United States v. Collamore (868 F.2d 24, 1989)

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. § 1202(a)(1). Fearing that we might not have appellate jurisdiction under 18 U.S.C. § 3731, the govern ment has also submitted a petition for mandamus under 28 U.S.C. § 1651(a). For. the reasons stated hereinafter we find the or-

and who receives, possesses, or transports in commerce or affecting commerce, after the date of enactment of this Act, any firearm shall be fined not more than $10,000 or imprisoned for not more than two years, or both.

This section was repealed effective after the datg of defendant’s alleged infraction. The relevant passage was reenacted in broader form and recodified at 18 U.S.C. § 922(g).

. This section provides in pertinent part: ’ ’

An appeal by the United States shall lie to a court of appeals from a decision or order of a district court suppressing or excluding evi-: dence or requiring the return of seized prop* erty in a criminal proceeding, not made gfter the defendant has been put in jeopardy and-before the verdict or finding on an indictmeht or information, if the United States attorney certifies to the district court that the appeal is not taken for purpose of delay and that thej evidence is a substantial proof of a fact material in the proceeding.

The provisions of this section shall be liberally construed to effectuate its purpose.

. This section provides: "(a) The Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.”

. The indictment reads in full:

The Grand Jury charges:

On or about September 26, 1985, in the District of Maine, the defendant,

WAYNE N. COLLAMORE

having been convicted in the Lincoln County Superior Court, State of Maine, on November 24, 1971 for breaking, entering and larceny in the nighttime in docket number 2308 and 2473; on November 29, 1972 for robbery in docket number 2679; on February 1, 1977 for burglary in docket number CR-76-75; on July 28, 1977 for burglary in docket numbers CR-76-76, CR-76-77, and CR-76-112; and on October 20, 1981 for burglary in docket number CR-81-128; and having been convicted in the Knox County Superior Court, State of Maine on November 5, 1981 for burglary in docket number CR-81-186 and for theft in docket number number [sic] CR-81-186; and having been convicted in Kennebec County Superior Court, State of Maine, on November 6, 1985 for burglary in docket number CR-85-496; all crimes punishable by imprisonment for a term exceeding one year under the laws of the State of Maine; did knowingly receive and possess in commerce and affecting commerce, a firearm, that is a Harrington and Richardson, Model 929, .22 caliber, revolver, serial number AC31969;

In violation of Title 18, Appendix II, United States Code, Section 1202(a)(1).

.18 U.S.C.App. § 1202(a) reads in pertinent part:

In the case of a person who receives, possesses, or transports in commerce or affecting commerce any firearm and who has three previous convictions by any court referred to in paragraph (1) of this subsection for robbery or burglary, or both, such person shall be fined not more than $25,000 and imprisoned not less than fifteen years, and, notwithstanding any other provision of law, the court shall not suspend the sentence of, or grant a probationary sentence to, such person with respect to the conviction under this subsection, and such person shall not be eligible for parole with respect to the sentence imposed under this subsection.

This section was repealed; it has been reenacted in broader form and recodified at 18 U.S.C. § 924(e)(1).

. The court initially denied Collamore’s motion to bifurcate, but, after reconsideration, granted the motion.

. Collamore does not contend that the government has not followed the procedures set forth in 18 U.S.C. § 3731 for prosecuting this appeal. The record clearly indicates that all required steps have been taken.

. Collamore’s reliance on Spencer v. Texas, 385 U.S. 554, 87 S.Ct. 648, 17 L.Ed.2d 606 (1967), is misplaced. Spencer dealt with Texas statutes which provided for enhanced penalties if the jury found the defendants to be repeat offenders. Id. at 555-56, 87 S.Ct. at 649-50. The court noted that bifurcation of the penalty phase of trial from the guilt phase would be permissible but was not constitutionally mandated. Id. at 567-68, 87 S.Ct. at 655-56. The court did not make the broader holding, urged by Collamore, that bifurcation of the elements of a crime is permissible.

. See 18 U.S.C. §§ 1961(5), 1962(c) (RICO); 18 U.S.C. § 1737 (second offense of mailing pornography).