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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 2nd U.S. Circuit Court of Appeals has ruled. Reversing a district court judge, the 2nd Circuit said 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. In United States v. Amante, 05-3067-op, 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 bodega in December 2004. Over the objection of the government, Southern District of New York Judge Alvin K. Hellerstein 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 the jury were to find that Amante possessed ammunition that traveled in interstate commerce, he said, only then would they be asked to determine whether he was a prior felon. Hellerstein said the prior crimes of Amante were of such “dynamite character” that they might “prevent the jury from fairly evaluating the other two aspects.” He wrote, “I favor the (bifurcation) approach, and it’s the approach that I used in various trials I’ve had dealing with a felon in possession of a firearm or ammunition, in this case casing shells.” The prosecution filed a petition for a writ of mandamus with the 2nd Circuit, asking the appeals court to order Hellerstein not to bifurcate the trial. A panel of Chief Judge John M. Walker Jr. and Judges Dennis Jacobs and Jose Cabranes decided the case. “This case presents a significant question; whether a district court may bifurcate a single-count felon in possession trial absent the government’s consent,” Walker wrote for the panel. “Its resolution will affect numerous defendants in similar trials and will aid in the administration of criminal justice,” he said. “Moreover, no remedy is available to the government other than mandamus.” Walker said the panel was guided by three related 2nd Circuit decisions that were consistent with other circuits “that have granted writs of mandamus prohibiting district courts from ever bifurcating a trial.” In United States v. Gilliam, 994 F.2d 97 (2nd Cir. 1993), where a defendant attempted to stipulate to his prior conviction, the appeals court held that a district court did not err in refusing to bifurcate the trial to remove the element entirely from the jury, holding that where “the prior conviction is essential to proving the crime, it is by definition not prejudicial.” In United States v. Belk, 346 F.3d 305 (2nd Cir. 2003), the appeals court upheld a district court’s decision not to bifurcate a felon-in-possession trial by citing writs of mandamus that had been issued in similar cases by the 1st and 9th circuits. Finally, in United States v. Chevere, 368 F.3d 120 (2d Cir. 2004), the appeals court held that a trial judge has “no discretion” to accept a stipulation to the prior conviction element. Walker said the “core justification” that the lower court offered for bifurcating Amante’s trial — prejudice to Amante — “has been rejected by this court without equivocation.” “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 was careful to note that the court was not ruling 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. Roy P. Miller represented Amante. Assistant U.S. Attorney Elie Honig represented the government.

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