United States v. Hill

• Decision Date: 24 November 1962
• Docket Number: No. 8702.,8702.
• Citation: 310 F.2d 601
• Parties: UNITED STATES of America, Appellee, v. Joe HILL and Luther Dew, Appellants.
• Court: U.S. Court of Appeals — Fourth Circuit

310 F.2d 601 (1962)

UNITED STATES of America, Appellee, v. Joe HILL and Luther Dew, Appellants.

No. 8702.

United States Court of Appeals Fourth Circuit.

Argued October 10, 1962.

Decided November 24, 1962.

Jackson L. Kiser, Martinsville, Va. (Young, Kiser & Firth, Martinsville, Va., on brief), for appellants.

Thomas P. Simpson, Asst. U. S. Atty. (Terrell L. Glenn, U. S. Atty., on brief), for appellee.

Before SOPER, BOREMAN and BELL, Circuit Judges.

BOREMAN, Circuit Judge.

Joe Hill and Luther Dew, defendants below, were jointly indicted on January 19, 1958, in the Eastern District of South Carolina, charged with violations of the United States Internal Revenue Code of 1954. The indictment, in four counts, charged the defendants with unlawfully carrying on the business of a wholesale liquor dealer and possessing, concealing and removing distilled spirits upon which federal tax had not been paid. The offenses were alleged to have been committed on December 6, 1957.

Subsequent to the return of the indictment, bench warrants were issued and defendants appeared before a United States Commissioner on February 4, 1959. A preliminary hearing was held before the Commissioner on June 19, 1959, where the defendants were represented by Attorney Gasque. On October 5, 1959, the defendants were arraigned in the United States District Court and were represented by the same attorney. Each defendant, in person, entered a plea of not guilty. The Government requested a continuance until December 1959. Thereafter the case was postponed from time to time and was not tried until April 24, 1962. In the course of the argument before this court, counsel sought to refer to certain circumstances in an attempt to explain the delay in bringing the case to trial, but the record on appeal fails to disclose any reason for such delay.

At the trial the Government presented only one witness, James C. Johnson, who testified that, on December 6, 1957, while working as a regularly employed investigator for the North Carolina Alcohol Control Board, he was on special assignment with the United States Treasury Department; that late in the afternoon of that day he went to the home of Joe Hill in Brunswick County, North Carolina, to buy non-tax-paid whisky; that Hill informed him that he did not have the liquor at his home "but had to go and get it"; that Hill went with him in his (Johnson's) car across the state line and into South Carolina to Luther Dew's store where arrangements were made for the delivery of six gallons of non-tax-paid whisky in a wooded area nearby; that Johnson received the case of whisky from both defendants as arranged and he then paid Dew $25 therefor. Johnson testified further that a "confidential informer" was with him during these happenings.

As the trial began and as it progressed, both defendants were in court and Attorney Gasque and Attorney Keels appeared without indicating to the court that they did not represent both defendants. After the Government's witness, Johnson, had testified, including cross-examination by Attorney Keels, and after Dew had testified, Attorney Gasque remarked: "Your Honor, we don't represent Joe Hill, but if he would like to be sworn, we will be glad to put him up, or if the Government would put him up. I have advised and counseled with him. I am familiar with his case, but I am not retained to represent him." Thereupon the District Judge, after being advised by Hill that he had not retained counsel, that Hill desired counsel and that he would be satisfied to have Attorneys Gasque and Keels represent him, announced that Hill had not been prejudiced up to that point in the trial and appointed these two attorneys to represent him. The Judge then instructed Hill as to his right not to testify and announced a recess so that he might consult with his newly appointed attorneys. Upon resumption of the trial, Attorney Keels examined Hill but no other witnesses were presented for the defense. In testifying both defendants flatly denied Johnson's story but neither could remember his activities on the date of the alleged offense.

The jury found the defendants guilty on all four counts of the indictment. Each was placed on probation, Dew for a period of five years and Hill for a period of three years.

The defendants contend that their constitutional right to a speedy trial as guaranteed by the Sixth Amendment was violated. However, they did not affirmatively assert this right at any stage of the proceedings prior to this appeal; the question is raised here for the first time. With few exceptions not applicable here, the federal courts have consistently held that the right to a speed trial is a personal right of the defendant and is deemed to have been waived by him if not promptly asserted.¹ Illustrative of exceptions to the general rule are Taylor v. United States, 99 U.S. App.D.C. 183, 238 F.2d 259 (1956), where the defendant had no knowledge of the pending charge; United States v. Chase, 135 F.Supp. 230 (N.D.Ill.1955), where defendant was powerless to assert his right because of imprisonment, ignorance and lack of legal advice; and United States v. Provoo, cited in footnote 1, where deliberate acts of Government prosecutors and investigators resulted in long delays in advising the defendant of the charges against him and in setting the trial date.

The record here reveals no explanation of the nearly fourteen months' delay in procuring the indictment and notifying the defendants of the charges against them. Similarly, there is little to explain the additional delay before arraignment. However, approximately five months of this second period were consumed in arranging and holding the preliminary hearing demanded by defendants even though they were then under indictment. Immediately following arraignment, the case was continued for two months at the Government's request with no objection by defendants. The longest period of delay between December 1959 and April 24, 1962, during which the trial was postponed from time to time, is unexplained by the record. However, the court will take judicial notice of the fact that the District Judge who was regularly assigned to preside in the Florence, South Carolina, Division was in ill health for several years prior to the trial date and his activities were restricted. In fact, the record shows that the orders for bench warrants issued on January 20, 1959, were signed by the Honorable Harry E. Watkins who is well known to us as United States District Judge for the Northern and Southern Districts of West Virginia and who, by designation, was assisting the federal courts in South Carolina.

The record makes it perfectly clear, however, that the defendants, throughout the period from December 1959 to April 1962, failed to move for immediate trial or for dismissal of the indictment pursuant to Rule 48(b) Federal Rules of Criminal Procedure. We conclude that the defendants by their inaction waived their Sixth Amendment rights to a speedy trial. This conclusion is reinforced by the application of the rule that appellate courts will not ordinarily consider assigned errors not previously brought to the attention of the District Court. United States v. Jones, 204 F.2d 745, 748 (7th Cir.1953), cert. denied 346 U.S. 854, 74 S.Ct. 67, 98 L. Ed. 368, rehearing denied 346 U.S. 905, 74 S.Ct. 216, 98 L.Ed. 404. See also Miller v. United States, 261 F.2d 546, 547 (4th Cir.1958); Hofferbert v. Marshall, 200 F.2d 648, 652 (4th Cir.1952); A/S J. Ludwig Mowinckels Rederi v. Accinanto, Ltd., 199 F.2d 134, 145 (4th Cir.1952), cert. denied 345 U.S. 992, 73 S.Ct. 1129, 97 L.Ed. 1400; Smith v. United States, 106 F.2d 726, 727 (4th Cir.1939).

Complaint is made that the Government's evidence was insufficient to support a verdict of guilty on Count 1 which charged the defendants with "carrying on the business of a wholesale dealer in liquor without having paid the special tax therefor * * * in violation of Section 5691, Internal Revenue Code," since evidence of only one sale was, as a matter of law, insufficient to show the "carrying on of a business." But a sale must be viewed in the light of all the circumstances and it has been held that proof of a single sale can support a determination that a wholesale liquor business is being conducted. If, for example, the surrounding circumstances show that the defendant had liquor on hand or was ready and able to procure it, in either case with the purpose of selling some or all of it to such persons as he might from time to time find or conclude to accept as customers, the jury may conclude that he was carrying on the business of a wholesale liquor dealer. Wilson v. United States, 149 F.2d 780, 781 (6th Cir.1945),² cert. denied 326 U.S. 753, 66 S.Ct. 92, 90 L.Ed. 451; United States v. Lawson, 266 F.2d 607 (6th Cir.1959). In the instant case, the evidence supplied by the witness Johnson, if believed, was sufficient to show that the defendants were ready and able to produce non-tax-paid liquor for sale in wholesale quantities. We find no merit in this assignment of error.

These defendants contend that they did not have adequate...