Moomaw v. United States
| Decision Date | 30 March 1955 |
| Docket Number | No. 15055.,15055. |
| Citation | 220 F.2d 589 |
| Parties | Jewell B. MOOMAW, James Edward Crittenden and Kenneth Wallace Morrison, v. UNITED STATES of America. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Harold T. Pounders, Florence, Ala., for appellants.
Frank M. Johnson, U. S. Atty., Birmingham, Ala., M. L. Gwaltney, Fred S. Weaver, Asst. U. S. Attys., Double Springs, Ala., on the brief for appellee.
Before HUTCHESON, Chief Judge, HOLMES, Circuit Judge, and DAWKINS, District Judge.
Appellants and others were tried in the Northern District of Alabama under a 16-count indictment. Count One charged that the defendants had conspired to violate federal internal revenue laws relating to distilled spirits and listed 78 alleged overt acts. The specific acts which were in themselves violations of law were charged in subsequent counts as substantive offenses. Appellants were convicted on the conspiracy count only, and their appeal raises three questions. They contend: (1) that Count One affirmatively alleges and the proof relates to the operation of a still in Tennessee, and that the trial court therefore was without jurisdiction to try the offense charged; (2) that the trial court improperly allowed the Government to cross-examine and impeach one of its witnesses, one Johnson; and (3) the evidence was insufficient to prove appellants guilty of the conspiracy.
The first issue was raised by appellants' motion to quash and by objections to all testimony relating to the activities in Tennessee. Count One charged that from July 1, 1951, to September 1, 1953, in the Northern District of Alabama, appellants and others named therein did conspire to commit acts made offenses by the Internal Revenue Code1 in that they: carried on the business of a distiller without the required bond and with intent to defraud the United States of taxes; possessed and controlled unregistered stills and distilling apparatus; transported, possessed, bought, sold and transferred whiskey in containers to which proper revenue stamps were not affixed; removed, deposited and concealed whiskey with intent to defraud the United States of the tax; carried on the business of retail and wholesale liquor dealers without payment of special taxes; and made and fermented mash upon premises not authorized by law. Among the overt acts charged were many which occurred in Tennessee, where, it was alleged, appellant Morrison owned a tract of land, bought in his mother's name, on which stills were built and operated. During the trial, the Government offered much evidence to show the facts concerning the purchase of the Tennessee property and tending to prove the operation of stills thereon by Morrison and other defendants. All of this testimony was admitted over objections by appellants, who argued and now contend that the events and acts charged and proved occurred outside the jurisdiction of the trial court.
The argument is based upon the erroneous assumption that Count One charges the substantive offense of operating a still. It is true that Count One specifically mentions the operation of stills and the carrying on of a distilling business; and it is also true that the only proof of such acts shows them to have occurred in Tennessee. However, the offense charged in Count One is the single conspiracy, not the violation of the substantive statutes. The conspiracy itself is the crime, and it does not arise under the statute which the conspirators propose to violate. American Tobacco Co. v. United States, 328 U.S. 781, 66 S.Ct. 1125, 90 L.Ed. 1575; Pinkerton v. United States, 328 U.S. 640, 66 S.Ct. 1180, 90 L.Ed. 1489; United States v. Lutwak, 7 Cir., 195 F.2d 748; Williams v. United States, 5 Cir., 179 F.2d 644. When a single conspiracy is charged, the trial court has jurisdiction if any overt act in furtherance of that conspiracy is done within the territorial jurisdiction of the court, even though other overt acts be alleged and proved to have occurred elsewhere. Hyde v. United States, 225 U.S. 347, 32 S.Ct. 793, 56 L.Ed. 1114; United States v. Cohen, 3 Cir., 197 F.2d 26; United States v. Bazzell, 7 Cir., 187 F.2d 878; Ladner v. United States, 5 Cir., 168 F.2d 771; Kott v. United States, 5 Cir., 163 F.2d 984. Hence, there is no merit in appellants' attack on the jurisdiction of the trial court.
Since the indictment alleged one grand conspiracy, with many overt acts occurring in the Northern District of Alabama...
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