United States v. Denton

• Decision Date: 03 December 1962
• Docket Number: No. 14854-14856.,14854-14856.
• Citation: 307 F.2d 336
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Hooper Enloe DENTON, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Omer Clarence PHILLIPS, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Billy WEBB, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

307 F.2d 336 (1962)

UNITED STATES of America, Plaintiff-Appellee, v. Hooper Enloe DENTON, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Omer Clarence PHILLIPS, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Billy WEBB, Defendant-Appellant.

Nos. 14854-14856.

United States Court of Appeals Sixth Circuit.

August 29, 1962.

Certiorari Denied December 3, 1962.

William E. Badgett, Knoxville, Tenn., W. E. Badgett, Knoxville, Tenn., Dale M. Quillen, Nashville, Tenn., J. M. Meek, Knoxville, Tenn., on the brief, for appellant.

David E. Smith, Knoxville, Tenn., John H. Reddy, U. S. Atty., Chattanooga, Tenn., Cecil D. Meek, Jr., Ottis B. Meredith, Asst. U. S. Attys., Knoxville, Tenn., on the brief, for appellees.

Before CECIL and WEICK, Circuit Judges, and BOYD, District Judge.

Certiorari Denied December 3, 1962. See 83 S.Ct. 292.

BOYD, District Judge.

The appellants and others were charged in the District Court with conspiracy to violate certain revenue laws of the United States relating to illicit liquor. Title 18 U.S.C. § 371. They were also charged with substantive violations of several of these statutes.

Appellant Denton was convicted by the jury of conspiracy and of the substantive offenses with which he was charged in five additional counts. Title 26 U.S.C. §§ 5205(a) (2), 5604(a), 7206(4), and 5691(a). He was given concurrent sentences by the trial judge totalling five (5) years.

The jury acquitted appellants Phillips and Webb on the conspiracy count of the indictment, but found them guilty under two substantive counts for their handling of the liquor herein and their participation in violations of Title 26, U.S.C. §§ 5205(a) (2), and 7206(4). Phillips was given two concurrent sentences of one year by the District Judge to commence at the expiration of a sentence he was then serving. Webb's sentence was suspended and he was placed on probation for a period of five (5) years.

The series of transactions leading to the arrest and conviction of the appellants took place in Cocke County, Tennessee, and revolved around an undercover agent for the Alcohol Tax Unit and a government informer. The informer purchased from appellant Denton two large quantities of non-taxpaid liquor on separate occasions. The informer on the occasions of the purchases aforesaid went to the Denton home, represented himself to be engaged in the illicit liquor traffic in the State of North Carolina, and introduced the accompanying A. T. U. agent as his driver. On one of these occasions the appellants Phillips and Webb, among other things, transported the contraband liquor in question for short distances. The liquor aforesaid so purchased and handled was introduced in evidence in the trial court.

Appellants assign a number of errors on this appeal. It is urged among other things that the evidence aforesaid was obtained as results of illegal exploratory searches and seizures and should have been suppressed by the trial judge as to all defendants. The trial judge found no merit in this contention and with this conclusion we agree, since upon the evidence adduced, there was no such search or search of any kind of the Denton premises involved. United States v. Bush, 283 F.2d 51 (C.A.6) 1960.

The appellants further contend on this appeal that they were entitled to a verdict of acquittal by the trial judge on the grounds of entrapment and that the trial judge erred in not directing such verdict as a matter of law. The basis for this position is that the government agent working with the informer arranged for the purchases of liquor herein. The trial judge ruled the question of entrapment was for the jury and he adequately instructed the jury in this connection. The submission of this issue to the jury was proper and there was ample evidence from which the jury could reasonably find the appellants were not victims of entrapment. Sorrells v. United States, 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413 (1932); Sherman v. United States, 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848 (1958); Morales v. United States, 260 F.2d 939, C.A.6 (1958); Masciale v. United States, 356 U.S. 386, 78 S.Ct. 827, 2 L.Ed.2d 859 (1958); United States v. Hackett, 303 F.2d 33, C.A.6 (1962).

The appellants next claim the convictions herein are void on the ground that the court did not have jurisdiction of this cause. This claim grows out of the appearance in the trial of William P. Crewe, Assistant Regional Counsel of the Internal Revenue Service. Mr. Crewe, who at the beginning of the trial was introduced to the trial court, questioned witnesses, and made the opening argument to the jury. No objection to his appearance in the trial was made at any time. Appellants cite Title 5, U.S.C. A. §§ 310 and 315, and Title 28, U.S.C. §§ 503, 504 and 507 as authority for the claimed lack of jurisdiction. In essence, the Code sections require certain legal personnel retained by the Department of...