Riggs v. United States

• Decision Date: 30 June 1960
• Docket Number: No. 17448.,17448.
• Citation: 280 F.2d 949
• Parties: William Dennis RIGGS, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

280 F.2d 949 (1960)

William Dennis RIGGS, Appellant, v. UNITED STATES of America, Appellee.

No. 17448.

United States Court of Appeals Fifth Circuit.

June 30, 1960.

Robert B. Thompson, Gainesville, Ga., for appellant.

David C. Clark, Jr., Asst. U. S. Atty., E. Coleman Madsen, U. S. Atty., S. D. Florida, Miami, Fla., for appellee.

Before RIVES, Chief Judge, and HUTCHESON and BROWN, Circuit Judges.

RIVES, Chief Judge.

The appellant was indicted jointly with three other defendants: Procacci, Zambotti and Jeff. The indictment contained thirteen counts charging violations of the Internal Revenue Laws relating to distilled spirits. Prior to the trial, defendant Jeff pleaded guilty and Counts 6 to 9, inclusive, which related to Jeff alone went out of the case. Appellant and the other two defendants, Procacci and Zambotti, were tried together. Count 1 was a typical moonshine conspiracy count and was the only count involving the appellant. The jury found the appellant guilty. Appealing from his conviction, the appellant specifies a single error, namely, that the district court erred in denying his motion for judgment of acquittal.

Counsel for both sides have materially aided this Court in its analysis of the complicated and involved testimony by detailed statements of the evidence which have few substantial differences. We quote the statement of the evidence contained in the Government's brief, and add emphasis to those parts bearing most directly on the critical question of whether the appellant was proved to be a party to the criminal conspiracy.

"* * * Pursuant to confidential information on January 24, 1957, Florida Beverage agents Lester and Wood conducted an investigation of the Bee Fee Dog Food Company, Hallandale, Broward County, Florida. This investigation was conducted in the evening of January 24, 1957, and the agent smelled mash emanating from the premises. As there was no activity around the premises, the agents returned to Miami. The next afternoon, around 1:30 P.M., the agents, along with Federal Agent Brown, returned and put the premises under surveillance. A 1955, green Ford truck, hereafter referred to as the truck, was seen parked at the rear of the Bee Fee Dog Food Company. A black and white 1957 Ford station wagon, hereafter referred to as the station wagon, was parked at the front. Shortly after the agents\' arrival, an unidentified Negro moved the truck from the back to the front of the building.

"Thereafter, the Negro and the defendant Procacci moved several drums or barrels from the building into the truck. About 3:30 P.M. the station wagon was driven off by defendant Procacci; and, at about 3:45 P.M., the Negro left in the truck. The agents followed the truck to West 21st Street and Palm Avenue, Hialeah, Dade County, Florida, where the Negro parked the truck just off the roadway of West 21st Street on the Southwest corner of the intersection.

"Shortly after 4:00 P.M., defendant Procacci was seen sitting in his station wagon, with the Negro, at the corner of 21st Street and Palm Avenue, Hialeah. Some time around 4:30 or 5:00 P.M., defendant Procacci left the station wagon and entered a black Lincoln, driven by a white male. Shortly thereafter, a white male driving a canary yellow 1956 Mercury Coupe with white wall tires and a Continental kit pulled up alongside the truck. The Lincoln, containing defendant Procacci and another white male, then pulled alongside the Mercury and the occupants of the cars were seen conversing through two changes of the traffic light on Palm Avenue and 21st Street. The two cars then drove off in different directions.

"The agents continued their observation of the truck until 6:15 P.M., when the truck left the place where it was parked. They then followed the truck, driven by a Negro, to the Deluxe Dog Food Plant located at 2498 West 3rd Court, in Hialeah, Florida. The truck headed into the loading platform of the Deluxe Dog Food Plant and parked close to a yellow Mercury. Agent Wood testified it was the same Mercury he had seen previously on 21st Street and Palm Avenue. Agent Brown testified that the Mercury fitted all the physical descriptions of the one observed earlier. Agent Lester testified the Mercury was basically the same car.

"The Negro got out and went up to the platform. The doors were open into the Deluxe Dog Food Plant and there was a light inside the building, shining out on to the platform. Shortly thereafter the Mercury departed.

"About 7:00 P.M., the same station wagon seen earlier, drove up and the Negro truck driver came down off the platform and conversed with a white male in the station wagon. The station wagon then left the platform and the Negro got into the truck and backed it around to the north side of the dog food company into a darkened area.

"At approximately 7:30 P.M., a Buick pulled into the area where the truck had been moved. Two white males then left the platform and went to the vicinity of the truck and the Buick. The station wagon then arrived and parked at the platform. Sounds of the movement of cans in the immediate area of the Buick and the truck were heard. At about 7:40 P.M., the station wagon left, and five minutes later, the Buick left, riding very low in the rear, as though heavily loaded.

"At approximately 7:50 P.M., after the Buick left, the station wagon reappeared, stayed a few minutes and then left. At 8:05 P.M., the yellow Mercury reappeared at the loading platform. At approximately the same time, a Packard proceeded directly to the location where the truck had been parked. The lights were turned off and two males left the loading platform and moved out to the location of the truck and the Packard. The officers then heard the sound of cans being moved in the vicinity of the two vehicles, and about 10 minutes later the Packard left, riding very low in the rear, as though heavily loaded. Agent Lester, stationed nearby, followed the Packard and found it to contain twenty-one cans of illicit whiskey. At approximately 8:40 P.M., the station wagon returned and the Negro truck driver got into the station wagon, which was driven by a white man, and they drove off. At approximately 9:00 P.M., two white men came out of the Deluxe Dog Food Plant, one of which got into the Mercury parked by the loading platform, and the other went over to the location of the truck. Both vehicles were started and the driver of the Mercury backed up and pulled out of the way; the driver of the truck then pulled past the Mercury and proceeded south on West 3rd Court, followed closely by the Mercury.

"Federal Agent Behen, who was stationed approximately one block east of the Deluxe Dog Food Plant, saw the lights of the truck and the Mercury leave the plant. The Mercury followed the truck by a distance of several car-lengths (sic). Agent Behen then followed the vehicles for several blocks and radioed the other officers to stop the truck; he then stopped the Mercury and arrested the driver, who was appellant Riggs.

"Agent Lester simultaneously stopped the truck which was being driven by defendant Zambotti directly ahead of the Mercury, and which was loaded with fifty-seven 5-gallon tin cans of cold moonshine whiskey. Agent Behen testified that, at the time of appellant\'s arrest, appellant stated he was president or owner of the Deluxe Dog Food Company, and had just come from there. Agent Behen also testified that at the time of the arrest defendant Zambotti stated the truck belonged to the appellant. Behen also testified that when he later questioned the appellant and defendant Zambotti, appellant stated he had been at the Deluxe Dog Food Plant from 6:30 P.M. until approximately 9:00 P.M., but denied the truck had been at the plant, and further stated the truck had not left immediately in front of him. He said the first time he saw the truck that night was when he was arrested, which was at approximately 9:00 P.M., January 25, 1957.

"Following the arrest, no moonshine was found in the Mercury, and when Agent Behen returned to the Deluxe Dog Food Plant, he searched the refrigeration box and found no whiskey.

"The next morning, a Federal search warrant was issued for the Bee Fee Dog Food Company, Hallandale, Florida, and a 2,275 gallon unregistered distillery was located there. The Government then rested its case and appellant moved for a directed verdict, which was denied.

"The defendant Zambotti chose not to testify.

"Defendant Procacci took the stand in his own defense and stated he merely operated the Bee Fee Dog Food Plant for a person by the name of John Murphy of Philadelphia, whose address was unknown. He also stated he only knew the truck driver, his employee, as Floyd, and had no address for him. Procacci admitted being in the vicinity of 21st Street and Palm Avenue on the afternoon in question, but claimed to be visiting a Tony Benedetto who operated a barber shop in the vicinity. He denied getting into a Lincoln car with anyone, and denied talking to appellant or anyone in a yellow 1956 Mercury with a Continental kit. Procacci also stated that immediately after he left the barber shop he visited one of his slaughterers, the firm of Loeb and Gottfried, and then went to visit a Mary Monahan until more or less seven o\'clock and that it was dark at that time. He further stated he wanted to talk with appellant and made two short visits to the Deluxe Dog Food Factory that night. Also, he denied he saw Riggs there that evening.

"Appellant then took the stand and testified he knew defendant Procacci, but had not seen him for three or four weeks and did not talk with him at any time January 25, 1957. Appellant also denied seeing the truck parked near his plant. Appellant denied having any interest in the Bee Fee Dog Food Company or the truck. Appellant further testified he was home from 2:00 P.M. until 5:30 P.M., at which time he went straight from his house to the plant.

"Appellant also testified he arrived at the plant around 6:30

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