*1 opportunity personally afforded the mitigation presenting plea persuasive court, and most that “[T]he speak counsel not be able to might, with defendant as the defendant
halting speak eloquence, himself.” Tuttle, Judge, Chief dissented part. ap us that convinces The record pellants valuable not afforded this right reason for that allocution and must be vacated
their sentence Court District
case remanded resentencing. prior to corrective action Cir., 1962, Allegrucci, United v. States Byars, v. United States F.2d and Gadsden States, 1955, U.S.App.D.C.
v. United
162,
firmed. The sentences entered thereon so are vacated ease remanded right appellants may be afforded the 32(a) prior of allocution under Rule
being resentenced. part; vacated, Affirmed sentences resentencing.
remanded HOGAN, Appellant,
M. H. America,
UNITED STATES Appellee.
No. 20490. Appeals Court Fifth Circuit.
Nov.
277
accept
Jr.,
which
as true all the facts
Martin,
T. Baldwin
T. Baldwin
prove,
Snow,
Martin,
tends to
and draw
Martin, Macon, Ga.,
Grant
evidence
against
making
counsel,
party
for
Macon, Ga.,
the motion
of
Napier,
&
all reasonable
most fa-
appellant.
inferences
party opposing
vorable
Gen.,
Atty.
Oberdorfer, Asst.
Louis F.
motion,
of
is
and if
evidence
Atty.,
Jackson,
Justice,
Dept.
Lee A.
of
a
character that reasonable men
C.,
Washington,
Justice,
Dept.
D.
of
judg-
impartial
an
exercise of their
Savannah,
Atty.,
Fraser,
H.
S.
Donald
U.
ment
different conclu-
reach
Graney
Pekel
Ga.,
Alan D.
M.
Melva
sions, then the case should be sub-
Washington,
Justice,
ner, Attys., Dept. of
jury.”
mitted to the
C.,
appellee.
D.
for
also
See
Turner v. Atlantic Coast Line
Judge, and
TUTTLE, Chief
Before
Co.,
1961,
586;
Cir.,
5
2B
Judges.
R.
292 F.2d
BELL,
Circuit
BROWN
(Wright Ed.),
Barron
Fed-
and Holtzoff
1075;
Procedure,
eral Practice and
§
Judge.
BELL,
B.
Circuit
GRIFFIN
Practice,
and 5 Moore’s
50-
Federal
§§
against
brought
suit
(2d ed.).
50.02
seeking
taxes, penalties
to recover
paid
he
which
theretofore
interest
And it is well to note that
illegally
assessed
contended
determination under
test
does
based on
Jurisdiction
collected.
turn on whether one side or the other
(1).
1346(a)
The assess-
28 U.S.C.A. §
case,
has the better
of
but whether
allegedly due
was for excise taxes
ment
there
substantial evidence which
paid
on
for
amounts
support verdict,
would
a
a
and mere scin
years under
period
property
a
of
over
of
enough
require
tilla of evidence is not
3475(a)
Code
Internal Revenue
of the
§
submission to the
Rutherford
4271(a)
1939,
of
Internal
and §
of
Co.,
1960,
Cir.,
Illinois
R.
5
F.
Cent.
276
1954,
4271
26 U.S.C.A. §
Revenue Code
330, rehearing
310,
denied,
2d
278 F.2d
(a).1
den.,
288,
922,
cert.
5
364
81
U.S.
S.Ct.
lays
3475(a)
1939
Code
L.Ed.2d
Reuter
Air
Section
v. Eastern
person
only
a
on amounts
lines,
the tax
Cir.,
5
White v.
transporting
in the business of
Company,
York
New
Life Insurance
5
provision
ex-
property
This
for hire.
Cir.,
their but further was- regard, heard from them this he- Hogan and paid and Swift White a com- payments- took no further action. These hundredweight per of ten mission cents gross were included in his income him, and purchases plus fifty on from cents paid tax income was hundredweight thereon. He failed' per forty in some instances and any portion remit hundredweight sums col- per cents in other lected as portation tax. No trans- transportation depending instances for Hogan by tax collected was specified excep- on distance. With some any packer, from and Hogan there tions, is no purchased the livestock with indication that claim has been or paid by his own funds and Swift and being by States for tax upon purchase their White from him. respect to those transactions. responsible weight He was losses for grade purchase sale, between and The fact that Swift White had by death, Hogan weighed losses paid for occasioned disease heavily tax on damage during ownership. The the decision of the trial court. It was spectacular evidence showed losses sustained him relevant and a fact not respects these equities save reason of death. a conclusive one. The of that Hogan owned a farm on which he fed lie situation between Swift and White Swift, Hogan hand, to be later cattle sold to and was the one on on the other transporta- Thus, the commission or putting if tax is not due.2 charge tion sales of these cattle. aside the windfall from these' However, testimony they payments, controversy was lies between sold on States, a delivered basis. and the United stipulated It was Revenue itself Code of and § 6415 of the apparently White, Code, had consent- 26 U.S.C.A. § and that filing question ed to the of the suit is not in issue. refund required by § the Internal arising Transpor controversy The cases under the is whether of the engaged nub transport- Act, 303(a) tation in the business (14), simple (15) (17), answer His to determine wheth hire. private, subject trans- er carriers are and White is that requirements his own certificate the Interstate he was actions being not Commerce it he was Commission as carriers property, and that n transporta- analogous, for hire are Brooks Trans business portation Company States, v. United D.C. tion for hire. E.D.Va., (3-Judge Court), 1950, F. Hogan paid evidence that Supp. mem., 1951, aff’d 340 U.S. his own for the cattle 71 S.Ct. 95 L.Ed. might be funds; such losses as suffered Church see Wholesale Bev. Co. v. Point casualty prior from or disease incurred *4 States, D.C.W.D.La., (3-Judge United grade sale, in for errors and also to the Court), 1961, 508, F.Supp. pointing 200 although weight, not the for loss in or out that the rule had of Brooks been gen practice, appeared the to be uniform by adopted the 1958 amendment 203 to § Hogan doing of business. eral method (c) Transportation Act, proof but the of had the burden might 303(c), wherein was it he the inference that drawn have provided might engage person that no and his own was transportation in for-hire in Inter and that it was of not that Foreign state or Commerce a without mean transportation for hire within the permit by or certificate the issued Inter ing was This evidence the of statute. state CommerceCommission such “unless such It was of a scintilla. more than transportation scope, is within the and substantiality require submission as to furtherance, primary in aof business Hogan just his rested had to the enterprise (other transportation) than of of States had not the United case person.”3 Testing proof such the here course, any contrary proof. we Of fered by Hogan rule, prima that made out a knowing way final what the no of have depend fall, facie It case. will stand appear picture proof will but it does be primary on whether the of business juncture the verdict the where weight even at Hogan buying selling is the of live the the of evi directed that was stock, transports which he in further States, con the United dence sidering with was business, transpor ance of that coupled the the other facts merely tation is incidental thereto. In trucking fact that the business overall connection, compare A. W. Stickle larger by the far the of businesses was Commission, Co. v. Interstate Commerce Hogan compared live when with the of Cir., 1942, 155, 10 where the may What have started business. stock finding pri of the Commission that the business, preserve a livestock as mary of business the lumber broker was necessary it have been which transportation the tained, of lumber was sus trucking business, over the had the enter dissenting. den., judge Cert. one gross years smaller in income. become 154, 707, 63 87 L.Ed. U.S. S.Ct. was offered as to net the No evidence 564. comparison no could profits, and thus be profits cat the from the to be drawn between inferences from the drawn jury, the with those of was the contrasted evidence adduced tle business impartial in the reasonable men business. exercise truck up hand, pointing Point Bever that the Church Wholesale the In questions, case, supra, present age the court cases fact see the sustained con- holding trary position Freight, Ball Interstate Commerce Red Motor of Shannon, Texas, (3- was en D.C.W.D'. that Church Point Inc. v. Judge Court), Commission F.Supp. sugar gaged in for-hire of though pending appeal Supreme Court, haul even it back situation in a sugar. L.Bd.2d The sale of title to 84 S.Ct. took U.S. sugar. by prearranged .sugar a also of broker. On the back haul was where judgment respect opinion, this, course, of it could their in the is not a controlling I, therefore, agree have reached different factor. conclusions engaged judgment the central Was that the issue: should be vacated and' transporting property in the the case business remanded to the trial court under hire? direct a verdict further consideration To Govern- deprivation of motion these to a ment’s That facts amounted directed verdict. right Hogan by facts de- determination to have the should be jury, trial court on the termined and constituted basis the record recognized judge it persuaded that it error. stands. While I The trial am that the should, made, question, trial doubt court on plaintiff close no the record as tipped conclude scales favor that the had failed to carry proof, White burden fact clearly Hogan, over record the tax to demonstrates that sought the course of to was never government. it, hire, completely return cattle for it to the failed to activity That he other, have or the show that such should done one was subordinate pri- to another the amounts until escrowed business which was not, marily engaged, nevertheless, could be determined does I think *5 light presented, of the other facts end determination is one that should first be matter. was entitled to his the trial court. I would day stood, judgment jury before vacate the record and remand the case judgment appealed trial to the court must the direction that from may record, it. it then determine be reversed so have whether the upon plain- it stood conclusion doing so, In follow we think the case, tiff’s sufficient warrant appropriate. caveat do not is We sending court’s it to a predict now what the the re outcome of should, may, trial be. All hold we
that the evidence was sufficient take at ver case time the dict directed. The on re evidence may may may
trial
not be
It
different.
sufficient,
trial,
not be
on the next
case,
either when
or at
rests
the conclusion of
trial
take the
sufficiency
jury,
case to the
but the
COMPANY,
Club,
JAMES HOTEL
Tower
matter
the initial
determination of
Inc.,
Building
Company,
Palace
judge.
Duke v.
trial
Sun Oil Com
Petitioners,
pany,
United States because the fact purport- had received that ing sums represent the 3% had failed to amount
tax pointed As over to Government.