532 F.2d 130 (9th Cir. 1976), 75-2559, United States v. Cladianos

Docket Nº:75-2559.
Citation:532 F.2d 130
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. John CLADIANOS, Defendant-Appellant.
Case Date:February 20, 1976
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 130

532 F.2d 130 (9th Cir. 1976)

UNITED STATES of America, Plaintiff-Appellee,

v.

John CLADIANOS, Defendant-Appellant.

No. 75-2559.

United States Court of Appeals, Ninth Circuit

February 20, 1976

Rehearing and Rehearing En Banc Denied April 1, 1976.

Harry E. Claiborne (argued), Las Vegas, Nev., for defendant-appellant.

Samuel Coon, Asst. U. S. Atty. (argued), Reno, Nev., for plaintiff-appellee.

Page 131

OPINION

Before BROWNING and SNEED, Circuit Judges, and JAMESON, [*] District Judge.

PER CURIAM:

Appellant Cladianos was convicted by a jury on one count charging carrying on the business of a wholesale dealer in liquors and willfully failing to pay the special tax required for such business in violation of 26 U.S.C. § 5111(a) 1 and 26 U.S.C. § 5691(a). 2 This appeal challenges the conviction on two grounds: First, appellant contends the evidence is insufficient to support a finding that he carried on a business as a wholesale dealer in liquors; second, appellant claims the trial judge committed prejudicial error by refusing to give an instruction requested by the appellant. For the reasons hereinbelow stated, we affirm.

I. The Sufficiency of the Evidence.

This circuit has recognized that the proper inquiry for a court reviewing the sufficiency of evidence to support a conviction is whether the evidence, considered in the light most favorable to the Government, was such as to permit a rational conclusion by the jury that the accused was guilty beyond a reasonable doubt. United States v. Nelson, 419 F.2d 1237, 1242 (9th Cir. 1969); United States v. Jones, 518 F.2d 64, 65 (9th Cir. 1975). Our review of the record convinces us that the Government offered evidence which would, if believed, justify the jury's determination that appellant carried on the business of a wholesaler in liquors. Therefore, the verdict will not be upset.

II. The Trial Court's Refusal to Give the Requested Instruction.

Appellant submitted the following instruction to the court:

"The gist of the offense charged in the indictment is carrying on the business of a wholesale dealer in liquors and willfully failing to pay the special federal tax required of wholesale dealers. . . .

"Mere proof of a single sale of liquor at wholesale, or sales of liquor to a single customer for resale, do not constitute proof that the seller is carrying on the business of a...

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