United States v. Shadletsky
| Decision Date | 22 March 1974 |
| Docket Number | No. 73-2197. Summary Calendar.,73-2197. Summary Calendar. |
| Citation | 491 F.2d 677 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Isadore SHADLETSKY, also known as Buddy Shad, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Arnold D. Levine, Tampa, Fla., for defendant-appellant.
John L. Briggs, U.S. Atty., Manuel Menendez, Jr., Asst. U.S. Atty., Jacksonville, Fla., for plaintiff-appellee.
Before GEWIN, GOLDBOLD and CLARK, Circuit Judges.
Appellant was convicted on two counts charging that he operated as a retail dealer in liquors and wilfully, knowingly and unlawfully failed to pay the special tax required by law,1 in violation of 26 U.S.C. § 5691(a). The offense is one requiring proof of specific intent.
The government offered in evidence over objection and as probative of knowledge or intent the record of an earlier state court conviction of selling liquor without a license, a misdemeanor which did not require proof of specific intent. The court admitted the evidence with an instruction limiting it as proffered, and gave another limiting instruction as part of the charge to the jury.
Admission into evidence of a prior offense as tending to show intent to commit the offense presently charged requires similarity but not precise identity of offenses. The similar offense must include the essential physical elements of the offense charged, and those physical elements, but not the mental ingredients, must be clearly shown by evidence that is "plain, clear and conclusive." United States v. Broadway, 477 F.2d 991 (CA5, 1973). The necessary congruence of essential physical elements is present in the two offenses with which we are here concerned. Examining the contours of the two offenses, we see that the physical elements of the offense charged are, in the language of the indictment, dual in nature — "carrying on the business of a retail dealer in liquors" and "failing to pay the special tax." The physical elements of the prior state offense were similarly dual — unlawful sale of an alcoholic beverage while not holding a license permitting such sale. The state offense could be committed by making a single and casual sale of liquor, but this possibility does not cause it to lack sufficient nexus to the carrying on of a retail business in liquor, which embraces the concept of repetitive sales of the same type of commodity. The second prong of the physical elements of the offense charged and prior offense is substantially if not wholly concurrent — in both cases failure to comply with a government-imposed condition precedent to carrying on a business activity, in the earlier case purchase of a license and in the present case payment of a special tax.
Having concluded that there is sufficient identity in the contours of the physical elements of the two offenses, we turn to the matter of sufficiency of proof. This circuit committed itself in Broadway to the rule that the actual existence, in the prior offense, of the congruent physical elements must be plain, clear and conclusive and that proof of a...
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U.S. v. Beechum, 76-1444
...This reasonable construction of the Broadway rule is precisely that which we have accorded it in the past. For example, in United States v. Shadletsky, supra, a state court conviction for selling liquor without a license was held properly admitted to show intent with respect to the charge o......
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United States v. Clay, 09–5568.
...one—which other circuits apply as well. See United States v. LeCroy, 441 F.3d 914, 918, 926 (11th Cir.2006); United States v. Shadletsky, 491 F.2d 677, 677–78 (5th Cir.1974). But again the relevant point is that we have one panel after another disagreeing with each other as to which of thes......
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State v. Reldan
...on Evidence § 170, p. 452 (rev. ed. 1972). Compare United States v. Goodwin, 492 F.2d [1141] at 1154, with United States v. Shadletsky, 491 F.2d 677, 678 (5th Cir. 1974). We have consistently held that for evidence of other crimes to be admissible the inference of identity flowing from it m......
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U.S. v. Cox
...Prior convictions introduced into evidence in a subsequent prosecution often are based on pleas of guilty, e. g., United States v. Shadletsky, 491 F.2d 677 (5th Cir.), cert. denied, 419 U.S. 830, 95 S.Ct. 52, 42 L.Ed.2d 55 (1974), but this factor does not alter the rules limiting the admiss......