United States v. Webb
Decision Date | 21 April 1966 |
Docket Number | No. 16494,16495.,16494 |
Citation | 359 F.2d 558 |
Parties | UNITED STATES of America, Plaintiff-Appellee, v. Larry E. WEBB, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Mary Edith STOKELY, Defendant-Appellant. |
Court | U.S. Court of Appeals — Sixth Circuit |
John F. Dugger, Morristown, Tenn., on the brief; Bacon & Dugger, Morristown, Tenn., of counsel, for appellants.
Moss Noble, Lexington, Ky. (George I. Cline, U. S. Atty., Lexington, Ky., on the brief), for appellee.
Before PHILLIPS, EDWARDS and CELEBREZZE, Circuit Judges.
These are appeals from jury verdicts of guilty on indictments charging federal liquor law violations. Count One charged violation of 18 U.S.C. § 371 by conspiring to possess and transport 150 gallons of non-tax-paid whiskey. Count Two charged violation of 26 U.S.C. § 5205(a) (2) by possession and transportation of said whiskey. Defendant Webb was convicted on both counts. Defendant Stokely was convicted on the conspiracy count only.
The principal question in the case is whether or not the proofs which were offered were legally sufficient to sustain the convictions of appellants.
These facts are in the record. Both defendants were from Cocke County, Tennessee. Defendant Webb was in the used car business and regularly drove to Cleveland to pick up cars and transport them south. Defendant sold to one Plemmons two 1956 Chryslers, one in October 1963, and one on February 21, 1964. Ultimately 150 gallons of whiskey was found in the second of these 1956 Chryslers.
Government agents testified that on January 19, 1964, Plemmons and Webb (with Stokely) were seen together in an Amoco gas station in Lexington. Webb and Plemmons were working on the first of Plemmons' Chryslers, taking off heavy duty rear springs. The evidence bearing on the conspiracy charge pertaining to this date was supplied chiefly by a Treasury agent named Guernsey:
No whiskey was found in connection with the January 19 trip. But the second issue in the case pertains to government testimony (objected to and stricken) to the effect that on that trip Webb was seen talking to a person in Covington identified by government counsel and witnesses as a known bootlegger. And the evidence also identified this first Chrysler as having been seen in the parking lot of the A-1 Liquor Store in Covington, Kentucky (of which more below).
On still another trip on February 23, 1964, Webb and Stokely were seen riding in the same Pontiace along Route I-75 heading north about 100 yards ahead of the second of Plemmons' 1956 Chryslers, which Plemmons was driving. Stokely was driving the Pontiac. Shortly thereafter the Pontiac speeded up and proceeded to Covington, Kentucky, where it pulled into a parking lot at the A-1 Liquor Store. The Chrysler arrived a few minutes later and parked nearby. The testimony indicated that the cars were 15-20 feet apart, with no other cars close by.
Subsequently, federal agents approached the Chrysler, saw in it two cases of whiskey on the floor of the back seat,1 and arrested all the people concerned, including Webb and Stokely. Subsequently, they searched the trunk of the Chrysler and found a total of 150 gallons.
The 1956 Chrysler in which the whiskey was found (very similar in appearance to the first 1956 Chrysler) had on it Ohio plates previously issued to and carried by the other 1956 Chrysler, which had been observed in the January 19, 1964, episode. It also had oversized rear springs.
When he was arrested, Webb was in the Daniel Boone Bar, approximately 100 yards away from the parking lot where the two cars were located and within view of them. He was drinking beer with Donald Plemmons, driver of the whiskey car, and Jay V. Ball, who had ridden to Covington with Webb in the Pontiac. Both of these men were defendants in the trial below. Ball was acquitted; Plemmons was convicted on both counts but is not an appellant here.
Treasury Agent Rowe testified as to the events of the arrest:
Webb testified that he had agreed to meet Plemmons at the A-1 Liquor Store and drive him to Cleveland, but that he know nothing about the whiskey. He also flatly denied that Plemmons was at the Amoco station with him on January 19, 1964. He claimed he carried the gun for protection on his used car buying trips.
The government contends that Webb was convoying the whiskey when seen on Interstate 75 and that he was "arrested at Covington, Kentucky, in possession of 150 gallons of moonshine whiskey." The government also contends that there is ample evidence of "a brilliantly conceived and highly organized operation" so as to support the conspiracy convictions of Webb and Stokely.
On review of a conviction based on jury verdict, our court does not, of course, weigh disputes in evidence, but views the disputed facts (and proper inferences therefrom) from the point of view favorable to the government which accords with the jury decision. Zottarelli v. United States, 20 F.2d 795 (C.A. 6, 1927), cert. denied, 275 U.S. 571, 48 S.Ct. 159, 72 L.Ed. 432 (1927); Holmes v. United States, 134 F.2d 125 (C.A. 8, 1943), cert. denied, 319 U.S. 776, 63 S.Ct. 1434, 87 L.Ed. 1722 (1943); Isaacs v. United States, 301 F.2d 706 (C.A. 8, 1962), cert. denied, 371 U.S. 818, 83 S.Ct. 32, 9 L.Ed.2d 58 (1962).
We will deal first with Webb's conviction for possessing and transporting non-tax-paid liquor. We believe Webb's conviction on this count must be set aside. No whiskey was ever found in an automobile owned by Webb or driven by him or in...
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