Young v. United States, 3475

• Decision Date: 21 June 1948
• Docket Number: No. 3477.,No. 3475,3476,3475,3477.
• Citation: 168 F.2d 242
• Parties: YOUNG v. UNITED STATES. DEER v. SAME. POLK v. SAME.
• Court: U.S. Court of Appeals — Tenth Circuit

168 F.2d 242 (1948)

YOUNG v. UNITED STATES.

DEER v. SAME.

POLK v. SAME.

Nos. 3475, 3476, No. 3477.

Circuit Court of Appeals, Tenth Circuit.

May 11, 1948.

Writ of Certiorari Denied June 21, 1948.

Howard Payne, of Olathe, Kan., and A. D. Weiskirch, of Wichita, Kan. (Edward Rooney, of Topeka, Kan., on the brief), for appellants.

Randolph Carpenter, U. S. Atty., and Lester Luther, Asst. U. S. Atty., both of Topeka, Kan. (Eugene W. Davis, Asst. U. S. Atty., of Topeka, Kan., on the brief), for appellee.

Before PHILLIPS, BRATTON, and MURRAH, Circuit Judges.

Writ of Certiorari Denied June 21, 1948. See 68 S.Ct. 1533.

MURRAH, Circuit Judge.

The appellants, Lee Young, Lee Deer, Ralph Polk, and others were indicted in the District Court of Kansas on five counts. The first count charged a conspiracy under 18 U.S.C.A. § 88, to carry on the business of a wholesale liquor dealer in Sedgwick County, Kansas, without paying the special taxes in violation of 26 U.S.C.A. Int.Rev.Code, § 3253; purchasing and receiving distilled spirits in quantities greater than twenty gallons from persons other than authorized dealers of distilled spirits in violation of 26 U.S.C.A.Int.Rev.Code, § 2860; wilfully failing and refusing to keep records of such business in violation of 26 U.S.C.A.Int.Rev.Code, § 2857; failing and refusing to keep conspicuously on the outside of the place of such business a sign stating that they were "wholesale liquor dealers" in violation of 26 U.S.C.A.Int. Rev.Code, § 2831; and importing quantities of intoxicating liquors from the State of Illinois into the State of Kansas, in violation of the Liquor Enforcement Act of 1936, 49 Stat.1928, 27 U.S.C.A. § 223. Twenty-five overt acts were set forth in execution of the conspiracy. Counts Two, Three, Four and Five charged the appellants and others jointly with the violation of the offenses respectively set forth as the objects of the conspiracy in Count One.

Upon a jury trial, appellant Young was convicted and sentenced on Count One (conspiracy), and Count Four (failing to keep records). Appellant Deer was convicted and sentenced on Count One (conspiracy), Count Two (failure to pay the tax as a wholesale liquor dealer), and Count Five (failure to post signs). Appellant Polk was convicted and sentenced on Count Two (failure to pay the tax as a wholesale liquor dealer), and Count Five (failure to post signs). The appellants have filed separate appeals, but all three contend that there is no substantial evidence to support the convictions, and that the trial court should therefore have directed a verdict of acquittal as to each of them.

The evidence submitted on the trial of the case reasonably tends to establish the following facts: William A. Burch, who was indicted and pleaded guilty to the conspiracy count, was the owner and operator of a truck line with a franchise from Chicago to Wichita, via Kansas City. Polk was the operator of what is known as the Canyon Supper Club in Wichita, Kansas, where liquor was sold at retail under a retail liquor dealer's special tax stamp. Sometime in the latter part of 1942, appellants Polk and Deer discussed with Burch at his truck terminal on Francis Street in Wichita, the matter of Burch hauling liquor from Chicago to Wichita in his transportation equipment. After two conferences in Wichita, Burch and Deer met at the Blackstone Hotel in Chicago early in 1943. At that conference, it was agreed that Burch would contact one of his drivers named Lower, whom, the parties seemed to agree, could be trusted to undertake the job of driving the trucks. Thereafter, Burch did contact Lower, who agreed to drive the trucks for $150.00 per month in addition to his regular compensation. It was agreed that Burch would receive about $500.00 per load for hauling the liquor, and the amount later was raised to $800.00 per load. Burch notified Polk where Lower could be contacted in Chicago.

Thereafter, Lower began hauling truck loads of liquor from Chicago to Burch's terminal in Wichita. Before each trip, he would be called at his hotel room in Chicago and told to go to a designated place, whence he would be further directed to some warehouse or vacant lot, where the liquor would be loaded. On at least fifteen or twenty occasions, Deer was present when the liquor was loaded. When Lower would arrive in Wichita, he usually stopped at his home and called Adams, Burch's terminal manager, who would direct him when to come to the terminal. When he arrived at the terminal, always between eleven and one o'clock at night, he was usually met by Polk and Deer and sometimes William Herndon and Dean Pricer. The liquor would be taken from the truck van, the serial numbers on the cases either cut out or torn off, the liquor loaded into Chevrolet and Ford trucks, and driven away by either Polk, Deer, Pricer or Herndon. There was no direct evidence as to where the liquor was taken from the terminal, but it never came to rest there.

During the years 1943, 1944 and the first half of 1945, Lower hauled between sixty and seventy loads of liquor, containing approximately three hundred cases each, or an aggregate of eighteen to twenty thousand cases. On several occasions, Deer paid Lower approximately $200 for the loss of time due to the layover in Chicago waiting for directions with respect to the loading of the liquor. Lower paid part of this money to his relief driver. On more than twenty occasions, Polk paid Adams extra money for unloading the liquor at the terminal. Burch was paid approximately $60,000 for hauling the liquor. It was paid by Polk to Burch, usually on the streets in Wichita, in currency, pursuant to a prearranged appointment.

Appellant Young points out that there is no evidence tending to identify him with the arrangements for or the transportation of the liquor from Chicago to Wichita, and that therefore the jury was not justified in finding him guilty on the conspiracy charge.

One of the alleged objects of the conspiracy was to engage in the business of a wholesale liquor dealer without paying the required tax. Thus, the scheme laid in the indictment contemplated not only the transportation of the liquor from Chicago to the Burch terminal, but from there to a place where it was sold in wholesale quantities.

The evidence shows that Young resided on a well improved farm near Wichita, and that he was in the liquor business. Two Alcohol Tax Unit investigators testified that in April 1945, Young exhibited to them approximately three hundred cases of assorted brands of liquor, bearing Illinois, Nebraska and Missouri liquor stamps, from some of which the serial numbers had been torn off or cut out. Herndon was present at Young's farm, and Young introduced him to the investigators as his "partner in business". When, shortly thereafter, the same investigators met Young on the street in Wichita, he stated to them that Herndon was his partner, and that he became excited when the federal officers came out. Several witnesses testified that they were in the retail liquor business in or near Wichita, and had purchased liquor in wholesale quantities from Young on various occasions during 1943, 1944 and 1945. One of the witnesses testified that he purchased liquor from Herndon at the Young farm. Neither Young, Deer nor Polk had wholesale liquor dealer stamps during the years 1943, 1944 and 1945, except that Young held one from September 28 until October 18, 1944. They did not file reports required of wholesale liquor dealers, and there were no wholesale liquor dealer signs at the Young farm, or at the Burch terminal, or at any other place operated by the appellants.

It is well to remember that in the very nature of things, unlawful conspiracies are seldom provable by direct and positive evidence. Ordinarily they must be established by circumstantial evidence, and "it is sufficient if the circumstances, acts, and conduct of the parties are of such character that the minds of reasonable men can conclude therefrom that an unlawful agreement exists." Garhart v. United States, 10 Cir., 157 F.2d 777, 781. See also Wilder v. United States, 10 Cir., 100 F.2d 177. Nor is it essential that each conspirator participate in or have knowledge of all of the operations of the conspiracy. It is enough if a conspiracy is formed, and the several...