Greene v. United States, 22104

• Citation: 454 F.2d 783
• Decision Date: 03 February 1972
• Docket Number: No. 22104,22104-A and 22104-B.,22104
• Parties: Earl D. GREENE, Appellant, v. UNITED STATES of America, Appellee. John BECKER, Appellant, v. UNITED STATES of America, Appellee. Mike A. THOMAS, Appellant, v. UNITED STATES of America, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

454 F.2d 783 (1971)

Earl D. GREENE, Appellant, v. UNITED STATES of America, Appellee.

John BECKER, Appellant, v. UNITED STATES of America, Appellee.

Mike A. THOMAS, Appellant, v. UNITED STATES of America, Appellee.

Nos. 22104, 22104-A and 22104-B.

United States Court of Appeals, Ninth Circuit.

November 23, 1971.

Rehearing Denied February 3, 1972.

Charles O. Morgan, San Francisco, Cal. (argued), for John Becker.

Leonard P. Burke (argued), of Scalora & Burke, Sacramento, Cal., for Mike A. Thomas.

James Neil, San Jose, Cal. (argued), for Earl D. Greene.

Brewster Q. Morgan, Asst. U. S. Atty. (argued), Dwayne Keyes, U. S. Atty., James J. Simonelli, Asst. U. S. Atty., Sacramento, Cal., for appellee.

Before HAMLEY, MERRILL and HUFSTEDLER, Circuit Judges.

HAMLEY, Circuit Judge:

Mike A. Thomas, John Becker and Earl D. Greene, were jointly indicted, tried and convicted on charges involving possession of unregistered distilling apparatus, sale without stamp of distilled spirits, and conspiracy.¹ The three took separate appeals which we consolidated for argument and disposition. While these appeals were pending, defendant Greene was murdered. As to his appeal it is, therefore appropriate to remand with directions to vacate the judgment and dismiss the indictment. We reverse the convictions of Thomas and Becker for the reasons stated below.

In September, 1962, Jack Courtney, a special investigator with the Alcohol and Tobacco Tax Division of the United States Treasury Department, assumed the role of an undercover agent in an effort to penetrate what he believed to be an organization which was selling bootleg whiskey. Posing as a gangster or member of the "syndicate," he was, on September 5, 1962, introduced to defendants Thomas and Becker by Gerald Brown, an informer for the Oakland Police Department. The events which thereafter unfolded reveal almost unbelievable naivete on the part of defendants in accepting Courtney as a representative of the "syndicate." More important, however, they disclose wholly impermissible participation by the Government, through its regularly-employed agent, Courtney, in a project to manufacture, sell and distribute bootleg whiskey.

Courtney held himself out to Thomas and Becker as a gangster because he had received information through a police informer that Thomas and Becker were attempting to locate a "syndicate" connection to purchase large quantities of moonshine whiskey. During the course of their September 5, 1962, meeting, Thomas and Becker told Courtney that they had sold non-tax paid alcohol to the public prior to meeting Courtney, but indicated that they preferred one buyer. They also told Courtney that if he wanted to deal with them he would have to be able to take delivery of one hundred to two hundred gallons of bootleg whiskey a week. Courtney told them he was in a position to accept whatever they could produce.

Later that same evening Becker took Courtney to his home in Oakland and gave Courtney a sample of Becker's and Thomas' bootleg whiskey. Becker and Thomas at that time described their then-existing still set-up to Courtney. During Courtney's 1962 association with Thomas and Becker, and in order to play the part of a gangster, Courtney showed Thomas and Becker strip stamps, displayed labels in the back of his car, and told them he had a bottling plant as part of the syndicate operation.

On September 10, 1962, Courtney purchased eight gallons of illegal distilled spirits from Becker and Thomas. As a result of Courtney's activities, government agents, in October 1962, located and raided a still on Thomas' property near Sacramento. In early 1963, Thomas and Becker pleaded guilty to charges similar to those alleged in the instant indictment. Both were sentenced to six months in jail and were released from custody in November, 1963.

In late 1962, while the 1962 case was pending and Becker was free on bail, Courtney initiated telephone contact with Becker concerning further relationship between them. Courtney's purpose was to determine whether his undercover identity had been compromised. During the telephone call, Becker manifested a lack of awareness of Courtney's true identity.

Courtney had no further contact with Thomas or Becker until, in December, 1963, he received a letter from Becker, quoted in the margin.² The telephone call referred to in the letter was Courtney's 1962 call to Becker, mentioned above.

After receiving the December, 1963 letter, Courtney telephoned Becker and arranged to meet Thomas and Becker at the Hyatt House in San Jose, on February 8, 1964. At the meeting, Courtney continued his role as a big-time gangster. He talked to Thomas and Becker as if the three were partners, offered financial assistance so that Becker could bribe his probation officer, and offered to buy all the alcohol they could produce.

Thomas and Becker informed Courtney at that meeting that they intended to go back into the bootlegging business, that Thomas would be in charge of the still operation, and that they wished Courtney to check periodically with Becker to ascertain their progress. However, they also stated that they had no still at that time.

The meeting lasted seven or eight hours on February 8th, during which time Courtney took Becker and Thomas out to dinner, and continued on February 9th. On the 9th, by the end of the meeting, Thomas and Becker were saying that they would get into production within ninety days.

However, when the three next met, at the Hilton Inn, San Bruno, on May 27, 1964, Thomas and Becker indicated that they were having difficulty getting into operation. At this time Courtney, in an effort to spur production of bootleg whiskey, told Thomas and Becker, "the boss is on my back." On October 22, 1964, some eight months after they had said they would be in production in ninety days, Becker and Thomas made their first delivery of bootleg alcohol to Courtney since their conviction in 1962. The shipment consisted of ten gallons, for which Courtney paid one hundred dollars.

Shortly after this first small delivery, flooding in Northern California apparently disrupted the defendants' still operations. However, they did manage, after another delay of more than four months, to make a thirty-five gallon delivery to Courtney for four hundred and fifty dollars, on March 3, 1965.

Thereafter, there was a fifteen-month delay before the third and final shipment of illicit spirits was made. On June 4, 1966, sixty gallons of alcohol was delivered to a government agent in Sacramento, for which Courtney paid Becker seven hundred and eighty dollars. Immediately thereafter, Courtney arrested Becker and the still site near Ceres, California was raided, thus bringing the undercover role of Courtney to an end.

During the protracted intervals between the three deliveries, there were several other meetings and extensive additional contracts among the individuals involved. Of the thirty-two letters, telephone calls and telegrams between Courtney and either Thomas or Becker, or both, between December 16, 1963 and June 4, 1966, twenty-two were initiated by Courtney.

Courtney also looked for a new distillery site for defendants at their request, going so far as to arrange for the use of a ranch near Sparks, Nevada, which he showed to Thomas and Becker in 1965. After some deliberation, they decided not to use that site.

In addition Courtney, at one time or another during the two and one-half year period involved, offered to have a still apparatus sent from the East if that of the defendants was unsatisfactory, offered to furnish a still operator (known as a "monkey"), and told Thomas and Becker that he thought he could obtain plastic containers for them. Also, after some discussion, Courtney in 1966 made available to Thomas and Becker, at wholesale prices, two thousand pounds of sugar for use in their bootleg operations.

It is undisputed that, during the extended period relevant to the charged offenses, the defendants sold illicit spirits only to the Government, through its undercover agent Courtney.

At the trial, Courtney testified that his dealings with the defendants had been protracted and extensive because of the Government's goal of finding the still and shutting it down, and because of the defendants' caution and unwillingness to disclose the details and location of their operation. Thomas and Becker, on the other hand, argued that while they talked in grandiose terms of criminal activity to impress the "syndicate man," they were reluctant to act and might never have produced any bootleg alcohol without the prodding of Courtney. To support this argument, they stressed Courtney's additional testimony that although he, as an experienced law officer, knew they were stalling him, he kept on in order to get them to sell him some liquor.³

On this appeal, both Thomas and...