Sears v. United States
| Decision Date | 14 January 1974 |
| Docket Number | No. 73-1476.,73-1476. |
| Citation | 490 F.2d 150 |
| Parties | L. C. SEARS, Appellant. v. UNITED STATES of America, Appellee. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Richard W. Hobbs, Hot Springs, Ark., on brief, for appellant.
Robert E. Johnson, U. S. Atty., Fort Smith, Ark., on brief, for appellee.
Before LAY, BRIGHT and WEBSTER, Circuit Judges.
L. C. Sears appeals his conviction of knowingly transporting, possessing and selling 50 gallons of distilled spirits in violation of 26 U.S.C. § 5205(a)(2). In this appeal he contends (1) that the trial court erroneously admitted evidence of other offenses not charged in the indictment; (2) that the trial court erroneously permitted testimony of sales of illicit liquor by other persons, and of other transactions in which he was not involved; (3) that the trial court erroneously denied a motion for mistrial after government counsel had made prejudicial remarks about Sears' involvement in a whiskey ring; and (4) that the court erroneously failed to give an instruction limiting the jury's consideration of prior convictions to questions of credibility. Upon a full review of the record below, we affirm the judgment of conviction.
On the evening of November 9, 1971, Paul Darby and James Alexander, agents of the Bureau of Alcohol, Tobacco and Firearms, contacted Sears and requested him to put them in touch with a man from whom Darby had purchased moonshine whiskey on November 6. Following Sears' instruction the agents followed Sears' car from the American Legion Club at Hot Springs, Arkansas, to another bar and waited for him. Sears took the keys to the agents' truck and drove away. When he returned he told the agents to follow him to a roadside park. When they arrived Bill Abbott was there with 50 gallons of whiskey, which they moved into the government truck.
On December 1, 1971, the agents again met with Sears at the American Legion Club. Pretending to be operators of a private club outside Houston, they asked Sears to help them contact a man who had sold them whiskey on November 9. Darby testified that Sears declined to do so but said he would handle the transaction. Sears left in the government truck and later returned with 50 gallons of illicit whiskey, for which the agents paid him $310. Again on December 10, 1971, the agents met with Sears at the Broadway Lounge, Hot Springs, Arkansas, and asked to purchase 100 gallons of moonshine whiskey. Sears again took the agents' truck and left. In approximately two to three hours Cecil Lee Abbott returned with the truck, which contained 100 gallons of illicit whiskey. Sears was arrested December 15 and charged with the December 1st offense.
In its case in chief the Government thus offered evidence, not only of transportation, possession and sale of illicit whiskey on December 1, as charged in the indictment, but also adduced evidence of Sears' participation in similar activities both prior1 and subsequent2 to December 1. The record clearly reveals that defense counsel made timely objections to testimony with respect to other crimes and this issue is well preserved on appeal.
The general rule that evidence of prior criminal conduct is not admissible against a criminal defendant is subject to well-recognized exceptions. In Atwell v. Arkansas, 426 F.2d 912 (8th Cir. 1970), the court said:
Sears contends that the offense charged in the indictment does not require as an element of the offense the specific intent to commit the act and that evidence of similar offenses was therefore not admissible.4 However, evidence of similar offenses is permissible to show knowledge, as well as a common criminal scheme or plan, in negation of the likelihood that the crime was committed as a result of inadvertence, accident or mistake. Atwell v. Arkansas, supra. In each instance objected to, as on December 1, Sears was the contact man and in each instance Sears used the truck of the government agent to obtain the whiskey. The offenses were sufficiently proximate in time and clearly were admissible on the issue of knowledge and common scheme or plan, notwithstanding the absence of specific intent as an element of the offense.5
Over objection, government witness Cecil Lee Abbott, one of the participants, was permitted to testify as to the location of the still from which all the whiskey had come and generally to testify with respect to other activities emanating from the still. He testified that Sears was one of the organizers of the still, which was located on the Allen farm, and that Sears supplied some of the lumber for building pigpens and most of the barrels. To the extent that appellant's objection to this testimony was directed to Sears' involvement, the trial court properly overruled the objections since they showed the source of the whiskey and Sears' knowledge that it had been illegally distilled.
To the extent that appellant argues that evidence of activities by Cecil Lee Abbott and Bill Abbott represented evidence of criminal activity of others, we find this argument to be without merit. In each such circumstance Sears was closely involved as one of the participants, and the activities of the Abbotts were properly received as showing the source and means by which Sears committed the offense as charged and his knowledge thereof as shown by his participation with the Abbotts in a common plan or scheme on other closely related occasions.
During direct examination of agent Darby, the prosecutor inquired whether Darby had purchased "any whiskey out of this same operation other than these three?" The court asked the prosecutor what he meant by "same operation" to which the prosecutor replied: "Sir, I mean from the people involved in this, which is L. C. Sears, Lee Abbott, Bill Abbott, and out of this same still." Whereupon the following colloquy took place:
Defense counsel promptly moved for a mistrial, contending that the remarks of the prosecutor were outside the scope of the indictment and "anything else connected with Mr. Abbott or any dealings that Mr. Darby has had with Mr. Alexander, with Cecil or Bill Abbott, has no place in this trial." The court did not grant the motion for mistrial but at that time instructed the jury that "it is not evidence in the case, and you'll disregard it."
While it would have been better practice to have required that the colloquy quoted above take place at the bench, out of the hearing of the jury, the court promptly and correctly instructed the jury with respect to such statements and we perceive no prejudicial error here.6
The defendant offered the testimony of Bill Lee Abbott and took the stand himself to testify that his activities were in fact a mere accommodation to the Abbott brothers and that he had no knowledge of or interest in the illicit whiskey transactions. Prior to his taking the stand, defense counsel moved to exclude any evidence of prior convictions. The court denied the motion. Defense counsel again renewed his objections when Sears was asked whether in 1962 he was convicted of violating the Internal Revenue liquor laws. The court, in overruling the objection, said:
It\'s a proper question for the purpose of credibility of the witness,...
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