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UNITED STATES v. MAPCO GAS PRODS.

March 17, 1989

UNITED STATES OF AMERICA, PLAINTIFF
v.
MAPCO GAS PRODUCTS, INC.; BUCKEYE GAS PRODUCTS COMPANY; JACK B. MORRIS and MICHAEL R. VAN WINKLE, DEFENDANTS



The opinion of the court was delivered by: HOWARD, JR.

 GEORGE HOWARD, JR., UNITED STATES DISTRICT JUDGE.

 Currently pending before the Court are the motions of defendants Mapco Gas Products, Inc. (Mapco), Buckeye Gas Products Company, Jack B. Morris and Michael R. Van Winkle, praying an order of the Court permitting defendants to withdraw their pleas of not guilty, previously entered in this proceeding on November 29, 1988, and enter new pleas of nolo contendere pursuant to Rule 11(b) of the Federal Rules of Criminal Procedure. After carefully considering defendants' motions and the Government's position in opposition to the request, the Court finds that defendants' request should be denied for the reasons hereinafter discussed.

 I. BACKGROUND

 On November 1, 1988, the Grand Jury in and for the Eastern District of Arkansas rendered an indictment charging Mapco Gas Products Company, Inc., Buckeye Gas Products Company, Jack B. Morris and Michael R. Van Winkle with a conspiracy to suppress and restrain competition in the sale of liquified petroleum gas to customers in East Central Arkansas. *fn1" As previously stated, defendants entered pleas of not guilty to the indictment and demanded a trial by jury. On March 8, 1989, defendants filed their motions for leave to withdraw their pleas of not guilty and enter pleas of nolo contendere.

 Mapco and Buckeye are Delaware Corporations authorized to do business in the State of Arkansas, with headquarters located at Tulsa, Oklahoma. Mapco is a supplier of liquid petroleum gas in eleven states, including the State of Arkansas. Defendant Jack Morris, prior to the indictment and during the relevant time frame covered by the indictment, was employed by Mapco as regional manager. Michael R. Van Winkle, during the time frame covered in the indictment, was Buckeye's division manager at Memphis, Tennessee.

 II. DISCUSSION

 Rule 11(b) under Rules of Criminal Procedure specifies:

 
A defendant may plead nolo contendere only with the consent of the Court. Such a plea shall be accepted by the Court only after due consideration of the views of the parties and the interest of the public in the effective administration of justice. (Emphasis supplied).

 It is clear from the plain meaning of the words employed in Rule 11(b) that a trial court " shall " accept a nolo contendere plea " only " after considering the position of the Government and the enormous public interest in the effective and proper administration of criminal justice. While a plea of nolo contendere, for all practical purposes from the standpoint of punishment, is comparable to a plea of guilty, there is, however, a material difference when considering the fact that a nolo contendere plea may not be used against a defendant as an admission in any subsequent civil or criminal proceeding; nor does the plea affect the civil rights or impose any civil disqualification upon the defendant. See, 22 C.J.S., Criminal Law, § 425(4). In essence, a nolo contendere plea, in actuality, is an implied admission relevant only to the criminal proceeding in which the plea is asserted. *fn2" On the other hand, a plea of guilty is an express admission against interest and is admissible in any subsequent proceedings for whatever probative value it might possess. See: North Carolina v. Alford, 400 U.S. 25, 27 L. Ed. 2d 162, 91 S. Ct. 160 (1970).

 The Government has opposed defendants' request for leave to withdraw their not guilty pleas and be permitted to plead nolo contendere contending, among other things, that it would not be in the public's interest to grant the request.

 In an effort to conform to the mandate contained in Rule 11(b) to the effect that this Court must determine whether a nolo contendere plea would be in the "interest of the public in the effective administration of justice", the Court has considered the following factors:

 A. The Nature of and the Impact of the Offense As previously noted, defendants are charged with conspiring to suppress and restrain competition in the sale of liquified petroleum gas to customers in East Central Arkansas. This Court takes judicial notice that Eastern Arkansas, and particularly the area involved in this action, is, perhaps, the most economically depressed area, not only in the State of Arkansas, but in the nation as well. For example, the per capital income for the following counties, during the time frame contained in the indictment is as follows: 1. Lee $ 6,287.00 2. St. Francis $ 8,163.00 3. Prairie $ 8,317.00 4. Monroe ...


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