United States v. Bryant, 9510.

Decision Date03 August 1966
Docket NumberNo. 9510.,9510.
Citation364 F.2d 598
PartiesUNITED STATES of America, Appellee, v. Grover C. BRYANT, Jr., Jack C. Clifton, and Dan Watson, Appellants.
CourtU.S. Court of Appeals — Fourth Circuit

John C. Lindsay, Bennettsville, S. C. (John P. Gardner, Darlington, S. C., on brief) for appellant Grover C. Bryant, Jr.

LeRoy M. Want, Darlington, S. C., for appellant Jack C. Clifton.

George W. Keels, Florence, S. C., for appellant Dan Watson.

Thomas P. Simpson, Asst. U. S. Atty., and Terrell L. Glenn, U. S. Atty., for appellee.

Before HAYNSWORTH and BELL, Circuit Judges, and BUTLER, District Judge.

BUTLER, District Judge:

A jury in the District Court found the appellants Bryant, Clifton, and Watson guilty of conspiracy1 to violate the Internal Revenue laws relating to liquor. In substance the indictment charged2 that the appellants in concert with other named codefendants and co-conspirators, conspired to manufacture, distill, possess, transport, remove, deposit and conceal distilled spirits upon which a tax had not been paid. Bryant, the Sheriff of Darlington County, South Carolina, and Clifton, one of his deputies, were alleged to have used their official positions as law enforcement officers to engage in and promote the criminal activities.

This appeal presents the questions whether the District Court erred in denying (1) the motions of the defendants, Bryant and Clifton, for an in camera inspection by the court of the grand jury testimony of a government witness, Bobby Ray Lewis, and to make inconsistencies with his trial testimony available to the defendants, and for a new trial for failure to grant such motion, and (2) the motion of the defendant Watson for severance and separate trial on the ground that there was such a material variance between the allegation of a single conspiracy in the indictment and proof of multiple conspiracies as to constitute a violation of the joinder allowable under Rule 8(b), F.R.Crim.P. We find no error in the denial of the motions by the District Court, and therefore we affirm.

The appeals of Bryant and Clifton raise identical questions. Since a defendant is not entitled as a matter of right to the disclosure of grand jury testimony of a witness who subsequently testifies upon trial, Pittsburgh Plate Glass Company v. United States, 360 U.S. 395, 79 S.Ct. 1237, 3 L.Ed.2d 1323, rehearing denied, 361 U.S. 855, 80 S.Ct. 42, 4 L.Ed.2d 94 (1959), the question here is whether the trial judge abused his discretion in denying the motion for the in camera examination of Lewis' grand jury testimony. It is within the sound discretion of the trial court to make an in camera inspection of grand jury testimony where a particular need is shown. Id., 360 U.S. at 399, 79 S.Ct. at 1240; United States v. Johnson, 337 F.2d 180 (4 Cir.1964).

The conspiracy count alleged the existence of the conspiracy from on or about April 27, 1957, to the return of the indictment on April 14, 1964. In presenting its case the government called 50 witnesses, 49 of whom testified prior to Lewis. Their testimony, covering the period of the conspiracy, clearly involves the defendants Bryant and Clifton in the criminal conduct during the period prior to Lewis' involvement. Lewis was not called to testify until the last day of the government's case. His testimony concerned the period from early June 1961 to late December 1961, and related to but a portion of the scope of the conspiracy.3 Indeed, the evidence is sufficient to establish the existence of the conspiracy and the involvement of the appellants prior to Lewis' testimony.

Although "disclosure is wholly proper where the ends of justice require it," United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 234, 60 S.Ct. 811, 849, 84 L.Ed. 1129, the burden remains on the defendant seeking disclosure "to show that a `particularized need' exists for the minutes which outweighs the policy of secrecy" of grand jury proceedings. Pittsburgh Plate Glass Company v. United States, supra. We are unable to say, in the light of the facts here, that the ends of justice required disclosure of the grand jury testimony or that the defendants have shown a particularized need for it. In our view, the government's evidence was sufficient to warrant a conviction without the testimony of Lewis. His testimony dealt with only a small part of the overall plan and it covered but a brief period of the long-continuing offense. "No special impact on the defendants is made to appear and there is no showing of a threatened injustice from the denial." United States v. Johnson, 337 F.2d 180, 197 (4 Cir.1964). No abuse of discretion having been shown, it was not error to deny the motions for an inspection of the grand jury testimony.

It follows from what we have said that the motions of defendants Bryant and Clifton for a new trial, resting substantially upon the alleged abuse of the court's discretion, must fail. Wiley v. United States, 277 F.2d 820 (4 Cir. 1960).

Watson's appeal presents the question whether the trial judge erred in denying his motion for a severance and separate trial. In addition to the asserted material variance between the allegation of a single conspiracy in the indictment and proof of multiple conspiracies, he contends that three substantive counts, in which he is not named as a defendant, were not set forth as overt acts in the conspiracy count and should have been severed. We cannot agree with either contention.

This case is similar to the case of Williams v. United States, 218 F.2d 276 (4 Cir.1954), which also arose in the Eastern District of South Carolina and involved a conspiracy among police officers and others to violate the Internal Revenue laws relating to liquor. One of the contentions on appeal was that the proof showed a series of separate conspiracies rather than a general conspiracy as charged. We said:

"This evidence, which was quite voluminous and given by many witnesses, may be likened to the web of the spider. No single strand, or even several strands, would be sufficient. Yet when all these strands are considered together, and their interrelations and connections are considered, they form, we think, a complete web, which was more than sufficient to take to the jury the question of a general conspiracy among the appellants. On all this evidence, the jury might well have found (as we think they did find) that all those acts just could not have happened save on the theory of a consistent pattern of agreement between these appellants." 218 F.2d at 278.

Again, we said in United States v. Wenzel, 311 F.2d 164, 167:

"* * * It is fundamental that it is not necessary that every act undertaken in carrying out the object of a conspiracy should be participated in by every member of the conspiring group. In carrying out the purpose of a conspiracy it will be found that in practically every case different groups played different parts. To unite them in a single conspiracy it is only necessary that the activities of each individual or group be directed toward accomplishing a single criminal objective."

The "single criminal objective" here was the manufacture, procurement and distribution of the nontaxpaid liquor, with the attendant criminal activities which these goals required. In essence the evidence disclosed that Bryant, Clifton and other law enforcement officers, and those acting in concert with them, conspired to violate the Internal Revenue laws...

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    ...cert. denied, 387 U.S. 919, 87 S.Ct. 2033, 18 L.Ed.2d 972 (1967). Joinder is appropriate in conspiracy cases. United States v. Bryant, 364 F.2d 598, 601-03 (4th Cir. 1966). For each case, the facts peculiar to it are controlling. E.g., United States v. Truslow, 530 F.2d 257, 261 (4th Cir. 1......
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