Williamson v. United States
Decision Date | 05 March 1963 |
Docket Number | No. 19382.,19382. |
Citation | 311 F.2d 441 |
Parties | Jack Marrin WILLIAMSON and Morris Lee Lowrey, Appellants, v. UNITED STATES of America, Appellee. |
Court | U.S. Court of Appeals — Fifth Circuit |
James P. Coleman, Ackerman, Miss., for appellants.
H. M. Ray, U. S. Atty., Alfred E. Moreton, III, Asst. U. S. Atty., Oxford, Miss., for appellee.
Before RIVES, CAMERON and BROWN, Circuit Judges.
Williamson and Lowrey were convicted of possessing 179 gallons of whiskey in unstamped containers in violation of section 5604(a) (1), Title 26, United States Code. Williamson was also convicted of carrying on the business of a wholesale liquor dealer and willfully failing to pay the special tax required by law in violation of Section 569(a), Title 26, United States Code. The specifications of error claim (1) unlawful entrapment, (2) prejudicial argument of the United States Attorney, and (3) insufficient evidence of identity of each of the defendants. There was clearly sufficient evidence of identity of the defendants. The claimed prejudicial argument of the United States Attorney need not be discussed because we think that the judgments must be reversed on the issue of entrapment.
The circumstances of the claimed unlawful entrapment were developed in the deposition of Robert Harris Moye, a Government informer, taken by agreement between the Government and the defendants on March 31, 1961, several months before the trial. Moye had been released from a federal prison on September 12, 1960 after serving three years for violating the Internal Revenue laws relating to whiskey. Within a few weeks after his release, he contacted two investigators for the Alcohol and Tobacco Tax Division of the Treasury Department. Neither of these investigators testified as a witness in this case, and Moye's testimony as to the terms of his employment is not disputed. Because of its unusual nature, we quote at some length from Moye's deposition.
A week or two later Moye traveled a distance of between 75 and 100 miles to Williamson's home. On Moye's first visit Williamson was not at home. Mrs. Williamson told Moye that her husband didn't have any whiskey. The following Sunday morning Moye returned with one Hubert Hocutt, a close friend of Williamson.
Moye and an investigator named Robert E. Lee, who was on undercover assignment, accompanied Williamson to a point where Williamson blew the horn of his car, whereupon Lowrey drove from off the road a Mercury car loaded with 179 gallons of moonshine whisky. Lee "witnessed Bob Moye pay Jack Williamson $716.00 which I had given him earlier that night." Lee further testified:
On April 11, 1961, several months before the trial in September, the defendants' attorney, on the basis of Moye's deposition, requested the court to rule as a matter of law that the defendants had been entrapped. The court reserved its ruling and thereafter at the close of the evidence denied the defendants' motions for judgment of acquittal. The court ruled that no defense of entrapment could be presented for Lowrey, but submitted the issue of entrapment as to Williamson on a full and fair charge to which defendant's counsel made no objection.
Under the law of entrapment as developed in prior decisions of the Supreme Court1 and of this Court,2 no reversible error would appear except for the evidence of employment of the informer Moye on a contingent fee basis.
The uncontradicted and unexplained testimony as to the terms of Moye's employment make it necessary that the judgments of conviction be reversed. It may possibly be that the Government investigators had such certain knowledge that Williamson and Lowrey were engaged in illicit liquor dealings that they were justified in contracting with Moye on a contingent fee basis, $200.00 for Williamson and $100.00 for Lowrey, to produce the legally admissible evidence against each of them. It may be also that the investigators carefully instructed Moye on the rules against entrapment and had it clearly understood that Moye would not induce them to commit a crime, but would simply offer them an opportunity for a sale. None of these facts or circumstances were developed in the evidence, though Moye's deposition had been taken months before the trial.
Without some such justification or explanation, we cannot sanction a contingent fee agreement to produce evidence against particular named defendants as to crimes not yet committed.3 Such an arrangement might tend to a "frame up," or to cause an informer to induce or persuade innocent persons to commit crimes which they had no previous intent or purpose to commit. The opportunities for abuse are too obvious to require elaboration.
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