Ritter v. United States

• Decision Date: 20 February 1956
• Docket Number: No. 5194-5197.,5194-5197.
• Parties: Olen V. RITTER, Appellant, v. UNITED STATES of America, Appellee. Kenneth MEADOR, Appellant, v. UNITED STATES of America, Appellee. Guy R. COX, Appellant, v. UNITED STATES of America, Appellee. Paul C. BRIGGS, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

230 F.2d 324 (1956)

Olen V. RITTER, Appellant, v. UNITED STATES of America, Appellee.

Kenneth MEADOR, Appellant, v. UNITED STATES of America, Appellee.

Guy R. COX, Appellant, v. UNITED STATES of America, Appellee.

Paul C. BRIGGS, Appellant, v. UNITED STATES of America, Appellee.

Nos. 5194-5197.

United States Court of Appeals Tenth Circuit.

January 23, 1956.

Rehearing Denied February 20, 1956.

A. L. Shortridge, Joplin, Mo. (William H. Burden, Joplin, Mo., was with him on the brief), for appellants.

Robert S. Rizley, Tulsa, Okl. (B. Hayden Crawford, Tulsa, Okl., was with him on the brief), for appellee.

Before BRATTON, Chief Judge, HUXMAN, Circuit Judge, and CHRISTENSON, District Judge.

CHRISTENSON, District Judge.

Nine defendants by indictment were charged with various federal offenses relating to intoxicating liquors before the United States District Court for the Northern District of Oklahoma. A jury was waived. Some of the defendants either pled guilty or were acquitted at the trial. Cox, Briggs, Ritter and Meador, four of the defendants who were convicted, have appealed. Presented here by them are questions involving sufficiency of the evidence to support the convictions, claimed variance and the trial court's asserted lack of jurisdiction of the offenses charged.

Appellants Guy R. Cox and Paul C. Briggs were convicted on count one of the indictment, which charged conspiracy in contravention of 18 U.S.C.A. § 371. The alleged objects of the conspiracy were to violate 18 U.S.C.A. § 1262 by importing intoxicating liquor into the State of Oklahoma, 26 U.S.C.A. § 3253 (1939) by carrying on the business of wholesale liquor dealers without the payment of special tax, 26 U.S.C.A. § 2857 (1939) by failing to keep true records, and 27 U.S. C.A. § 203 by purchasing distilled spirits for resale at wholesale prices without permit. The period of the conspiracy is alleged to have been from October 1, 1951 to September 16, 1954. The Government alleged that others involved were the defendants, J. R. Addington, Elizabeth Austin, Hershel L. Mathis, Harrison F. Richardson and George M. Shaner, and co-conspirators not charged were alleged to have been Ben Austin, Mary Elizabeth Mathis and Leon Graham, together with others whose names were unknown. Some eighteen overt acts were set out in the indictment. Elizabeth Austin entered pleas of guilty to counts one and six of the indictment, and Addington, Mathis, Richardson and Shaner were acquitted on count one. Cox was acquitted on all other counts of the indictment. The Court found the defendant Shaner guilty as charged in counts two, three and four, and found the defendant Addington guilty as charged in count five. The defendants Meador, Ritter, Mathis and Richardson were convicted on count six, charging the importation of intoxicating liquor into the dry State of Oklahoma. 18 U.S.C.A. § 1262.

The first contention of appellants Cox and Briggs is that the evidence is insufficient to sustain their conviction of conspiracy under count one of the indictment, in that it failed to establish that they had conspired with anyone.

The evidence shows these facts and circumstances: The defendants, J. R. Addington, Hershel L. Mathis and Harry McCarthy, who was not a party but who appeared as a witness, resided in the State of Oklahoma, where the sale of liquor is prohibited. They appear at various times to have been so-called bootleggers. Cox owned the D-X Service Station, a combined gas station and liquor store, at Noel, Missouri. He owned a wholesale liquor stamp during most of the periods material herein, but had no basic permit required of wholesale liquor dealers. He sold the D-X Service Station to Ben Austin, husband of the defendant, Elizabeth Austin, in September, 1951, but continued to operate on his own account the Southern 71 Tobacco and Liquor Store near Noel, Missouri. In the course of his negotiations with the Austins concerning the D-X Service Station, Cox stated that the latter would have to sell liquor in case quantities if they bought the store or they "couldn't make it"; and if Austin did not want to "fool with that kind of stuff", Cox would pay him $2 per case over cost for all the whiskey he would let him have. Cox and Austin went together to Joplin, Missouri, to obtain licenses and wholesale liquor dealer stamps for Austin's new venture. Both Cox and Austin were required to make periodic reports to the Bureau of Internal Revenue of wholesale transactions. However, Cox told Austin in the presence of Elizabeth Austin that he expected to show "no transactions" on his monthly reports. He did so falsify his reports in that manner during the period of the alleged conspiracy, although he made numerous sales of whiskey to persons engaged in the liquor business in Oklahoma. Ben Austin died in February, 1952, and Elizabeth Austin continued the operation of the D-X Service Station. She also showed "no transactions" on her monthly reports to the Bureau of Internal Revenue, notwithstanding that during the period involved she made substantial sales by the case with some regularity to Cox, Mathis and McCarthy, all at a premium varying between $1.75 and $2.75 above cost to her. During the time Cox was buying whiskey from her, he was also operating a liquor store on his own account through which presumably he could have obtained whiskey at wholesale for legitimate purposes without the payment of any premium. Mrs. Austin testified that the reason they reported no wholesale transactions was because they couldn't put down that the liquor was sold in a dry state when it was against the law. The employees of Ben Austin, and later of Elizabeth Austin, would lug the whiskey and Cox and the defendant Briggs, his employee, would come to the D-X Service Station to pick it up. Ritter and Meador worked for Mrs. Austin, and when the latter terminated his employment with Mrs. Austin he went to work for Cox. Mrs. Austin sold the station back to Cox in May, 1953. Afterwards, Briggs assisted in sales of liquor by the case to McCarthy. Such sales were in ten to twenty-five case quantities, and the liquor was taken to Oklahoma by McCarthy. Mathis continued to buy liquor in wholesale quantities from the D-X Service Station after its re-acquisition by Cox. On two occasions in 1954, one Pearl Jean Rockalman of Tulsa came to Noel, Missouri with the defendant Addington, and went to the Cox D-X Service Station for the purpose of buying liquor with money loaned by her to Addington. After Addington went into the store and talked to Cox, liquor was loaded into the car and taken back to Tulsa at one time, and at another time en route to Oklahoma, Mrs. Rockalman and Addington were apprehended by alcohol and tax unit agents. It was shown that checks drawn by Elizabeth Mathis, wife of Mathis, on the Utica Square National Bank, payable to "Cash" between November 11, 1953 and December 28, 1953, varying in amounts between $422.90 and $1,756.05, were all deposited within a few days after they were drawn, in the account of Cox D-X Service Station, Noel, Missouri. The drawer of the checks ran her husband's liquor business in Tulsa, Oklahoma during that period and arranged for the purchase of liquor from the defendant Shaner by paying to him at least some of the checks which were later deposited in Cox's account. Between January 8, 1954 and January 26, 1954 Shaner purchased four cashier's checks drawn on the Farmers and Merchants State Bank of Tulsa, Oklahoma, varying in amounts from $250 to $1,500, all payable to himself, endorsed by him, and bearing the second endorsement of Cox D-X Service, Noel, Missouri. On February 2, 1954, a cashier's check was drawn on the same bank by Harry McCarthy, payable to Cox D-X Service Station, Noel, Missouri, in the amount of $175 and endorsed by Cox D-X Service Station. From December, 1951 to June, 1954, more than one hundred telephone calls were made between the telephone numbers of Mathis in Tulsa and Cox in Noel, Missouri. Most of these calls were station-to-station calls, but several were made from Mathis' number in Tulsa to Cox, person-to-person, at Noel. From September, 1953 to January, 1954, more than forty telephone calls were made between Shaner's telephone number in Tulsa and Cox's number in Noel, Missouri. Two were to Cox, person-to-person.

Conspiracy need not be proved — indeed, by the very nature of things, generally cannot be — by direct evidence. In view of the foregoing facts concerning which there is little controversy in the record, and the inferences reasonably to be drawn therefrom, we cannot say that there was not substantial evidence to support the conviction of both Cox and Briggs on the conspiracy count. Direct Sales Co., Inc., v. United States, 1943, 319 U.S. 703, 63 S.Ct. 1265, 87 L. Ed. 1674; Berenbeim v. United States, 10 Cir., 1947, 164 F.2d 679, certiorari denied 333 U.S. 827, 68 S.Ct. 454, 92 L. Ed. 1113; United States v. Wroblewski, 7 Cir., 1939, 105 F.2d 444; United States v. Tuffanelli, 7 Cir., 1942, 131 F.2d 890; Braverman v. United States, 6 Cir., 1942, 125 F.2d 283, reversed on other grounds, 317 U.S. 49, 63 S.Ct. 99, 87 L.Ed. 23; Susnjar v. United States, 6 Cir., 1928, 27 F.2d 223; United States v. Scott, C.C.N.D.Ga.1905, 139 F. 697, affirmed 5 Cir., 165 F. 172. See also McDonough v. United States, 10 Cir., 227 F.2d 402. The record indicates not merely that appellants furnished supplies later used for an illicit purpose, but that Cox and Briggs intended to promote, and actively cooperated and participated in, the illegal purposes involved. Thus, United States v. Falcone, 1940, 311 U.S. 205, 61 S.Ct. 204, 85 L.Ed. 128, relied upon by appellants, is...