# Robert William Bendelow v. United States > Court of Appeals for the Fifth Circuit · September 29, 1969 · 418 F.2d 42 URL: https://www.frixlaw.com/law-library/cases/9455031 ## Case - **Full name:** Robert William BENDELOW, Appellant, v. UNITED STATES of America, Appellee - **Court:** Court of Appeals for the Fifth Circuit - **Decided:** September 29, 1969 - **Citations:** 418 F.2d 42; 1969 U.S. App. LEXIS 10633 - **Precedential status:** Published - **Opinion:** Concurring in part by Godbold - **Judges:** Godbold, Wisdom, Simpson - **Cited by:** 48 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9455031 ## Opinion text GODBOLD, Circuit Judge (concurring in part, dissenting in part). I agree with Judge SIMPSON’S opinion except with respect to the impeachment of appellant by reference to previous convictions in Dyer Act cases. This Circuit recognizes that the trial judge considering potentially prejudicial evidence has discretion to balance relevant factors and determine whether probative value is outweighed by prejudicial effect. The examples are legion. I set out a few in the margin. 1 *51 The careful opinion by Judge Simpson declines to establish an authoritative rule for this Circuit which would immunize a criminal defendant from attacks on his credibility by proof of prior convictions for the same offense. My brothers do not indicate that the trial judge lacks discretion. They create an imperative rule in neither direction. 2 Indeed the fact that they do not establish a mandatory rule undergirds the existence of trial court discretion. It is my view that the trial judge either failed to recognize that he had discretion or reversibly exceeded the bounds of his discretion. It is understandable that he might do so, because, as my brothers point out, we deal with a matter never squarely decided in this Circuit and in which the authority is meager. 3 Most of the writing springs from the Court of Appeals of the District of Columbia, where the trial judge’s discretion arises from construction of a local statutes. But the considerations relating to exercise of discretion are no different. The leading ease is Luck v. United States, 121 U.S.App.D.C. 151 , 348 F.2d 763 (1965), in which Judge McGowan set .out these factors: In exercising discretion in this respect, a number of factors might be relevant, such as the nature of the prior crimes, the length of the criminal record, the age and circumstances of the defendant, and, above all, the extent to which it is more important to the search for truth in a particular case for the jury to hear the defendant’s story than to know of a prior conviction. The goal of a criminal trial is the disposition of the charge in accordance with the truth. The possibility of a rehearsal of the defendant’s criminal record in a given case, especially if it means that the jury will be left without one version of the truth, may or may not contribute to that objective. The experienced trial judge has a sensitivity in this regard which normally can be relied upon to strike a reasonable balance between the interests of the defendant and of the public. 348 F.2d at 769 . In Gordon v. United States, 127 U.S.App.D.C. 343 , 383 F.2d 936 (1967) Judge (now Chief Justice) *52 Burger expanded on the Luck test with considerable specificity, setting down several rules of thumb to aid the trial courts. He considered convictions for dishonesty to be more readily admissible than those for violent or assaultive crimes, which may result from a short temper, provocation, or combative nature and are unrelated to honesty or veracity. Remoteness is a factor. Also the judge may wish to exclude the potentially prejudicial matter in order to make it possible for the defendant to take the stand and from his mouth give his version of the ease rather than remain silent for fear of damaging impeachment. With respect to the particular problem raised by the instant case the Court said in Gordon: A special and even more difficult problem arises when the prior conviction is for the same or substantially the same conduct for which the accused is on trial. Where multiple convictions of various kinds can be shown, strong reasons arise for excluding those which are for the same crime because of the inevitable pressure on lay jurors to believe that “if he did it before he probably did so this time.” As a general guide, those convictions which are for the same crime should be admitted sparingly; one solution might well be that discretion be exercised to limit the impeachment by way of a similar crime to a single conviction and then only when the circumstances indicate strong reasons for disclosure, and where the conviction directly relates to veracity. 383 F.2d at 940 . 4 In the instant case the prosecutor had another conviction by which he could impeach the defendant, for issuance of a fraudulent check, which bore directly on honesty. But he elected to ask about only the Dyer Act convictions and disclaimed asking about the check case. 5 In these circumstances the rationale that the prosecution was seeking with the only, or even the best, tool to probe the defendant’s veracity is palpably inapplicable. Within the range of the trial court’s discretion, the interest of both prosecution and defendant could have been protected by simply limiting the interrogation. The choice was not solely between letting the defendant appear as “a witness of blameless life,” McCormick Evidence, p. 94 (1954), and having him appear as a twice-convicted Dyer Act violator. All that was necessary with respect to the Dyer Act cases was to restrict the testimony to the number of convictions and the fact that they were felonies, without any reference which would give the jury to understand that they were for precisely the same offense. The prejudice to appellant would have been removed. The prosecution would have obtained substantially all the legitimate benefit it sought by showing the appellant not credible because a repeti *53 tive felon. The difference between lack of credibility as a repetitive felon and lack of credibility as a repetitive car thief was negligible to the prosecution, catastrophic to the accused. I would reverse for failure of the trial judge to exercise the discretion he possessed by either forbidding entirely the inquiry into previous Dyer Act convictions or by limiting the inquiry in such way as not to reveal that they were for the same offense with which defendant was charged. . Goddard v. United States, 131 F.2d 220 (5th Cir. 1942), cited with approval in *51 McCormick, Evidence, § 43, at 91 (1954) (conviction too remote in time); Lloyd v. United States, 226 F.2d 9 (5th Cir. 1955) (prosecution’s use of charts) ; De Freese v. United States, 270 F.2d 730 (5th Cir.), cert. den. 362 U.S. 944 , 80 S.Ct. 810 , 44 L.Ed.2d 772 (1959) (qualifications of expert witness for prosecution) ; Beck v. United States, 317 F.2d 865 (5th Cir.), cert. den. 375 U.S. 972 , 84 S.Ct. 480 , 11 L.Ed.2d 419 , rehearing denied, 376 U.S. 929 , 84 S.Ct. 656 , 11 L.Ed.2d 627 (1963) (attempt to rehabilitate prosecution witness with testimony which also imputed prior misconduct to the defendant) ; Burns v. Beto, 371 F.2d 598 (5th Cir. 1966) (use of vivid photographs); Beatty v. United States, 377 F.2d 181 (5th Cir.), reversed 389 U.S. 45 , 88 S.Ct. 234 , 19 L.Ed.2d 48 (1967) (materiality under F.R.Crim.P. 26 of various items of prosecution evidence); Barnett v. United States, 384 F.2d 848 (5th Cir.), rehearing denied 391 F.2d 931 (5th Cir. 1967) (collateral evidence of wrongdoing introduced to show intent); Sutton v. United States, 391 F.2d 592 (5th Cir. 1968) (evidence of similar crimes introduced to show intent) . An abuse of discretion unduly prejudicing the defendant may be reversed. Belvin v. United States, 273 F.2d 583 (5th Cir. 1960) (trial judge abused his discretion in allowing evidence on rebuttal). . In United States v. Palumbo, 401 F.2d 270 (2d Cir. 1968) the government contended that the trial judge had no discretion to exclude the prior convictions. The Second Circuit, after carefully considering the matter, held that the trial court had discretion to balance probative value against prejudice, that he did exercise his discretion, and that he did not abuse it. . The trial court expressly relied on Beaudine v. United States, 368 F.2d 417 (5th Cir. 1966). Because of his express reliance it seems likely to me that he considered he had no discretion. In any event, Beaudine concerned attacking credibility of a government witness by evidence of prior convictions. In that case there was no problem of prejudice to the defendant. . In Gordon the Court recognized the deference due the trial judge’s exercise of discretion, 383 F.2d at 939 . In other cases that Court has reversed for failure to exercise discretion or abuse of discretion. Brown v. United States, 125 U.S.App.D.C. 220 , 370 F.2d 242 (1966); Barber v. United States, 129 U.S.App. D.C. 193, 392 F.2d 517 (1968); Jones v. United States, 131 U.S.App.D.C. 88 , 402 F.2d 639 (1968); Pinkney v. United States, 124 U.S.App.D.C. 209 , 363 F.2d 696 (1966). . In cross-examination Bendelow was asked whether he had been convicted of a felony. After objection the jury was excused. It then was developed that appellant had two Dyer Act convictions and the bad check charge. The following colloquy then occurred: “MR. TULLIS [Ass’t U.S. Attny]: Your Honor, I don’t want to go any further than to show that he has been convicted of a Dyer Act, which is what he, of course, is being charged with here. THE COURT: Well, do you want to ask him about the no account check? MR. TULLIS: No, Your Honor. All I want is this Dyer Act — of course, I want him to explain the nature of the crime in such a way that the Jury will understand. They won’t know what the Dyer Act is.” --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9455031. Public record. Not legal advice.