Opinion · Court of Appeals for the Sixth Circuit

United States v. Walter Burkhart, Jr.

545 F.2d 14

Type
Opinion
Court
Court of Appeals for the Sixth Circuit
Jurisdiction
Federal
Date
1976-11-26
Topic
general

ORDER Before CELEBREZZE, McCREE and ENGEL, Circuit Judges. Appellant was convicted in the district court of possession of firearms by one previously convicted of a felony contrary to 18 App. U.S.C. § 1202(a)(1). The indictment alleged appellant’s conviction of a felony on two prior occasions and the government in the trial refused an offer by appellant to stipulate that he had in fact been convicted of the lesser of the two felonies charged, the purpose of which was to prevent proof of either conviction being placed before the jury. Upon consideration, we conclude that the government was not required to accept in lieu of proof the defendant’s stipulation and was not limited to establishing only one prior conviction.

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39 opinions
UNITED STATES v. BURKHART,545 F.2d 14(6th Cir. 1976)
UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE, v. WALTER BURKHART, JR.,
DEFENDANT-APPELLANT.
No. 76-1556.
United States Court of Appeals, Sixth Circuit.
Argued October 20, 1976.
Decided November 26, 1976.
Page 15
Fred Fugazzi Jr., Joseph L. Famularo, Lexington, Ky., for defendant-appellant.

Eldon L. Webb, U.S. Atty., Richard E. Duerr, Jr., Lexington, Ky., for plaintiff-appellee.
Appeal from the United States District Court for the Eastern District of Kentucky.
[1] ORDER
Before CELEBREZZE, McCREE and ENGEL, Circuit Judges.
[2] Appellant was convicted in the district court of possession of firearms by one previously convicted of a felony contrary to 18 App. U.S.C. § 1202(a)(1). The indictment alleged appellant's conviction of a felony on two prior occasions and the government in the trial refused an offer by appellant to stipulate that he had in fact been convicted of the lesser of the two felonies charged, the purpose of which was to prevent proof of either conviction being placed before the jury. Upon consideration, we conclude that the government was not required to accept in lieu of proof the defendant's stipulation and was not limited to establishing only one prior conviction. SeeUnited States v.Smith,520 F.2d 544(8th Cir. 1975).

[3] Judge McCree dissents for the reasons stated by him in his dissent inUnited States v. Fields,500 F.2d 69(6th Cir. 1974). Accordingly,

[4] IT IS ORDERED that the judgment of the district court be and it is hereby affirmed.