The opinion of the court was delivered by: GUSTAVE DIAMOND, Senior District Judge
Defendant Frederick Neal ("defendant") has been charged in a
one-count indictment with possession of a firearm by a convicted
felon in violation of 18 U.S.C. §§ 922 (g) (1) and 924(e).
Defendant has filed a motion to bifurcate trial (Document No. 29)
and the government has filed a response thereto (Document No.
32). For the reasons set forth herein, defendant's motion will be
In order to establish that defendant was a felon in possession
of a firearm in violation of § 922 (g) (1), the government must
prove beyond a reasonable doubt each of the following three
elements: (1) that defendant previously had been convicted of a
crime punishable by imprisonment for a term exceeding one year;
(2) that defendant knowingly possessed a firearm; and, (3) that
the firearm had passed in interstate commerce. United States v.
Dodd, 225 F.3d 340, 344 (3d Cir. 2000).
In this case, defendant's motion seeks bifurcation of the
elements of the offense. Specifically, defendant requests that
the government be prohibited from submitting to the jury any
evidence of his prior convictions unless and until the jury finds beyond a reasonable doubt that he knowingly possessed a firearm.
Defendant contends that bifurcation of the elements in this
manner would prevent the "irreparable prejudice" that would arise
if the jury heard evidence of his prior convictions while
simultaneously determining whether he knowingly possessed a
firearm. See, e.g., United States v. Busic, 587 F.2d 577,
585 (3d Cir. 1978) rev'd on other grounds 466 U.S. 398 (1980)
(permitting bifurcation of counts requiring proof of a prior
conviction from other counts).
The court finds defendant's motion to be without merit. The
Third Circuit Court of Appeals expressly rejected this identical
Busic-based argument in United States v. Jacobs, 44 F.3d 1219
(3d Cir. 1995) cert. denied 514 U.S. 1101 (1995). Therein, the
court held that a defendant charged with possession of a firearm
by a convicted felon was not entitled to bifurcation of the
possession element from the prior conviction element so that the
jury could determine possession before hearing of the defendant's
prior conviction. 44 F.3d at 1222-23.
In doing so, the court noted that all other circuits to address
this argument also had rejected the bifurcation of elements in a
§ 922 (g) (1) case, and, in particular, noted favorably the
rationale in United States v. Collamore, 868 F.2d 24, 28
(1st Cir. 1989), wherein the court concluded that bifurcation
of the elements could create jury confusion and doubt as to the
very criminality of the defendant's conduct when considering
solely the possession element, since possession of a firearm by most people
is not a crime. Jacobs, 44 F.3d at 1222; see also United
States v. Barker, 1 F.3d 957 (9th Cir. 1993) (district court
may not bifurcate the single offense of being a felon in
possession into multiple proceedings without changing the "very
nature of the charged offense"); United States v. Birdsong,
982 F.2d 481 (11th Cir. 1993) (adopting reasoning of
The court finds the rationale of the foregoing cases sound and
defendant has not cited any authority to the contrary. As the
First Circuit recognized, to permit bifurcation of the possession
element from the prior conviction element, and thereby prevent
the government from presenting evidence of a prior felony in a
felon in possession case, basically would serve to eliminate an
essential element of the government's case and improperly deprive
the government of a jury trial on the crime as charged.
Collamore, 858 F.2d at 27-28. Accordingly, the court concludes
that defendant is not entitled to bifurcation of the elements of
the offense and his motion to bifurcate will be denied.
An appropriate order will follow. ORDER OF COURT
AND NOW, this 29th day of November, 2005, the court
having considered the motion to bifurcate (Document 29) filed by
defendant Frederick Neal in the above-referenced case and the
government's responses thereto, IT IS ORDERED that defendant's
motion be, and the same hereby is, denied.
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