Short v. United States

• Decision Date: 06 August 1937
• Docket Number: No. 4139,4155.,4139
• Parties: SHORT et al. v. UNITED STATES. FENTRESS v. SAME.
• Court: U.S. Court of Appeals — Fourth Circuit

91 F.2d 614 (1937)

SHORT et al. v. UNITED STATES.

FENTRESS v. SAME.

Nos. 4139, 4155.

Circuit Court of Appeals, Fourth Circuit.

August 6, 1937.

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J. L. Broudy, of Norfolk, Va. (James M. Wolcott, M. R. Broudy, and James N. Garrett, all of Norfolk, Va., on the brief), for appellants Short and others.

Lester S. Parsons, of Norfolk, Va. (Venable, Miller, Pilcher and Parsons, of Norfolk, Va., on the brief), for appellant Fentress.

Sterling Hutcheson, U. S. Atty., of Norfolk, Va. (H. H. Holt, Jr., and Russell T. Bradford, Asst. U. S. Attys., both of Norfolk, Va., on the brief), for the United States.

Before PARKER, NORTHCOTT, and SOPER, Circuit Judges.

PARKER, Circuit Judge.

These appeals, which were heard together in this court, were taken by five persons, who, with fifteen others, were convicted and sentenced in the court below for the crime of conspiracy to remove and conceal distilled spirits upon which the tax had not been paid in violation of R.S. § 3296 (as amended, 26 U.S.C.A. § 1287), to defraud the United States of the tax on spirits distilled by them in violation of R.S. § 3257 (26 U.S.C.A. § 1155(f), to have unregistered stills and distilling apparatus in their possession in violation of R.S. § 3258 (26 U.S.C.A. § 1162), to carry on the business of rectifier, wholesale liquor dealer, etc., without having paid the special tax required by law with intent to defraud the United States, to engage in the business of a distiller without having given bond and with intent to defraud the United States, to make and ferment mash, wort, etc., otherwise than in a lawful distillery in violation of R.S. § 3281 (as amended, 26 U.S.C.A. §§ 1184, 1397(a) (1), to remove distilled spirits in the nighttime in violation of R.S. § 3327 (26 U.S.C.A. § 1221), and to remove, deposit, conceal, etc., materials designed to be used in the manufacture of goods as to which a tax is imposed in violation of R.S. § 3450 (26 U.S. C.A. §§ 1156, 1441). The principal points made on the appeals are: (1) That there was no proof of any general conspiracy on the part of the defendants as charged in the indictment, but, at the most, of a number of separate and minor conspiracies; (2) that there was no evidence connecting the defendants Regan or Fentress with the conspiracy; (3) that there was no proof of any of the overt acts charged in the indictment; and (4) that there was error in refusing to sustain, or to permit the jury to consider, pleas of former jeopardy interposed by defendants Nebbs and Fentress. Other points relating to the admission of evidence and the charge of the court are without sufficient merit to justify discussion.

On the first point, the evidence clearly establishes a conspiracy for the removal, concealment, and sale of distilled spirits, upon which the internal revenue tax had not been paid, by the defendants Short, O'Brien, Crosby, Nebbs, and a number of other defendants. Short and O'Brien maintained hangouts at a garage and at a lunchroom in Norfolk, Va., at which the various conspirators congregated and from which their extensive dealing in illegal liquor was directed. Short and O'Brien and their employee, the defendant Bosman, did a large business from these locations, buying liquor from distillers, having it brought to Norfolk and vicinity in automobiles by experienced rum runners, and delivering it or having it delivered to retailers. Defendants Crosby and Slack were engaged in rum running and selling in connection with Short and O'Brien. Defendants Hobbs, Fentress, and a number of others were engaged in the hauling of the liquor which was disposed of to Short, O'Brien, or Crosby, or pursuant to their direction. Nebbs, Warren, Coppersmith, Carter, Ives, and others were distillers and transporters of the liquor which they distilled, making deliveries to Short, O'Brien, Bosman, and Crosby and the rum runners working for them. Nebbs operated several distilleries in partnership with others of the defendants, and the defendant Carter testified that from the latter part of 1933 to February, 1934, he was hauling whisky every night for him in cars obtained at one of the hangouts of Short and O'Brien in Norfolk, delivering as much as 1,000 gallons of whisky a week. The evidence as a whole leaves no doubt that a general conspiracy existed between these dealers, rum runners, and distillers for carrying on this illegal business on a large scale. While it appears that different partnerships existed from time to time between the various dealers and rum runners, it also appears that all were connected with the general conspiracy; and, while the distillers had no part in the sale of liquor to the retailers, it is clear that they knew of the general nature of the conspiracy when they made sales to the conspirators, which enabled them to carry on their unlawful business, and that they thus made themselves parties to the conspiracy. Comeriato v. United States (C.C.A.4th) 58 F.(2d) 557, 558; Simpson v. United States (C.C.A.4th) 11 F.(2d) 591, 593; Rudner v. United States (C.C.A.6th) 281 F. 516.

On the second point, there can be no question as to the connection of Fentress and Regan with the conspiracy. The witness Terrill (R.40) testified to paying Fentress $250 for whisky upon the direction of the defendant Crosby and stated that Fentress was at the place where witness was selling liquor for defendants Crosby and Slack "about every week." The witness Coppersmith, who was hauling liquor for defendant Nebbs and delivering it to Short and O'Brien and their confederates, testified (R.47) that the car in which he was caught by the officers with 35 five-gallon jugs of whisky was obtained by him from Fentress and Crosby in Moyock, where Nebbs was engaged in illicit distilling. And there is other evidence connecting Fentress with the conspiracy which can leave no doubt in the mind of any reasonable man as to his complicity. Regan was shown to have accompanied the defendant Bosman, who was employed by Short and O'Brien, on trips to get whisky. (R.28.) On one occasion he went with O'Brien and Hobbs to Old Trap, N. C., when Hobbs was looking for a still and when he secured a load of thirty jugs of whisky. (R.35.) He caused the title of an automobile used by the conspirators in the transportation of whisky to be registered in the name of another person, and was shown to have been with Short and Crosby when they were negotiating for a business location in Baltimore.

On the third point, only one of the overt acts charged in the indictment need be proven to sustain a conviction. Jung Quey v. United States (C.C.A.9th) 222 F. 766. Seven are charged in the indictment here, and a number of them have been proven. The first alleges that the defendant Hobbs, on the ______ day of July, 1934, in the city of Norfolk, did remove and conceal a large quantity of distilled spirits upon which the tax had not been paid. Hobbs himself testified to this on the trial (R.33-35), and there can be no question on his evidence but that the removal and concealment were in furtherance of the conspiracy charged. Others of the overt acts charged were substantially proven; but it is unnecessary to go into this, as proof of one was sufficient.

The fourth point, i. e., the question of prior jeopardy relied upon by the defendants Nebbs and Fentress, arises as follows: The present indictment charges conspiracy as heretofore described between twenty-eight named defendants and divers other persons "to the grand jurors unknown." It alleges that the defendants conspired in the Eastern District of Virginia; but, of the overt acts charged, three are alleged to have been committed at places which lie in the Eastern District of North Carolina and two of these relate to the operation of a distillery and the removal and concealment of distilled spirits in that district. The bill was found on July 15, 1936, and the conspiracy is alleged to have existed from December, 1933, to that date.

Defendant Nebbs had pleaded guilty in the Eastern District of North Carolina to an indictment charging conspiracy to distill, sell, remove, and conceal spirits without paying the internal revenue taxes or complying with other provisions of the internal revenue laws. Violation of all of the internal laws mentioned in the present indictment, except R.S. § 3450 (26 U.S.C.A. §§ 1156, 1441), was charged as the object of the conspiracy, which was alleged to have existed for three years prior to the finding of the indictment in June, 1935, or for a period of eighteen months of the time covered by the indictment in this case. The defendant Nebbs and five other named defendants were charged in the indictment, two of whom were named as defendants in the case at bar; and the conspiracy was charged as existing between them and other persons to the "grand jurors unknown." The defendants were charged with conspiracy in the Eastern District of North Carolina; but, of the twenty-seven overt acts alleged, twelve were alleged to have been committed in the Eastern District of Virginia and involved the removing, concealing, and selling within that district of distilled spirits upon which the internal revenue taxes had not been paid. None of the overt acts alleged, however, were the same as those alleged in the present indictment.

Defendant Fentress had been found not guilty in the Eastern District of North Carolina on an indictment charging a conspiracy to distill, sell, remove and conceal spirits in violation of the internal revenue laws, and, like the prior indictment in the Nebbs case, alleging as objects of the conspiracy the violation of all of the internal revenue laws mentioned in the present indictment except R.S. § 3450 (26 U.S.C.A. §§ 1156, 1441). The conspiracy was alleged to have existed for three years prior to the finding of the indictment in September, 1934, or for ten months of the period covered by the indictment in the present case. Ten other...