545 F2d 14 United States v. Burkhart

545 F.2d 14

UNITED STATES of America, Plaintiff-Appellee,
Walter BURKHART, Jr., Defendant-Appellant.

No. 76-1556.

United States Court of Appeals,
Sixth Circuit.

Argued Oct. 20, 1976.
Decided Nov. 26, 1976.

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.


Before CELEBREZZE, McCREE and ENGEL, Circuit Judges.

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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. See United States v. Smith, 520 F.2d 544 (8th Cir. 1975).


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


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