United States v. Copeland

• Decision Date: 25 October 1961
• Docket Number: No. 8360.,8360.
• Citation: 295 F.2d 635
• Parties: UNITED STATES of America, Appellee, v. Harold Marshall COPELAND, Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

295 F.2d 635 (1961)

UNITED STATES of America, Appellee, v. Harold Marshall COPELAND, Appellant.

No. 8360.

United States Court of Appeals Fourth Circuit.

Argued October 4, 1961.

Decided October 25, 1961.

Certiorari Denied January 8, 1962.

Gerald F. White, Elizabeth City, N. C. (Russell E. Twiford and McMullan, Aydlett & White, Elizabeth City, N. C., on the brief), for appellant.

Lafayette Williams, U. S. Atty., Greensboro, N. C. (James E. Holshouser, former U. S. Atty., Greensboro, N. C., on the brief), for appellee.

Before SOPER, BRYAN and BELL, Circuit Judges.

Certiorari Denied January 8, 1962. See 82 S.Ct. 398.

BELL, Circuit Judge.

The appellant was convicted of violating the Internal Revenue laws relating to distilled spirits and sentenced by the Court to imprisonment for a period of forty months. From this judgment he appeals, contending that the Trial Judge committed prejudicial error in admitting in evidence two statements which were offered to prove a conspiracy.

The appellant makes three contentions with respect to this evidence: that the first statement was not introduced in the proper order during the trial in that it was offered prior to introducing independent evidence of the conspiracy; that there was no evidence offered at any time during the trial tending to prove that a conspiracy existed when the first statement was made; and finally, that both statements were hearsay.

With reference to the first contention, there can be no question but that the order of the reception of evidence lies within the discretion of the Trial Judge, whose action will not be reversed on appeal unless it amounts to a gross abuse of discretion. United States v. Manton, 2 Cir., 107 F.2d 834, Braatelien v. United States, 8 Cir., 147 F.2d 888, Tingle v. United States, 8 Cir., 38 F.2d 573, Cohen v. United States, 2 Cir., 157 F. 651. We find no such abuse here.

The cases relied on by the appellant are not at variance with these principles. Cf. Hauger v. United States, 173 F. 54, from this Circuit, which involved a confession by an alleged conspirator after he had been arrested.

With reference to the second contention, the testimony complained of consisted of two separate statements made by different parties at different times to the government witness Brown. The first was on October 5, 1960, when Brown testified that Wilson, one of the alleged conspirators, told Brown that he had made an agreement with the appellant Copeland and a Mr. White under the terms of which Wilson was to furnish them sugar at $12 a bag and jars at cost, and in turn Copeland and White were to furnish Wilson whiskey at $20 per case. On October 6th White in person confirmed to Brown the terms of this agreement. On October 8th the appellant Copeland indirectly confirmed the agreement by telling the witness Brown that he needed fruit jars at the still. On October 9th Copeland confirmed to Brown the exact terms of the agreement which were set forth in the statement complained of. On October 11th Copeland delivered to Brown 101 cases of illicit whiskey for which Wilson paid Copeland in Brown's presence. What more direct evidence can be adduced to prove the existence of the conspiracy which Wilson disclosed...