Thompson v. United States

• Decision Date: 24 May 1965
• Docket Number: No. 20581.,20581.
• Citation: 342 F.2d 137
• Parties: Everitt W. THOMPSON, William R. Phillips and Earl N. Stokes, Appellants, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

342 F.2d 137 (1965)

Everitt W. THOMPSON, William R. Phillips and Earl N. Stokes, Appellants, v. UNITED STATES of America, Appellee.

No. 20581.

United States Court of Appeals Fifth Circuit.

February 2, 1965.

Rehearings Denied March 12, 1965.

Certiorari Denied May 24, 1965.

Joe Creel, Creel & Glasgow, Miami, Fla., for appellant Thompson.

Steadman S. Stahl, Jr., William R. Phillips, Fort Lauderdale, Fla., for appellant Phillips.

Joseph B. Merlin, Miami, Fla., for appellant Stokes.

Donald E. Stone, Asst. U. S. Atty., William A. Meadows, Jr., U. S. Atty., Lloyd G. Bates, Jr., Asst. U. S. Atty., Southern Dist. of Florida, Miami, Fla., James C. Bright, Asst. Regional Counsel, I. R. C., Atlanta, Ga., on the brief, for appellee.

Before TUTTLE, Chief Judge, and JONES and ANDERSON,^* Circuit Judges.

Certiorari Denied May 24, 1965. See 85 S.Ct. 1560.

ANDERSON, Circuit Judge.

The indictment in this case charged all three defendants, Everitt W. Thompson, William R. Phillips and Earl N. Stokes, in a single count of conspiracy to defraud the United States of payment of a tax on distilled spirits and to commit offenses against the laws of the United States concerning the illicit possession, transportation and distribution of distilled spirits. Each defendant was also charged with several counts alleging the substantive offenses. In a jury trial, all were found guilty as charged and were sentenced. Each filed motions for judgment of acquittal n. o. v. or for new trial. The motions were denied and from those rulings the defendants have appealed.

The prosecution resulted from certain events of April 3, 4, and 5, 1962 which were disclosed through investigations by Federal Agent Scott and by Florida State Officials, Glass and Washburn, into the activities of the appellants in distributing and selling moonshine whiskey. Assisting them was an undercover informer, Thorn, who was named in the indictment as a co-conspirator but not as a defendant. On April 3rd Thorn advised Glass that a 1950 green Buick automobile loaded with moonshine whiskey would be parked, about supper time on April 4, 1962, in front of the house of the appellant Stokes in Miami, from which distribution of the whiskey was to be made to customers in that city. Glass told the other officers of this. They already had received from other sources information that Stokes was involved in the illicit whiskey operations in the area and that he had a record and a reputation as a liquor law violator. At about 6.30 P.M. April 4, 1962, Glass and Scott drove past Stokes' house and saw in front of it a Buick car, which matched Thorn's description and which appeared to be heavily loaded. At about 7:15 P.M. Stokes came out of his house, got in the car and drove off. Glass and Scott in one automobile and Washburn in another followed him for some distance; they then stopped Stokes and seized a large quantity of illicit whiskey which was in the car.

The next morning, on April 5th, Thorn told Glass that in the evening there would be a transfer of moonshine whiskey from a Chevrolet pickup truck, owned by the appellant Phillips, to a 1953 Chrysler automobile at the premises of Dade Tire Co. in Miami. Glass gave this information to Scott. The officers had received information that the appellant Thompson, who was owner and manager of the Dade Tire Co., was engaged in illicit liquor traffic and that transfers of moonshine whiskey had taken place at the Tire Co. They had also learned that the appellant Phillips had a record and a reputation of being a liquor law violator.

At about 6:30 P.M. the officers went to the vicinity of the Dade Tire Co. and saw parked in the Tire Co. lot a Chrysler car, such as the one Thorn had described, and a Chevrolet truck with the name "Phillips" printed on its side.

The lot where the Chrysler car was parked was used for wheel realignment. It was bounded on one side by a building and on the other sides by a fence which had in it a three-car-wide opening to the street through which people having business there were free to come and go. Thorn met Glass a little distance from the lot and told him that the whiskey was in the truck, awaiting transfer to the Chrysler. From a point 60-80 yards away, Glass, with the use of binoculars, saw the appellants Phillips and Thompson with Thorn, moving what appeared to be five gallon jugs in burlap bags from the truck into the trunk of the Chrysler. Phillips, with Thorn in the truck with him, then drove out of the Dade Tire Co. lot and down the street past where Glass was located. Glass told the other officers what had happened. Scott in his car followed the Phillips' truck for a short distance and then pulled along side of it. The truck stopped and Phillips and Thorn got out and ran. Scott apprehended Phillips and returned with him to the Dade Tire Co. lot where Scott opened the trunk of the Chrysler and found ten five-gallon jugs of moonshine whiskey.

The appellants have made several assignments of error on this appeal, relating to the conduct of the trial. They assert that the trial judge should not have denied their motion to compel the Government to elect which of the two conspiracies, i. e. one, the events of April 4th involving Phillips, Thorn and Stokes, and the other, the events of April 5th, involving Phillips, Thorn and Thompson, it would proceed upon. They claim a resulting variance between the single conspiracy charged and the series of events on April 4th in which Thompson was not involved and those on April 5th in which Stokes was not involved. Assuming arguendo that this is so, they make no showing of any way in which the variance was material or prejudicial to any appellant, and we cannot perceive from the record of this case, in which the evidence was clear and uncomplicated and in which there were so few defendants, how it was in any way harmful. We find in this no reversible error. Berger v. United States, 295 U.S. 78, 55 S.Ct. 629, 79 L.Ed. 1314 (1935); Sigers v. United States, 321 F.2d 843 (5th Cir. 1963).

The appellants urge that the court erred in permitting the informer Thorn, over their objections, to refresh his recollection from a statement signed by him but typewritten by State Officer Kelly from the original notes made by Thorn. It appears that the statement inaccurately recited the date on which Thorn first met Glass, and Thorn's original notes were destroyed or thrown away by Thorn after Officer Kelly had typed the report. The appellants assert that there was no showing that Thorn's unaided memory on the witness stand had been exhausted or that the typewritten statement actually refreshed his recollection.

The principal requirements for the use of the statement for the purpose were that the witness demonstrated a need for having his memory refreshed and that the paper used had that effect. N. L. R. B. v. Federal Dairy Company, 297 F.2d 487 (1st Cir. 1962). The reliability or truthfulness of the statement was relevant only to the problem of the weight and credibility to be accorded the witness' testimony. United States v. Riccardi, 174 F.2d 883 (3rd Cir. 1949), cert. denied, 337 U.S. 941, 69 S.Ct. 1519, 93 L.Ed. 1746 (1949). See also Fanelli v. United States Gypsum Co., 141 F.2d 216 (2d Cir. 1944). The fact that a government agent instead of the witness prepared the statement is inconsequential. See Jones v. United States, 282 F. 2d 745 (4th Cir. 1960).

The trial judge has a duty to prevent a...