Wyatt v. United States

Decision Date02 January 1968
Docket NumberNo. 9589,9590.,9589
PartiesEllsworth Willie WYATT, Appellant, v. UNITED STATES of America, Appellee. Chester CHANDLER, Appellant, v. UNITED STATES of America, Appellee.
CourtU.S. Court of Appeals — Tenth Circuit

Chester H. Walter, Jr., Denver, Colo., for appellant, Ellsworth Willie Wyatt.

Arlen S. Ambrose, Denver, Colo., for appellant, Chester Chandler.

Robert L. Berry, Asst. U. S. Atty., Oklahoma City, Okl. (B. Andrew Potter, U. S. Atty., Oklahoma City, Okl., on the brief), for appellee.

Before MURRAH, Chief Judge, and HILL and SETH, United States Circuit Judges.

HILL, Circuit Judge.

Appellants, Wyatt and Chandler, were tried upon a seven count indictment charging six substantive violations of the internal revenue laws pertaining to non-tax-paid liquor (26 U.S.C. § 5601(a) (12), § 5604(a) (1), § 5205(a) (2) and § 5686(a)) and one count under 18 U.S.C. § 371, charging a conspiracy to violate some of the above mentioned statutes. A jury found Wyatt guilty on four of the substantive counts and Chandler guilty on two of the substantive counts and both were found not guilty on the remaining counts.

At the outset, both appellants point error to the trial court's refusal to grant their respective pretrial motions "to disclose the Grand Jury minutes" and "for bill of particulars." What they actually sought by the first motion was a transcript of the testimony adduced before the grand jury and not the minutes of the grand jury proceedings. It is admitted that there was no record made of such testimony, therefore, a transcript could not be produced. In effect, they urge us to interpret Dennis v. United States, 384 U.S. 855, 86 S. Ct. 1840, 16 L.Ed.2d 973, as requiring the recording of all testimony taken before a grand jury. Little need be said upon this point because this court, after the Dennis decision and in McCaffrey v. United States, 10 Cir., 372 F.2d 482, expressly stated that "There is no requirement that grand jury proceedings be transcribed." Id. at 484. Also in Campbell v. United States, 10 Cir., 368 F.2d 521, which is indistinguishable from this case, we held that the failure to compel the production of grand jury testimony where there is no record of it is not reversible error.

In appellants' motion for bill of particulars, requests were made for information as to the manner in which each of the overt acts set forth in the indictment is alleged to be in furtherance of the alleged conspiracy and as to counts one to five of the indictment the information as to whom the non-tax-paid whiskey was sold to, who sold it to this person, and also where the whiskey was manufactured.1 Since appellants were acquitted of the conspiracy charge we need not give any consideration to the part of the motion concerning the conspiracy. "The purposes of a bill of particulars are to inform the defendant of the nature of the charge against him with sufficient precision to enable him to prepare for trial, to avoid or minimize the danger of surprise at time of trial and to enable him to plead his acquittal or conviction in bar of another prosecution for the same offense when the indictment itself is too vague and indefinite for such purposes." United States v. Haskins, 6 Cir., 345 F.2d 111, at 114. In the instant case the charges in the indictment set out the specific date, the specific amount of non-tax-paid whiskey involved and that the event occurred on or about a public street in Guthrie, Logan County.2 The failure to set out to whom the sales in question were made does not make the indictment so vague that the failure to allow the bill of particulars as to this matter was an abuse of discretion by the district judge.3 Appellants argue that under the newly amended Rules of Criminal Procedure, 7(f)4 the district court has no discretion but must provide for bills of particulars as a matter of course. However, in the notes of the Advisory Committee on Rules it is stated that "The amendment to the first sentence eliminating the requirement of a showing of cause is designed to encourage a more liberal attitude by the courts toward bills of particulars without taking away the discretion which courts must have in dealing with such motions in individual cases." It is, therefore, clear that the amendment did not make the granting of bills of particulars mandatory and the prior law that the granting of a bill of particulars is discretional with the district court is still applicable. E. g., Rose v. United States, 10 Cir., 128 F.2d 622, cert. denied, 317 U.S. 651, 63 S.Ct. 47, 87 L.Ed. 524; Cook v. United States, 9 Cir., 354 F.2d 529.5 Moreover, it appears to us from the record that a preliminary hearing was held on October 20, 1966, in which both defendants and their counsel were present and at which time it was testified to as to whom and who sold the distilled spirits involved. Having such knowledge, appellants could in no way be prejudiced by the district court's denial of their motion for a bill of particulars.

Count number seven of the indictment alleged a conspiracy among appellants and Quinnon Chandler, Chester Chandler's brother, and Raymond Junior Adams. During the testimony of Treasury Agent, Cliff Carpenter, Jr., a statement of Quinnon Chandler was elicited. Objection was made to this testimony as being hearsay, however, the trial court overruled such objection on the grounds that "if he (Quinnon) is a member of the conspiracy his testimony is admissible". Appellants argue that since they were acquitted of the conspiracy charge no basis existed to support the admission of the above testimony; thus it was reversible error to admit the hearsay evidence into testimony. The statement objected to was: "At this time Quinnon Chandler told me he did not have a large quantity of whiskey for me to buy but that he could sell me a gallon. * * * He told me that he did have a gallon and a half of whiskey that he would sell me." The incident referred to occurred on July 14, 1966. Neither of the appellants was charged with any violation for events occurring on July 14 other than as these events related to the conspiracy charge. Thus, the only relevance of the above statement was to the conspiracy charge. Since appellants were acquitted of the conspiracy charge the admission of the above statement could not in any respect be considered prejudicial and does not require the reversal of their convictions.

As a part of its case the Government introduced into evidence the materials purchased by Agent Carpenter who testified that the materials were non-tax-paid whiskey. Appellants objected to the admission of this evidence on the grounds that it was incompetent, irrelevant and immaterial, and further that no connection with the appellants was made and that the exhibits were not properly identified. This objection was overruled and the evidence was admitted. Appellants now urge that this constituted reversible error. Appellants argue that there was no clear testimony that the alleged non-tax-paid spirits were tested prior to their being placed in the United States Government vault for storage prior to trial. They further argue that the Government failed to establish a conclusive chain of evidence by showing that only the agent who brought the whiskey and the custodian of the United States Government vault had access to the whiskey.6 It appears that the exhibits in question were taken by the agent who purchased them to the United States Government vault in Oklahoma City wherein they were kept until the trial.7 The contents of these containers were not examined until their removal before trial, at which time they were tested by sight, smell and taste and identified by the agents as moonshine liquor.8 Appellants argue that two possibilities existed due to the alleged failure of proof by the Government, "One, that the alleged non-tax-paid spirits were not spirits at the time of their seizure and merely in some manner fermented during their several months in storage. Two, that person or persons unknown who had access to the vault in some manner tampered with the alleged non-tax-paid spirits."

An examination of the record, however, reveals that testimony was given that rebuts both of the possibilities hypothesized by appellants. George C. Gaither, the custodian of the Government vault, testified that no one molested the exhibits after they were placed in the vault for safekeeping. In response to a line of questioning brought out by appellants Mr. Gaither completely answered the argument presented on this appeal. Q. "Now anyone could screw the top off any of these containers at any time, could they not?" A. "Well, they would have to be in my presence." * * * Q. "I see, and...

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