United States v. Harman

• Decision Date: 23 July 1965
• Docket Number: No. 9723.,9723.
• Citation: 349 F.2d 316
• Parties: UNITED STATES of America, Appellee, v. Roy HARMAN, Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

349 F.2d 316 (1965)

UNITED STATES of America, Appellee, v. Roy HARMAN, Appellant.

No. 9723.

United States Court of Appeals Fourth Circuit.

Argued June 1, 1965.

Decided July 23, 1965.

LeRoy Katz (Court-assigned counsel), Bluefield, W. Va., for appellant.

Jay M. Vogelson, Sp. Asst. to the U. S. Atty. (George D. Beter, Acting U. S. Atty., on brief), for appellee.

Before SOBELOFF and BRYAN, Circuit Judges, and BARKSDALE, District Judge.

BARKSDALE, District Judge:

At the July, 1961, Term of the United States District Court for the Southern District of West Virginia, sitting at Beckley, an indictment was returned against defendant Roy Harman and David Robert Stevenson, and the case was set for trial at Bluefield. The indictment was in three counts, and charged the defendants (1) with unlawful distilling, (2) with making and fermenting a quantity of mash, and (3) with unlawful possession of four gallons of distilled spirits, on June 21, 1961, in violation of 26 U.S.C.A. §§ 5601(a) (4), 5601(a) (7), and 5604 (a) (1). Stevenson died before being brought to trial and the case proceeded against Roy Harman. Harman was first tried by the court with a jury on November 27, 1963, the trial resulting in the conviction of Harman and the imposition of concurrent sentences of four years on each count. However, on appeal, this conviction was reversed for errors in the court's charge, "in part expressly, and in part tacitly, admitted by the United States. These consisted in failing to instruct the jury as to the law applicable to the respective counts, and in instructing the jury as to an inapplicable presumption", and the case was remanded to the District Court for a new trial. United States v. Harman, 4 Cir., 323 F.2d 650. The case again came on for trial with a jury before a different judge on October 8, 1964, and again resulted in the conviction of the defendant on all counts and the imposition of concurrent sentences of five years on each count. The defendant, by counsel, moved for a judgment of acquittal at the conclusion of the Government's evidence, again at the conclusion of all evidence, and after the jury had returned its verdict, defendant again moved for a judgment of acquittal, or in the alternative, for a new trial. All these motions having been overruled by the court, defendant has prosecuted this appeal.

Briefly stated, the facts are that in June of 1961, Roy Harman and his wife were living in a rural area of McDowell County, West Virginia, where they were engaged in farming and raising livestock on a small tract of land. Having discovered a still located in the vicinity of the Harman home, Investigators Bodine, Waldron and West of the Federal Alcohol and Tobacco Tax Division, on June 21, 1961, raided the still. When they had reached a point in the woods approximately one hundred yards from the still, Bodine undertook to observe what was going on at the still through what he called "high powered binoculars". He observed that the still was in operation and that there were three men present, none of whom could he recognize or identify at that distance. Thereupon, the three investigators separated, in order to surround the still site. Bodine proceeded directly to the still, where he found Stevenson sitting on a rock, and another man doing something at the cooler barrel whom he said he immediately recognized as Roy Harman when he turned around. Bodine said: "Roy, how about a drink?" Whereupon, after looking at Bodine very quickly, the man alleged to be Roy Harman broke and started to run. Bodine undertook to apprehend him, a scuffle ensued, and the alleged Roy Harman escaped and was not apprehended until more than a year later. Bodine only saw him for a matter of seconds. He admitted that he had only seen him three times before, the first time several years before the raid, and the other times, two or three weeks before the raid, on the street in War, West Virginia. Bodine testified that the alleged Harman was wearing a cap something like an army fatigue cap. Such a cap was found in the vicinity of the scuffle, and the investigators took it with them along with certain other evidence after the still had been destroyed. However, the cap was not produced at the trial, nor was there any evidence in explanation of its nonproduction. Harman's wife testified that he never wore any kind of cap and did not own one.

After raiding the still, the three investigators went to Roy Harman's house, Roy was not there, but his wife, along with her mother in law and her sister's daughter, was there, as well as one Frank Altizer. Believing that Altizer was the third man at the still, the officers arrested him and took him before the United States Commissioner at Beckley for a preliminary hearing the following day, June 22, 1961. Upon the testimony of Bodine, the Commissioner held Altizer for the grand jury and committed him to jail. However, he was shortly released, has never been brought to trial, nor has he ever been indicted. At Roy Harman's trial, besides Bodine, Altizer was the only other witness for the Government who connected Roy Harman with the still. Consequently, his situation merits some attention.

Altizer, as a Government witness, testified that Roy Harman owned and operated the still, that he, Altizer, had been to the still on a number of occasions to get whiskey for himself, and that on the morning of June 21st, Harman left his house with a bag over his shoulder headed in the direction of the still. On the day of the raid, Altizer signed a statement prepared for his signature by Investigator West, admitting that he had helped Harman carry out whiskey from the still two or three different times. However, he denied this when he testified at the trial. Altizer admitted that, although he was fifty-six years old, he had no real occupation, nor had he ever done any work of consequence. He denied having anything to do with making whiskey, but admitted that he had been in jail many times for being drunk, maybe as many as a hundred times. The fact that, upon the evidence of Bodine, the Government's principal witness against Roy Harman, Altizer, was held for grand jury action by the Commissioner, but never brought to trial, nor indicted, with no explanation of why his prosecution was abandoned, certainly makes his testimony suspect, to say the least. This situation, coupled with Altizer's habitual drunkenness and general worthlessness, renders his testimony, in corroboration of Agent Bodine, of little, if any, value.

During the trial, over the objection of the defendant, Investigator Bodine was permitted to introduce in evidence two head-and-shoulder pictures of the defendant, one full face and the other a profile. Not only did defendant's counsel object to the introduction of these pictures when Bodine was asked by Government counsel to produce them, but before the trial commenced, defendant's counsel made a motion that the court not permit the introduction of these pictures, "because they are of the type of pictures that are taken of a convicted felon, and this would indicate to the jury when they see these pictures, that he has a previous conviction, and until such time as he would take the stand it would not be admissible evidence, and the inference is so strong from those pictures, that we move that they not be admitted," Roy Harman did not take the witness stand in his own defense, nor did he in any way put his character in issue. The pictures show the defendant in a work shirt, wearing a black tie, and across the bottom of the full face picture the following appears:

"USPA 74040 11 5 53"

As to the pictures, Bodine testified as follows:

"Q. And in the course of your duties as an investigator — special investigator for the Alcohol and Tobacco Tax Unit, did you have occasion to have in your possession during your special assignment any picture resembling Roy Harman?

"A. Yes, sir, I had a picture in my folder which I carried in my brief case on assignment for which I had concerning the activities of Roy Harman, which was a picture taken — oh — several years prior to this."

Defendant's objection to this evidence was overruled.

"Q. And is this rather usual or unusual that an investigator should carry with him the picture of a person?

"A. It is the usual procedure when there is a special assignment made for an officer to have a picture of the principal in the investigation.

"Q. And you were sent here as a special agent, on a special assignment, is that correct?

"A. Yes, sir, that is correct.

"Q. And what was the purpose of the special assignment?"

To this question, defendant's objection was overruled.

"A. The purpose of that assignment was to perfect a case against Roy Harman relating to the violation of the Internal Liquor Laws."

DISCUSSION

On this appeal, defendant's counsel in his brief and argument raised the following questions:

"1. Whether the trial court erred in permitting the introduction of the pictures of the defendant * * *, which pictures were taken while defendant was an inmate at the United States Penitentiary at Atlanta, Georgia, and which pictures showed thereon his prison number and other information?

"2. Whether there was sufficient evidence to support the verdict of guilty rendered by the jury?

"3. Whether the trial court erred in not instructing the jury, at the request of the defendant, that mere presence at the still site was not sufficient to prove possession?

"4. Whether the court erred in not dismissing the indictment because it was returned in a division other than that in which the alleged crime occurred?"

We find no merit in defendant's contentions as to questions 2 and 3. The Government's case was not a strong one, depending almost entirely on Bodine's identification of the defendant. Neither of the other two investigators undertook to identify him. Bodine had never had any conversation with Harman; had never even spoken to him. He admitted that he had only seen him three times...