454 F.2d 783 (9th Cir. 1971), 22104, Greene v. United States

Docket Nº:22104, 22104-A, 22104-B.
Citation:454 F.2d 783
Party Name:Earl D. GREENE, Appellant, v. UNITED STATES of America, Appellee. John BECKER, Appellant, v. UNITED STATES of America, Appellee. Mike A. THOMAS, Appellant, v. UNITED STATES of America, Appellee.
Case Date:November 23, 1971
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 783

454 F.2d 783 (9th Cir. 1971)

Earl D. GREENE, Appellant,

v.

UNITED STATES of America, Appellee.

John BECKER, Appellant,

v.

UNITED STATES of America, Appellee.

Mike A. THOMAS, Appellant,

v.

UNITED STATES of America, Appellee.

Nos. 22104, 22104-A, 22104-B.

United States Court of Appeals, Ninth Circuit.

November 23, 1971

Rehearing Denied Feb. 3, 1972.

Charles O. Morgan, San Francisco, Cal. (argued), for John Becker.

Leonard P. Burke (argued), of Scalora & Burke, Sacramento, Cal., for Mike A. Thomas.

James Neil, San Jose, Cal. (argued), for Earl D. Greene.

Brewster Q. Morgan, Asst. U. S. Atty. (argued), Dwayne Keyes, U. S. Atty., James J. Simonelli, Asst. U. S. Atty., Sacramento, Cal., for appellee.

Before HAMLEY, MERRILL and HUFSTEDLER, Circuit Judges.

HAMLEY, Circuit Judge:

Mike A. Thomas, John Becker and Earl D. Greene, were jointly indicted, tried and convicted on charges involving possession of unregistered distilling apparatus, sale without stamp of distilled

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spirits, and conspiracy. 1 The three took separate appeals which we consolidated for argument and disposition. While these appeals were pending, defendant Greene was murdered. As to his appeal it is, therefore appropriate to remand with directions to vacate the judgment and dismiss the indictment. We reverse the convictions of Thomas and Becker for the reasons stated below.

In September, 1962, Jack Courtney, a special investigator with the Alcohol and Tobacco Tax Division of the United States Treasury Department, assumed the role of an undercover agent in an effort to penetrate what he believed to be an organization which was selling bootleg whiskey. Posing as a gangster or member of the "syndicate," he was, on September 5, 1962, introduced to defendants Thomas and Becker by Gerald Brown, an informer for the Oakland Police Department. The events which thereafter unfolded reveal almost unbelievable nai›2‹vete›1‹ on the part of defendants in accepting Courtney as a representative of the "syndicate." More important, however, they disclose wholly impermissible participation by the Government, through its regularly-employed agent, Courtney, in a project to manufacture, sell and distribute bootleg whiskey.

Courtney held himself out to Thomas and Becker as a gangster because he had received information through a police informer that Thomas and Becker were attempting to locate a "syndicate" connection to purchase large quantities of moonshine whiskey. During the course of their September 5, 1962, meeting, Thomas and Becker told Courtney that they had sold non-tax paid alcohol to the public prior to meeting Courtney, but indicated that they preferred one buyer. They also told Courtney that if he wanted to deal with them he would have to be able to take delivery of one hundred to two hundred gallons of bootleg whiskey a week. Courtney told them he was in a position to accept whatever they could produce.

Later that same evening Becker took Courtney to his home in Oakland and gave Courtney a sample of Becker's and Thomas' bootleg whiskey. Becker and Thomas at that time described their thenexisting still set-up to Courtney. During Courtney's 1962 association with Thomas and Becker, and in order to play the part of a gangster, Courtney showed Thomas and Becker strip stamps, displayed labels in the back of his car, and told them he had a bottling plant as part of the syndicate operation.

On September 10, 1962, Courtney purchased eight gallons of illegal distilled spirits from Becker and Thomas. As a result of Courtney's activities, government agents, in October 1962, located and raided a still on Thomas' property near Sacramento. In early 1963, Thomas and Becker pleaded guilty to charges similar to those alleged in the instant indictment. Both were sentenced to six months in jail and were released from custody in November, 1963.

In late 1962, while the 1962 case was pending and Becker was free on bail, Courtney initiated telephone contact with Becker concerning further relationship between them. Courtney's purpose was to determine whether his undercover identity had been compromised. During the telephone call, Becker manifested a lack of awareness of Courtney's true identity.

Courtney had no further contact with Thomas or Becker until, in December,

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1963, he received a letter from Becker, quoted in the margin. 2 The telephone call referred to in the letter was Courtney's 1962 call to Becker, mentioned above.

After receiving the December...

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