United States v. Pistante, 71-2502.
| Decision Date | 27 December 1971 |
| Docket Number | No. 71-2502.,71-2502. |
| Citation | 453 F.2d 412 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Edward John PISTANTE, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
James F. Hewitt, Federal Public Defender, J. Frank McCabe, Asst. Public Defender, San Francisco, Cal., for defendant-appellant.
James L. Browning, Jr., U. S. Atty., F. Steele Langford, Asst. U. S. Atty. and Chief, Crim. Div., Janet Aitken, Asst. U. S. Atty., San Francisco, Cal., for plaintiff-appellee.
Before MERRILL, BROWNING and CHOY, Circuit Judges.
Edward J. Pistante appeals his conviction by a jury of theft from an interstate shipment in violation of 18 U.S.C. § 659. He contends that the District Court erred in refusing to exclude evidence in the Government's case-in-chief of prior inconsistent exculpatory statements made by him before trial. At one point he maintained that he had discovered the stolen stereo by accident; at another, Pistante claimed to be an informer working to prevent theft. Pistante concedes that these statements were properly admissible to impeach him if he had taken the stand in his own behalf, but he argues that they were inadmissible for any other purpose.
The cases on which Pistante relies hold that prior inconsistent statements by a non-party witness are admissible only to impeach the witness' credibility. Pistante was not a witness; he was a party-defendant. As such, any hearsay statements made by him could be used against him as an admission by a party, and proven either by cross-examination or by extrinsic evidence. Asher v. United States, 394 F.2d 424, 429 (9th Cir. 1968). False exculpatory statements by a party may be used not only to impeach, but also to prove consciousness of guilt and unlawful intent. Williamson v. United States, 310 F.2d 192, 199 (9th Cir. 1962). See DeVore v. United States, 368 F.2d 396, 397 (9th Cir. 1966); 2 Wigmore on Evidence § 278(2) (3rd ed. 1940).
Affirmed.
To continue reading
Request your trial
-
State v. Goltz
...v. United States, 368 F.2d 396, 397 (9th Cir. 1966); 2 Wigmore on Evidence § 278(2) (3rd ed. 1940) (supp. 1981)." United States v. Pistante (9th Cir. 1971), 453 F.2d 412, 413. Cf. Burden Young v. United States (9th Cir. 1966), 358 F.2d 429, 431, wherein the Circuit Court of Appeals held, th......
-
U.S. v. Pohlman, 74-1759
...As Pohlman was a party-defendant, her hearsay statements could properly be used against her as admissions. United States v. Pistante, 453 F.2d 412 (9th Cir. 1971). See generally McCormick on Evidence P 239 The judgment of conviction is affirmed. LAY, HEANEY and BRIGHT, Circuit Judges (disse......
-
Brown v. State, 78-1397
...exculpatory statements may be used not only to impeach, but also as substantive evidence tending to prove guilt."); United States v. Pistante, 453 F.2d 412 (9th Cir. 1971) (the defendant's pre-trial explanations were admissible in the Government's case in chief to prove consciousness of gui......
-
Bemis v. Edwards
...801(d)(1). However, this rule only applies to prior inconsistent statements of testifying witnesses. See United States v. Pistante, 453 F.2d 412, 412 (9th Cir.1971). Whereas an inconsistent statement by a testifying witness can be used to impeach that witness's credibility, an inconsistent ......