United States v. Clunn, No. 71-1461.

• Decision Date: 18 April 1972
• Docket Number: No. 71-1461.
• Citation: 457 F.2d 1273
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Milton Ray CLUNN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

457 F.2d 1273 (1972)

UNITED STATES of America, Plaintiff-Appellee, v. Milton Ray CLUNN, Defendant-Appellant.

No. 71-1461.

United States Court of Appeals, Tenth Circuit.

April 18, 1972.

A. Camp Bonds, Jr., of Bonds, Matthews & Bonds, Muskogee, Okl., for defendant-appellant.

Robert D. McDonald, Asst. U. S. Atty. (Richard A. Pyle, U. S. Atty., on the brief), for plaintiff-appellee.

Before CLARK,^* Associate Justice, and HILL and DOYLE, Circuit Judges.

DOYLE, Circuit Judge.

The defendant-appellant was found guilty of the possession and transportation of untaxed whiskey, in violation of 26 U.S.C. § 5604(a) (1). His brother, Grady Roy Clunn, was also convicted on both counts, but this appeal is on behalf of Milton Ray Clunn only. He challenges the sufficiency of the evidence to support the jury verdicts as well as the validity of his arrest and the search of the automobile in which he was riding. We limit ourselves to determination of the sufficiency of the evidence, it being unnecessary to decide whether the arrest and search were valid.

The incident in question occurred at 6:00 a. m. on Sunday morning, December 13, 1970, near Haileyville in Pittsburg County, Oklahoma. Appellant was a passenger in a 1966 Chevrolet which was then being driven by his brother on a gravel road in a remote rural area. Investigator Day, an agent of the Alcohol, Tobacco and Firearms Division had received information from an informant that a light colored 1965 or 1966 Chevrolet would deliver a load of moonshine whiskey to a destination along the road on Sunday morning, the 13th. The road follows the shoreline of Dow Lake in Pittsburg County until it comes to a dead end at a farmhouse.

Investigators Day and Beckman were present on a fishing road branching off the Dow Lake road for some time prior to 6:00 a. m. when the Chevrolet automobile which was owned by appellant's brother, Grady Roy Clunn, came into view. Investigator Day noticed that the Chevrolet was "sitting low in the back." He turned on his red light and radioed officers in another vehicle farther down the road that he intended to stop the white Chevrolet. Following receipt of this notice the driver of the other car pulled into the road in front of the Chevrolet car and turned on his red lights.

The driver of the Chevrolet, who turned out to be Grady Clunn, then stopped his vehicle and tried to run from it. He was pursued by Investigator Day and was caught some 300 yards away from the point where the vehicle had stopped.

Appellant, Milton Clunn, the passenger, was attempting to get out of the Chevrolet when Agent Beckman came on the scene. Beckman ordered him to stay in the car and then sought a key to the trunk, but as is often the case with vehicles transporting contraband liquor, no key was available. Beckman thereupon entered the car and detached the back cushion in the rear seat. He then removed two plastic one-gallon containers which proved to hold moonshine. There were 38 gallons besides this in small kegs and plastic containers, but only the two gallons were removed at the scene. The next day the remaining 38 gallons were taken out of the back of the car. The defendants moved to suppress the evidence, but this was denied on the ground that even though there was not probable cause prior to the apprehension and arrest, the original tip was sufficiently corroborated at the scene to furnish probable cause for the arrest and search. The evidence at trial consisted of the testimony of Investigators Day and Beckman plus the introduction of the whiskey.

The appellant and his brother denied any knowledge that the whiskey was in the trunk. Grady Clunn testified that the white Chevrolet had been his, but that he had sold it the day before to one John Lewis who had had possession of it for eight hours on the previous day. He further stated that delivery was to have been made at a gas well near Dow Lake on the morning in question. Needless to say, the testimony of Lewis was not presented.

Grady Clunn sought to explain his flight as being based on a frightened reaction. According to him he was apprehensive about the possibility that someone would try to assault him.

Appellant denied that he had any knowledge that contraband liquor was in the trunk of the car. At trial he said that he had been unemployed for several months and he was riding with his brother to the gas well in order to obtain a job. The jury found both defendants guilty.

In order to sustain the conviction for possession as charged in the first count, it is necessary for the evidence to establish that the appellant here had dominion and control of the illicit liquor. Thus, his presence in the vehicle as a passenger is generally considered insufficient of itself to support an inference that he had control or custody of the illicit liquor; nor is mere presence enough to sustain the transportation count. If he had been the owner of the vehicle, or if he were shown to have been driving his brother's car, or directing or otherwise assisting in the operation, any such additional circumstance might serve to tip the scale in favor of sufficiency.

In an early case, Bergedorff v. United States, 37 F.2d 248, 249 (10th Cir. 1929), the evidence showed the presence of 28 kegs of moonshine whiskey buried in a creek bottom near defendant's land, plus four kegs which were buried on defendant's land. This was held to be insufficient to sustain a conviction for possession of intoxicating liquor. Possession was held to require dominion and control, which standards were not satisfied by the presence of the liquor on or near defendant's land. This, the court said, raised no more than surmise.

The Supreme Court's decision in United States v. Romano, 382 U.S. 136, 141, 86 S.Ct. 279, 15 L.Ed.2d 210 (1965), shows the weakness of purported circumstantial evidence such as that with which...