United States v. Ball

• Decision Date: 28 August 1970
• Docket Number: No. 20005,20006.,20005
• Citation: 428 F.2d 26
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jay V. BALL, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Boyd RIDINGS, Sr., Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

428 F.2d 26 (1970)

UNITED STATES of America, Plaintiff-Appellee, v. Jay V. BALL, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Boyd RIDINGS, Sr., Defendant-Appellant.

Nos. 20005, 20006.

United States Court of Appeals, Sixth Circuit.

June 23, 1970.

Petition Dismissed August 28, 1970.

Dale Quillen, Nashville, Tenn., for appellant Ball.

Ben W. Hooper, II (Court-appointed), Newport, Tenn., for appellant Ridings.

W. Thomas Dillard, Asst. U. S. Atty., Knoxville, Tenn., for appellee; John L. Bowers, Jr., U. S. Atty., Knoxville, Tenn., on brief.

Before CELEBREZZE, PECK and McCREE, Circuit Judges.

Petition Dismissed August 28, 1970. See 91 S.Ct. 7.

CELEBREZZE, Circuit Judge.

These are appeals by two of eight co-defendants from a conviction for violating certain provisions of the United States Code relating to distilled spirits in the Eastern District of Tennessee. Appellants Jay V. Ball and Boyd Ridings, Sr. were each convicted by a jury verdict on two counts: (1) conspiring with certain co-defendants to defraud the United States by possessing, selling and otherwise dealing in nontax-paid distilled spirits 18 U.S.C. § 371 (1964) and (2) aiding and abetting each other in the possession, transportation, sale and transfer of a quantity of nontax-paid distilled spirits. 18 U.S.C. § 2, 26 U.S.C. §§ 5173, 5179, 5601(a), 5604(a) (2), 5205(a) (2) and 7206(4). Each of the Appellants was sentenced to five years imprisonment on the "aiding and abetting" count and placed on probation on the "conspiracy" count.

Several evidentiary issues are raised by counsel on appeal which require us to state the facts of the case in some detail. The testimony of the Government's witnesses, who related their observation and dealings with each of the eight co-defendants was substantially unrebutted. Their testimony supports the following version of the facts.

Agents of the Alcohol, Tobacco, and Firearms Division of the Department of the Treasury employed in August, 1968, Mrs. Billie Jean McCurry to work in an undercover capacity at a rate of $9.00 per day plus certain expenses. Mrs. McCurry's job was to attempt purchase of nontax-paid whiskey from Appellant Ball. No mention was made to her — and she testified she did not expect — that she might receive an additional sum if Appellant Ball did attempt to sell nontax-paid whiskey to her. Also, at the time she was hired she was instructed as to the law of entrapment and told only to provide an opportunity for any of the Appellants to sell her nontax-paid whiskey, not to induce or persuade them to engage in such unlawful transactions. Accordingly, she was to offer $6.00 per gallon which was allegedly the prevailing market price for the nontax-paid spirits involved.

The Government also produced strong photographic and oral testimony that certain of the co-defendants including Appellant Ridings were present at or about the time certain nontax-paid whiskey was unlawfully manufactured, concealed, possessed and transported. Further, the Government produced a series of its agents and Mrs. McCurry to testify that Appellant Ball agreed to sell 100 gallons of nontax-paid whiskey to Mrs. McCurry at $6.00 per gallon and that he inspected and arranged for the place of delivery of that whiskey.

Finally, the Government introduced a conversation between its Agent Riddle, Mrs. McCurry and Appellant Ridings, who introduced himself as "Jay's Appellant Ball's man." Agent Riddle testified that Appellant Ridings stated that he had "been to that place and unloaded," that it was "an awful good place to deliver liquor," and that he had been in the liquor business all his life and the liquor he hauled was "good." Appellant Ridings then was purported to have said that "Jay Ball said it would be $6 per gallon" which would be $600 for the hundred gallons delivered. Mrs. McCurry then paid Appellant Ridings.

After the Government's primary evidence was submitted, Appellants Ball and Ridings pled that they were unlawfully entrapped into any crimes which they may have committed. There was, however, considerable ambiguity in the colloquy between the Court and counsel for the Appellants as to the scope of Appellants' admission by their plea of unlawful entrapment and as to whether they were pleading unlawful entrapment as to both the "conspiracy" count and the "aiding and abetting" count. In an attempt to clarify any ambiguity which had arisen the Court engaged in the questioning, apart from the jury, of both counsel. In that this questioning gave no clear resolution of the issues, the Trial Judge questioned, in the presence of the jury, Appellant Ball, who had previously denied his participation in the aiding and abetting. The Trial Judge's questioning reveals that he was trying to elicit from Appellant Ball whether he understood what the indictment charging "aiding and abetting" meant. When Appellant Ball realized that voluntary participation in making contacts for the sale of nontax-paid whiskey was "aiding and abetting" within the meaning of the indictment, he willingly admitted that he had engaged in those acts, and contended he was entrapped into doing so.

Thereafter, Appellants decided that they wished to plead unlawful entrapment only as to the "aiding and abetting" count and to wholly deny their participation in the "conspiracy" count. Over Appellants' counsel's objection, the Government was permitted to introduce evidence as to the reputation of the Appellants for engaging in unlawful liquor activities just prior to the alleged unlawful activities. It was introduced for the limited purpose of demonstrating a willingness or unwillingness of each of the Appellants to have engaged in the conduct into which they allege they were entrapped. Among those witnesses testifying as to the willingness of Appellant Ball to engage in unlawful liquor activities was Mrs. Langford. Mrs. Langford, who accompanied Mrs. McCurry and Appellant Ball on one occasion, testified as to the conduct and activities of Appellant Ball in arranging for the purchase of certain nontax-paid whiskey and investigation of its place of delivery. While testifying from her memory, she made frequent reference to certain handwritten notes which were in part shown to both counsel. Her corroborating testimony, while cumulative in part, was highly confirmatory of the testimony of Mrs. McCurry that Appellant Ball willingly and affirmatively arranged and implemented the unlawful purchase of whiskey without the enticement of unlawful entrapment.

Case No. 20,005

On these facts, Appellant Ball raises three issues on appeal. First, whether the Fifth Amendment bars his prosecution both as to the substantive violations of the federal alcohol tax laws and as to the conspiracy to violate those laws. Second, whether the Trial Judge's questioning of Appellant Ball assumed the role of advocacy and denied him a fair and impartial trial. Third, whether the Trial Judge's failure to permit Appellant's counsel to examine the full notes of a Government agent witness — Mrs. Langford — was prejudicial error. This latter issue was raised by consent of counsel on oral argument.

The constitutional issue raised by Appellant Ball was decided adversely to him by this Court in United States v. Whitehead, 424 F.2d 446 (6th Cir., 1970). In Whitehead we held:

"The possibility of Appellant\'s self-incrimination by dint of actual compliance with the statutory provisions attacked herein is considerably less than `purely hypothetical.\' * * * Here federal registration is prohibited unless the registrant is in compliance with state law. This appellant could not, if he had tried, have gotten his name on any list of federal registrants * * *. Since there would have been no conceivable federal statutory benefit from such a disclosure, we cannot perceive how it could be deemed `compelled\' in any Fifth Amendment sense.

"We find no abuse of appellant\'s Fifth Amendment rights." 424 F.2d at 451.

Similarly, the Appellant in the instant case cannot be deemed "compelled" to incriminate himself by registration under the federal laws. There is no substantive probability that he will incriminate himself by registering where, as here, there is no possibility that he ever intended to engage in activities which could be in actual compliance with the federal alcohol tax laws.

Second, Appellant Ball maintains that his interrogation in the presence of the jury by the Trial Judge assumed the role of advocacy and irreparably prejudiced the Appellant. We disagree.

A reading of the transcript of the trial reveals that neither counsel for Appellant Ball nor Appellant Ball were clear as to whether they wished to assert an entrapment plea as to both counts of the indictment, or only one count; or whether Appellant Ball understood the nature of the charges against him. The Trial Judge's comments and inquiries sought to remedy these areas of confusion. When Appellant realized that an admission of certain material acts would not jeopardize his defense of not guilty by reason of entrapment as to the "aiding and abetting" count, he willingly conceded that he had engaged in certain of the material acts charged. As the United States Supreme Court has noted:

"In a trial by jury in a federal court, the judge is not a mere moderator, but is the governor of the trial for the purpose of assuring its proper conduct and of determining questions of law." Quercia v. United States, 289 U.S. 466, 469, 53 S.Ct. 698, 699, 77 L.Ed. 1468 (1933).

In this vein, a trial judge may, for example, examine a witness to elicit "information necessary to a correct determination of the facts," United States v. Cassiagnol, 420 F.2d 868, 877 (4th Cir. 1970).

Although the Trial Judge is to govern the conduct of the trial, it is not a "desirable practice" for him to interrupt the proceedings by questioning the witnesses. United States v. Lewis, 338 F.2d 137, 141 (6th Cir. 1964), cert. denied, 380 U.S. 978, 85 S.Ct....