United States v. Harris, 17467

• Decision Date: 08 March 1968
• Docket Number: No. 17467,17782.,17467
• Citation: 391 F.2d 348
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Hayden Louis HARRIS, Thomas Benton Harris et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

391 F.2d 348 (1968)

UNITED STATES of America, Plaintiff-Appellee, v. Hayden Louis HARRIS, Thomas Benton Harris et al., Defendants-Appellants.

Nos. 17467, 17782.

United States Court of Appeals Sixth Circuit.

March 8, 1968.

H. H. Gearinger, Chattanooga, Tenn., (Court appointed for appellant Donald Ray Harris).

John H. Reddy, U. S. Atty., Thomas A. Williams, Asst. U. S. Atty., Chattanooga, Tenn., for appellee.

Before O'SULLIVAN, McCREE, and COMBS, Circuit Judges.

COMBS, Circuit Judge.

These appeals, consolidated for hearing in this Court, are from separate convictions of the several defendants-appellants for conspiracy to violate, and the substantive violation of, the laws relating to the manufacture of whiskey. 18 U.S.C. § 371; 26 U.S.C. § 5601(a) (4).

Case No. 17,467 in this Court is an appeal from judgments of sentence imposed on Hayden Louis Harris and Thomas Benton Harris. After an initial mistrial in the district court, the Harrises and others not here involved were again brought to trial. The two Harrises were convicted on a count charging conspiracy to violate the law relating to non-tax paid whiskey, and another count charging that they aided and abetted each other in carrying on the business of distillers without giving bond as required by law. Hayden Louis Harris received a sentence of three years imprisonment and Thomas Benton Harris received a sentence of two years imprisonment on the conspiracy count; they each received a two-year probated sentence on the other count to commence at the expiration of their sentences of imprisonment.

In case No. 17,782 in this Court, Hayden Louis Harris, Thomas Benton Harris, George F. Bowers, Donald Ray Harris and others not here involved were tried under a separate indictment charging them with (1) conspiracy, covering another time period from that charged in the first case; (2) aiding and abetting in the possession of certain stills; (3) possession of a still; and (4) aiding and abetting in carrying on the business of a distiller without giving bond. All of the defendants were acquitted on the conspiracy count; they were all convicted on the other three counts. Sentence were imposed as follows:

Hayden Louis Harris, four years consecutive to the sentences imposed in the first case;

Thomas Benton Harris, three years consecutive to the sentences imposed in the first case;

George F. Bowers, two years; and

Donald Ray Harris, two years.

In both cases error is charged in that the Government was allowed to prove overt acts of the charged conspiracy without first presenting independent proof of the existence of the conspiracy. We find no error on this score. The order of proof in a conspiracy case is left to the discretion of the trial judge. United States v. Shipp, 359 F.2d 185 (6th Cir. 1966); Strauss v. United States, 311 F.2d 926 (5th Cir. 1963), cert. denied, 373 U.S. 910, 83 S.Ct. 1299, 10 L.Ed.2d 412; United States v. Copeland, 295 F.2d 635 (4th Cir. 1961); Cwach v. United States, 212 F.2d 520 (8th Cir. 1954).

The question of sufficiency of the evidence is raised in both cases. Witnesses for the Government testified that they had observed the appellants operating the stills involved, loading onto vehicles beverage cans of the type customarily used for transporting alcohol, driving away in the vehicles, returning with the same vehicles, and unloading empty cans and bags of sugar. The distillery was located in the general vicinity of Hayden Louis Harris' home and men who worked at the stills were seen coming from the direction of his home. A truck used in transporting the product of the distillery was seen several times in Hayden Louis Harris' driveway. This and other evidence presented by the Government is clearly sufficient to sustain the judgments of conviction.

A claim of double jeopardy is asserted in the second case on the ground that if there was a conspiracy it was a continuing one for which some of the parties had already been tried in the first case. It is also contended that the substantive offenses charged in the second indictment were of the same character as those charged in the earlier indictment. The district judge found, and we think properly so, that the indictments charged two separate and distinct conspiracies. The conspiracy charged in the second indictment covered a different period of time from that alleged in the first indictment and, although both indictments had some defendants in common, the second one named additional parties as defendants. Moreover, none of the appellants was convicted of conspiracy in the second case; they were all acquitted of this charge by the jury. Any possibility of prejudice to appellants by the inclusion of the conspiracy count in the second indictment was vitiated by the jury's verdict.

The substantive offenses charged in the second indictment were alleged to have occurred at a different time and under different circumstances from those charged in the earlier indictment. It is noted, too, that the second indictment was returned before appellants were brought to trial on the first indictment and there was no motion for consolidation of the cases for trial as is permitted by Rule 13, Federal Rules of Criminal Procedure. The claim of double jeopardy is not well taken.

A more difficult question is presented in regard to the judge's instructions in the first case (No. 17,467). At the conclusion of the evidence, the judge instructed the jury and it retired to the jury room at 11:40 A.M. Later in the day the jury returned to the courtroom and requested additional instructions on the meaning of the word "conspiracy." The judge complied with this request and the jury again retired. At 4:55 P.M., the jury returned to the courtroom and the foreman announced, "We feel at this time that we are deadlocked." The judge then stated to the jury:

"We\'re beyond the normal time for adjournment and we will adjourn at this time, but I think it would be proper to request the jury to come back tomorrow and consider some further this verdict, and I will want at that time to give some further suggestions and some further instructions to the jury about the case, but well, rather than comment further on it this evening, we will just adjourn court at this time but for reasons which I will point out to you in the morning, it is important, I think, that we attempt to arrive at a decision in the case. You can appreciate the fact that the trial of these cases is expensive and burdensome to both parties in the lawsuit. This case has now taken three days to try and if you ladies and gentlemen are unable to decide it, it means that we\'re going to have to get twelve other men and women who have the same qualifications that you have; they certainly would have no more ability or dedication or intention or purpose to decide this lawsuit than you ladies and gentlemen. We can never hope to get a jury who will be any more competent to decide this lawsuit or any more dedicated to try this lawsuit and there\'s no reason to believe that the lawsuit can ever be tried any differently from what it was tried this time, so under all the circumstances I think it is proper that we should ask that you come back tomorrow, and, of course we\'ll have certain other instructions that I will want to give you at that time and then continue your deliberations tomorrow."

No objection was made by counsel to these remarks. After the jury had left the courtroom, the judge inquired if counsel had objection to the court further advising the jury that this was a second trial of the case and "otherwise urge upon the jury the importance of arriving at a verdict in the case." Counsel for the Government voiced no objection. Counsel for the appellants said, "We would welcome it." The judge then stated, "Well, I think in addition to other instructions in the morning, the Court will want to advise the jury of that and emphasize the importance of this case being decided."

The next morning the court gave these additional instructions:

"Ladies and gentlemen, the Court certainly appreciates the time and effort that you have devoted to the trial of this case. This makes the fifth day now that you ladies and gentlemen have been called upon to come to this court room to participate in the proceedings of the trial of this lawsuit. I appreciate the fact that yesterday you spent some four hours or more in deliberation upon this case and that it was an hour after usual time for adjournment that you advised the Court that you had been unable to arrive at a verdict in the case. I did feel it proper, however, to request that you come back this morning to make a further effort to decide this lawsuit.

"One reason that I requested that you come back this morning is the fact that this case has been tried one time previously. The jury in that trial was unable to agree upon a verdict, and if you ladies and gentlemen are unable to decide this lawsuit, this lawsuit must be decided — it must be decided at some time by some jury, which just means that if you are unable to decide this lawsuit that we\'re going to have to declare a mistrial in this case and we will have to then call in twelve more jurors and try this case over again.

"Let me just suggest a few things that I should like for you to consider. Prehaps in the course of your deliberations you\'ve been concentrating so upon the evidence of the case that you may not have thought that these matters also — I think they\'re appropriate thoughts for you to bear in mind as you deliberate this case. In the first case, this is an important lawsuit; every lawsuit is important. It is important to the parties involved. As a matter of fact, to the parties involved in every particular lawsuit, that\'s the most important lawsuit that any jury will be called upon to decide. In addition to that, the trial of this case has been an expensive trial and every trial is expensive and burden-some upon your Government and is certainly expensive and

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