United States v. Sessions

• Decision Date: 29 January 1968
• Docket Number: Crim. A. No. 25259.
• Citation: 283 F. Supp. 746
• Parties: The UNITED STATES v. Evelyn Headrick SESSIONS.
• Court: U.S. District Court — Northern District of Georgia

283 F. Supp. 746

The UNITED STATES v. Evelyn Headrick SESSIONS.

Crim. A. No. 25259.

United States District Court N. D. Georgia, Atlanta Division.

January 29, 1968.

Charles B. Lewis, Jr., Asst. U. S. Atty., Atlanta, Ga., for plaintiff.

Paul Myers, Atlanta, Ga., for defendant.

ORDER

EDENFIELD, District Judge.

Defendant, an operator of an Atlanta night club, known as "The Nitery Club", has been indicted on one count for having added distilled spirits and other substances to liquor bottles, which altered the original contents, in violation of 26 U.S.C. § 5301(c), and also on a second count for having been in possession of liquor bottles whose contents had been so altered, in violation of the same section. She has also been indicted on a third count for having carried on the business of a retail liquor dealer and having wilfully failed to pay the special tax levied on such dealers in accord with 26 U.S.C. § 5121.

Defendant has made several pretrial motions, the first of which requests that the evidence of the first two counts, namely, some ten bottles of allegedly adulterated liquor, be suppressed as having been seized during an illegal search. The evidence shows that while the club was open for business at 4:00 o'clock in the afternoon on December 13, 1966, investigators of the Alcohol and Tobacco Tax Division of the Internal Revenue Service entered the premises for the purpose of inspecting and examining the records and documents required to be kept by a retail liquor dealer and to inspect the distilled spirits kept and stored on the premises. This inspection was not made under authority of any search warrant but was made solely under the authority of 26 U.S.C. § 5146.¹ Defendant's attack on the search is essentially based on the alleged unconstitutionality of that section. This question was expressly considered in Peeples v. United States, 341 F.2d 60 (5th Cir., 1965). It was found there that a search under authority of the provisions of Section 5146 was not in violation of the rights guaranteed by the Fourth Amendment to the Constitution of the United States. The court finds nothing in the recent cases of Camara v. Municipal Court, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967), and See v. City of Seattle, 387 U.S. 541, 87 S.Ct. 1737, 18 L.Ed.2d 943 (1967), which weakens the force of the Peeples decision. Indeed, the final paragraph of the decision in See v. City of Seattle impliedly approves a search under authority such as Section 5146, when also made under the circumstances present here.²

Defendant has further attempted to set up her failure to acquire a retail dealer's tax stamp as a fact which takes her premises outside of the limits of those that may be searched under authority of Section 5146. This second ground does not appear to be substantial. The statute authorizes inspection "during business hours of the premises (including places of storage) of any dealer * * *." (Emphasis added.) The statute does not limit inspection only to the places of business of dealers who have paid the special tax. United States v. Jackson, 122 F.Supp. 295 (W.D.N.Y., 1954), on which defendant relies in support of her proposition, merely states that paying the tax voluntarily places the defendant within the scope of those whose places may be searched. However, it does not limit such searches, as defendant contends. Cf., Peeples v. United States, supra, where entry was made under the statute to determine if the place in question was retailing liquors, and it later developed no tax had been paid. In conclusion, the search was not made in violation of any constitutional right and the motion to suppress is denied.³

Defendant's second motion asks for two separate trials on the charges of refilling and keeping refilled liquor bottles, and of having failed to pay the special retail dealer's tax. Defendant alleges that not only are the counts misjoined but that the misjoinder will operate to create prejudice to the defendant on the charge of having failed to pay the tax. That motion is denied without prejudice to defendant's right to renew it at such point during the trial as it may appear that there is such a defense to the tax charge that the claim of prejudice on that count is more than speculative. See Drew v. United States, 118 U.S.App.D.C. 11, 331 F.2d 85 (1964), and 8 Moore's Federal Practice, ¶ 8.052.

Defendant's third motion asks the Government to provide a bill of particulars to the indictment. The Government has advised the court that it will make its laboratory report of the contents of the bottles seized available to the defendant on request. It would appear that this would provide enough answers to questions (a) to (h) posed by defendant's motion so that defendant will not be prejudiced in preparing her defense. If the court be in error in this assumption and material questions remain, defendant may renew her motion on any particular point. Question (i) posed by defendant asks whether the distilled liquor allegedly added to the bottles was liquor on which all United States taxes had been paid. The offense of refilling liquor bottles, defined in 26 U.S.C. § 5301(c), with which defendant is charged, does not require the Government to prove that the added spirits have not...