Johnson v. United States, 7913.

• Citation: 276 F.2d 84
• Decision Date: 15 March 1960
• Docket Number: No. 7913.,7913.
• Parties: Lora Belle JOHNSON, Appellant, v. UNITED STATES of America, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

276 F.2d 84 (1960)

Lora Belle JOHNSON, Appellant, v. UNITED STATES of America, Appellee.

No. 7913.

United States Court of Appeals Fourth Circuit.

Argued January 4, 1960.

Decided March 15, 1960.

W. H. McElwee, No. Wilkesboro, N. C. (McElwee & Ferree, No. Wilkesboro, N. C., on brief) for appellant.

Lafayette Williams, Asst. U. S. Atty., Greensboro, N. C. (James E. Holshouser, U. S. Atty., No. Wilkesboro, N. C., on brief), for appellee.

Before SOPER and HAYNSWORTH, Circuit Judges, and DALTON, District Judge.

SOPER, Circuit Judge.

This appeal is taken from a judgment based upon a general verdict of guilty on three counts of an indictment which charged, respectively, that Lora Belle Johnson during the months of August and September 1958 (1) removed distilled spirits on which the tax imposed by law had not been paid to a place other than an Internal Revenue Bonded Warehouse and (2) concealed the same and (3) sold distilled spirits in containers which did not have the required stamps affixed thereto. Upon the rendition of the verdict a general sentence on all of the counts was imposed that the defendant pay a fine of $7500.00 and be imprisoned for a period of eighteen months. The prison sentence, however, was suspended and the defendant was placed on probation for a period of five years, subject to the special condition that the fine be paid by July 1, 1959. Subsequently the payment of the fine was suspended pending the appeal upon the deposit of $7500.00 in the registry of the court.

The first contention of the appellant is that the District Judge erred in failing to grant a motion of the defendant for a directed verdict of not guilty on all the counts because of the insufficiency of the evidence. Attention is directed to two episodes, one on August 12, 1958, and the other on September 5, 1958, in each of which it was shown that the defendant sold a pint of illicit whisky to a Government undercover agent, pouring the whisky from an unstamped one-half gallon jar one-half full which she kept at her residence. The argument is that these transactions did not constitute either removal or concealment within the meaning of the statute. This contention cannot be sustained even if we restrict our view to these parts of the evidence. There is a tax upon distilled spirits, even if illicitly made, which attaches as soon as they come into existence. United States v. Thompson, D.C.W.D.Va., 189 F. 838, 839. The absence of the required revenue stamps on the containers is prima facie evidence that the spirits are illicit. Wolstein v. United States, 8 Cir., 80 F.2d 779, and Hester v. United States, 4 Cir., 284 F. 487; and the unexplained possession of illicit whisky is sufficient evidence to warrant a conviction of removal and concealment under the statute. Mills v. United States, 4 Cir., 194 F.2d 184; Johnson v. United States, 4 Cir., 199 F.2d 231; Crawford v. United States, 4 Cir., 160 F.2d 629; Turner v. United States, 4 Cir., 192 F.2d 41. Likewise there is no basis for the contention that the sales to the revenue agents fall within the exception of 26 U.S.C. § 5008, on which the third count of the indictment is based. This section makes it a crime to sell distilled spirits in containers which do not have the required stamps affixed thereto but exempts distilled spirits placed in containers for immediate consumption on the premises or for preparation for such consumption. This exception is designed to permit some freedom in the handling of distilled spirits in the course of a lawful business but obviously has no application to the facts of this case. Indeed, the evidence does not even show that the whisky was sold to the agents for consumption on the premises.¹

There is, moreover, much additional evidence to show that the defendant was guilty of removal, of concealment, and of sale of illicit whisky, all three actions in violation of the federal statutes. Mrs. Johnson lived on a farm in Wilkes County, North Carolina, with her husband and her two sons, Fred Johnson and Robert Glen Johnson, Jr.; a third son, L. P. Johnson, lived nearby. On July 2, 1958, Government agents found a huge illicit still, capable of producing 335 gallons of whisky per day, located one-half mile from the Johnson house beside a much traveled one-lane dirt road which intersected a county-maintained gravel road at a point where the Johnson house was located. The dirt road was completely blocked at the site of the still by a truck, on which was mounted an oil tank from which fuel was supplied to the still. The agents destroyed the still after marking certain valves in the equipment. On July 31, the agents discovered a larger still of similar construction, in which the marked valves had been incorporated, on the farm of one Albert Ralph Grey, five miles from the Johnson farm.

These circumstances and the subsequent discovery of other illicit stills in the same general area, together with information gained by undercover agents in visits to the Johnson house, led to the finding of five indictments, in addition to the indictment in the case at bar, for violation of the liquor laws against one or more members of the Johnson family and other persons in association with them. One indictment charged Mrs. Johnson, her three sons, James E. Ashley and Albert Ralph Grey with conspiring to defraud the United States of the tax on distilled spirits during the period from July 19, 1958 to April 16, 1959, by carrying on the business of distilling whisky as well as the business of wholesale and retail liquor dealers without paying the tax and with performing certain acts in furtherance of the conspiracy. In this case L. P. Johnson pleaded guilty, Ashley and Grey were convicted, but Robert Glen Johnson, Jr. and Mrs. Johnson were acquitted.

In a second indictment the three sons of Mrs. Johnson were charged with operating the illicit still discovered by revenue agents on July 2, 1958, and in this case L. P. Johnson pleaded guilty, Fred Johnson was found guilty, and Robert Glen Johnson, Jr. was acquitted.

In a third indictment Fred Johnson and Ashley were charged with the unlawful removal and concealment of distilled spirits on July 17, 1958, and both were convicted.

In a fourth indictment the three sons of Mrs. Johnson were charged with possessing and operating an illicit still on October 7, 1958, and in this case L. P. Johnson pleaded guilty, Fred Johnson was found guilty, and Robert Glen Johnson, Jr. was acquitted.

In a fifth indictment Mrs. Johnson and two of her sons, Fred Johnson and Robert Glen Johnson, Jr., were charged with the removal, concealment and possession of nontax paid distilled spirits on September 24, 1958, and in this case the judge directed a verdict of acquittal for the defendants.

By consent these six cases were tried together and much evidence was given by Government witnesses tending to show not only that two of the sons of Mrs. Johnson, namely, L. P. Johnson and Fred Johnson,² were in the business of making and selling illicit whisky on a large scale but also that Mrs. Johnson was well aware of their activities, if indeed she did not have a part in them. Two undercover agents made a number of visits to the Johnson house in the summer of 1958 as prospective purchasers of moonshine whisky and became acquainted with the defendants. On July 9, they inquired of Mrs. Johnson as to the purchase of whisky and were told that none was available at the time but that it was planned to have some in the following week. Returning at 6:30 P.M. on July 16, they were told by Mrs. Johnson to wait until it was dark, and after a wait of seven hours they succeeded in buying six cases of whisky at $21.00 a case from Fred Johnson and Ashley. Additional purchases of thirteen cases, on July 19, for $273.00 and ten cases, on July 22, for $210.00 were made at the same place.

In August additional visits were made by the agents to the Johnson farm and talks were had with Mrs. Johnson and L. P. Johnson about the production of whisky, and the agents were shown the ruins of a still destroyed on July 22 and parts of another still that were kept in Mrs. Johnson's barn. On August 12, and again on September 5, Mrs. Johnson made the...