U.S. v. Collamore, s. 88-1649

• Citation: 868 F.2d 24
• Decision Date: 11 November 1988
• Docket Number: 88-1909,Nos. 88-1649,s. 88-1649
• Parties: UNITED STATES of America, Appellant, v. Wayne N. COLLAMORE, Defendant, Appellee. In re UNITED STATES of America, Petitioner. . Heard
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

Page 24

868 F.2d 24

57 USLW 2523

UNITED STATES of America, Appellant, v. Wayne N. COLLAMORE, Defendant, Appellee In re UNITED STATES of America, Petitioner.

Nos. 88-1649, 88-1909.

United States Court of Appeals First Circuit.

Heard Nov. 11, 1988.

Decided Feb. 17, 1989.

Rehearing and Rehearing En Banc Denied March 21, 1989.

F. Mark Terison, Asst. U.S. Atty., with whom Richard S. Cohen, U.S. Atty., and Margaret D. McGaughey, Asst. U.S. Atty., Portland, Me., were on brief, for the U.S.

Claudia C. Sharon, Portland, Me., for defendant, appellee.

Before BOWNES, BREYER and SELYA, Circuit Judges.

BOWNES, Circuit Judge.

The United States appeals the district court's granting of Wayne N. Collamore's motion to bifurcate his trial for being a felon in possession of a firearm in violation of 18 U.S.C.App. Sec. 1202(a)(1). ¹ Fearing that we might not have appellate jurisdiction under 18 U.S.C. Sec. 3731, ² the government has also submitted a petition for mandamus under 28 U.S.C. Sec. 1651(a). ³ For the reasons stated hereinafter we find the order to bifurcate improper.

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I. BACKGROUND

Collamore was indicted on a charge of being a felon in possession of a firearm. The indictment alleges eight felony convictions. ⁴ Prior to trial, the government notified Collamore that it would seek an enhanced sentence under 18 U.S.C.App. Sec. 1202(a), Armed Career Criminal Act (ACCA), because Collamore had been convicted three times of burglary and/or robbery. ⁵ Collamore then moved to bifurcate The government initially argued that it had the right to introduce evidence of all eight felony convictions alleged in the indictment. When it became clear that the court would not allow this, the government claimed it needed to introduce evidence as to at least three burglary or robbery convictions in order to prove its case for an enhanced sentence. Collamore would not stipulate to the convictions and the government did not offer to restrict its proof to one felony conviction. The district court ruled that allowing evidence of even three prior felonies "would inject an undue level of prejudice" into the trial. After the district court granted Collamore's motion for bifurcation, ⁶ the government offered to limit its trial proof to one felony conviction.

the possession element of the crime from the element pertaining to his prior convictions.

The bifurcation order provided

that the proceeding would be bifurcated and that the government would be required to produce first its evidence with respect to the circumstances alleged to constitute the possession of the weapon in question, and that then all of that evidence on both sides being produced as to those circumstances, the matter would be submitted to the jury for determination of a question on special verdict as to whether the jury found beyond a reasonable doubt from the evidence produced by the government that the defendant had possessed the weapon in question on September 26, 1985.

[I]f the answer to that question was yes, the jury would be brought back to the courtroom and the government would be provided a full opportunity to produce any admissible evidence as to any aspect of this defendant's prior criminal record.

II. APPEAL OR MANDAMUS

Under 18 U.S.C. Sec. 3731, "[a]n appeal by the United States shall lie to a court of appeals from a decision or order of a district court suppressing or excluding evidence...." The government's right to appeal in this case is predicated on the theory that the bifurcation order may result in the suppression or exclusion of evidence. It contends that if the jury finds in favor of Collamore on the possession issue, evidence of his prior convictions will be totally excluded from the trial. Collamore counters that if the jury finds against him on possession, the government will be allowed to present its prior conviction evidence before the jury returns a general verdict. ⁷

Our approach to determining appealability under Sec. 3731 has been stated before:

We do, however, read section 3731 generally, and particularly the liberal construction provision of paragraph five, as dictating a practical, rather than formalistic, application. The courts of appeal have followed such an approach with regard to appeals brought under the second paragraph of section 3731. The Second, Third and Sixth Circuits have applied this reasoning to hold that orders having the practical effect of excluding evidence, although not expressly doing so, could be appealed under section 3731. We agree that section 3731 would authorize appeals from such orders.

United States v. Kane, 646 F.2d 4, 7 (1st Cir.1981) (citations omitted). Conditional orders may be appealed. See, e.g., United States v. Todaro, 744 F.2d 5, 8 n. 1 (2d Cir.1984), cert. denied, 469 U.S. 1213, 105 S.Ct. 1186, 84 L.Ed.2d 333 (1985).

The present case, however, does not easily fit within the format of the cited cases. Under the bifurcation order, if the But we are faced with more than a conditional order that may result in the exclusion of evidence; the issue is whether the bifurcation order was proper. It is unusual, to say the least, to split the elements of crime into two parts for purposes of trial. Because there may be a question as to our appellate jurisdiction under 18 U.S.C. Sec. 3731 and because of the importance of deciding now the propriety of the bifurcation order, we have decided to proceed under our mandamus powers.

government does not prove beyond a reasonable doubt that the defendant possessed a firearm he will be found not guilty and evidence of any prior convictions will have been effectively excluded. Moreover, jeopardy will have attached and the government will have lost its right to appeal. Such a possible result is a good argument for a liberal construction of 18 U.S.C. Sec. 3731.

" 'Mandamus entreaties are generally subject to a pair of prophylactic rules, which together require that a petitioner show (a) some special risk of irreparable harm, and (b) clear entitlement to the relief requested.' In re Recticel Foam Corp., 859 F.2d 1000, 1005 (1st Cir.1988) (footnote omitted)." In re Bushkin Assocs., Inc., 864 F.2d 241, 243 (1st Cir.1989) (further citations omitted). Both prerequisites for mandamus have been met here.

The government's right to appeal is limited to 18 U.S.C. Sec. 3731. See Kane, 646 F.2d at 5. And, because of the double jeopardy constitutional proscription, Sec. 3731 explicitly denies the government an appeal from orders excluding evidence "after the defendant has been put in jeopardy." Thus, once trial has begun, the government will be irreparably harmed by not having any other avenue to seek redress for the district court's bifurcation of the trial. We also find, as we explain in part III. A., that the government has a "clear entitlement to the relief requested."

III. THE MERITS

We start our analysis by noting that we have now decided a question that at the time of the bifurcation order had not been addressed by this circuit: whether the three felony conviction provision of the statute was an element of a heightened crime or only for sentence enhancement. In United States v. Rumney, 867 F.2d 714, 717-19 (1st Cir.1989), we held that it was for sentence enhancement purposes only.

A.

Because the court was concerned that the jury would be prejudiced on the "very close factual question" of possession by the introduction of Collamore's prior convictions, it bifurcated the possession issue from the felony conviction issue.

"A conviction under Sec. 1202(a)(1) requires proof of three elements: (1) the accused is a convicted felon; (2) who knowingly possessed a firearm; (3) which was connected with interstate commerce." Rumney, 867 F.2d at 721. By prohibiting the government from presenting evidence of even one prior felony conviction until the issue of possession had been decided, the court eliminated an essential element of the government's case.

As far as we can determine, absent an agreement by the parties, bifurcation is available in only two circumstances in criminal proceedings. A court may bifurcate a trial with respect to the issue of insanity, and a court may also divide a trial between a determination of guilt or innocence and imposition of penalty. The parties have not cited, and we have been unable to locate, however, a single case allowing, much less mandating, bifurcation of a trial by dividing it along the lines of the elements of the crime charged. ⁸

The dearth of cases, we feel, is because such a procedure would result in serious problems. First, when a jury is neither read the statute setting forth the crime nor told of all the elements of the crime, it may, justifiably, question whether what the accused did was a crime. The present case is a stark example. Possession of a firearm by most people is not a crime. A juror who owns or who has friends and relatives who own firearms may wonder why Collamore's possession was illegal. Doubt as to the criminality of Collamore's conduct may influence the jury when it considers the possession element.

Second, the use of special interrogatories is disfavored in criminal cases. See United States v. Spock, 416 F.2d 165, 180-82 (1st Cir.1969). Spock dealt with a situation where the defendant complained of the use of special jury findings because it undercut his right to full consideration of his case by the jury. We agreed, holding that special interrogatories curtail the right to a jury trial by allowing the judge to carefully guide the jury to its conclusion. "In the exercise of its functions not only must the jury be free from direct control in its verdict, but it must be free from judicial pressure, both contemporaneous and subsequent." Id. at 181. "The result may be accomplished by a majority of the jury, but the course has been...