Jones v. United States, 5678-5693.

Citation251 F.2d 288
Decision Date31 March 1958
Docket NumberNo. 5678-5693.,5678-5693.
PartiesJay L. JONES, Paul J. Livingston, Jack Gott, Leo Brantley Jackson, Johnny E. Cole, James Richard Harp, William Thomas Peterson, Oliver B. Stephens, John E. McAfee, T. Martin Edwards, Elmer Lee Oakley, John David Hood, F. Lee Johnson, Paul Donley Rucker, Fred A. Griffing and Don Gray, Appellants, v. UNITED STATES of America, Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)

Irvine E. Ungerman, Tulsa, Okl. (Charles A. Whitebook, Manuel Grabel, Maynard I. Ungerman, William Leiter, R. James Unruh, James F. Metzer, Tulsa, Okl., and A. L. Shortridge, Joplin, Mo., were with him on the brief), for appellants.

B. Hayden Crawford, U.S. Atty., Tulsa, Okl. (Russell H. Smith, First Asst. U.S. Atty., John Morley, Asst. U.S. Atty., Tulsa, Okl., and Hubert A. Marlow, Asst. U.S. Atty., Northern District of Oklahoma, Nowata, Okl., were with him on the brief), for appellee.

Before BRATTON, Chief Judge, and PICKETT and LEWIS, Circuit Judges.

Writ of Certiorari Denied March 31, 1958. See 78 S.Ct. 703.

PICKETT, Circuit Judge.

The appellants were charged in a two count indictment with conspiring to violate the laws of the United States. The first count alleges that the appellants, with others, conspired to import intoxicating liquor into the dry state of Oklahoma in violation of 18 U.S.C.A. § 1262. The second count charged a conspiracy by the defendants to carry on the business of wholesale and retail liquor dealers without paying the special tax required by 26 U.S.C.A. § 5691. Each count set forth that the conspiracy continued from about January 1, 1948, to approximately February 21, 1957. At the conclusion of the trial the court found that the evidence was insufficient to establish a conspiracy prior to March of 1956. Motions for judgments of acquittal for all the defendants except the appellants were sustained. The case was submitted to the jury limited to the question of whether a conspiracy existed in March of 1956 and thereafter. All appellants were found guilty on the first count and only the defendants T. Martin Edwards and John David Hood were found guilty on the second count. Each defendant was sentenced on the first count to be imprisoned for one year and to pay a fine of $1,000. T. Martin Edwards and Hood were sentenced to serve a term of one year on the second count, to run concurrently with the sentence received on the first count. All the defendants convicted have appealed.

One of the principal grounds for reversal is that the evidence does not establish the existence of a conspiracy to violate Federal laws. The Federal Statute makes it a crime to conspire to commit an offense against the United States. The offense is complete when two or more persons combine together to commit an offense against the United States and do any act to effect the object of the conspiracy. 18 U.S.C.A. § 371; O'Neal v. United States, 10 Cir., 240 F.2d 700, 701. "In determining the question of the sufficiency of the evidence to support a verdict, the inferences to be drawn therefrom are viewed in the light most favorable to the prosecution." O'Neal v. United States, supra; Seefeldt v. United States, 10 Cir., 183 F.2d 713; Wilder v. United States, 10 Cir., 100 F.2d 177. The agreement need not be in any particular form. By its nature it is seldom susceptible of direct proof. Ordinarily conspiracies can be established only by the acts and conduct of the conspirators and the inferences to be drawn therefrom. Butler v. United States, 10 Cir., 197 F.2d 561. Generally convictions will be sustained if the circumstances, acts and conduct of the parties are of such character that the minds of reasonable men may conclude therefrom that an unlawful agreement exists. O'Neal v. United States, supra; Heald v. United States, 10 Cir., 175 F.2d 878, certiorari denied 338 U.S. 859, 70 S.Ct. 101, 94 L.Ed. 526; Young v. United States, 10 Cir., 168 F.2d 242, 245,1 certiorari denied 334 U.S. 859, 68 S.Ct. 1533, 92 L.Ed. 1780.

A summary of the evidence discloses that early in the year 1956 the defendant Jones was a candidate for election to the office of Police and Fire Commissioner for the City of Tulsa, Oklahoma. Sometime during the latter part of February or early in March, Charles Hirrlinger and the defendant McAfee met, at which time McAfee stated that he believed that he could work out a vice protection deal if they could get Jones elected, but it would cost four or five thousand dollars. Shortly thereafter, Hirrlinger and McAfee met with Jones, and it was agreed that Hirrlinger would talk to Bill Edwards about raising the money. Following these meetings there were numerous conversations between the different individuals above named, and substantial sums of money were delivered to Jones. Bill Edwards was then, and had been for many years, one of the principal importers of intoxicating liquor into the City of Tulsa, substantially all of which was disposed of at wholesale. Sometime in March Bill Edwards, Hirrlinger and McAfee discussed in detail what the organization should be, including the division of the income received from the protection payoff.2 A few days before the election on April 3, 1956, Bill Edwards, Hirrlinger and Jones met secretly. Jones stated that he intended to make some money if he won the election. The meeting was for the purpose of raising money immediately for the election expenses of Jones and to talk about an organization for the collection of money from those engaged in the liquor, gambling and prostitution business within the City of Tulsa after the election. At that time Jones was given $700. He shook hands with Bill Edwards and told him that if he were elected, Edwards would be in control of the liquor business in Tulsa. Jones suggested that he should meet in the future only with Hirrlinger and that it was not a good idea for all of them to get together too often. Prior to the election Edwards received $200 from the defendant Lee Johnson, and $900 from three Massey brothers, which was delivered to Jones. Johnson and the Massey brothers were liquor dealers, and it was understood that if Jones were elected, they were to be given credit for these payments on any exactions which were required thereafter.

Jones was elected, and took office on May 8, 1956. In the latter part of May, Bill Edwards and Hirrlinger met with the defendants Jones, Livingston, Gott, and McAfee, at Hirrlinger's home near Tulsa for the purpose of completing the control and payoff arrangements. Livingston had been appointed Chief of Police and Gott was a long-time head of the Tulsa police vice squad. McAfee was a billiard hall operator in Tulsa. At this meeting specific arrangements were made to require payments from persons who were selling intoxicating liquor, engaging in gambling or prostitution operations. Livingston was the spokesman at this meeting and the division of the money to be realized was drastically changed from the original understanding. The principal difference was a division of 20% each to Livingston and officer Gott, 40% to Jones, and a reduction to 10% for Bill Edwards, Hirrlinger and McAfee together. Bill Edwards was to take charge of the liquor operations, McAfee the gambling, and Hirrlinger the prostitution activities. As to the payments to be exacted from the liquor dealers, Bill Edwards testified that he was to contact the bootleggers and let them know that he was in a position to help them in their business if they would cooperate. The cooperation included the payment of $100 per month. Those operating places known as "walkins" were to pay a minimum of $250 per month. They were told that those who did not make the payments would be reported to the police vice squad for raiding and arrest. The vice squad would be given the information regarding those who paid, including a complete description of their cars. They would not be molested by the vice squad, but given a free range. The liquor dealers were assured that price cutting activities were not to be tolerated. It was understood that if the required payments were not made, the vice squad should take necessary and appropriate action to put them out of business.

Early in June, 1956, Bill Edwards, Hirrlinger, Jones, Livingston, Gott and McAfee met again. At this meeting Livingston, who seemed to assume the leadership in the scheme, insisted that Bill Edwards' brother Martin be allowed in on the deal. There was bitter feeling between Bill Edwards and his brother, who was also an importer of large quantities of liquor into Tulsa. Bill objected strenuously, even to the extent of saying that if his brother was in, he was out. The question was put to a vote, and Bill Edwards was the only one who voted to keep Martin out. No immediate action was taken to include Martin. There were numerous meetings of different individuals of this group thereafter, from which emerged the contemplated systematic plan for obtaining money from those in the liquor business, and other businesses, in exchange for protection to be furnished them in their illegal activities. During all this time Bill Edwards had authority to determine which liquor dealers would be permitted to buy protection and which would not. He exercised his authority city-wide. He was in position to give instructions directly to members of the police vice squad or through Jack Gott. They followed instructions or were removed. He did not require the liquor dealers to buy liquor from him, but he testified that under the arrangement he had all the business he could handle and didn't have room for any additional. He also had the power to cut a liquor dealer off if he refused to trade with him. During this time, for the purpose of carrying out the agreement, Bill Edwards made substantial collections from different liquor dealers. If anyone who had been paying was raided, he was to get his money and...

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