U.S. v. Holladay, 77-5189

• Decision Date: 30 January 1978
• Docket Number: No. 77-5189,77-5189
• Parties: 78-1 USTC P 9218, 2 Fed. R. Evid. Serv. 948 UNITED STATES of America, Plaintiff-Appellee, v. Frank Wade HOLLADAY, Defendant-Appellant. Summary Calendar. *
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1018

566 F.2d 1018

78-1 USTC P 9218, 2 Fed. R. Evid. Serv. 948

UNITED STATES of America, Plaintiff-Appellee, v. Frank Wade HOLLADAY, Defendant-Appellant.

No. 77-5189

Summary Calendar. ^*

United States Court of Appeals, Fifth Circuit.

Jan. 30, 1978.

Alvin M. Binder, Jackson, Miss., for defendant-appellant.

H. M. Ray, U. S. Atty., John R. Hailman, Alfred E. Moreton, III, Asst. U. S. Attys., Oxford, Miss., for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of Mississippi.

Before THORNBERRY, GODBOLD and RUBIN, Circuit Judges.

PER CURIAM:

A prosecution witness who had testified differently in the past was introduced by the prosecution. It was not improper for the prosecution to offer this testimony. Presentation of a witness who recants or contradicts his prior testimony is not to be confused with eliciting perjury. It was for the jury to decide whether or not to credit the witness. There is no evidence that the prosecution knew or believed the trial testimony to be untrue; hence, the conviction was not obtained by the presentation of testimony known to be false. Cf. Napue v. Illinois, 1959, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217.

After this witness had been vigorously cross-examined about his prior inconsistent testimony favorable to the accused, a statement was elicited from him on redirect that he had testified differently in the past because he was afraid of the defendant. The statement was not elaborated; it was limited to what was necessary in order to counter the implication that the present testimony of the witness was not to be believed. Because the issue had been thus injected by the defense, the evidence was admissible. Rule 404(b), Federal Rules of Evidence. Under the circumstances, its probative value was not substantially outweighed by the danger of unfair prejudice. Rule 403 Id. No special instruction was requested, and the court's failure to give one was not plain error. United States v. Tramauti, 2d Cir. 1975, 513 F.2d 1087.

The denial of the motion for a severance is not grounds for reversal. " . . . (I)t is axiomatic that the granting of a severance is within the discretion of the trial judge . . . The burden of demonstrating prejudice is a difficult one, and the ruling of the trial judge will rarely be disturbed on review. . . . The defendant must show something more than the fact that a 'separate trial might offer him a better chance of acquittal.' " U. S. v. Pacheco, 5 Cir. 1974, 489 F.2d 554, 561. All four counts were based on a gambling and bootlegging operation at defendant's service station. Under these circumstances, there was no abuse of discretion.

Although the government did not prove that the defendant received profits or income from the illicit business at his gas station, it did establish, through direct testimony and the gas station notebooks, substantial gross receipts that he failed to report. This material misrepresentation suffices to establish liability for filing false returns, 26 U.S.C. § 7206(1). U. S. v. Morse, 2d Cir. 1974, 491 F.2d 149; U. S. v. Jernigan, 5 Cir. 1969, 411 F.2d 471, cert. denied, 396 U.S. 927, 90 S.Ct. 262, 24 L.Ed.2d 225. The element of willfulness was evidenced by a number of probative circumstances, including the defendant's use of false names and his surreptitious reliance on the use of cash. U. S. v. Stone, 5 Cir. 1970, 431 F.2d 1286, 1288.

There was also sufficient evidence with respect to the alleged violations of 26 U.S.C. § 5691(a), which requires payment of a special tax by persons dealing in liquors. The defendant purchased, under pseudonym, wholesale quantities of liquor and frequently endorsed checks received for them at his service station. Whether or not he ordered the illicit liquor sales...