Townsend v. United States

• Decision Date: 18 March 1958
• Docket Number: No. 16789.,16789.
• Parties: Wade Hampton TOWNSEND and Willie Earl Williams, Appellants, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

253 F.2d 461 (1958)

Wade Hampton TOWNSEND and Willie Earl Williams, Appellants, v. UNITED STATES of America, Appellee.

No. 16789.

United States Court of Appeals Fifth Circuit.

March 18, 1958.

Ira J. Carter, Jr., Gainesville, Fla., Zach H. Douglas, Jacksonville, Fla., for appellants.

Joseph P. Manners, Asst. U. S. Atty., Harrold Carswell, U. S. Atty., Tallahassee, for appellee.

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

JOHN R. BROWN, Circuit Judge.

Townsend appeals from consecutive sentences aggregating seven years based upon jury verdict of guilty on all remaining counts divided into two main groups in the indictment: (1) for unlawfully failing to pay the wagering annual occupational tax, 26 U.S.C.A. §§ 4411, 7201 (counts 8 and 19); and (2) for (a) wilfully evading and defeating the payment of the excise tax of 10% on wagers, 26 U.S.C.A. §§ 4401, 7201, and (b) wilfully failing truthfully to account for and pay over these excise taxes, 26 U.S.C.A. § 7202. Both (a) and (b) covered periods November-December 1952 (counts 3, 4, 5, 6) and February-October 1955 (counts 9 to 18 and 20 to 27). Willie Earl Williams, tried by agreement with Townsend, was convicted on a separate two-count indictment for the felony of wilfully evading payment of the occupational stamp tax, 26 U.S.C. A. §§ 4411, 7201.

In Townsend's appeal, the only matter of substantial concern is the sufficiency of the evidence and admissibility of telling pieces of evidence obtained by a search of his home under a search warrant and from his person subsequent to his arrest, without warrant, after the search of the premises was concluded. We avoid repetition and reduce much of the detail of this 400-page printed record if we discuss first the sufficiency of the evidence though logically this may appear to reverse the usual order.

After first reporting to the Internal Revenue in 1951 that he had withdrawn from the numbers business (whether it was then "Night House," "Cuba" or "Bolita" is not too clear), Townsend subsequently reported in September 1952 that he was once again engaged in it. Townsend obtained and paid the annual stamp occupation tax for the period ending June 30, 1953. His own wager book (Exhibit 3) seized in the raid and admitted by him to be such, showed the wagers received from September through December 1952. The exact amount of the total net wagers for September and October corresponded exactly with the amounts reported in each succeeding month on Form 730 when the excise tax computed on the statutory basis of 10% was remitted. However, there was categorical testimony by officers of the Internal Revenue responsible for the receipt and processing of current payment of gambler's excise tax that no excise tax returns or remittances were ever received covering the months of November and December 1952.

Townsend's defense here was not that no tax was due or no return was required. His defense was that it had been paid. The issue on these counts (3, 4, 5 and 6) was then reduced to simple terms: had Townsend paid the tax? There were many things the jury could take into account in resolving this controversy. There was, for example, the fact that there was no Form 730 (either the original on file at the Revenue Office or loose retained duplicate copies in the wager book, Exhibit 3) for these two months, although there was one for September and October 1952. Likewise, Townsend's own explanation of payment by check may have been thought most unimpressive. When, during the trial, the issue of payment of the tax for these two months came up, his story was that all of his books and records, including cancelled checks, had been turned over to a certified public accountant in Jacksonville sometime before the trial. He then testified that he was unsuccessful in his effort to secure their return since the accountant was at that time on a vacation which would last two more weeks. Since Townsend and his able counsel for the ten months prior to the trial knew, from the counts of the indictment that specified the precise amount of tax due for each of these two months, that this issue would be in the case, the jury was likewise entitled to determine whether this explanation squared with the truth.

On the other counts of this group (9 through 19 and 20 through 27), the evidence, if credited, was equally adequate. Each pair of these counts (e. g. 9 and 10) covered for each succeeding month beginning in February 1955 the charge that Townsend wilfully (a) attempted to evade and defeat payment and (b) failed to account for and pay over the specified tax of 10% on the net wagers for that given month. Each was based precisely on the total of the net wagers reflected in the book (Exhibit 7) seized in the search of Townsend's home, kept by him in his own handwriting and, by evidence from persons qualified as experts in the numbers business and a Pick-Up man who worked for Townsend during this period, established sufficiently as a collection sheet covering collections to be made from or payments to be made to various Sellers.

The Pick-Up man ("Bubba" Daniels), by personal knowledge gained from acting as Pick-Up man in effecting collection from and occasional payment to Sellers, and by the use of a carbon copy of the weekly sheet furnished to him by Townsend, was able to identify each of the Sellers who were listed by first or nicknames or cryptic, furtive symbols. In addition, to the positive testimony of the Pick-Up man that he was acting as such (also as a Seller) for Townsend, three of these Sellers with whom he dealt and who were listed and identified in this collection sheet book (Exhibit 7) testified categorically that each was selling numbers during this time. Their testimony, the testimony of the Pick-Up man and the collection sheet book tied this sufficiently to Townsend.

And again, as in the case of the asserted failure to pay the excise tax for November-December 1952, a factor of great relevance to the jury was Townsend's own effort to explain, or explain away, both the record and these witnesses. All was centered in his contention that, in addition to his legitimate business operations of a laundry, dry cleaning, filling station and sometime watermelon producer, he was a bootlegger of Federal tax-paid liquor in this dry Florida county. He insisted that while these witnesses were "Sellers," they were selling liquor, not numbers. Likewise, the book (Exhibit 7) was a record not of numbers sales, but of liquor sales for which these people were entitled to commissions.

In assessing his explanation concerning the book, the jury had ample basis for an informed skepticism, if not complete distrust. The book itself was a sales record book with triplicate sheets of different colors presumably furnished by the oil company whose products were sold in his service station. Many sheets referred to liquor, but each such sheet listed the liquor by type, brand and quantity. Certain figures were used in the price or money column. However on the liquor sheets there were no cryptic references to names or persons or nicknames, nor any reference to "collect" or "pay" as was the case on the sheets positively identified by the expert and the Pick-Up man as numbers collection sheets. The jury could treat as equally implausible the awkward and clumsy effort of Townsend to demonstrate how the indicated "commissions" and "shortages" and "pay" entries could fit collections from these people for liquor sold. For example, "pay" in a sum of $531.10 to "Ida" was translated by Townsend, not as an item to be paid to the named Seller, but to be collected from her for liquor delivered. This "Ida" was the same person identified as a Seller by Pick-Up man Daniels, and who, as Ida Lou Sparks testified that she was such a Seller. On the other hand, the numbers experts had testified that such entries indicated that that Seller had had "hits" and this sum represented the amount which Townsend had to furnish to the Pick-Up man to deliver to the Seller for payment to that Seller's lucky winners.

If the jury resolved this controversy that the Pick-Up man was a numbers, not a liquor,...