United States v. Barnett

• Citation: 418 F.2d 309
• Decision Date: 28 November 1969
• Docket Number: No. 19471.,19471.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Robert BARNETT, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

418 F.2d 309 (1969)

UNITED STATES of America, Plaintiff-Appellee, v. Robert BARNETT, Defendant-Appellant.

No. 19471.

United States Court of Appeals Sixth Circuit.

November 28, 1969.

John F. Dugger, Morristown, Tenn., for appellant.

W. Thomas Dillard, Asst. U. S. Atty., Knoxville, Tenn., for appellee, Robert E. Simpson, U. S. Atty., Knoxville, Tenn., on brief.

Before CELEBREZZE, PECK and McCREE, Circuit Judges.

CELEBREZZE, Circuit Judge.

This is an appeal by Robert Barnett hereinafter "Defendant" from a conviction in the United States District Court for the Eastern District of Tennessee, on the first five counts of a six count indictment alleging violations of the Internal Revenue laws relating to nontax-paid whiskey.

Counts one and two of the indictment charged the Defendant with transportation and removal of nontax-paid whiskey from an instrument of transportation on June 5, 1968. 26 U.S.C. §§ 5205(a) (2) and 5604(a) (1). Count three charged concealment of nontax-paid whiskey on July 11, 1968. 26 U.S.C. § 5601(a) (2). Count four charged possession of one-half gallon of nontax-paid whiskey on June 5, 1968, which was intended for use in violating the Internal Revenue laws. 26 U.S.C. § 5686. Count five charged possession of one-half gallon on nontax-paid whiskey on July 11, 1968, which was intended for use in violating the Internal Revenue laws. 26 U.S.C. § 5685 (a).

The Defendant was sentenced to serve a penitentiary sentence of one year on count one of the indictment and one year on count three, said sentences to run consecutively. He was fined $1,000 on count five of the indictment. Imposition of sentence was suspended on counts two and four and he was placed on probation for a period of three years to commence at the expiration of the penitentiary sentences.

The evidence at trial disclosed that a federal agent, Michael Hopkins, accompanied by an informer went to Wilma Bowman's house on June 5, 1968. Agent Hopkins testified that he asked Mrs. Bowman, a co-defendant, for a jar of whiskey and that she stated she did not have any, but that she would get some. That she then made a 'phone call and a few minutes later received a 'phone call and that she said, "bring some whiskey. There is a fellow here now that wants a jar and bring me some beer too, * * *."

Agent Hopkins further testified that shortly thereafter the Defendant, Robert Barnett, drove up, parked the car at the rear of the house, got out carrying two brown paper bags, and went into the back room of the house. That a co-defendant, Bobby Harold Street, went out to the car and carried in two cases of beer. That later Street came out followed by Wilma Bowman, carrying a large brown paper bag containing a one-gallon jug half full with whiskey. That Agent Hopkins and the informer tasted the whiskey, paid Mrs. Bowman $6.00 and left.

Agent Hopkins also testified that on July 11, 1968, he returned to Mrs. Bowman's house with another Government agent, Robert House; that he talked with Defendant Barnett about the price of whiskey; that Barnett asked Mrs. Bowman if they had any whiskey there; that they went into the same back room where Barnett on previous occasion had taken the brown paper bags, returned and sold to Agent Hopkins a gallon jug of whiskey half filled for $6.00. The testimony was corroborated by Agent House.

Special Investigator Lindsey of the Alcohol Tax Division of the United States Treasury Department testified that it was a very common practice in the area involved to carry distilled spirits in brown bags.

Special Investigator Beeler of the Alcohol Tax Division testified that it was the common practice in the area to transport liquor in gallon jugs.

Four alleged errors at trial were considered on appeal.

First, we are of the opinion that the trial judge erred in not requiring the Government to produce the name of its informer.

Defendant Barnett has thrice sought the identity of the individual who accompanied Agent Hopkins, the Government's key witness, on the 5th, 6th and 28th of June, 1968. On October 29, 1968, the day after his arraignment, Defendant Barnett caused a subpoena to be issued for the informer in care of the Alcohol Tax Division, Greenville, Tennessee, under the name of Bill Nelson, the name testified to by Agent Hopkins at the preliminary hearing. The United States Marshal returned the subpoena and stated that the Alcohol Tax Division advised him that there was no such person as Bill Nelson or at least they did not know him. On October 31, 1968, the Defendant filed a motion to require the Government to produce the informer for cross-examination. The portion of the preliminary hearing in which Agent Hopkins testified as to the continued presence of the informer and his name, Bill Nelson, was attached to the motion. The motion was denied on the morning of the trial by the Court on November 15, 1968. Finally on November 22, 1968, on a motion for a new trial, the Defendant sought the identity of the informer because he believed him to be a material witness. The trial Judge denied this motion on January 23, 1969. Defendant has consistently maintained that the undisclosed informer who accompanied Agent Hopkins, the Government's key witness, was a material witness and has sought his identity at every stage of these proceedings.

Defendant's continued assertion that the informer would be a material element in his defense is supported by the facts that the dates on which the evidence relating to counts one, two and four was gleaned, the informer was present throughout all the allegedly incriminating events. The informer was an eye-witness observer of and participant in the conversations and events alleged to have taken place between the Defendants and the Government agent on those days. In this regard, it is significant that the informer did not merely provide a "tip" for the Government, but he was present and participated with the Government agent throughout the alleged sale. Aside from the other defendants who had chosen not to...