Sears v. United States

• Decision Date: 18 March 1965
• Docket Number: No. 21555.,21555.
• Citation: 343 F.2d 139
• Parties: Julian W. SEARS, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

343 F.2d 139 (1965)

Julian W. SEARS, Appellant, v. UNITED STATES of America, Appellee.

No. 21555.

United States Court of Appeals Fifth Circuit.

March 18, 1965.

Leon A. Wilson, II, Waycross, Ga., for appellant.

Donald H. Fraser, U. S. Atty., Savannah, Ga., for appellee.

Before TUTTLE, Chief Judge, and MOORE^* and BELL, Circuit Judges.

GRIFFIN B. BELL, Circuit Judge:

Appellant Julian Sears, sheriff of Coffee County, Georgia, was convicted below under an indictment charging that he with Harris Johnson, Beecher Wright, and other persons unknown to the grand jury conspired to violate the Internal Revenue laws relating to the possession of an unregistered distillery. The alleged co-conspirators were jointly indicted, but a severance was granted with the result that Sears was tried separately.

I.

Appellant's first contention is that his motion for acquittal should have been granted because the evidence was insufficient to prove the conspiracy charged. This necessitates a review of the evidence. The government's case was built primarily around the testimony of Dorsey Davis, a former bootlegger who worked with government investigators as an undercover agent and informer. His testimony, corroborated in many particulars by federal agents, established the following. Davis approached government agents and offered to help secure evidence against Sheriff Sears. Davis explained that he and Sears had collaborated in the whisky business in the past, and that he wanted to see Sears caught. The federal agents agreed to employ Davis as an undercover agent, and agreed to pay him $10.00 a day for expenses plus "a substantial sum" if he was successful in producing evidence against Sears. Davis eventually received an $800.00 fee.¹

Davis first contacted Sheriff Sears on July 2, 1963. He told Sears that he wanted to resume his illegal whisky operations, and asked Sears if he would furnish "protection," that is, permit him to carry on his bootleg activities and warn him of the movements of state and federal agents. Sears agreed to furnish this protection for $250.00 a week.

At the time of this agreement, Davis did not have a still, but he thereafter contacted Johnson and his employee Beecher Wright (the two alleged co-conspirators) who had an illegal still in operation. Davis and Johnson agreed to operate the still as co-venturers and to expand the enterprise. Davis was to acquire an interest by working at the still. Davis had reapproached Sheriff Sears on September 4, 1963, told him he was ready to begin production, and tendered $250.00. After some hesitation, Sears accepted the money, and the two agreed to meet each Wednesday night in a secluded area of the woods.

The agreement between Davis and Johnson was made in the presence of federal agent Hayes who posed as the employee of Davis. Wright, the employee of Johnson, was called in to help load whisky purchased at the time from Johnson. He showed Davis and Hayes the still, helped them charge it, and then withdrew from the venture. Thereafter, according to the evidence, it was operated by Davis and Hayes, with all of the production being delivered to Johnson by them except for one purchase by government agents. Thus Johnson's connection with the still was through ownership, and Wright's through firing it up on the one occasion. Davis, the informer, and Hayes, the federal agent, were the operators. Davis met Sears in the woods on each Wednesday of the next four weeks and paid him $250.00 each time. At one of these meetings, Sears agreed to warn Davis of the presence of federal agents in Coffee County by placing a pine top in the left rut of the trail leading to the Johnson-Davis still. Sears never in fact used the pine top warning, and federal agents later moved in and destroyed the still. The indictment, trial, and conviction of Sheriff Sears followed.

On this appeal, Sears contends that the foregoing evidence shows only a conspiracy between himself and Davis, whereas he was indicted and convicted for conspiring with Johnson and Wright. Davis was not named as a co-conspirator in the indictment. Since Davis was an undercover agent secretly intending to frustrate the conspiracy, it is contended that he was incapable of being a party to the conspiracy or of serving as a connecting link between Sears on the one hand and Johnson and Wright on the other.

There was no evidence that Sears ever had any contact with Johnson and Wright or that he even knew they were assisting Davis in the operation of the still. Davis himself testified that he never mentioned their names to Sears. However, the evidence does show that Sears knew that some persons, names to him unknown, were working with Davis. A tape recording of one of the clandestine meetings between Sears and Davis shows that Sears knew Davis was not alone in his enterprise. We hold that this was sufficient to connect Sears to a conspiracy with Johnson and Wright. It is firmly established that it is not necessary for a conspirator to know the identity of his co-conspirators or the exact role which they play in the conspiracy. Rogers v. United States, 1951, 340 U.S. 367, 71 S.Ct. 438, 95 L.Ed. 344; Sigers v. United States, 5 Cir., 1963, 321 F.2d 843; United States v. Dardi, 2 Cir., 1964, 330 F.2d 316; United States v. Wenzel, 4 Cir., 1962, 311 F.2d 164; and Isaacs v. United States, 8 Cir., 1962, 301 F.2d 706. The fact that Sears' only connection with and knowledge of the unknown co-conspirators (Johnson and Wright) was through a government informer (Davis) does not vitiate the conspiracy. In Sigers v. United States, supra, we recently held that government informers may serve as the connecting link between co-conspirators. The facts of that case were somewhat different in that the informers acted at all times in accordance with instructions furnished by the co-conspirators, but we do not deem this difference significant. By agreeing to furnish protection, Sears plainly intended to assist the unknown persons working with Davis in their illegal enterprise. He is consequently properly chargeable as a conspirator with them.

Although the evidence was sufficient to support the conspiracy charged, it was not the province of the jury to convict Sears merely upon finding that he had accepted money from Davis and furnished protection. This would establish only that Sears had combined with Davis, and as it takes two to conspire, there can be no indictable conspiracy with a government informer who secretly intends to frustrate the conspiracy. See United States v. Wray, N.D.Ga., 1925, 8 F.2d 429. In order to convict, it was incumbent upon the jury to find that Sears knew that there were others assisting Davis in his illegal whisky activities. Appellant requested a cautionary instruction to this effect which was refused by the District Court. We hold this was error. In view of the posture of the evidence and the charge actually given by the court, the jury may well have believed that it could convict Sears simply by believing that he agreed with Davis and accepted bribes from him. Consequently, the court should have given a cautionary instruction to the effect that even if the jury believed Sears had done these things, it could convict only if it further believed that he did so with knowledge that Johnson and Wright, or some anonymous persons, were also involved in the illegal enterprise.

II.

Appellant next contends that he was unlawfully entrapped as a matter of law, and in the alternative, that the issue of entrapment should have been submitted to the jury. The District Court denied appellant's motion for acquittal based on entrapment and refused to instruct the jury on entrapment. Appellant himself introduced no evidence of entrapment, and indeed, he could not have, since at trial he denied that he accepted money from Davis in return for protection, and denied all knowledge of and participation in the alleged conspiracy. The evidence relied on to sustain the defense of entrapment was adduced in its entirety from the government's own witnesses, especially from the informer Davis.

Davis and federal agents Hamilton and Higginbotham all testified that Davis was hired by the agents for the purpose of securing evidence against Sheriff Sears, and that he was hired on a contingent fee basis, that is, he was to be paid a substantial sum if his efforts were successful. It was Davis who was the initial instigator of the unlawful collaboration, in that he sought out Sears and suggested that Sears supply him with protection. Davis testified that when he approached Sears with the first $250.00 payment, Sears was reluctant to go along with the agreement because of the forthcoming election, and that Sears acquiesced only after he withdrew the $250.00 from his wallet and tendered it. There was testimony that Sheriff Sears had been a foe of bootleggers in the past, having destroyed 95 illicit distilleries in Coffee County during the less than three years he had served as sheriff. The record also discloses that Davis had a grudge against Sears.

Before...