United States v. Williamson, 27569.

• Decision Date: 04 June 1970
• Docket Number: No. 27569.,27569.
• Citation: 424 F.2d 353
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. James WILLIAMSON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

424 F.2d 353 (1970)

UNITED STATES of America, Plaintiff-Appellee, v. James WILLIAMSON, Defendant-Appellant.

No. 27569.

United States Court of Appeals, Fifth Circuit.

April 3, 1970.

Rehearing Denied June 4, 1970.

David E. Crawley, Jr., Crawley & Ford, Kosciusko, Miss., David E. Crawley, III, Crawley & Ford, Louisville, Miss., for appellant.

H. M. Ray, U. S. Atty., William M. Dye, Jr., Asst. U. S. Atty., Oxford, Miss., for appellee.

Before JONES, BELL and GODBOLD, Circuit Judges.

JONES, Circuit Judge:

James Williamson, the appellant, was convicted on all three counts of an indictment charging possessing, transferring and transporting moonshine whiskey.¹ His defense was entrapment. The evidence of the Government showed that Alcohol Tax Unit agents made a raid on a barn where a large quantity of untaxed whiskey was found, with Williamson present and engaged in loading a substantial quantity of the illicit beverage into an automobile belonging to him. Williamson testified on his own behalf that he had been convicted on a liquor charge in 1961 and served about eight months of an 18-month sentence when he was paroled. He stated that he remained out of all moonshine activities until shortly before the raid which resulted in his arrest and the conviction which is here challenged. He related that W. B. Montague, the sheriff of Attala County, Mississippi, approached him on several occasions, urging that he engage in moonshine activities again and promising him protection for a share of the profits. Williamson, according to his own story, told the sheriff that he was too old to engage in the operation of a still, but was finally persuaded by the sheriff to sell liquor made by others and to divide the profits with him. This deal with the sheriff was made in June 1968. The sheriff assisted by making a barn available as the base for the operation. Williamson testified that on the first day of his operation, July 30, 1968, he was in the process of loading into his car 100 gallons of whiskey which was to be delivered to a purchaser procured by the sheriff. However, the raid was made before the loading process could be completed.

To corroborate his story and to establish his defense of entrapment, Williamson called two witnesses to the stand, Carl Black and Garland Edwards. They testified that Williamson had a reputation through 1967 for having gone out of the whiskey business. On cross-examination Black testified that he had "heard" in January of 1968 that Williamson was back in business. Edwards testified that he had "heard" Williamson was back in business about the first of May. About the same time, so Edwards said, Williamson had told him that he was going back in business, and that he had seen Williamson with some whiskey.

The sheriff was called as a witness. He testified that he had suspected that Williamson was back in the business of dealing in moonshine liquor but all of his inquiries and investigations had yielded nothing to confirm his suspicion. His testimony regarding his urging Williamson to go into the whiskey business was substantially the same as the story told by Williamson. So also was his recital of the deal with Williamson to provide the barn as the business location and to give protection in exchange for a share in the profits. He stated that he arranged with Williamson to deliver, on the night of July 30, 1968, 100 gallons of whiskey to a fictitious purchaser and later gave the ATU agents the information as to the appropriate time for the raid. The sheriff was not present when the raid was made but understood that it was to be made.

Williamson again took the stand for the purpose of testifying that Edwards was mistaken as to the time when he had told Edwards that he was going back in business and as to the time Edwards had seen moonshine whiskey in his possession. These happenings, Williamson would have said, occurred in June 1968 rather than in May as had been said by Edwards. The court sustained the Government's objection to the testimony on the ground that Williamson was attempting to impeach his own witness. The rejection of this testimony was assigned as error.

On rebuttal the ATU agents denied that the sheriff had arranged for Williamson to be "set up" for their raid. They asserted that they were not aware that Williamson was to be at the barn on the evening the raid took place.

The question as to the trial court's exclusion of the testimony offered by Williamson in rebuttal on the ground that he was attempting to impeach his own witness is an important one and may have been vital to Williamson's defense. If Williamson was in the moonshine whiskey business in May, prior to his deal with the sheriff which was made in June, his defense of entrapment would be greatly weakened if not demolished. It seems that the district court failed to recognize the distinction between impeachment and contradiction. Impeachment is an attack upon the credibility of a witness and usually can not be done by the party calling the witness. Contradiction is a challenge to the accuracy of the...