United States v. Anderson, 16183.

• Decision Date: 09 November 1965
• Docket Number: No. 16183.,16183.
• Citation: 352 F.2d 500
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. John Ennix ANDERSON, Charles Brown, and John Russell Hill, Defendants-Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

352 F.2d 500 (1965)

UNITED STATES of America, Plaintiff-Appellee, v. John Ennix ANDERSON, Charles Brown, and John Russell Hill, Defendants-Appellants.

No. 16183.

United States Court of Appeals Sixth Circuit.

November 9, 1965.

Dale Quillen, Nashville, Tenn., for appellants.

Carrol D. Kilgore, Asst. U. S. Atty., Nashville, Tenn., for appellee, James F. Neal, U. S. Atty., Nashville, Tenn., on the brief.

Before WEICK, Chief Judge, EDWARDS, Circuit Judge, and CONNELL, Chief District Judge.

PER CURIAM.

Three defendants were convicted after jury trial on one count alleging an illegal conspiracy in violation of Title 18 U.S.C. § 371 during a period from August 3, 1962 to March 15, 1963. The indictment alleged a conspiracy between the defendants (and others) to operate a business selling nontax-paid whiskey in violation of Title 26 U.S.C. §§ 5601(a), 5604(a) (1), 7201 and 7206(4).

Judge William E. Miller sentenced all three defendants to two years in the federal penitentiary.

Appellants contend there was no proof introduced at trial of agreement to violate the statutes in question.

From the record presented the proofs of operation of a bootleg liquor business appear myriad. Federal agents testified to numerous observations, searches and seizures, of nontax-paid whiskey. Much of this testimony directly implicated defendants Brown and Hill in the operation of a nontax-paid whiskey business. There was ample proof of their joint and concerted activity in this regard to support jury finding of conspiracy as to them.

The only appellate issue of substance in this case is whether or not the prosecution proofs were sufficient to link defendant Anderson to the conspiracy. The government brief and argument points to him as the executive who operated the bootleg whiskey business. But no whiskey was ever found in his possession. And it is clear that it takes more than close and repeated association with those who are proved to be operating an illegal enterprise to make one a coconspirator. Wood v. United States, 283 F.2d 4 (C.A.5, 1960).

Many of the observations and searches which we have previously referred to occurred either on defendant Anderson's farm and in the immediate vicinity thereof, or at a residence in Nashville which Anderson used and in which there was a telephone listed under his name.

Prosecution evidence included the following testimony:

In August of 1962, Alcohol Tax Unit agents had located a "stash" of whiskey just over the fence behind Anderson's house. Testimony indicated a considerable amount of traffic between the "stash" and Anderson's house and yard. Ultimately the agents arrested defendant Brown just after he had loaded jugs from this location. They seized and destroyed 16 gallons of nontax-paid whiskey, which they found in his car. They then went to the "stash" itself and destroyed containers of whiskey and others which had the odor and dregs of whiskey (all nontax-paid).

By October of 1962 another "stash" was located by the Alcohol Tax Unit agents just over a fence from Anderson's farm. When the operators of the whiskey business became aware of further surveillance, efforts were made to remove the whiskey from this "stash" (which had previously been inspected by the agents and found to contain moonshine whiskey). This time defendant Hill was driving an automobile which had been loaded at the "stash" and abandoned it when approached by agents. The automobile when searched was found to contain 50 gallons of whiskey. Defendant...