Hines v. United States, 8407.

Citation365 F.2d 649
Decision Date31 August 1966
Docket NumberNo. 8407.,8407.
PartiesKeith Carson HINES, Appellant, v. UNITED STATES of America, Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)

Keith Carson Hines, submitted on brief pro se.

Richard T. Spriggs, Asst. U. S. Atty., Denver, Colo. (Lawrence M. Henry, U. S. Atty., Denver, Colo., with him on the brief), for appellee.

Before LEWIS and SETH, Circuit Judges, and LANGLEY, District Judge.

SETH, Circuit Judge.

Appellant was charged with carrying on the business of a retail liquor dealer without paying the tax required of such dealers, in violation of 26 U.S.C.A. §§ 5121 and 5691. The jury found the appellant guilty of the charge, and this appeal has been taken.

The record shows that a Treasury Department agent purchased a pint of whiskey from appellant at a residence on the night of February 14, 1965. At the time of this purchase the appellant poured the whiskey from a quart bottle into a pint bottle which was purchased by the investigator. There were eight or ten people on the premises at the time, and when the investigator was asked about conditions on the premises and whether there was a "spirit of party atmosphere about the place," he answered that there was. Another investigator for the Treasury Department also purchased whiskey from appellant on the same premises the same night. He went there in the company of two other men hired for the purpose and was introduced by one of them to the appellant. At this time the appellant again filled a pint bottle with whiskey from a quart bottle. The investigator, his two companions, and the appellant each thereafter drank from the purchased whiskey, and had a conversation of fifteen or twenty minutes' duration. Two days later (February 16) another investigator went to the same residence, identified himself as an investigator of the Internal Revenue Service, and advised the appellant he was required to buy a retail liquor dealer's tax stamp if he was in the business of selling liquor. Appellant then denied he needed such a stamp. On February 21, the investigator of the Treasury Department who made the purchase on February 14, accompanied by another man, returned to the same premises and purchased a pint of Scotch whiskey which was delivered to him in an old Bourbon bottle. The witnesses who testified did not observe any stock of whiskey on the premises other than the quart bottles referred to above.

The appellant asserts that the trial court committed error in denying his motion for acquittal for the reason that the evidence of the Government did not show that the appellant was engaged in the business of selling liquor, but on the contrary showed only "friendly accommodation" to the investigators and their companions, or at the most three isolated sales, two of which were on Sunday. Appellant further asserts that the fact that the sales took place in the residence, that smaller bottles were filled from a larger, and the "party atmosphere" were not consistent with a "business operation."

Secondly, the appellant asserts that the court was in error in failing to instruct the jury on the issue of entrapment, as he requested, and in having the jury separate after the case was submitted to it and deliberations had taken place for about an hour and a half without a verdict having been reached.

The record fully supports the action of the trial court in refusing to direct the verdict of acquittal. The issue is, of course, whether or not the appellant was a person who carried on the business of a retail dealer in liquors and who wilfully failed to pay the special tax as required by law. The witnesses testified to three separate purchases from appellant on different occasions, the third purchase following advice to the appellant that if he was in the business of selling liquor, a stamp would be required. The evidence does not show a business atmosphere on or about the residence, but the evidence of the three separate purchases with few preliminaries is sufficient to demonstrate that the trial court was correct in refusing appellant's motion for acquittal. He was carrying on the business within the meaning of the statute. James v. United States, 309 F.2d 744 (10th Cir.); Woodland v. United States, 347 F.2d 956 (10th Cir.).

As to the issue of entrapment, we find no evidence in the record which raised the issue of entrapment to require the trial court to give an instruction thereon. The evidence shows that the agents were accompanied by various persons who...

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21 cases
  • People v. D'Alvia
    • United States
    • New York Supreme Court — Appellate Division
    • 30 Septiembre 1991
    ...cert. denied 389 U.S. 882, 88 S.Ct. 129, 19 L.Ed.2d 176; United States v. Breland, 376 F.2d 721 [2d Cir.1967]; Hines v. United States, 365 F.2d 649 [10th Cir.1966]. Whether by statute, rule or judicial discretion, the purpose of sequestration under the modern trend is prophylactic rather th......
  • State v. Magwood
    • United States
    • Maryland Court of Appeals
    • 2 Julio 1981
    ...United States, 397 F.2d 565, 569 (5th Cir. 1968), cert. denied, 394 U.S. 917, 89 S.Ct. 1187, 22 L.Ed.2d 450 (1968); Hines v. United States, 365 F.2d 649, 651 (10th Cir. 1966); Bratcher v. United States, 149 F.2d 742, 746 (4th Cir. 1945), cert. denied, 325 U.S. 885, 65 S.Ct. 1580, 89 L.Ed. 2......
  • U.S. v. Phillips
    • United States
    • U.S. Court of Appeals — Eighth Circuit
    • 26 Julio 1976
    ...v. United States, 340 F.2d 513, 528 (8th Cir.), cert. denied, 381 U.S. 951, 85 S.Ct. 1805, 14 L.Ed.2d 724 (1965); Hines v. United States, 365 F.2d 649, 651 (10th Cir. 1966). Defendant has not alleged nor shown any prejudice resulting from this short Lastly, defendant argues that the trial j......
  • U.S. v. Diggs
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • 14 Agosto 1981
    ...time during the course of the trial " Sullivan v. United States, 414 F.2d 714, 715 (9th Cir. 1969) (quoting Hines v. United States, 365 F.2d 649, 651 (10th Cir. 1966)). Our review of the record indicates that this discretion was not abused here. Oliverez has alleged only hypothetical prejud......
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