United States v. Duncan

• Court: U.S. Court of Appeals — Fifth Circuit
• Writing for the Court: RIVES, BELL and DYER, Circuit
• Citation: United States v. Duncan, 420 F.2d 328 (5th Cir. 1970)
• Decision Date: 08 January 1970
• Docket Number: No. 27131.,27131.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Irby Frank DUNCAN, Defendant-Appellant.

420 F.2d 328 (1970)

UNITED STATES of America, Plaintiff-Appellee, v. Irby Frank DUNCAN, Defendant-Appellant.

No. 27131.

United States Court of Appeals Fifth Circuit.

January 8, 1970.

Thomas M. Hendricks, Jr., Joe R. Odom, Gerald Adams, Meridian, Miss., for defendant-appellant.

Robert E. Hauberg, U. S. Atty., Southern District of Mississippi, E. Donald Strange, Joseph E. Brown, Jr., Asst. U. S. Attys., Jackson, Miss., for plaintiff-appellee.

Before RIVES, BELL and DYER, Circuit Judges.

RIVES, Circuit Judge.

Irby Frank Duncan resided with his wife and children in the Lost Gap section of Lauderdale County, Mississippi, about 2½ or 3 miles west of the Meridian City limits and across the road from the Lost Gap Church. Charles Moseley, a Special Investigator for the Alcohol and Tobacco Tax Division of the Treasury Department (hereafter ATU), testified that, "based on information which I had received from a source I knew to be reliable and confidential, I sent Special Investigator Glenn Fleming and Grady Lewis and Peter Mastin out in this area to make an investigation." Moseley himself checked the land records of Lauderdale County, and found 39 acres listed as owned jointly by Irby Frank Duncan and his wife. The other one acre of the forty is the situs of the Lost Gap Church across the road from the Duncan home.

The investigation was prompt. By 2:30 P.M., Glenn Fleming was about 250 feet from a chicken house which is located some 200 to 250 feet behind the Duncan residence. Fleming testified:

"From this position, I could smell the odor of fermenting mash. I could hear a burner going on in the chicken house and I could hear glass being moved about, clinking together; and I could see a black plastic pipe coming out of the chicken house and going to, down to the stream at the bottom of the hill. * * * Actually there were two plastic hose coming out, one out one side and one out the other. One is a drain and one is used as water to supply the fermenting mash."

Fleming had been an ATU Investigator for three years, during which time he had investigated "close to a hundred" illicit whiskey stills. The sound of burners was a familiar sound to him and indicated that a distillery was in operation. By radio contact, Fleming informed Investigator Moseley of what he had observed and smelled, and requested that Moseley get a search warrant for the premises.

Moseley, having thus corroborated the information which he had received from his "reliable informant," executed an affidavit for the search warrant before United States Commissioner Richard E. Wilbourn. Commissioner Wilbourn, out of curiosity or for some undisclosed reason, accompanied the officers who executed the search warrant.

About five o'clock P.M. on the same day, five or six officers in two automobiles converged on the Duncan residence. As they started walking toward the house, Irby Frank Duncan came out to meet them. After mutual introductions, according to Moseley's testimony, "I identified myself to him and informed him that I was armed with a federal search warrant for his premises, whereupon he immediately stated, what you are looking for is in the chicken house." Moseley then gave Duncan a copy of the search warrant which he retained, and Investigator Owen advised Duncan of his constitutional rights. All of the group then proceeded to the chicken house. Moseley testified:

"* * * We walked along an old road which led from his house to the chicken house, but it hadn\'t been driven on lately but there was considerable walking traffic on this path. * * * When I entered the chicken house, I observed a large distillery at which no sign was posted to indicate that it was registered. The distillery consisted of a seven hundred twenty gallon vat still which was set up and in operation. The fire was under the still and the whiskey was flowing from the condenser into a catch vat. Uh there were one hundred and seventeen 55 gallon steel drum fermenters. * * * Uh well there was a total of five thousand two hundred and fifty gallons of mash contained in uh the fermenters and the still. And there was a total of 50 gallons of distilled spirts uh contained in one 180 gallon mixing vat which bore no stamps, tax stamps of any kind. * * * Just outside and to the front of the chicken house, there was a 1958 Chevrolet three quarter ton pickup truck which contained a two hundred and fifty gallon butane tank. The butane tank was connected to the burner which was under the still and which was lighted by a long pipe which ran down the side of the chicken house and was connected through this wall with a plastic or rubber pipe. This 1958 Chevrolet was registered to Irby Frank Duncan at his present address."

When they entered the chicken house and found the distillery, Moseley advised Duncan that he was under arrest. No further confession or statement of Duncan was offered in evidence. Moseley described on cross-examination the circumstances under which Duncan's one brief statement was made:

"Q. * * * And you say he just voluntarily made a statement when you walked up?

A. Spontaneously.

Q. Spontaneously?

A. Yes sir.

Q. You don\'t think he was afraid?

A. He didn\'t appear to be. He was quite calm during the whole thing.

Q. And then when was he given this warning that you mentioned?

A. As to his rights?

Q. Yes.

A. Immediately after he made the statement."

Moseley could see at the house some children and a woman whom he took to be Duncan's wife, but none of the officers went into the home.

Investigators Fleming and Owen corroborated Moseley's testimony. With the testimony of those three officers the government rested its case. Duncan's counsel moved for his acquittal on the ground of insufficiency of the evidence, which motion was overruled by the court. After a brief recess the defendant rested his case without offering any evidence. Arguments of counsel and the charge of the court followed. At the conclusion of the charge, in the absence of the jury the following colloquy occurred between the court and counsel:

"BY THE COURT: Does the government have any exceptions to take to any instructions given?

BY MR. STRANGE Assistant U. S. Attorney: No, Your Honor.

BY THE COURT: Does the government have any additional instructions to request?

BY MR. STRANGE: No, Your Honor.

BY THE COURT: Defendant have any exceptions to take to any instructions given?

BY MR. PIGFORD Counsel for Duncan: May it please the Court, the defendant excepts to the statement

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