# Eldred J. Paternostro v. United States

> Court of Appeals for the Fifth Circuit · December 27, 1962 · 311 F.2d 298

URL: https://www.frixlaw.com/law-library/cases/9448970

## Case

- **Full name:** Eldred J. PATERNOSTRO, Appellant, v. UNITED STATES of America, Appellee
- **Court:** Court of Appeals for the Fifth Circuit
- **Decided:** December 27, 1962
- **Citations:** 311 F.2d 298
- **Precedential status:** Published
- **Opinion:** On rehearing
- **Judges:** Gewin, Per Curiam, Pope, Tuttle
- **Cited by:** 91 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Abrogated on other grounds by Brogan v. United States, 522 U.S. 398 (1998).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9448970

## Opinion text

On Petition for Rehearing.
PER CURIAM.
It is ordered that the petition for rehearing filed in the above entitled and numbered cause be, and the same is hereby Denied.
The appellee, United States, urges up-en us the decision in United States v. McCue, 2 Cir. 1962, 301 F.2d 452 , which the Government contends is in conflict with our decision in this case. While the McCue case was not cited in briefs nor discussed in our opinion, it was considered before the opinion was written. In view of the facts and circumstances involved, we do not consider the McCue case to be essentially in conflict with our opinion. Undoubtedly, the McCue case left open the question of the “exculpatory no” answer to the policeman. As therein stated:
“The case of the citizen who replies to the policeman with an ‘exculpatory no’ can be left until it ’ arises. See United States v. Davey, 155 F.Supp. 175 (S.D.N.Y.1957); United States v. Stark, 131 F.Supp. 190 (D.Md.1955). It is sufficient for the present to point out that the case at bar bears no resemblance to such a situation.”
It is our feeling that the “exculpatory no” answer without any affirmative, aggressive or overt misstatement on the part of the defendant does not come within the scope of the statute, 18 U.S.C.A. § 1001 . Whether the Government agent to whom the answer is given be an agent of the F.B.I., a “policeman”, or an Internal Revenue agent, is of little consequence. The same rule should apply to all “policemen”, and therefore we cannot approve one rule for one type of agent and another rule for an agent of another department of the same Government.
Under the facts and in the circumstances of this case, the Internal Revenue agent who initiated the interview was performing essentially the functions of a “policeman” or investigative agent for the Government. The statement attributed to the defendant Paternostro is unquestionably an “exculpatory no”.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9448970. Public record. Not legal advice.