United States v. Amar Amante, Docket No. 05-3067-op (2d Cir. August 9, 2005) (Op. by Walker): There is little new in this opinion, disappointing and wrong-headed though it is. It simply follows upon three bad cases in the Circuit — United States v. Gilliam, 994 F.2d 97 (2d Cir. 1993), United States v. Belk, 346 F.3d 305 (2d Cir. 2003) (yours truly for appellant), and United States v. Chevere, 368 F.3d 120 (2d Cir. 2004) — holding generally that, except in an “extraordinarily unusual case” (and not merely an “ordinarily unusual case”?), bifurcation of the prior felony element in a felon-in-possession prosecution under 18 USC § 922(g)(1) is error. Amante merely clarifies that such an error is a mandamus-able one. Thus, in the future, if a trial judge should order bifurcation, the Government will be able to seek and obtain a writ of mandamus from the Circuit to prevent the bifurcated trial.
Amante specifically holds that “[w]hile it is possible that bifurcation of a single-count felon-in-possession trial might be appropriate in an ‘extraordinarily unusual case,’ Belk, 346 F.3d at 311, such as where the facts of the prior felony would be admitted into evidence and are of such a heinous nature as to overwhelm the trial on possession, this is not such a case.” Op. at 6. Thus, Amante narrows Belk‘s already narrow exception for properly bifurcated trials (limited to “extraordinarily unsual cases”) to (1) cases in which the Government, despite the Supreme Court’s decision in Old Chief, is somehow permitted to introduce the facts underlying the prior felony, and those facts are particularly “heinous” or inflammatory; and (2) cases involving multiple counts, in which the felon-in-possession count itself may be bifurcated from the trial of the other counts, see Op. at 11 n.2 (citing United States v. Jones, 16 F.3d 487, 492-93 (2d Cir. 1994)). Apparently, in every other instance, a district judge is barred from ordering bifurcation.