Sigers v. United States

• Citation: 321 F.2d 843
• Decision Date: 27 August 1963
• Docket Number: No. 20004.,20004.
• Parties: Elzy Marvin SIGERS, Billy Burnsed, Henry James Connor, Paul Crews and Roy Lee Gilchrist and Marvin Leroy Curry, Appellants, v. UNITED STATES of America, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

321 F.2d 843 (1963)

Elzy Marvin SIGERS, Billy Burnsed, Henry James Connor, Paul Crews and Roy Lee Gilchrist^* and Marvin Leroy Curry,^* Appellants, v. UNITED STATES of America, Appellee.

No. 20004.

United States Court of Appeals Fifth Circuit.

August 27, 1963.

O. B. Cline, Jr., Dan Chappell, Miami, Fla., Leon A. Wilson, II, Waycross, Ga., for appellants.

Robert H. Newman, Asst. U. S. Atty., Lloyd G. Bates, Jr., Asst. U. S. Atty., Miami, Fla., Edith House, U. S. Atty., Southern District of Florida, for appellee.

Before CAMERON and WISDOM, Circuit Judges, and DeVANE, District Judge.

WISDOM, Circuit Judge.

The four appellants and seven other defendants were indicted in the United States District Court for the Southern District of Florida, Miami Division, for conspiracy to violate the internal revenue laws relating to distilled spirits. The indictment charges certain of the defendants with thirty-eight substantive violations. The trial of the substantive counts against the four appellants was transferred to the Jacksonville Division. The case was tried without a jury. The district court adjudged the four appellants (Sigers, Burnsed, Connor, and Crews) guilty of the conspiracy alleged in Count One and sentenced each to three years imprisonment. The court found three defendants (Howard, Gilchrist, and Curry) guilty of conspiracy and certain of the substantive counts. The court acquitted three of the defendants. One of the defendants, Davis, who had been closely associated with Howard, pleaded guilty.

The appellants assert that the trial judge erred in denying the appellants' motion for acquittal and in adjudging them guilty of conspiracy. They contend that there is no evidence of a conspiracy among the defendants; that at most the evidence shows three independent conspiracies. They contend also that there can be no conspiracy when the connecting link is, as in this case, a government informer.

I.

In a sense, there were three conspiratorial wheels, each with its hub and spokes. But these were wheels within a wheel. The larger wheel was the conspiracy charged in Count One of the indictment. A brief review of the facts shows that there was an inter-linked overall conspiracy of the defendants in which the informer acted as a conduit rather than as a creative force for entrapment.

The first group consisted of Jimmy Lee Howard and Davis and others. Howard, a prime actor in the conspiracy, was a retailer in Miami. He obtained most of his supply of illicit whiskey from moonshiners in and near Macclenny, in North Florida. The second group, all from Macclenny, consisted of the four appellants: Sigers, about whom the others revolved, Burnsed, who worked in Sigers' store, and two others whom Sigers drew upon for supplies, Connor and Crews. The hub of the third group was Gilchrist, a restaurant owner in Okeechobee, Florida, who was both a wholesaler and a manufacturer of moonshine. Curry and others worked closely with Gilchrist.

As the record unfolds, Howard was having trouble obtaining sufficient whiskey from Macclenny to meet his commitments in Miami. Gilchrist, therefore, was valuable to Howard as another source of supply, and valuable to the appellants as an additional outlet for their Macclenny moonshine. The appellants dealt with each other on the production end, pooling their resources to supply the needs of Howard and Gilchrist and cooperating with each other to make the deliveries to Howard's agents. Howard and Gilchrist collaborated in dividing the appellants' output. Thus, within the large wheel the appellants conspired with Howard through his agents and conspired with Gilchrist who, in turn conspired with Howard.

Willie Lee, who was hired by the Florida State Beverage Department to investigate Howard, was the chief link connecting Howard with Gilchrist and with the Macclenny producers. While in prison on one of his two convictions for federal illicit liquor violations, Lee had become acquainted with both Howard and Gilchrist. He and another state-employed informer, who worked with him in investigating Howard, were serving sentences for state felony convictions relating to illicit whiskey at the time of the trial. Lee got in touch with Howard who told him that he was having difficulty maintaining supplies of moonshine. Howard employed Lee to haul whiskey for him. Shortly thereafter, Howard telephoned to someone in Macclenny and ordered a quantity of whiskey. A fair inference suggests that Howard called Sigers. Howard instructed Lee to go to Macclenny and receive the whiskey delivery from Sigers, and he provided Lee with the necessary funds to make the purchase. Following Howard's instructions Lee drove to Macclenny, got in touch with Sigers, picked up the whiskey, and turned it over to Howard in Miami. Lee made similar trips for whiskey on a number of occasions during the period of the alleged conspiracy. In the later trips he dealt with Gilchrist and the appellants. Gilchrist took advantage of Howard's arrangement with the appellants to meet his individual whiskey needs from portions of the whiskey supplied by the appellants. It may be inferred from the evidence that Gilchrist did so pursuant to an agreement with Howard.

Howard also instructed Lee to find someone to set up a still for him. Lee complied by approaching Gilchrist with Howard's requirements. Howard and Gilchrist worked out their arrangements to set up the stills with a portion of the production earmarked for Howard.

The record shows a direct relation between Howard and the appellants in that the Macclenny moonshine ended up in five-gallon jugs for Howard to retail in Miami. And when Lee and other informers served as connecting links, they acted as agents for their principal, Howard. The fact that they were not chargeable as defendants is immaterial. Their activities were at all times in accordance with instructions from the conspirators and neither the appellants nor any of the other defendants were lured into the violation through the efforts of the informers or the undercover investigator. The evidence of the appellants' actions, their relationship with the other defendants, through the conduit of their agent, Lee, the manner in which they knew exactly how to fit into the part they were to play in supplying whiskey pursuant to terms and conditions which must have been subject to prior agreement with Howard, clearly show an agreement whereby the appellants were to be an important part of the over-all scheme.

II.

There is no merit to the appellants' legal contentions.

A. Separate groups acting as conspirators among themselves may still constitute members of an overall conspiracy. Thus, in Poliafico v. United States, 6th Cir. 1956, 237 F.2d 97, cert. denied, 352 U.S. 1025, 77 S.Ct. 590, 1 L.Ed.2d 597 (1957) the defendants contended that while the Government had charged a single conspiracy, its evidence only purported to show a number of different conspiracies. Poliafico, the ringleader, had organized an operation to buy pure heroin in large lots, cut it, and sell it in the "retail" trade. He bought the heroin from some of the defendants and arranged with others to adulterate it and sell it to addicts. The court held this to constitute one, overall conspiracy of Poliafico and his associates to buy and sell heroin at a profit:

"When two or more persons are shown to have been engaged in the same unlawful conspiracy, having for its object the same common and unlawful purpose, it is not necessary to prove the knowledge by one of the dealings, or even of the existence, of the others, in order to render evidence of the actions of those others admissible against that person. There was one conspiracy in this case — the continuing scheme of buying and reselling heroin." 237 F.2d at 104.

The court also held that those who had joined in the conspiracy after it was formed would be responsible for all that had gone on before.

In Jezewski v. United States, 6th Cir., 13 F.2d 599, cert. denied, Ross v. United States, 273 U.S. 735, 47 S.Ct. 243, 71 L.Ed. 865 (1926), the defendants, convicted of conspiracy to violate the Prohibition Act, contended on appeal that there was no conspiracy because the members of the different groups involved were largely strangers to each other and some of them had never met until the indictment was returned. Some did not know where the illicit beer was being manufactured and others did not know where it was being sold. The Sixth Circuit held that it was unimportant whether the saloon keepers or the police officers involved knew where the distributors were obtaining the beer, or whether the manufacturers knew to whom the distributors were selling it, or whether the several groups were all or in part strangers to each other. "They were each and all engaged in a common unlawful purpose, and each and all contributed their part to the furtherance of the unlawful purpose of the continuing conspiracy initiated by these distributors, if they were not in fact originally parties thereto." Id., 13 F.2d at 602.

In Lefco v. United...