Badon v. United States

• Decision Date: 25 August 1959
• Docket Number: No. 17417.,17417.
• Parties: Elmo M. BADON, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

269 F.2d 75 (1959)

Elmo M. BADON, Appellant, v. UNITED STATES of America, Appellee.

No. 17417.

United States Court of Appeals Fifth Circuit.

July 15, 1959.

Rehearing Denied August 25, 1959.

Guy Johnson, Edmond E. Talbot, Jr., Thomas C. Wicker, Jr., New Orleans, La., for appellant.

Prim Smith, Asst. U. S. Atty., René A. Pastorek, Asst. U. S. Atty., New Orleans, La., M. Hepburn Many, U. S. Atty., New Orleans, La., for appellee.

Before HUTCHESON, Chief Judge, and CAMERON and BROWN, Circuit Judges.

CAMERON, Circuit Judge.

The questions presented by this appeal are whether the record contains sufficient evidence to sustain the verdict of the jury in the lower court; the propriety of the submission of the entrapment issue to the jury over defense contention that the evidence reflected entrapment as a matter of law and that the issue should have been so decided by the court; and whether reversible error was committed in the Government's alleged failure to make available to the defense statements of government witnesses prior to their cross-examination. Appellant-defendant was tried to a jury in the district court and found guilty of conspiracy to commit an offense against, or to defraud the United States¹ and of receipt and concealment of merchandise brought into the United States contrary to law² and was sentenced to imprisonment under each of three counts of the indictment, said sentences to run concurrently.³

The determinant facts, as established by the jury's verdict, are simple and are based upon evidence undisputed except as the testimony given at the trial may have varied from statements of the witnesses extracted from the Government's files. On the night of April 30, 1958, two German seamen, Von Kehler and Fabian, were apprehended by the United States Customs Officials on the Mandeville Street Docks in New Orleans, La., loading suitcases containing Scotch Whisky into a taxicab. It was developed without dispute that the whisky contained no Louisiana tax stamps, that the federal tax had not been paid, and that the whisky had been brought from a ship into this country contrary to the laws and regulations governing the importation of merchandise, with the intention of selling the same to one of the night spots on Bourbon Street in New Orleans.

The officers seized the whisky, taking it to the Customs Building, and arrested the two seamen and took them to the same place for interrogation. They were questioned at length there and subsequently taken to the parish prison. The questioning continued during the following day. The seamen were disposed at first to deny that the whisky was destined for any particular club, but Von Kehler finally admitted that a definite agreement had been made with appellant that the whisky would be delivered to him at the Moulin Rouge. The officers then agreed with the two seamen that Custom Agent Hunton would accompany Von Kehler and that the whisky would be delivered to the Moulin Rouge on the night of May 1st.

Shortly after midnight of May 1st, Von Kehler and Hunton took the whisky by taxicab to the Moulin Rouge. The two entered the night club and proceeded to where appellant was standing behind the bar. Von Kehler introduced Hunton as his companion, a German seaman who could not speak English, and explained to appellant in Hunton's presence that the delay in making delivery of the whisky was occasioned by the difficulties they had encountered in getting the whisky from the ship to the docks. During the course of this conversation Von Kehler brought out that the whisky was that which had been stolen from the ship and that it bore no Louisiana tax stamps. Nevertheless Badon agreed to purchase the whisky and directed that Von Kehler and Hunton bring it through a public portion of the club, through a door behind the bar into a secreted back room.

Von Kehler and Hunton proceeded to the taxicab and brought in the four suitcases containing the whisky and, pursuant to directions, took it into the back room where Badon was waiting. At his direction the door to the room was kept closed, as he did not want the girls or other employees to see what was going on. By appellant's direction, the whisky was removed from the suitcases and placed, some on a table and some on the floor of the back room. Badon was proceeding to another portion of the night club to get the manager to come and agree with Von Kehler what he would pay for the whisky when other government agents stationed in the night club arrested him before the actual sale was consummated.

The first error argued by the appellant is the refusal of the court below to grant his motion for acquittal on the ground that the verdict of the jury was not sufficiently supported by credible evidence. We cannot agree with this contention, being convinced from a reading of the evidence that it was clearly adequate to support the conviction. In resolving questions concerning such sufficiency, this Court is bound to take the view of the evidence most favorable to the Government, and must give the Government the benefit of reasonable inferences that the jury may have drawn therefrom. Rickey v. United States, 5 Cir., 1957, 242 F.2d 583; Ingram v. United States, 5 Cir., 1957, 241 F.2d 708, 709, certiorari denied 353 U.S. 984, 77 S. Ct. 1285, 1 L.Ed.2d 1143, and Lemien v. United States, 5 Cir., 1946, 158 F.2d 550.⁴

With respect to the conspiracy count, we do not think that it was essential for the Government's proof to show that appellant actually agreed in terms with Fabian and Von Kehler to have a common design and to strive to accomplish it by the same means. It is sufficient if, from the evidence, it appeared that the appellant acted in furtherance of the same illegal object as the other two. Under this test the evidence placed before the jury was sufficient to justify its conclusion that the appellant was engaged with the seamen in a conspiracy to effect that object.⁵

The theory of the prosecution was that Badon knew, or was sufficiently advised that the merchandise was contraband brought into this country contrary to law. The jury had before it competent evidence tending to establish: that an agreement was reached, April 30th between Badon and Von Kehler under which Badon contracted to receive with the view of purchasing over 100 bottles of this whisky; that Badon recognized Von Kehler when he and Agent Hunton arrived at the Moulin Rouge with the whisky; that he was advised that difficulty had been encountered in bringing the whisky ashore; that he directed that the whisky be taken to a back room of the club and the door closed to prevent the female employees from viewing the transaction; that appellant was told at the time of delivery that the whisky had been stolen and that it bore no Louisiana tax stamps, this being confirmed by Badon's statement to Custom Agent Crawford at the time of his arrest; and, finally, that Badon took possession of the smuggled goods and participated in their concealment.

A jury may reasonably infer the existence of an agreement and joint responsibility of a defendant in a prosecution for conspiracy from any substantial evidence that the defendant acted in furtherance of it with knowledge of the existence of an unlawful enterprise. Pullin v. United States, 5 Cir., 1939, 104 F.2d 57, and cf. Alexander v. United States, 8 Cir., 1938, 95 F.2d 873, 874; Diehl v. United States, 8 Cir., 1938, 98 F.2d 545.

In this case, it is clearly deducible from the evidence, taken in a light most favorable to the Government, that Von Kehler and Fabian, acting in concert with the defendant, confederated to accomplish a criminal purpose in violation of 18 U.S. C.A. § 371, Note 1, supra.

The jury's verdict on the receipt and concealment counts, we think, is also clearly supported. The evidence detailed above warranted the jury in finding that all of the elements of receipt and concealment were present, and, moreover, the appellant took actual possession of the whisky, which alone is sufficient to support the conviction unless explained to the satisfaction of the jury. See Note 2 supra, and Tomplain v. United States, 5 Cir., 1930, 42 F.2d 203, certiorari denied 282 U.S. 886, 51 S.Ct. 89, 75 L.Ed. 781. Here, no explanation at all was offered. Cf. Ahrens v. United States, 5 Cir., 1959, 265 F.2d 514, 517.

The receipt of the smuggled whisky with knowledge of its contraband character, as charged in the third count, was established by the clearest sort of evidence and conviction under it alone would warrant the sentence imposed even if the proof were not adequate to support conviction under the other two counts. We think the attack upon the sufficiency of the evidence is without merit.

The burden of appellant's argument is that the various statements and documents turned over to appellant under the Jencks rule so conflicted with the testimony given by the witnesses before the jury that their testimony in open court was not sufficient to provide a stable support for the jury's verdict. It is not our duty to weigh the evidence or to pass upon the credibility of witnesses. We are called upon to determine only whether there is substantial evidence, viewed from its most favorable aspect, to support the jury's verdict. Glasser v. United States, 1942, 315 U.S. 60, 62 S. Ct. 457, 86 L.Ed. 680; French v. United States, 5 Cir., 1956, 232 F.2d 736, certiorari denied 352 U.S. 851, 77 S.Ct. 73, 1 L.Ed.2d 62, and Lloyd v. United States, 5 Cir., 1955, 226 F.2d 9.

What appellant obtained from the Government's file disclosed, it seems to us, nothing more than a reluctance on the part of the seamen to tell the full story during the early stages of their interrogation. But the story they finally told, as revealed in their statements to the officers, was not unreasonable and was not so inconsistent with the testimony given by them on the witness stand that it can be characterized as unbelievable. The jury heard their testimony, as well as their...