United States v. Williamson, 71-1176 Summary Calendar.

• Decision Date: 23 November 1971
• Docket Number: No. 71-1176 Summary Calendar.,71-1176 Summary Calendar.
• Citation: 450 F.2d 585
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. James WILLIAMSON, and Jack Williamson, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

450 F.2d 585 (1971)

UNITED STATES of America, Plaintiff-Appellee, v. James WILLIAMSON, and Jack Williamson, Defendants-Appellants.

No. 71-1176 Summary Calendar.^*

United States Court of Appeals, Fifth Circuit.

October 19, 1971.

Rehearing Denied November 23, 1971.

COPYRIGHT MATERIAL OMITTED

David E. Crawley, Jr., Kosciusko, Miss., M. A. Marsal, Mobile, Ala., for defendants-appellants.

H. M. Ray, U.S. Atty., Oxford, Miss., William M. Dye, Jr., Alfred E. Moreton, III, Asst. U.S. Attys., Oxford, Miss., for plaintiff-appellee.

Before JOHN R. BROWN, Chief Judge, and INGRAHAM and RONEY, Circuit Judges.

JOHN R. BROWN, Chief Judge:

Appellants James Williamson and Jack Williamson were convicted on multiple counts of an indictment alleging various substantive violations of the Federal revenue laws governing distilled spirits and conspiracy to violate those laws.¹ Each was sentenced to concurrent four year prison terms. Finding no prejudicial error, we affirm.

The appellants urge two grounds for reversal. First, they claim that the out-of-court statements of a special Government undercover agent (Adams) introduced through the testimony of an investigator (Petre) to whom the statements had been made as part of the prosecution's attempt to establish the existence of a conspiracy, were erroneously admitted under the so-called "co-conspirator" exception to the hearsay rule. Broken down into its component parts, this argument amounts to the contentions that (i) an undercover agent, feigning participation in a criminal conspiracy at the explicit direction of the United States, is not a co-conspirator as a matter of law, (ii) out-of-court reports or statements of such an agent are therefore not admissible under the "co-conspirator" exception and (iii) the admission of the hearsay testimony prejudiced the defendants because it permitted the jury to find them guilty of a conspiracy proved in substantial measure by statements made out of their presence and without their knowledge.² Appellants' second argument is that the Trial Court incorrectly charged the jury that they might consider the acts and declarations of the undercover agent as being the acts and declarations of a co-conspirator.

Petre's Testimony: Stage I

The prosecution's case on the conspiracy count rested for the most part upon the testimony of two witnesses: John Petre, a retired Treasury agent formerly stationed at Newman, Georgia, and Joe Allen Adams, hired by Petre to work undercover in the investigation of the case. Petre initially testified that after discovering Adams' involvement with Hutcheson and Dryden, two of the alleged conspirators, he talked to Adams "to see if he would testify for the government instead of being a defendant in the case" (App. 27). Over the defense's continuing objection that the testimony was hearsay, Petre was permitted to recount the substance of several conversations with Adams that took place between December 1967 and April 1968, including the one in which Adams agreed to assist in the investigation in return for Petre's intercession in his behalf in connection with a Federal criminal prosecution that was then pending against Adams in Mobile, Alabama.

Petre's Testimony: Stage II

The remainder of Petre's testimony, also subjected to defense objections that it was inadmissible hearsay, concerned conversations with Adams that took place after Adams went to work for Hutcheson. On May 1 Adams telephoned Petre to report that he and Hutcheson had taken a truck to Atlanta for the purpose of having a "trap" or hidden compartment built into the back of it. He was advised to continue his reports on the truck and its activities. In his next call on May 13 Adams reported that Hutcheson had invited him to become a partner in the liquor business and was told that he was to continue to work only as an employee.

On May 29 Petre and two other agents went to Adams' residence in Cedartown, Georgia, where Adams told them that Hutcheson and Dryden had discussed the possibility of setting up a distillery in Polk County and had also talked about the alterations on the truck. On June 10 Adams reported that Hutcheson was sending him to a motel in Meridian, Mississippi to pick up a load of whiskey, calling a few days later from the motel to report that Hutcheson had not arrived. Later Adams and Hutcheson picked up the truck, and on June 16 Adams told Petre that Hutcheson had given him $2400 to pay for a load of liquor to be picked up at the Pure Oil truckstop in Meridian. Adams subsequently informed Petre that the pick-up had not been made because the contact man had been too drunk to consummate the deal.

On June 18 Petre met Adams on a country road where he photographed and inspected the truck. At that time Adams stated that he, Hutcheson and Dryden had agreed upon the price to be paid to Adams in return for hauling the whiskey. Shortly after this meeting Petre went on vacation, suffered a disabling injury that forced his retirement, and ceased his participation in the case. In his testimony concerning the events up to this point Petre had not mentioned either of the defendants.

Adams' Testimony

The rest of the story was supplied by Adams himself, who was called as the prosecution's next witness. After confirming the facts brought out in Petre's testimony, Adams stated that on June 27 Hutcheson called and requested his company on a trip to pick up a load of liquor in Mississippi. Hutcheson drove his own car, while Adams followed in the truck. They met at the home of Charlie McCracken, who placed a telephone call to an unidentified person.³ Hutcheson then spoke to the other person and, after negotiating a reduction in the price, proceeded with the other men to a highway intersection several miles from Kosciusko, Mississippi, where they met appellant James Williamson. Williamson left in the trap truck and returned a few hours later with a full load of liquor. Adams then drove the loaded truck to Irondale, Alabama, where he contacted a Federal agent who photographed and inspected the truck.

Adams also testified to several subsequent transactions involving Hutcheson, Dryden and James Williamson in which Adams gave money to Williamson, who then drove off in the truck and returned with a load of liquor. During one of these meetings, on July 2, James Williamson drove Adams to a motel in Kosciusko, returning early the next morning to report that the truck was loaded and to receive a cash payment of $2172. The men drove together down Highway 19, at which time Jack Williamson pulled up behind them in the trap truck and turned it over to Adams. Following another meeting on July 7, Adams followed James Williamson to a barn near Meridian, where they met Jack Williamson and several other individuals. Jack counted the jugs while James and Adams loaded them into the truck, after which Adams paid them $2100 and left. Two more meetings with James Williamson followed on July 15 and July 17. Thereafter Adams terminated his association with Hutcheson and had no further dealings with either of the appellants.

Federal agents continued to keep the barn under surveillance and by following its occupants managed to locate a distillery set up in the woods about 12 miles from McAdams, Mississippi. Having observed several loading operations at the barn, they obtained a search warrant and conducted a raid on the night of July 30, catching James Williamson in the act of loading whiskey into the trunk of a car, the keys in his pocket. Analysis of the liquor revealed that it came from the still discovered earlier.

Was It Hearsay?

Our discussion of appellants' first argument that Petre's testimony constituted prejudicial hearsay is considerably simplified if we begin with a clear conception of what that term means. Simply stated, "hearsay" is any out-of-court statement introduced in evidence for the purpose of proving the truth of the matter contained in the statement.⁴ Most if not all of the mystery and fog enshrouding this traditionally enigmatic rule of evidence evaporate if that textbook definition, well entrenched in our case law, is kept in mind. Most significantly, as applied to the facts of this case, it demolishes the fairly wide-spread misconception that somehow words alone, if they are not the words of the person testifying, must automatically be excluded. Words are not hearsay unless they constitute statements, and out-of-court statements are themselves not hearsay unless they are introduced for the purpose of proving facts contained in, or asserted by, those statements. With these thoughts in mind, we consider the two more or less distinct stages of Petre's testimony.

In its first stage Petre's testimony concerned the preliminary meetings and conversations leading up to the employment of Adams as an undercover agent. Clearly evidence of these conversations was introduced, not for the purpose of proving the truth of what either man said at the time,⁵ but for the purpose of proving that when he went to work for Hutcheson Adams was in fact a Government investigator rather than a co-conspirator. Whatever problem of admissibility such testimony may entail,⁶ the hearsay rule presents no obstacle, and in any event appellants in their brief confine their attack to what followed.

Significantly, the second stage in Petre's testimony represents a radical departure from the first. Here he repeated statements in Adams' reports that contained assertions of fact regarding the activities of Hutcheson and Dryden, including several that had been alleged in the indictment as overt acts in furtherance of the conspiracy.⁷ Despite the Government's strenuous contention that testimony regarding these statements was introduced merely to demonstrate that the statements had been made, rather than to establish the truth of the matters contained in them, the inescapable conclusion must be that they were hearsay.

In the first place, the mere fact that the statements were...