U.S. v. Wiesle, 76-1358

• Decision Date: 21 September 1976
• Docket Number: No. 76-1358,76-1358
• Citation: 542 F.2d 61
• Parties: UNITED STATES of America, Appellee, v. Thomas WIESLE, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 61

542 F.2d 61

UNITED STATES of America, Appellee, v. Thomas WIESLE, Appellant.

No. 76-1358.

United States Court of Appeals,

Eighth Circuit.

Submitted Sept. 17, 1976.

Decided Sept. 21, 1976.

Randy Coleman, Little Rock, Ark., for appellant.

W. H. Dillahunty, U.S. Atty., Robert L. Neighbors, Asst. U.S. Atty., and Samuel A. Perroni, Asst. U.S. Atty., U.S. Dept. of Justice, Little Rock, Ark., for appellee.

Before GIBSON, Chief Judge, and STEPHENSON and HENLEY, Circuit Judges.

PER CURIAM.

Appellant Wiesle was convicted by a jury verdict of guilt ¹ on one count of theft from an interstate shipment of freight in violation of 18 U.S.C. § 659. The sole issue raised on this appeal is whether appellant's motion for a mistrial, based on the fact that during the government's case-in-chief testimony was elicited that two accomplices had pled guilty to the same offense for which appellant was being tried, was correctly denied. We affirm.

The government's evidence showed that on December 11, 1974, Affiliated Food Stores of Little Rock, Arkansas, ordered 168 cases of Crisco Shortening from the Proctor and Gamble Food Division, Memphis, Tennessee. Subsequently, Mercury Motor Freight, Inc. of Memphis, Tennessee, was contacted to deliver the Crisco shipment destined for Affiliated. On December 23, 1974, a driver named Hicks, employed by Mercury Motor Freight, made the delivery to Affiliated. Two employees of Affiliated, Garrison and Boyd, left 100 cases of Crisco on the truck. After leaving Affiliated with the Crisco, Hicks drove to a cafe where he met Wiesle. Wiesle was also employed by Mercury Motor Freight as a truck driver. From there the Crisco was delivered to a dock where it was later picked up by a new purchaser. An envelope containing a $1200 check and addressed to Hicks was left at the dock. Wiesle received his share of the proceeds of the Crisco sale in cash from Hicks. Garrison and Boyd went to Wiesle's home where they were paid for their part in the theft. Testimony also revealed that Wiesle had contacted two government witnesses prior to trial in an effort to persuade them to change or alter their testimony.

Appellant offered testimony of two warehouse employees, both of whom testified that Wiesle had been at work with them during the time he was said to be with Hicks and delivering the Crisco to the dock. The defense also introduced the time cards of Hicks and Wiesle as tending to show the location of Wiesle on this particular day.

While presenting the direct testimony of Boyd, the government's counsel asked him if he had pled guilty in federal district court to theft from an interstate shipment with regard to the Crisco. Boyd responded in the affirmative. During Hicks' direct testimony, the government's counsel also asked if he had pled guilty to theft from an interstate shipment. Hicks replied that he had and that he was now in the Springfield Medical Center for prisoners. Neither of these questions by the government's counsel was objected to by the appellant. In fact, both witnesses were cross-examined with respect to their guilty pleas in an effort to uncover any agreement between them and the United States Attorney with respect to recommendations as to leniency in exchange for their cooperation. After the government rested its case, the appellant moved for a mistrial based on the accomplices' testimony that they had pled guilty to the same offense for which Wiesle was being tried. The motion was denied.

One person's guilty plea or conviction may not be used as substantive evidence of the guilt of another. See Gerberding v. United States, 471 F.2d 55, 60 (8th Cir. 1973); United States v....