Piassick v. United States, 16775.
| Decision Date | 01 April 1958 |
| Docket Number | No. 16775.,16775. |
| Citation | 253 F.2d 658 |
| Parties | M. L. PIASSICK, Appellant, v. UNITED STATES of America, Appellee. |
| Court | U.S. Court of Appeals — Fifth Circuit |
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David Gershon, H. A. Stephens, Jr., Atlanta, Ga. (R. Monroe Schwartz, Atlanta, Ga. on the brief), for appellant.
James W. Dorsey, U. S. Atty., John W. Stokes, Jr., Asst. U. S. Atty., Atlanta, Ga., for appellee.
Before HUTCHESON, Chief Judge, and JONES and BROWN, Circuit Judges.
The appellant, M. L. Piassick, operated a wholesale grocery business in Atlanta, Georgia. As permitted by 26 U.S.C.A. § 2811, and Regulations 17 issued pursuant to the statute, the Alcohol Tax Unit at Atlanta delivered to the appellant its so-called Demand Letter requiring appellant to report sales of sugar and rye meal in quantities of 100 pounds, malt in quantities of 45 pounds, and other substances in quantities as specified. On June 30, 1954, Alcohol Tax Agents were watching the appellant's place of business. The truck here involved was being loaded. The Agents, believing themselves observed, left the scene. They soon returned, and soon after their return the truck they were watching drove away. The Agents followed the truck for some distance, stopped it, seized it and its cargo, and arrested the driver who identified himself as James Travis Morgan, of Atlanta. In the truck were 3000 pounds of sugar, 200 pounds of rye meal and 100 pounds of barley malt. The truck bore a license tag with the number A/D 38906. On the floor of the cab of the truck and under the seat was a truck license tag with the number A/D 36927.
On July 6, 1954, the Alcohol Tax Unit received from the appellant a report showing the sale on June 30, 1954, of 3000 pounds of sugar, 200 pounds of rye meal and 100 pounds of barley malt, to Frank Adams, of Jackson, Georgia, delivered to a vehicle having license tag number A/D 36927. The appellant was convicted of the charge of falsely reporting the tag number in violation of 18 U.S.C.A. § 1001. By this section it is provided:
"Whoever, in any matter within the jurisdiction of any department or agency of the United States knowingly and willfully falsifies, conceals or covers up by any trick, scheme, or device a material fact, or makes any false, fictitious or fraudulent statements or representations, or makes or uses any false writing or document knowing the same to contain any false, fictitious or fraudulent statement or entry, shall be fined not more than $10,000 or imprisoned not more than five years, or both."
From the conviction this appeal is taken.
The appellant asserts that the evidence was not sufficient to convict since the tag number shown on the report was the same as that of the tag found in the truck. Perhaps the Government proved all it needed to prove. However, our task, in considering whether there was sufficient evidence to sustain a conviction, would possibly be less difficult if it had been shown which, if either, tag had been issued for the truck which hauled the sugar, etc. We are not informed as to the registered ownership of the truck and whether it is in the name of Adams or Morgan, or some other person. But, since the judgment of guilt is to be reversed on another ground we will not say more than that the quantum of proof, if adequate, was not overabundantly so.
The appellant was a witness on his own behalf. On cross-examination he was asked, "In 1952, did you plead — enter a plea to failure to submit sugar reports in this same court?" Appellant's counsel moved for a mistrial which was overruled. The United States Attorney then asked, "You are the same M. L. Piassick who was convicted in — on or about April 4, 1952, on three counts of failure to submit and render sugar returns or sugar reports, aren't you, Mr. Piassick?" The appellant admitted his identity. The conviction was based on a plea of nolo contendere. The Government argues that the evidence of conviction of a prior offense is admissible for impeachment and to show knowledge and intent. The court charged that the evidence was to be considered only on the question of intent. The Government cites Wigmore on Evidence, Vol. III, p. 538, et seq., § 980, for the proposition that it is the existence of the judgment of conviction which is admissible evidence rather than the commission of the offense or any admission by a plea concerning it. Of this contention, as applied to this case, it is enough to quote from the section of Wigmore upon which the Government relies the statement that "The effect of a plea of nolo contendere involves a distinct principle, examined post § 1066." Id. p. 544.
This Court has recently held that evidence of a plea of nolo contendere is not admissible either as an admission or as proof of guilt. Mickler v. Fahs, 5 Cir., 1957, 243 F.2d 515. In the Mickler case, as the Government points out, the offer in evidence of the nolo plea was made in a civil case arising out of the same set of facts as those involved in the case where evidence of the plea was offered. In such situation, the Government concedes, the plea of nolo contendere cannot be used. We do not see how this difference between Mickler and this case calls for a different rule. Nolo contendere means, "I do not contest it." It is, to be sure, a tacit confession of guilt, but solely for the purpose of the case in which it is entered. If it cannot be used in another case based on the same facts it would seem to follow, a fortiori, that it could not be used for collateral purposes in a case founded upon unrelated facts. See 22 C.J.S. Criminal Law § 425, p. 658; Wigmore on Evidence, 3rd Ed., Vol. IV, p. 52, 59, § 1066, and cases cited at Note 4 of the 1957 Pocket Supplement. The admission of this evidence requires a reversal.
The sale of the sugar, malt and meal was made on June 30, 1954. The report of the sale was dated July 3, 1954, and was received by the Alcohol Tax Unit on July 6, 1954. In February of 1955 the appellant gave a sworn statement to an Investigator of the Alcohol Tax Unit. In it he recited six sales of sugar, malt and meal, or some of these commodities, to a buyer named as Frank Adams....
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U.S. v. Morrow
...a nolo plea. Such plea is, as we have seen, an admission of guilt only in the case where it is made. 243 F.2d at 517. Piassick v. United States, 253 F.2d 658 (5 Cir. 1958), decided approximately one year after Mickler v. Fahs, apparently expanded the prohibition on the subsequent use of a n......
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...cannot introduce his own extrajudicial exculpatory statements. They are generally thought to be too self-serving. Piassick v. United States, 253 F.2d 658, 661 (5th Cir. 1958); Commonwealth v. Fatalo, 345 Mass. 85, 185 N.E.2d 754 (1962); McCormick, Handbook of the Law of Evidence § 145, at 3......
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Agnew v. State
...v. Fahs, 243 F.2d 515, 517 (5th Cir. 1957): "It is not receivable in another proceeding as evidence of guilt." See Piassick v. United States, 253 F.2d 658 (5th Cir. 1958); A. B. Dick Co. v. Marr, 95 F.Supp. 83 (S.D.N.Y.1950), cert. denied, 344 U.S. 878, 73 S.Ct. 169, 97 L.Ed. 680 The ration......
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United States v. Washington, 14625.
...Law Dict. (3rd ed.) 2 "Although it is said that a plea of nolo contendere means literally `I do not contest it,' Piassick v. United States, 5 Cir., 253 F.2d 658, 661, and `is a mere statement of unwillingness to contest and no more,' Mickler v. Fahs, 5 Cir., 243 F.2d 515, 517, it does admit......