O'NEAL v. United States
| Decision Date | 06 May 1969 |
| Docket Number | No. 26081.,26081. |
| Citation | 411 F.2d 131 |
| Parties | Robert F. O'NEAL, Appellant, v. UNITED STATES of America, Appellee. |
| Court | U.S. Court of Appeals — Fifth Circuit |
T. Malone Sharpe, Sharpe, Sharpe, Hartley & Newton, Lyons, Ga., for appellant.
Floyd Buford, U. S. Atty., Walker P. Johnson, Jr., Asst. U. S. Atty., Macon, Ga., for appellee.
Before BROWN, Chief Judge, AINSWORTH, Circuit Judge, and FULTON, District Judge.
On Rehearing and Rehearing En Banc Denied May 6, 1969.
Appellant stands convicted upon each count of a four-count indictment which charged him with violation of Internal Revenue laws relating to non-tax paid distilled spirits. We affirm the conviction on each count.
In Count 1 appellant was charged with possession and custody of and control over an unregistered moonshine still, in violation of 26 U.S.C. §§ 5179(a) and 5601(a); in Count 2 with carrying on the business of a distiller without having given bond, in violation of 26 U.S.C. §§ 5173 and 5601(a); in Count 3 with engaging in and carrying on the business of a distiller with intent to defraud the United States of the tax on spirits distilled by him, in violation of 26 U.S. C. § 5602; in Count 4 with working in a distillery for the production of spirits upon which no sign was placed and kept, in violation of 26 U.S.C. §§ 5180 and 5601(a).
Jointly indicted with appellant were two others, Padgett and Cooper. However, they were tried and convicted upon the same offenses several months before the trial and conviction of appellant. Neither of them testified in the trial of appellant.
Appellant claims multiple errors as grounds for reversal, among which he specifically challenges:
There is ample evidence in this record whereby the jury could have found the following facts. A mere inspection of this evidence does much to resolve the issues upon this appeal.
By pre-arrangement, two state revenue officers were to meet a federal revenue agent in a sparsely populated and heavily wooded area of Wilcox County, Georgia, where they proposed to discuss and investigate illicit liquor operations in that area. Apparently, this investigation did not have as its target any particular still or person.
The state officers arrived in the area about ten o'clock on the morning in question, slightly ahead of the federal agent. Their attention was drawn to a suspicious path which led into the woods, which they followed until they came upon a house and some barns, all abandoned. An unattended 1960 Chevrolet automobile, bearing a license plate of an adjacent county, was partially secreted in a plum tree thicket within 75 yards of the house. As the state officers investigated the premises, a man was seen near the house. He was ordered to halt but fled into the woods yelling "revenue officers." While in hot pursuit, and at a location near the house and automobile, the state officers came upon four 1500-gallon moonshine stills, one of which was then in operation. As one of the state officers approached the stills, two or three men were seen fleeing the scene.
The officers immediately radioed a nearby prison for help. Within a few minutes a deputy warden and some prison trusties, armed with pistols and accompanied by bloodhounds, arrived at the stills and began to track the men who had fled into the woods. Soon thereafter the federal agent arrived and was briefed by the state officers, after which he left the site of the stills in his automobile to patrol the dirt roads in the vicinity. About noon or shortly thereafter, at a distance of a mile or two from the stills, the prison personnel came upon Padgett, Cooper and the appellant, all of whom refused to surrender when ordered to do so. They were chased and finally apprehended, after several warning shots had been fired. Within a few minutes after their capture, the three men were delivered by the prison personnel to the federal agent who was waiting in his automobile on a road nearby. During the pursuit there was radio communication between the state officers who remained in the vicinity of the stills, the prison personnel who were in pursuit and the federal agent who was patrolling in his automobile.
Immediately upon taking the three men into custody, the federal agent returned them to the stills. Before any of the three men made any statement, they were twice fully advised of their constitutional rights, as delineated by Miranda, once by a state officer and once by the federal agent. The prisoners indicated that they understood what was then said to them in that regard. Thereupon, their handcuffs were removed and they were permitted freedom to move around in a limited area. Soon thereafter, Padgett, who was wearing only a skivvy shirt, asked one of the officers, "Can I go get my shirt?" When the officer asked for the location of the shirt, Padgett pointed to a shirt hanging in a tree, some thirty feet from one of the stills. With the permission of the officers, Padgett walked to the tree, secured his shirt and put it on. Nearby, laying upon gas cylinders which were used in the operation of the stills, were a sports coat and an Army field jacket. After putting on his shirt, Padgett asked Cooper, "Do you want me to bring your coat back with me?" Cooper's reply was, "No, leave it laying there." Padgett then turned to appellant and inquired, "Do you want me to bring your jacket?" Appellant replied, "Yes, bring it." As Padgett was taking the jacket to appellant, the latter said, "Look in my pocket and get my cigarettes out of it." Padgett inspected the pockets and found no cigarettes and so advised appellant, whereupon appellant said, "Okay, just throw it down." Padgett was identified as the man who was observed by a state officer that morning near the house. Neither appellant nor Cooper were identified as having been seen at the still site by any of the officers.
Soon after the jacket incident, the federal agent inquired of the three men about ownership of the Chevrolet. No one answered. The federal officer testified that he then seized and searched the automobile; and that the search produced two pipe fittings, a pair of pliers and some grain sweepings, all of which were shown to be connected with the still operations. In response to a further question from the federal agent as to the ownership of the Chevrolet, appellant finally stated that it belonged to him and that he had owned it for about a year.
In the early afternoon, the federal agent and one of the state officers travelled to the town of Fitzgerald, about ten miles from the site of the stills. This trip took about 45 minutes. From the time of their return to the stills until after six o'clock that evening the federal agent and the state officers were engaged in their investigation, which included making an inventory of all articles, lifting fingerprints, checking all trails running to and from the area, and finally destroying the entire distillery. The federal agent and the prisoners then left the site of the stills and proceeded to a drive-in restaurant in Fitzgerald, where they ate. Afterwards they drove to Americus, which is about 70 miles from the site of the stills, perhaps 80 miles by way of Fitzgerald. Upon arriving at Americus, the three prisoners were photographed, fingerprinted and otherwise "booked in", after which they were placed in the jail, about ten o'clock at night.
The United States Commissioner who was nearest to the distillery was the Commissioner at Americus. At ten o'clock the next morning, the appellant and other prisoners were taken before that Commissioner. During appellant's trial, when defense counsel complained about the delay in taking appellant before the Commissioner, the District Judge judicially noted that at the time of appellant's incarceration at Americus the United States Commissioner there had recently undergone surgery and was in frail health.
Although appellant told the officers at the still site that he had owned the Chevrolet for about a year, when he took the witness stand at his trial he testified that he bought the Chevrolet the day before his arrest in the nearby town of Soperton from a Mr. Whittaker, who did not testify. Appellant testified that Cooper went with him to Soperton to take delivery of the Chevrolet; that on the morning after he purchased the Chevrolet, he lent it to Cooper and Padgett so that they could use it for a trip to Abbeville, but upon the condition that they would drop him off at a pond so that he could fish while they were in Abbeville; that within several hours after he was left at the pond, Padgett and Cooper emerged on foot from the nearby woods, wet and muddy; and that one of them said to him, "We went to a whiskey still and revenues (sic) have run us off and your car is still over there in the woods"; that as they stood there talking the dogs and trusties came out of the woods toward the pond, with the trusties discharging their firearms; that through fright he joined Padgett and Cooper in their flight from their pursuers; that after a chase and the firing of further shots Padgett, Cooper and appellant surrendered. Appellant did not disclose his alibi to his captors, nor to any of the officers. In fact there is no record of his having claimed the alibi until he did so on the witness stand.
Appellant contends that he was unlawfully arrested by the prison...
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