Hurst v. United States

• Decision Date: 16 February 1967
• Docket Number: No. 22399.,22399.
• Citation: 370 F.2d 161
• Parties: Joseph J. HURST, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

370 F.2d 161 (1967)

Joseph J. HURST, Appellant, v. UNITED STATES of America, Appellee.

No. 22399.

United States Court of Appeals Fifth Circuit.

January 5, 1967.

Rehearing Denied February 16, 1967.

B. H. Chappell, Columbus, Ga., Jesse G. Bowles, Cuthbert, Ga., Jackson Cook, Ellis Arnall, Atlanta, Ga., Foley, Chappell, Young, Hollis & Schloth, Columbus, Ga., Arnall, Golden & Gregory, Atlanta, Ga., for appellant.

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

Before BROWN and COLEMAN, Circuit Judges, and GARZA, District Judge.

Rehearing Denied February 16, 1967. See 371 F.2d 1018.

COLEMAN, Circuit Judge:

Appellant stands convicted by a jury of conspiracy to violate various sections of the Internal Revenue Code relating to nontax-paid whiskey and he was also convicted on one of three counts charging substantive violations of the same statutes. There had been a prior trial of the case in which he was convicted on the conspiracy count and the three substantive counts. Because the Government had been permitted to introduce in evidence records dealing with prior offenses, some only charged and others proven, in no way connected with the charges for which defendant was then being tried, these convictions had to be reversed, 337 F.2d 678. This Court there held that the evidence of conspiracy and substantive violations, although not strong, was sufficient to warrant submission to a jury.

On this second appeal the evidence appearing in the trial transcript has been most thoroughly examined. Although the original weaknesses remain, the government was again able to produce enough proof to avoid a court ordered acquittal, especially in view of a particularly incriminating conversation of appellant which took place on April 22, 1963, and which will hereinafter be set forth in detail.

The indictment charged that the appellant conspired with the county sheriff and several professional liquor violators but there was no direct proof of a specific conspiratorial agreement. Appellant was never placed personally in the act of possessing any whiskey, transporting any whiskey, or taking pay for any whiskey. At the insistance of government agents, he once took $100 for the requested purpose of delivering it to the sheriff and the proof conclusively shows that he did so deliver it instead of keeping it for himself. The pursuit, investigation, and apprehension of appellant was accomplished by several agents of the Treasury Department, Alcohol Tax Unit, in which the key role was played by an undercover informer. This informer had previously been personally acquainted with appellant in regard to the illicit liquor business, as will later be seen in connection with another point, and had been convicted of liquor violations.

By and large, the proof revolved around the sayings and doings of these participants, the pursuers and the pursued. A detailed recitation of the trips made by informer and agents to appellant's home, conversations between them, telephone calls, automobile journeys made in search of whiskey, and other lesser elements in this otherwise routine liquor case would require copying the trial record. The extensive details would constitute no contribution to jurisprudence in this particular field. We note that appellant never attempted at any time to make contact with the informer or the agents. They always sought him out, mostly at his home, generally at night, and after he had gone to bed. Entrapment, however, was not raised as a defense.

As to the sufficiency of the evidence, the case would be exceedingly close, if not clearly reversible, had it not been for a highly incriminating statement made by the appellant on April 22, 1963, of which indisputable proof was preserved by the use of a tape recording.

This recording was made without the knowledge of the appellant and later produced on the witness stand. It was secured in the following manner:

About 9 o'clock on the night of April 22, 1963, the informer and an agent went to the home of appellant, where they found him sprinkling the yard. The informer asked the appellant, "Did you ever find me any stuff?" Appellant thought a minute and replied, "Bennett ought to be back up. Let me get my shirt and I'll take you out there." The station wagon, driven by the informer, had a midget tape recorder on the front seat, concealed in a package similar to a shoe box. While appellant was going for his shirt, the agent turned this recorder on. Of course, appellant was not warned and did not know that the conversation, on the way to Bennett's, was being recorded. No liquor was found there. The agent testified that while on the way out they were discussing the matter of protection for the liquor business in Quitman County, and appellant said, "Hammond can't guarantee you anything. I can guarantee you, so long as the sheriff and I are the only ones that know about it, nothing will happen to you in Quitman County."

While he was on the witness stand, the agent physically identified the tape (recording) but it was not played at that time. After this witness was excused the United States Attorney announced, "* * * our next proposal, next evidence, is to play the recording". He further stated "your Honor please, we have Mr. Jim Weaver here of Columbus, who is in this type of business, operating these machines, I know nothing about them; and I asked him to play the tape for us located in the box identified as G-3".

Counsel for the appellant objected to the use of the tape "because it's not a complete record of what was said at that time. If the court reporter can't understand it after several attempts to play it, we submit that it is incomplete and inaudible and, therefore, may be deceptive and prejudicial in this case, and we object to its playing on that ground".

Appellant further suggested that the tape ought not to be played because it simply covered evidence already given by two government witnesses, and, therefore, would add nothing to the trial.

The court overruled the objections and allowed tape recording G-3 to be "played to the jury".

The court reporter's transcript of the recording shows that many extraneous, irrelevant, and probably prejudicial things were discussed by appellant, informer, and agent, such as the activities and unreliability of another alleged liquor operator, how the sheriff had taken care of that operator, how bootlegger Bennett had given appellant a mighty good gallon the other night, about how Bennett had had five big stills "cut down", how the informer had had an automobile confiscated from him, about the legalization of mixed drinks in Georgia, during which time appellant stated that although he was a Legislator from a dry county he could vote wet, that they might not pass "that dam thing", and if "that crowd will put the money in there like they promised to, it could pass. I think they've got the dam money, to tell you the truth". None of this was objected to in any fashion.

The recording, in the voice of the appellant, then revealed the following conversation about "protection" in Quitman County:

"Informer. He (meaning Hammond) wanted to guarantee me to the Russell County line for 50¢ extra and I agreed to do it, but you know how his guarantee was, don't you?

Appellant. Hell, his guarantee was worthless. He wouldn't —

Informer. I wouldn't believe him, nothing he says.

Appellant. He's got no way to guarantee it. Couldn't guarantee anybody out of the yard.

Informer. That's right. But you know whenever —

Appellant. I can guarantee you in Quitman County if don't nobody know it but the sheriff".

It must be pointed out that on quite a number of other occasions the informer or agents, were secretly equipped with concealed microphones or transmitters which broadcast conversations to other agents lurking nearby. Appellant vigorously criticizes this procedure, although the conversations obtained in that manner are not so damagingly incriminating as the one taken down by the secret tape recording.

On appeal, an effort is made to raise Constitutional questions under the Fourth, Fifth, and Sixth Amendments. Appellant says that, although there was no objection below, the admission of the evidence as above obtained was plain error under F.R.Crim.P. Rule 52(b).

On Lee v. United States, (1952) 343 U.S. 747, 72 S.Ct. 967, 96 L.Ed. 1270, was a case in which the defendant made damaging admissions to a trusted "friend" who, unknown to him, was an undercover agent. This undercover agent carried a concealed microphone which allowed another agent, outside the building, to overhear the conversation. This agent was allowed to testify to what he heard. The Supreme Court, by a divided vote, held that this procedure did not violate the Fourth Amendment.

Again by a divided vote, the Supreme Court in Lopez v. United States, (1963) 373 U.S. 427, 83 S.Ct. 1381, 10 L.Ed.2d 462, held that a wire recording of a conversation between a defendant and a government agent, taken during an attempt to bribe that agent, was properly admitted in evidence; that the secret making of the recording did not violate petitioner's rights under the Fourth Amendment; and that the Supreme Court would not prevent the introduction of the recording by the exercise of its supervisory powers, there being no improper conduct by federal officials. There was a powerful dissent, concurred in by three Justices. It will be noted that in Lopez the defendant knew he was speaking with an officer of the United States.¹

On Lee and Lopez were decided on Fourth Amendment grounds. Apparently no Fifth Amendment question was raised. This question, however, has been before United States Courts of Appeals in other circuits. In Todisco v. United States, (9 Cir. 1961) 298 F.2d 208, cert. denied, 368 U.S. 989, 82 S.Ct. 602...