United States v. Bishop

• Decision Date: 28 February 1972
• Docket Number: No. 18132.,18132.
• Citation: 457 F.2d 260
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Robert BISHOP, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

457 F.2d 260 (1972)

UNITED STATES of America, Plaintiff-Appellee, v. Robert BISHOP, Defendant-Appellant.

No. 18132.

United States Court of Appeals, Seventh Circuit.

February 7, 1972.

Rehearing Denied February 28, 1972.

Lorraine N. Woods, Chicago, Ill., for defendant-appellant.

James R. Thompson, U. S. Atty., Stanley D. Kubacki, Asst. U. S. Atty., Chicago, Ill., for plaintiff-appellee; William J. Bauer, United States Atty., Chicago, Ill., John Peter Lulinski, Jeffrey Cole, Asst. U. S. Attys., of counsel.

Before SWYGERT, Chief Judge, CASTLE, Senior Circuit Judge, and STEVENS, Circuit Judge.

CASTLE, Senior Circuit Judge.

The defendant-appellant, Robert Bishop, prosecutes this appeal from the judgment of conviction and sentence entered by the District Court following defendant's trial on a two-count indictment charging him with violations of the federal narcotic laws. Count I of the indictment charges the defendant with an unlawful sale of heroin hydrochloride on August 29, 1968, in violation of 26 U.S. C.A. § 4705(a). Count II charges that on or about the same date the defendant received, concealed, and facilitated the transportation and concealment of the heroin in violation of 21 U.S.C.A. § 174. The jury returned verdicts finding the defendant guilty on each count. The District Court entered judgment on the verdicts and sentenced the defendant to six years imprisonment on each count, the sentences to run concurrently.

The defendant urges a reversal of his conviction on Count I on the ground that the government failed to adduce any evidence that the sale of heroin involved was made without having obtained from the purchaser a written order form issued for that purpose by the Secretary of the Treasury or his delegate. But in this respect the defendant overlooks that it is not incumbent on the government to prove that the purchase was not made with a written order on the prescribed form. United States v. Davis, 7 Cir., 281 F.2d 93, 97, rev'd on other grounds, 364 U.S. 505, 81 S.Ct. 281, 5 L.Ed.2d 258; United States v. Peterson, 7 Cir., 424 F.2d 1357, 1363-1364; United States v. Palmiotto, 2 Cir., 347 F.2d 223; United States v. Sabella, 2 Cir., 272 F.2d 206, 211. In rejecting a somewhat similar argument in United States v. Rowlette, 7 Cir., 397 F.2d 475, 479, this Court had occasion to cite and rely upon McKelvey v. United States, 260 U.S. 353, 357, 43 S.Ct. 132, 134, 67 L.Ed. 301, where the controlling principle is stated as follows:

"By repeated decisions it has come to be a settled rule in this jurisdiction that an indictment or other pleading founded on a general provision defining the elements of an offense, or of a right conferred, need not negative the matter of an exception made by a proviso or other distinct clause, whether in the same section or elsewhere, and that it is incumbent on one who relies on such an exception to set it up and establish it."

We turn to consideration of the defendant's remaining contention which is directed to the convictions under both counts of the indictment. This contention, upon which the defendant predicates the existence of error requiring a reversal of his convictions, concerns the admission of evidence relating to his prior convictions of felonies in the Criminal Court of Cook County,¹ Illinois. At the trial the defendant took the witness stand and testified on his own behalf. To impeach the credibility of the defendant's testimony, the prosecution on cross-examination questioned him regarding his prior felony convictions in the state court. The defendant admitted that he was convicted of burglary in January 1961. In response to a further question as to whether he was the same Robert Bishop who was found guilty on July 2, 1963, of assault with intent to commit robbery, the defendant answered:

"This wasn\'t in \'63. This was in 1958.² I received five years probation. I violated that probation. This is a juvenile record you are speaking of."

On redirect examination the defendant testified that he was 21 years of age in 1961.

Contrary to the intimation implicit in defendant's argument on appeal, no authenticated record pertaining to either of the two felony convictions to which defendant admitted in his testimony, or any record of any other conviction, was offered or admitted in evidence. Thus, no documentary exhibit evidencing any prior conviction was before the jury or considered by the jury in its deliberation, and defendant's contention that authenticated records of prior convictions were improperly offered and received in evidence without proof that the defendant was the Robert Bishop named therein is wholly without foundation in the record.

We are not persuaded by defendant's additional contention that it was not within the trial court's discretion to permit the government to question him on cross-examination with respect to the two felony convictions because such convictions lacked probative value on the issue of defendant's credibility and that reference to them unfairly resulted in inherent prejudice to the defendant. Defendant's trial took place on October 28 and 29, 1968. The prior convictions here involved were not too remote.³ And established procedure permits impeachment through the use of prior felony convictions. United States v. Senior, 7 Cir., 274 F.2d 613, 616; United States...