Chapman v. United States

• Decision Date: 08 June 1961
• Docket Number: No. 18685.,18685.
• Citation: 289 F.2d 539
• Parties: Elmer Samuel CHAPMAN, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

289 F.2d 539 (1961)

Elmer Samuel CHAPMAN, Appellant, v. UNITED STATES of America, Appellee.

No. 18685.

United States Court of Appeals Fifth Circuit.

April 18, 1961.

Rehearing Denied June 8, 1961.

Joseph H. Davis, Macon, Ga., for appellant.

Floyd M. Buford, Asst. U. S. Atty., Macon, Ga., for appellee.

Before RIVES, BROWN and WISDOM, Circuit Judges.

RIVES, Circuit Judge.

A one-count information charged Chapman and one Emmett Bolton Mercer with unlawfully, knowingly and willfully possessing 9,540 pounds of sugar intended for use in violating the provisions of the Internal Revenue Code. Specifically, the information charged that Chapman and Mercer possessed 9,540 pounds of sugar with the intent to use the same in the nontaxpaid distilled spirits business in violation of 26 U.S.C. §§ 5686(a), 7302.¹ After a severance, Mercer pleaded guilty and Chapman was found guilty by a jury. Chapman was sentenced to imprisonment for one year.

On appeal, Chapman's main insistence is that the district court erred in overruling his motion to suppress on the ground that the sugar was seized against his will, without a search warrant, and not as incident to any lawful arrest.

On the afternoon of July 20, 1960, Donald Durden, a school-age boy who worked part time at the Colonial Grocery Store in Milledgeville, Georgia, walked into the office of Mr. William W. Williams, a federal Alcohol and Tobacco Tax investigator in Macon, Georgia. Donald informed Mr. Williams that for the past six weeks a man from Macon had been buying large amounts of sugar from the Colonial Store, and that he understood that the man lived across the street from Chief of Police of Macon. Mr. Williams showed Donald a picture of Chapman, who lived at such a location and had a record² and reputation for dealing in illicit whiskey, and Donald identified Chapman as the one who had been buying the sugar. According to Donald, the next load of sugar was to be hauled out on the following evening at between six and six-thirty o'clock.

Williams had not previousy known his informer, Donald Durden, and had no immediate means of ascertaining what reliability could be placed on his information. Though there was time to obtain a warrant of arrest or a warrant for the search and seizure of the sugar, Williams made no effort to get any warrant. Instead, on the following evening, July 21, Williams and other agents secreted themselves where they could watch the truck being loaded with bags of sugar from the loading platform of the Colonial Store.

The sugar was covered with a tarpaulin, and the truck driven off by Chapman. The agents followed. In a short distance they saw the truck stop and pick up Mercer. Mercer also had a record and reputation for dealing in illicit liquors, with which the agents were familiar. The agents continued to follow the truck along the public highways from Milledgeville, Georgia, to five miles north of Cochran, Georgia, at the intersection of a county paved road with the state highway. At that time Chapman got out of the truck and entered a Ford automobile parked by the side of the highway in which a woman and a ten or twelve year-old boy were waiting. The truck turned left and continued on with Mercer driving. The agents then placed Chapman under arrest, overtook the truck a short distance further on, arrested Mercer, and seized the sugar.

The district court briefly stated its reasons for overruling the motion to suppress:

"I\'m going to have to overrule the motion in view of the quantity of sugar, the information that he had been making the same trips each Thursday for several weeks before, the record and reputation of both men, I believe, I think a misdemeanor was being committed in his presence."

The offense for which the arrests were made is a misdemeanor. (See footnote 1, supra.) Authority to make the arrests and to seize the sugar stems from 26 U.S.C. § 7608.³

Chapman's possession of the sugar was in the actual presence of the officers. We agree with the district court that the information which the officers had justified their belief that the sugar was intended for use in violating the provisions of the internal revenue laws. The arrest and seizure were legal, and the motion to suppress was properly overruled.

After his arrest, Chapman voluntarily gave the officers a statement in which he denied knowing that there was any sugar on the truck. The officers testified to seeing him help load the sugar. Mercer turned state's evidence, and testified that he was employed by Chapman to carry the sugar to a place in Florida where it would be swapped for a load of nontaxpaid liquor, and to bring that liquor back; that that was the procedure followed on previous trips; that Chapman in another automobile usually either followed the truck or led the truck; that Chapman paid him $35.00 a trip plus expenses, or $20.00 to $25.00 if he did not bring whiskey back.

The statutes, 26 U.S.C. § 5686 (a) and § 7302, are broad enough to cover an intended use of the sugar for the purpose of obtaining nontaxpaid whiskey, and it is not essential to go further and prove that the sugar was ultimately intended for use at an illicit distillery, though the latter purpose could also be fairly inferred. As said by the Fourth Circuit in De Hart v. United States, 4 Cir., 1956, 237 F.2d 227, 228:

"No evidence was offered in explanation of the purchase and possession of so large a quantity of sugar by a man not engaged in the mercantile business and the conclusion is inescapable that he was hauling it into the territory where bootleg whiskey was being made for use in that unlawful business. It would, of course, be no defense that he intended to sell it to illicit distillers instead of to use it himself in illicit distilling, Backun v. United States, 4 Cir., 112 F.2d 635, 637; and the circumstances clearly indicate that he knew that it was intended for this unlawful use. To hold otherwise would be to close our eyes to facts, which are susceptible of no other reasonable explanation and to stultify the administration of justice in the view of all right thinking men."

The district court properly denied Chapman's motion for a judgment of acquittal.

There was, of course, no error in overruling the defendant's objections to Mercer's testimony that he and Chapman swapped the sugar hauled to Florida for nontaxpaid liquor. That went to the defendant's intent, the very gist of the offense. The defendant cannot complain that it also tended to prove him guilty of other offenses.

Defendant's counsel objected to the statement of the United States Attorney in argument to the jury that "we've caught a big one now." The district court responded: "Well, I take it that he's just talking about that being the inference from the testimony in the case, the quantity of the sugar and the length of the trip and so forth. On that basis — it's just argument." Certainly there was no reversible error in that ruling.

In the course of cross-examination of the witness Mercer, Chapman's counsel asked: "Q. Aren't you charged with stealing some fans from the church? A. Well, they say I done it." The United States Attorney objected because no conviction had been proved and the following colloquy further ensued:

"Mr. Buford: And another thing I want to make an objection on, if it\'s not out of order. I don\'t know where Mr. Davis got that information. If it\'s true I have no real objection to the jury knowing about it, but this is Mr. Davis\' client, you know. He is pleading in this court and we are using him as a witness.

"Mr. Davis: I\'ll state in my place, Your Honor, that I am not violating any confidential attorney-client relationship."

Later, upon oral argument of the United States Attorney, the following occurred:

"Mr. Buford: I might make this comment. They didn\'t have too much to say about Mr. Mercer

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