Dowling v. United States, 16458.

• Decision Date: 22 November 1957
• Docket Number: No. 16458.,16458.
• Parties: Melvin DOWLING, Hattie Knight and Aubrey Rhoden, Appellants, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

249 F.2d 746 (1957)

Melvin DOWLING, Hattie Knight and Aubrey Rhoden, Appellants, v. UNITED STATES of America, Appellee.

No. 16458.

United States Court of Appeals Fifth Circuit.

November 22, 1957.

Jack J. Gautier, T. Reese Watkins, T. Arnold Jacobs, Macon, Ga., for appellants.

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

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

BORAH, Circuit Judge.

The appellants, Melvin Dowling, Hattie Knight, and Aubrey Rhoden, together with twenty-eight other named defendants,¹ were indicted for conspiracy to violate the Internal Revenue laws² with reference to the possession of unregistered stills and distilling apparatus; carrying on the business of a distiller without posting signs or giving bond; the making or fermenting of mash on unauthorized premises; the removal, concealment, possession, and transportation of nontaxpaid distilled spirits; the possession of property used or intended to be used for violation of the Internal Revenue laws; evasion of the distilled spirits tax; and carrying on the business of a wholesale and retail liquor dealer without posting signs or paying the special tax required by law. In addition, certain of the named defendants were also charged in ten counts with various substantive offenses involving violations of Section 7206, Internal Revenue Code of 1954. Prior to arraignment the government dismissed all of the substantive counts, and the fourteen defendants, including appellants, who pleaded not guilty went to trial before a jury and were found guilty of conspiracy as charged in Count 1 of the indictment. Dowling was sentenced to imprisonment for a term of two years and Rhoden and Hattie Knight were each sentenced to imprisonment for a term of one year and one day.

Upon this appeal the appellants raise three claims of error. The first and principal contention, which is urged by all of the appellants, is that, while the government charged a single conspiracy, the evidence disclosed by the record proved not one, but five separate and distinct conspiracies and that accordingly there was a fatal variance between the indictment and the proof. The second point urged upon us is that the evidence failed to show that appellants were guilty of the conspiracy charged in the indictment. Finally, it is claimed on behalf of appellant Hattie Knight that the court erred in refusing to grant her motion for severance.

With reference to the first and second specifications of error, it is conceded by appellants in argument and in brief, that the government's proof shows that defendants Terrell Knight (son of appellant Hattie Knight), Thurman Wilkes, Lester Alligood, and Curtis Farmer, each operated illicit liquor businesses in various counties in the State of Georgia, and that appellant Dowling, together with his brother-in-law, defendant Frank Green, was engaged in making and selling illegal liquor in Baker County, Florida. It is also admitted that there is some evidence that on one occasion Dowling brought sugar and bran from Rhoden under circumstances which would place Rhoden on notice that these materials were being used by Dowling in making liquor. It is further admitted that the evidence fairly shows that a number of the defendants were in various degrees acquainted with each other and associated together, but it is argued that all of these liquor operations were separate, independent and wholly distinct from each other. This contention therefore clearly requires that we give some consideration to the evidence relating to the defendants' activities, which, if believed by the jury, tended to prove that they were indeed members of a single, but widespread and long continued conspiracy.

On September 12, 1955, an illegal distillery having a daily production capacity of 456 gallons, was seized in Houston County, Georgia, and defendants William Gainey, an avowed "bootlegger", and Robert Gainey were arrested. Thereafter, James Edward King, an agent of the Alcohol and Tobacco Tax Unit of the Treasury Department, was assigned to make an investigation as an undercover agent in Houston County, Georgia, and vicinity. During October and November, 1955, and as a part of his investigation, King became acquainted with various persons in that locality and bought small quantities of nontaxpaid whiskey from several of the named conspirators, including defendant Melvin Alford. Alford at that time was employed by defendant Terrell Knight at Knight's Truck Stop, a service station and cafe located near Haynesville, Georgia, in Houston County. Directly across the highway from the Truck Stop was a residence which was occupied by Alford, and about seventy yards therefrom on the same side of the highway was located a small country store which was operated by appellant Hattie Knight. In this same general locality, about one mile down the highway lived defendants Terrell Knight and Charlie Hamsley. In this connection, and as the evidence hereinafter detailed will show, the Truck Stop, situated as it was in close proximity to Mrs. Knight's store, Hamsley's barn, and Alford's house, was the headquarters and rendezvous point for the operations of the key figures in all of the transactions proved.

Agent King frequented the Truck Stop regularly during the period aforementioned. On the night of December 5, 1955, another illegal distillery in Houston County was seized and destroyed, and defendants Jerome L. Jones and William Gainey were arrested at the still site. On the evening of the following day, defendants Terrell Knight, William Gainey, Curtis Farmer, Alford and co-conspirator Carl Durden met together at the Truck Stop and discussed this seizure. Later on the same night, King in company with Alford and William Gainey drove out a dirt road behind the Truck Stop for the purpose of locating some liquor which his companions had hidden in the woods. Several days later, and on the occasion when Alford and King were driving to Dawson, Georgia, in defendant Hamsley's automobile, Alford talked at great length of plans to put up a new still and told agent King that the liquor which he had previously sold to him was a part of the liquor which he, Alford, had helped make. On the night of December 20, King again met Alford at the Truck Stop from which point they drove to Culloden, Georgia, for the purpose of finding a site for the new distillery. During this trip Alford stated that Terrell Knight would back the still if a good location could be found.

Plans for the erection of the Culloden still were never completed because no suitable site with an adequate supply of water could be located. But other sources of supply were available, for in the early part of January, Terrell Knight and Alford made arrangements to buy wholesale quantities of nontaxpaid whiskey from co-conspirator Bobby Neal Jackson who had undertaken to set up four new stills. And on January 19, 1956, Alford in conversation with agent King at the Truck Stop engaged King to haul liquor from Florida to Georgia for Knight. That evening, on instructions from Knight, King drove Knight's truck to defendant Hamsley's barn where he met Knight and together they loaded the truck with some sacks and a plywood covering which fitted the truck bed. On that occasion, Knight gave King ten dollars and instructed him to follow a Chrysler automobile driven by co-conspirator Durden. Pursuant to these instructions, the agent followed Durden to the residence of co-conspirator Solomon Burnsed near the Georgia-Florida line where they met co-conspirator Leo Burnsed and Knight who had driven to Florida in an Oldsmobile. At that time Durden aided by King installed "booster springs" on the Chrysler for the purpose of concealing the fact that the automobile was heavily loaded. Knight then purchased from Leo Burnsed 170 gallons of nontaxpaid whiskey which was loaded in the Chrysler automobile. While Burnsed and Durden were loading the car, Knight spoke freely about all of the cars he had previously owned and which had been seized while engaged in illicit liquor traffic and of the stills that he and defendant Farmer had lost in such seizures. After the Chrysler had been loaded and inspected, Knight and the agent, driving the Oldsmobile and truck, respectively, followed Durden in the liquor car to appellant Rhoden's store in Baxter, Florida, where Durden purchased gasoline for his automobile and after receiving instructions from Knight as to certain deliveries of liquor to be made in Georgia from the supply which Durden was transporting to Houston County, Durden departed for Georgia. Knight and King remained in Florida, however, until about midday on January 20, during which time Knight tried to buy more whiskey in the vicinity of McClenny, Florida, but was unable to do so at a reasonable price. Whereupon, King and Knight, by way of different routes, returned to the Truck Stop.

During the month of February, agent King made four additional trips to Florida to purchase nontaxpaid whiskey for Knight, and in the meantime between trips he assisted in filtering, pouring into jars, and delivering liquor to customers at Knight's direction. On the night of February 4, Alford asked King to work in his stead at the Truck Stop while he went with co-conspirator Durden "to get some stuff." While they were gone, Hattie Knight came to the Truck Stop and voluntarily asked whether Alford had gone with Durden. She also made an inquiry as to the identity of two men who had driven a furniture truck to the Truck Stop, stating that the men looked like revenuers, and "I know them all. * * * I know about all of them." Later the same night, Alford and King were instructed by Knight to pour into jars some of the liquor which was hidden in a stash near defendant Lucious Duncan's residence some five miles from the Truck Stop. On that occasion, Hattie Knight gave Alford the keys to her store, and both Alford and...