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With only rare exceptions, trial judges should not bifurcate the trial of a defendant who is charged with being a felon in possession of a firearm or ammunition, the 2d U.S. Circuit Court of Appeals has ruled. United States v. Amante, No. 05-3067-op. Reversing a district court judge, the 2d Circuit said that the potential prejudice to a defendant caused by the introduction of his prior felony conviction during the government’s case-in-chief is not enough to justify splitting the trial in half. The court held that “bifurcation of the elements of a single-count felon-in-possession trial, absent the government’s consent, is generally error.” Amar Amante was indicted in January for unlawful possession of ammunition by a convicted felon under 18 U.S.C. 922(g)(1). Amante, who had two prior felony narcotics trafficking crimes on his record, had been linked by the discovery of casing shells to a shooting outside of a Bronx, N.Y., bodega in December 2004. Over the objection of the government, Judge Alvin K. Hellerstein of the Southern District of New York decided to bifurcate the trial. Under the judge’s plan, the jury would hear the government’s evidence proving the possession and interstate commerce elements of the offense first. If jurors were to find that Amante possessed ammunition that traveled in interstate commerce, he said, then they would be asked to determine whether he was a prior felon. The prosecution filed a petition for a writ of mandamus with the 2d Circuit, asking the appeals court to order Hellerstein not to bifurcate the trial. The issue was “whether a district court may bifurcate a single-count felon in possession trial absent the government’s consent,” Chief Judge John M. Walker Jr. wrote for the panel. “The district court’s bifurcation order here presents the problem of forcing the jury to deliberate about the issue of ammunition without knowing that the crime charged requires a prior felony,” he said. “This can confuse the jurors and unfairly prejudice the government because the jurors are being asked to deliberate about facts that they most likely would not consider to be a crime: simply possessing a firearm or ammunition.” Walker didn’t rule out bifurcation “where the facts underlying the prior felony would be presented to the jury and are so heinous as to overwhelm the trial of firearm of ammunition possession.” Here, he said, there was nothing about Amante’s prior convictions so “extraordinarily unusual” as to justify splitting the trial.

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