). In other
words, where the prior felony conviction is an element of
the charged crime, the district court cannot withhold the
fact of a prior conviction from the jury. Chevere, 368 F.3d
at 121.
B. Application
We conclude that the district court did not abuse
its discretion in denying Page's motion to sever.
Furthermore, joinder was proper here, for the following
reasons.

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First, there was a "sufficient logical connection"
between the narcotics counts and the gun count. Ruiz, 894
F.2d at 505; see also Blakney, 941 F.3d at 116. The gun and
77 bags of heroin were found in the same bedroom at 143
Hickory Street at the same time as part of the same search.
In his post-arrest statement, Page admitted that both the
gun and heroin were his. The gun was an important "tool" of
Page's "trade" -- trafficking in narcotics. See United
States v. Muniz, 60 F.3d 65, 71 (2d Cir. 1995) ("[T]here are
innumerable precedents of this court approving the admission
of guns in narcotics cases as tools of the trade."); United
States v. Vegas, 27 F.3d 773, 778 (2d Cir. 1994) ("[T]his
Court has repeatedly approved the admission of firearms as
evidence of narcotics conspiracies, because drug dealers
commonly keep firearms on their premises as tools of the
trade." (internal quotation marks omitted)).
Second, separate trials of the narcotics counts
and the gun count would have required much of the same
evidence. At a separate gun trial, to prove Page's knowing
possession of the gun, the government would have been
entitled to offer evidence of his narcotics trafficking.
See, e.g., United States v. Carrasco, 257 F.3d 1045, 1048
(9th Cir. 2001) ("[E]vidence of narcotics trafficking may be
properly admitted to show knowing possession of a weapon.")

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(quoting United States v. Butcher, 926 F.2d 811, 816 (9th
Cir. 1991)). At a separate narcotics trial, to prove the
existence of a conspiracy to distribute narcotics, the
government would have been entitled to offer proof of Page's
possession of a "tool[] of the trade." Muniz, 60 F.3d at
71. If there were separate trials, witnesses would have had
to testify twice as to, inter alia: the relationship
between Sullivan and Page, including their drug activities;
the circumstances that led to Page's gun being left in the
bedroom at 143 Hickory Street; the execution of the search
warrant; Page's post-arrest statement; and Sullivan's
decision to plead guilty and cooperate. See Blakney, 941
F.2d at 116 ("The evidence in support of the two counts was
thus interconnected, and the interests of judicial
efficiency were served by having the counts tried
together.").
Third, the district court took adequate
precautions to limit the danger of unfair prejudice. The
jury learned at the end of the trial through a stipulation
that Page had been convicted previously of a felony, without
any information relating to the underlying nature or facts
of the offense, and without any suggestion that Page had
more than one prior conviction. Moreover, the district
court gave a specific limiting instruction, telling the jury

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that it could consider the prior conviction only for the
fact of its existence -- the first element of the felon-in-
possession charge -- and not for any other purpose. The
district court repeated the latter admonition, and then, for
good measure, specifically instructed the jury that it could
not consider the prior conviction as proof that Page
actually possessed the gun. See Zafiro, 506 U.S. at 540
("[E]ven if there were some risk of prejudice, here it is of
the type that can be cured with proper instructions, and
juries are presumed to follow their instructions." (internal
quotation marks omitted)).
While the district court could have gone further
and specified that the prior conviction could not be
considered in relation to the narcotics counts, that
admonition was adequately conveyed by the general
prohibition against considering the conviction for any
purpose other than the fact of its existence.
Finally, Page has not met his "heavy burden" of
showing "substantial prejudice" from the joinder of the
narcotics counts with the gun count. Amato, 15 F.3d at 237.
The sanitized evidence of the conviction and the district
court's limiting instruction minimized the risk of
prejudice. In light of the overwhelming evidence presented
against Page -- including the testimony of his former

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girlfriend and his own confession -- the joinder of the
narcotics and gun counts did not cause him substantial
prejudice so as to warrant severance.
In arguing that severance (or bifurcation) is
required when a felon-in-possession count is joined with
other charges, Page relies primarily on United States v.
Jones. There, we held that the district court "should have
severed or, at least, bifurcated" a felon-in-possession
count from three bank robbery counts. Jones, 16 F.3d at
492. Moreover, although the district court gave limiting
instructions, we held that there was "an overwhelming
probability that the jurors did not adhere to the court's
instructions." Id. at 493.
While Page's reliance on Jones is understandable,
the unusual facts of the case render it distinguishable.
There were two trials. In the first, the defendant was
tried for bank robbery and use of a firearm during a crime
of violence. The jurors deadlocked 10 to 2 for acquittal,
and a mistrial was declared. Id. at 489. The government
then filed a superseding indictment, adding two felon-in-
possession counts. The defendant moved to sever the felon-
in-possession counts. The district court granted the motion
as to one of the felon-in-possession counts, but denied it
as to the other, which charged that the defendant, a prior

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felon, possessed a firearm during the bank robbery. Id. In
the second trial, the defendant was tried on three bank
robbery counts and the felon-in-possession count. The
district court prohibited the government from bringing out
any details about the defendant's prior conviction, and also
gave the jury a limiting instruction. Id. at 489-90. The
jury convicted the defendant on all four counts. Id. at
490.
On appeal, we reversed the conviction on the
felon-in-possession count because the government had not
proven that the gun in question -- which was never recovered
-- had traveled in interstate commerce. Id. at 491-92. We
then reversed the convictions on the three bank robbery
counts, on two alternative grounds. First, we held that the
district court abused its discretion in not severing the gun
count from the bank robbery counts. Id. at 492-93. We were
concerned in particular with the government's "tactics" in
adding the felon-in-possession charge only after the first
trial had ended in a hung jury. We observed: "The
ineluctable conclusion is that the government added the
count solely to buttress its case on the other counts." Id.
at 492. It was against this background that we held that
the limiting instructions were inadequate. Id. at 493.

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Second, we held that even if the trial court had
properly denied the motion to sever, the three bank robbery
counts had to be vacated because of "retroactive misjoinder"
-- the jury learned of the defendant's prior conviction only
because of the gun count, and yet the conviction on the gun
count was reversed for failure of proof as to the interstate
commerce element. Id. Accordingly, we reversed the
convictions on the bank robbery counts on this alternative
basis as well. Id.
The unique circumstances present in Jones do not
exist here. There was only one trial, and the superseding
indictment against Page was returned well before trial.
Moreover, there is nothing in the record to suggest, as in
Jones, that the government included the firearm count for
any improper motive. On the contrary, Page's firearm was
recovered in the same bedroom as the heroin charged in Count
Five, and Page admitted after he was arrested that both the
heroin and the gun were his. The gun count was not
included, as in Jones, to strengthen weaker counts that the
government had earlier been unable to prove; rather, they
were included to reflect the full scope of Page's criminal
conduct. Finally, there is no concern here with the
question of "retroactive misjoinder," since there was no
failure of proof connecting the gun count to the required
nexus to interstate commerce.

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We reject Page's contention that a felon-in-
possession charge must always be severed from other charges.
Jones does not stand for that proposition. Rather, we hold
that where, as here, there is a logical connection between
the felon-in-possession count and the other charges, there
is a similarity in the evidence necessary to prove the
different charges, the trial court takes steps to limit the
danger of prejudice and gives a proper limiting instruction,
and the defendant is not substantially or unfairly
prejudiced, a district court may exercise its sound
discretion in denying a motion to sever a felon-in-
possession count from other charges for trial. Nothing in
this opinion should be taken to be a denunciation of the
practice of bifurcating a felon-in-possession charge from
other charges in a single multi-charge trial where doing so
would better protect the defendant from prejudice than a
limiting instruction, and the district court determines that
a limiting instruction cannot adequately protect the
defendant from substantial prejudice and bifurcating the
trial of that charge would provide such protection.
CONCLUSION
Because we conclude that the district court did
not abuse its discretion in denying Page's motion to sever,
we AFFIRM the conviction.

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