Watson v. United States, 15345.

• Decision Date: 28 September 1955
• Docket Number: No. 15345.,15345.
• Citation: 224 F.2d 910
• Parties: Tony WATSON, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

224 F.2d 910 (1955)

Tony WATSON, Appellant, v. UNITED STATES of America, Appellee.

No. 15345.

United States Court of Appeals Fifth Circuit.

August 18, 1955.

Rehearing Denied September 28, 1955.

M. H. Rosenhouse, Henry R. Carr, Rosenhouse & Rosenhouse, Miami, Fla., D. L. Rosenhouse, Miami, Fla., of counsel, for appellant.

E. David Rosen, Anthony S. Battaglia, Asst. U. S. Attys., James L. Guilmartin, U. S. Atty., for the Southern District of Florida, Miami, Fla., for appellee.

Before HUTCHESON, Chief Judge, and RIVES and TUTTLE, Circuit Judges.

RIVES, Circuit Judge.

Appellant was indicted on three counts, each involving the same ten gallons of distilled spirits. The first count charged the possession of the liquor, on the containers of which internal revenue stamps were not affixed, in violation of 26 U.S. C.A. § 2803(a); the second, possession of the untaxpaid liquor intended for use contrary to the provisions of the Internal Revenue Laws, in violation of 26 U.S. C.A. § 3116; and the third, concealing the liquor with intent to defraud the United States of the tax, in violation of 26 U.S.C.A. § 3321.

The defendant moved to require the Government to elect on which count it would prosecute. Thereupon the Government struck Count 2, and the court declined to require an election as between Counts 1 and 3. The jury found the defendant "guilty as charged on both counts." Thereafter, the court granted a new trial on Count 3, and sentenced the defendant to imprisonment for two years on Count 1.

Since the defendant was sentenced on the first count only, it is difficult to see how he was prejudiced by the refusal of the court to require the Government to stand on only one of the three counts. Moreover, if prejudice be assumed, each count required proof of an additional fact which the other did not, and that is the recognized test for determining the identity or separateness of offenses. Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306; Icenhour v. United States, 5 Cir., 187 F. 2d 663; Bacom v. Sullivan, 5 Cir., 200 F.2d 70; Crabtree v. United States, 5 Cir., 209 F.2d 164.

The liquor was seized in the defendant's home in the City of Miami, Florida, as a result of an illegal search without a warrant made by three city policemen. Officers of the Federal Alcohol Tax Unit later "adopted this case," and the liquor in the five-gallon glass jug and five-gallon tin container in which it was seized was turned over to them. There was no showing that this evidence had been destroyed or otherwise disposed of. The defendant objected to testimony that the contents were liquors or distilled spirits, and that there were no revenue stamps on the containers without the prior production of the jar and can and their contents, on the ground that the best evidence had not been produced. The court overruled the objection as to the contents, stating, "We do not need to produce the evidence in this case. It would be destroyed under the Statute, if there was such whiskey." As to the testimony that the containers had no revenue stamps attached, the District Attorney replied to the objection, "Under the law the property which is used for the purpose of defrauding the United States of Internal Revenue is seized by the Government and destroyed, whether it is vehicles, or what, — they are sold at public auction." The court thereupon overruled that objection.

With commendable candor the Government now concedes that it was erroneous to assume that the law required the destruction of the jar and can and their contents.¹ We think, however, that the Government's present position (footnote 1, supra), as well as its position in the district court, begs the question by assuming that the containers were used for the purpose of defrauding the United States, and that the contents were contraband liquors. The section of the internal revenue law declaring that "no property rights shall exist in any such liquor or property", 26 U.S.C.A. § 3116, Section 7302 of the Internal Revenue Code of 1954, does not relieve the Government of its duty to produce the best evidence in a criminal prosecution.

We cannot assume that the error was harmless without assuming that the primary evidence would substantiate the secondary evidence, and that assumption would amount to a repudiation of the best evidence rule. Rule 52(a), Federal Rules of Criminal Procedure, 18 U.S.C.A. cf. Simpson v. United States, 9 Cir., 245 F. 278, 281; 3 Am.Jur., Appeal & Error, Sec. 1029, p. 583; 5 C.J.S., Appeal and Error, § 1725.

The use of secondary evidence will, however, be justified on another trial if it be shown by competent evidence that the Government or its agents had destroyed the original and primary evidence in its possession without any fraudulent purpose or any intent to create an excuse for its nonproduction. Riggs v. Tayloe, 9 Wheat 483, 487, 6 L.Ed. 140; 20 Am.Jur., Evidence, Sec. 438; 4 Wigmore on Evidence, 3rd ed., Sec. 1198.

The appellant next complains of a part of the court's oral charge,² because it does not require some affirmative testimony from the Government that the liquor was intended for sale, and the appellant insists that under 26 U.S.C.A. § 2803(a) that is necessary. That statute provides in part that, "The provisions of this section shall not apply to * * * (6) Distilled spirits not intended for sale * * *." The Supreme Court has held that, "The exception in respect of transporting liquor not intended for sale found in the statute affords matter for affirmative defense. Queen v. United States, 64 App.D.C. 301, 77 F.2d 780." Scher v. United States, 305 U.S. 251, 254, 59 S.Ct. 174, 176, 83 L.Ed. 151. It is true that this Court has held,

"that while proof of the possession of whiskey, in tax-unpaid containers standing alone made out a prima facie case, yet if upon all the evidence the jury had a reasonable doubt as to whether the possession was for a prohibited or a nonprohibited purpose, they should

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