United States v. Harrell

• Decision Date: 22 December 1970
• Docket Number: No. 28126.,28126.
• Citation: 436 F.2d 606
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Rufus Eafie HARRELL, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

436 F.2d 606 (1970)

UNITED STATES of America, Plaintiff-Appellee, v. Rufus Eafie HARRELL, Defendant-Appellant.

No. 28126.

United States Court of Appeals, Fifth Circuit.

December 22, 1970.

COPYRIGHT MATERIAL OMITTED

Euel A. Screws, Jr., Montgomery, Ala., for defendant-appellant; James Prestwood, Andalusia, Ala., and Hobbs, Copeland, Franco Riggs & Screws, Montgomery, Ala., of counsel.

Ira DeMent, U. S. Atty., D. Broward Segrest, Wm. H. Thomas, Asst. U. S. Attys., Montgomery, Ala., for plaintiff-appellee.

Before SIMPSON, MORGAN and INGRAHAM, Circuit Judges.

SIMPSON, Circuit Judge:

Appellant, Rufus Eafie Harrell, and a co-defendant Durwood Norris were indicted together on five counts alleging violation of the Internal Revenue Laws pertaining to non-tax paid distilled spirits. Prior to Harrell's trial, Durwood Norris pled guilty to all counts except Count Five which was dismissed. That count charged Norris alone with possession of an unregistered distillery on September 21, 1968. Harrell went to trial on his plea of not guilty to the remaining four counts of the indictment. Count One charged Harrell and Durwood Norris with entering into a conspiracy to violate the revenue laws between September 5, 1968 and September 22, 1968. Durwood Norris' son, Thomas Richard Norris, was named as a co-conspirator but not as a co-defendant. Counts Two and Three charged Harrell and Durwood Norris with sales of non-tax paid spirits: 50 gallons on September 5, 1968, and 50 gallons on September 6, 1968, in violation of Chapter 51, Title 26, U.S. Code. Count Four charged the two defendants with possession of 200 gallons of non-tax paid spirits on September 21, 1968, also in violation of Chapter 51, Title 26, U.S.Code. The particular section involved under all three counts is Title 26, U.S.C., Section 5604. The substantive offenses charged by Counts Two, Three and Four or evidentiary portions of them were the basis for the six overt acts laid in the conspiracy count, Count One.¹

Harrell was found guilty by the jury as to each of the four counts on trial and received a general sentence to thirty months custodial confinement. This appeal timely followed. We reverse on the basis of what we conceive to be demonstrated prejudicial error infecting Harrell's conviction as to each count.

I. The Evidence

We set out below portions of the prosecution's evidence, stated in the light most favorable to the government's case, Glasser v. United States, 1942, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680, and extracted largely from the testimony of the government's witnesses. We also refer to additional evidence which bears upon the grounds of error asserted. The key government witness was William Sams, a special investigator with the Alcohol, Tobacco and Firearms Division of the U. S. Treasury Department, whose function in this case was that of an undercover agent. Sams related that on the afternoon of September 5, 1968, he drove to the appellant's farm residence posing as an illicit whiskey dealer, and after leisurely, friendly conversation gained Harrell's confidence. He inquired of Harrell as to the possibility of purchasing moonshine. Harrell indicated that he knew where a supply was available at $5.00 per gallon and at Sams' request accompanied Sams to the Norris farm, several miles away where the first 50 gallon purchase (charged in Count One) took place. The location was about 9½ miles southwest of Opp, Alabama. Harrell and Norris conferred outside Sams' hearing and Harrell returned to Sams' car and directed the agent to drive to a location about 250 yards from the Norris residence. Norris and his son joined them at this point, driving a 1960 Chevrolet station wagon, which contained 50 one-gallon jugs of non-tax paid moonshine whiskey. The whiskey was off-loaded to the ground by the two Norrises, Harrell and Sams. Sams asked Harrell about securing some paper bags to place around the jugs, whereupon Harrell and the older Norris left and returned with several fertilizer bags to wrap around the jugs. The sale was then completed and the jugs loaded into the undercover agent's vehicle. The agreed price of $5.00 per gallon was paid by Sams to Harrell, who placed the money in his pocket. Harrell asked Sams if he would need more whiskey and Sams replied that he would need another 50 gallons the following night. Harrell instructed Sams not to come by his house on that occasion but to go directly to Norris' house and that Norris would take care of him. Sams then drove to a pre-arranged meeting with other agents who assisted in the destruction of the 50 gallons of non-tax paid whiskey.

On September 6 Sams returned to Norris' house as instructed by Harrell. He was joined by Norris, who directed him to a non-tax paid whiskey "stash" (caché) where 50 gallons of whiskey were loaded into the Sams' vehicle, Sams paying Norris therefor. On this occasion price was discussed and a bargain was struck for Sams to purchase 200 gallons at the reduced price of $4.50 per gallon. Norris told Sams to call Harrell on "Tuesday a week" (September 17) to see whether the 200 gallons of whiskey were available. Sams dropped Norris at his residence and again drove the vehicle to a pre-arranged location where he and other agents destroyed the recently purchased whiskey.

On September 20 Sams placed a person-to-person call to Harrell's residence, spoke with Harrell and was told that the 200 gallons of whiskey would be ready on the following night. On September 21, with ATFD Agent Williams, Alabama ABC² Agent Catrett, and Chief Deputy Sheriff Berry of Covington County concealed in the trunk of his automobile, Sams drove to Harrell's residence. Harrell informed Sams that he was going to town with his wife and that Sams should go directly to Norris' home where the whiskey was available. He arrived at Norris' residence and was joined in the car by Norris and directed to a location in the close vicinity of the two previous purchases, where he saw a "stash" of numerous one-gallon jugs, later counted to be 200, and later found to contain non-tax paid whiskey. Norris was arrested and advised of his constitutional rights, and the four officers proceeded to destroy the whiskey on the spot. Later that night or in the early morning hours of September 22 the appellant Harrell was arrested at his own home.

Sams was permitted to testify at trial over the defendant's objection that on the night of the arrest the agents discovered a complete illicit distillery, setup, a number of drums of fermenting mash, and 35 gallons of non-tax paid whiskey, at a point about 300 yards from the place of Norris' arrest. Neither possession of the distillery nor the manufacture of distilled spirits was charged as an object of the conspiracy, those objects being described as the removal, concealment, possession, transportation, sale and transfer of non-tax paid whiskey with intent to defraud the United States. No overt act charged in Count One dealt with the possession of a distillery or the fermenting mash,³ and as already related above neither substantive count for which Harrell was on trial was concerned with the possession of a distillery or the fermenting or possession of mash.⁴

During the trial, and again over defense objection, Agent Williams testified that after the arrest of Norris and the discovery of the still Norris made a statement to him on the way to jail. We quote Williams' testimony in this respect:

"Norris stated that the still belonged to him; he said it had been there about three or four months and that he had put it there to help pay off the farm".

There was testimony at the trial relating to a prior "feud" or vendetta between Harrell and Alabama ABC Agent Catrett, one of the officers participating in the arrest. Both sides eventually offered testimony as to this feud, although it was first gone into over defense objection by the government's trial attorney in his cross-examination of the appellant Harrell. This incident — which occurred several weeks prior to the conspiracy dates — involved the exchange of heated words and purported threats of bodily injury to Catrett because of the agent's presence in and near Harrell's watermelon field, without permission, apparently searching for evidence of moonshine activity. Catrett on cross-examination by defense counsel denied any right to direct Sams to undertake undercover activities, but did admit that he suggested that they be carried out.

The appellant offered testimony of three witnesses as to his good reputation generally in the community and also as to his good reputation for truth and veracity. The government attorney on cross-examination questioned these defense character witnesses as to Harrell's general reputation for being in the whiskey business "prior to this indictment". All had heard of a prior whiskey conviction, but one witness pointed out that this had no bearing on a reputation for being truthful. No objection was offered to this cross-examination. The defense rested at this point and the government recalled Federal Alcohol Tax Agent Williams for rebuttal testimony. Williams was questioned as to his knowledge of Harrell's "general reputation in the community for being in the illicit whiskey business, prior to this indictment". The witness answered "Yes sir", and defense counsel immediately objected. The trial judge excused the jury and sustained the objection but denied a motion for mistrial and refused to instruct the jury to disregard the question saying "Well, I am not going to try and eradicate it, other than to tell the jury that what the lawyers say is not evidence; I don't see that it is highly prejudicial. He's testified he has been in the whiskey business".⁵ There the matter rested except that the jury was so instructed as a part of the general charge.

Norris' guilty plea was entered March 26, 1969, several months prior to Harrell's trial commencing June 5, 1969. Norris and his counsel sought then...