United States v. Haskins

• Decision Date: 11 May 1965
• Docket Number: No. 15862.,15862.
• Citation: 345 F.2d 111
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Frank Roosevelt HASKINS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

345 F.2d 111 (1965)

UNITED STATES of America, Plaintiff-Appellee, v. Frank Roosevelt HASKINS, Defendant-Appellant.

No. 15862.

United States Court of Appeals Sixth Circuit.

May 11, 1965.

Knox Bigham, of Gates & Bigham, Lewisburg, Tenn., for appellant.

J. H. Reddy, U. S. Atty., B. B. Guthrie, Asst. U. S. Atty., Chattanooga, Tenn., on the brief, for appellee.

Before PHILLIPS and EDWARDS, Circuit Judges, and WEINMAN, District Judge.

WEINMAN, District Judge.

Appellant, Frank Roosevelt Haskins,¹ was charged in a three count indictment with possession and sale of whiskey, the containers of which bore no stamps denoting the payment of tax as required by law, in violation of Sections 5205(a) (2) and 5604(a) (1) of Title 26 U.S.C.A. Count one charged possession of such whiskey on January 11, 1963, count two charged the sale of such whiskey on the same date as count one and count three charged possession of such whiskey on January 19, 1963. A jury convicted defendant on all counts of the indictment. Thereafter, the District Judge imposed sentences of one year and a $500.00 fine on counts one and three, the sentences to be served consecutively; on count two, imposition of sentence was suspended and defendant was placed on probation for a period of five years.

Defendant, as the grounds upon which he seeks reversal of the judgment below, contends that the Trial Judge erred in the following rulings: (1) in overruling a motion to suppress evidence made prior to trial and renewed at the trial, (2) in overruling certain objections to evidence as being beyond the scope of and contradictory of the bill of particulars and (3) in overruling a motion for a judgment of acquittal.

In the first assignment of error, defendant attacks his conviction on count three of the indictment. It is stated that all of the evidence in support of his conviction on that count was obtained by the use of search warrants which, it is urged, were issued without probable cause, and therefore the motion to suppress that evidence should have been sustained. It is claimed that these affidavits, which were furnished by two investigators of the Alcohol and Tobacco Tax Unit of the Internal Revenue Service, were insufficient to establish probable cause for the issuance of the search warrants because they did not justify the conclusion that defendant possessed non-taxpaid whiskey on the date they were issued and because they did not point particularly to a place where an offense was being committed.

In determining whether a United States commissioner has properly issued a search warrant, we first recognize that he must exercise his own judgment as to whether the facts in the affidavit constitute probable cause; and his determination is conclusive unless his judgment is arbitrarily exercised. There is, in other words, a presumption that a commissioner has properly performed his duty. United States v. Ventresca, 85 S.Ct. 741 (March 1, 1965); United States v. Plemmons, 336 F.2d 731, 732-734 (6 Cir. 1964) and cases cited therein; United States v. Spears, 287 F.2d 7, 9-10 (6 Cir. 1961); Evans v. United States, 242 F.2d 534, 536 (6 Cir. 1957) and Gracie v. United States, 15 F.2d 644, 646 (1 Cir. 1926).

The Court has carefully reviewed the four affidavits in question, each of which was sworn to and subscribed before the Commissioner on January 19, 1963. Briefly summarized, the affidavit of Investigator Hill for the warrant to search defendant's grocery store and appurtenances states, as grounds for the search, that on January 11, 1963, defendant possessed, concealed and sold one gallon of nontaxpaid whiskey from his premises to the Investigator for $8.00 and at that time the Investigator saw numerous other jugs. Investigator Hill also filed an affidavit for the search of defendant's residence, out buildings, vehicles and appurtenances in which he recited the same grounds for the search. It must be noted that the grocery store and the residence are side by side and each may, in fact, be a part of the same piece of property, though we are not required to make such a determination in this case.

The affidavit of Investigator Gray for the warrant to search defendant's grocery store states, as grounds for the search, that the Investigator had been acquainted with defendant for about eight years; that defendant had a reputation as a moonshine whiskey dealer; that he had a record for a prior whiskey violation; that on numerous occasions the Investigator received information that defendant sold nontaxpaid whiskey from his premises; that the most current information was received on January 5, 1963, from a reliable, confidential informer, and was that defendant maintained a large cache of moonshine whiskey at his home and that smaller quantities were brought to his store for immediate retail sale; and that defendant receives his whiskey on Thursdays and Fridays in preparation for weekend business. The affidavit further states that on January 11, 1963, Investigator Hill purchased one gallon of nontaxpaid whiskey from defendant and affiant had that whiskey in his custody. The affidavit concludes with the fact that affiant has been an investigator for the Alcohol and Tobacco Tax Unit of the Internal Revenue Service for 12 years and he is thoroughly familiar with moonshine whiskey. On the same date, Investigator Gray filed an affidavit for the search of defendant's residence and recited the same grounds for the search.

With the foregoing information before him, the Commissioner issued, on January 19, 1963, a warrant for the search of defendant's grocery store with appurtenances and a warrant for the search of defendant's residence, outside buildings, vehicles and appurtenances. We find untenable defendant's argument that the affidavits were insufficient to establish probable cause. On the basis of these affidavits, we believe the Commissioner was fully justified in finding that it was probable that on January 19 Frank Roosevelt Haskins was violating the federal liquor laws and these offenses were being committed at both his grocery store and his residence. Accordingly, the District Judge committed no error in denying the motion to suppress evidence.

The second ground upon which defendant seeks reversal is the action of the District Judge in overruling his objections to the introduction of certain evidence as being beyond the scope of and contradictory of the bill of particulars. As to each specific objection, we have summarized the information requested by the motion for the bill of particulars, the information then supplied by the government and finally, the evidence introduced by the government at the trial a) Regarding count 1, the motion for the bill of particulars requested the names of all persons who allegedly saw the whiskey in defendant's possession on January 11, 1963. The bill of particulars named only Sidney Hill. The government's proof was to the effect that two other persons observed the transactions, an unnamed person and a young boy.

b) Regarding count 2, defendant requested the name of the person alleged to have made delivery of the whiskey and the time of day of the alleged sale. The bill of particulars named defendant as the person who made the delivery and stated 6:30 p. m. to 7:00 p. m. as the time. The government's evidence showed that a young boy handed the whiskey to an unnamed person, who was in the store with Investigator Hill, and also that the sale was made between the hours of 7:00 p. m. and 7:30 p. m.

c) Regarding count 3, defendant requested the quantity of whiskey which he allegedly possessed on January 19 and the description of the containers of said whiskey. The bill of particulars stated one and three-fourths gallons in one-gallon glass jugs. In addition to the introduction of the above evidence, the Trial Judge, over defendant's objection, admitted, but the next day struck, evidence of possession of at least nine plastic five-gallon containers and many other glass jugs. All the above mentioned containers had the odor and drippings of moonshine whiskey. Defendant argues that the admission of the evidence was a variance and the striking of that evidence, even with the Trial Judge's admonition to the jury, did not cure the error.

The purposes of a bill of particulars are to inform the defendant of the nature of the charge against him with sufficient precision to enable him to prepare for trial, to avoid or minimize the danger of surprise at time of trial and to enable him to plead his acquittal or conviction in bar of another prosecution for the same offense when the indictment itself is too vague and indefinite for such purposes. United States v. Murray, 297 F.2d 812, 819 (2 Cir. 1962); Dierkes v. United States, 274 F. 75, 77 (6 Cir. 1921); United States v. Brennan, 134 F.Supp. 42, 52 (D.C.Minn.1955); Barron and Holtzoff, Federal Practice and Procedure, Cumulative Supplement to Vol. 4, Section 1917, pp. 78-80 and cases cited therein; and 11 Cyclopedia of Federal Procedure (3rd ed. 1963), Section 42.197, pp. 492-493 and cases cited therein.

When a bill of particulars has been furnished, the government is strictly limited to the particulars which it has specified, i. e., the bill limits the scope of the government's proof at the trial. United States v. Murray, supra at 819, of 297 F.2d; Land v. United States, 177 F.2d 346, 348-349 (4 Cir. 1949); Braatlien v. United States, 147 F.2d 888, 892 (8 Cir. 1945); United States v. McKay, 45 F.Supp. 1001, 1004 (D.C.E.D.Mich. 1942). This is not to say that any variance in the proof from the information in the bill of particulars is grounds for reversal. It is well settled that a variance between the proof and the bill of particulars is not grounds for reversal unless the defendant was prejudiced by the variance. United States v. Glaze, 313 F.2d 757, 759 (2 Cir. 1963); Pependrea v. United States, 275 F.2d 325, 327-328 (9 Cir. 1960); Smiley v. United States, 186 F.2d 903, 905 (9 Cir. 1951)....