*1 RIVES, Before CAMERON and Judges. BROWN, Circuit Judge. RIVES, Circuit Lowrey were convicted whiskey possessing unstamped containers in violation of sec- 5604(a) (1), Title United States tion also convicted Code. Williamson was carrying wholesale on the business of a willfully failing liquor dealer required by special tax law in viola- 569(a), Title tion of Section specifications States Code. of error Cameron, Judge, Circuit dissented. (1) (2) entrapment, claim unlawful argument prejudicial the United Attorney, (3) insufficient evi- States identity dence of each the defend- evi- There sufficient ants. identity dence of the defendants. The argument prejudicial claimed Attorney need not dis- United States judg- think cussed because we reversed on ments must be the issue of entrapment.
The circumstances of claimed un- developed lawful Moye, deposition Robert Harris informer, by agree- taken the Government and ment between 31, 1961, on March several defendants months before trial. prison Sep- a federal released serving 12,1960 years after three tember violating the Internal Revenue laws relating whiskey. Within a few weeks release, contacted two after in- vestigators for the Alcohol and Tobacco *2 Treasury Depart- couple “A. It was a or three- Tax Division of investigators these weeks. ment. Neither of case, a witness testified “Q. you After came home? Moye’s terms of Yes, “A. sir. disputed. Be- his “Q. any event, In it before- was quote nature, unusual we its cause of arrested, Mr. Jack Williamson was length deposition. some at wasn’t it? “MR. COLEMAN: Yes, “A. sir. “Q. right, now, sir, before All “Q. you agree What did to why you go that, did call with Mr. Rainer Mr. Morris? your him, what was reason for call- they you they What did tell wanted ing Rainer? Mr. you do? to “A. Because I wanted make to They give “A. told them what, me to money, peni- some I had been in the major violators and told me years tentiary three and not a boot- they’d pay for them. legger helped me bit the world “Q. you go For to out and catch paid and not a them me a one of them, in other words? my paid me, nickel owed wife. he “A. If I could catch them. “Q. your proposal So was “Q. they agreed go you And you pay to would to work for Mr. Rainer as to Jack pay? $200.00 Williamson? them for Yes, “A. right. sir. “A. That’s “Q. “Q. Big You all then, Boy, him did called Now he come down you I believe? put to work?- Yes, “A. sir. “A. He come down and Mr. Mor- “Q. ris man was the that hired me. And $100.00 as to half brother, Lowrey boy? “Q. But did Mr. Rainer come with him? Yes, “A. sir. Yes, sir, “Q. “A. they come pay you down and in- When were money?
troduced him. “Q. they you How nothing were ? “A. Wasn’t said about put way. Let me it that paid. it when was to be pay? “A. “Q. How he was they But the meantime “Q. Yes, sir, pay you you per day how also $10.00 paid, agreement? agent what was the work as an undercover government? them for the “A. I was to be $200.00 Big Boy, $200.00 for James Mc- right. “A. That’s Bride, Hogie, Big $100.00 for he’s “Q. they pay you And did Boy’s half brother. day? $10.00 “Q. right, All sir. Yes, “A. sir. day “A. And my “Q. you had After made this - gas expenses. arrangement with Mr. Rainer and “Q. perfect right You had a Morris, any Mr. there kind make that them, trade with I’m agreement anything a written trying get the facts about it. it? Now what want know is about No, “A. sir. made, when was that trade Mr. “Q. Just verbal understand- Moye? gentlemen? with those two Well, say. “A. couldn’t Yes, “A. sir. “Q. you Had been home two weeks ? [******] you he would and let "Q. come to Greenwood Did know, you me came me promised and let had been n catching Mr. Williamson? know and— “Q. Yes, Just a What minute now. “A. sir. *3 say having any liquor did he about get “Q. you that Did $100.00 particular on that catching occasion? you promised was to n other any. boy? “A. Said he didn’t have son’s name first mentioned [******] “Q. “A. When Yes, sir. was Jack William- to you, there on see Mr. Williamson? “Q. [******] And then after Sunday, when did you left you next Moye? Mr. I “A. believe it was on the next brought Friday, Thursday Friday. Rainer “A. When Mr. my
Mr. Morris to house. “Q. right, sir, All then what “Q. And his who first mentioned happened? name? Well, “A. he come and told me believe, Rainer, I told Mr. “A. gal- pull he wouldn’t less than says, ‘He me, and us introduced lons, him, says, ‘Well, and I told I Big Boy you to about talk wants to I I wanted but will take him, you says Williamson,’ know ‘Do you says, Bob, And he 200.’ ‘Mr. Big Boy you Williamson?’ know do my money know I want when I de- I n and says, ‘Yes’, says, he ‘How and got says, liver stuff.’ I ‘I have says, you him?’ I know do your money,’ says, and I ‘Let me enough,’ Morris ‘Well, well so Mr. money I know so that talking. started bank,’ says, I out of the ‘I have say? “Q. did he once,’ What robbed and he said he would my that, so he came house the to just Well, I told me if he “A. night well, yes, n could of the $200.00, him it would be catch 14th — night 14th, say of the I would but Hogie, and be $100.00 it would it 2:00 about o’clock. was man, for little that’s “Q. morning twin brother.” Over n 15th? Moye a traveled later A week two Yes, said, and 100 “A. And he ‘A miles sir. between (cid:127)distance highway patrol parked up home. first visit car is On Williamson’s highway here,’ says Mrs. Wil- and T was was not at home. Williamson by,’ says got Moye ‘I her husband to come have that scared told liamson following whiskey. whisky stashed,’ says, any car and he have didn’t go morning you Moye Sunday returned with one ‘I want come back ” Iloeutt, friend of me.’ a close William- with Hubert son. investigator Moye and an named Rob- Lee, who on I that Hubert knowed E. was undercover as- “A. knew ert Big Boy signment, accompanied did, I Williamson than and about
more
point
and
Williamson
horn
if I carried Hubert there
where
blew the
I knew
whereupon Lowrey.
right,
car,
I
him that
all
drove from
told
of his
Hubert
was
Mercury
going
car
the road
loaded
to do business
with
was
off
whisky.
moonshine
Lee
me.”
Moye Bob
Jack William-
“witnessed
I
him I wanted
“A.
told
some
which I had
him ear-
son $716.00
go
whiskey,
I wasn’t able
night.” Lee
lier that
further
testified:
going
woods,
I
and wasn’t
* * *
any
“Q.
payment
After this
for a while until
woods
more
Lee, what,
any-
got
in,
place,
shape
Mr.
if
I
better
than was
took
thing
you do?
did
he said he would have
and
some
Well,
car- Williamson and
“A.
Jack
produce
legally
Moye
admissible evidence
back
ried Bob
against
Greenwood,
Moye
each of
also
them.
residence
investigators carefully
way
course it
that the
back
instruct-
Moye
against entrapment
talking
ed
William-
Jack
rules
my
pres-
it
understood
son made
ence,
statement
said,
crime,
not induce them to
he turned to
commit
Bob
Bob,
going
simply
you
oppor-
have to
but would
Uncle
offer them an
said, they
tunity
you
for a sale.
sell to. He
None
facts
know who
these
somebody up
try
developed
make a
or
evidence, though
circumstances were
in the'
send
*4
every
buy
Moye’s deposition
off of me
month.”
been taken months before the trial.
April 11, 1961,
be-
On
several months
September,
justification
in
the defend-
Without
the
some such
fore
trial
Moye’s
explanation,
attorney,
or
ants’
on the
of
we cannot
basis
sanction
contingent
agreement
requested
deposition,
produce
court to rule
the
fee
evi
against particular
defendants
dence
of law that
as matter
named defend
entrapped.
yet
had been
ants as to crimes
The court reserved
committed.3
arrangement
ruling
might
Such
its
close
thereafter at the
of
tend to a
up,”
“frame
the evidence
mo-
denied
defendants’
or
cause an informer to
judgment
acquittal.
persuade
persons
tions for
of
The
induce or
innocent
entrap-
they
commit
previ
court ruled that
of
defense
which
no
crimes
had no
presented
purpose
ment could be
but
ous intent
for
or
to commit. The
entrapment
opportunities
submitted the issue of
as
are too
abuse
obvious
require
charge
Williamson on a full and
fair
elaboration.
which defendant’s counsel made no ob-
No
case has been cited
either
jection.
parties involving
of the
contingent
fee
agreement
Under
Moye
the law of
de
like that
as
to which
tes
veloped prior
Supreme
tified,
decisions
and we have
of the
found none. Under
Court,2
principles
Court1 2andof this
no
settled
reversible
in McNabb v.
appear except
States, 1943,
error would
332,
United
340,
the evi
318 U.S.
employment
608,
dence of
63
819,
S.Ct.
87
informer
L.Ed.
and its
Moye
contingent
progeny,4 ***however,
on a
duty
fee basis.
it becomes the
courts
federal criminal eases
unexplained
The uncontradicted and
require
fair and lawful
from
conduct
Moye’s
terms
em-
agents
federal
furnishing
of evi
ployment
necessary
make it
Moye’s
dence of crimes.
testimony,
judgments of conviction
be reversed.
standing
and unexplained,
alone
discloses
may possibly be that
the Government
a form of
of an informer
investigators
knowledge
had such certain
approve
which this Court cannot
sanc
or
Lowrey
that Williamson and
were en-
tion.
gaged
liquor dealings
they
in illicit
justified
contracting
Moye
Moye
purchase
made the
basis,
on a
produced
Williamson and
the evidence
States, 1932,
v. United
1. Sorrells
287 U.S.
sale
3. The
179
of moon-
413;
435,
210,
whiskey
15,
53 S.Ct.
77
Sher
L.Ed.
shine
occurred
October
States, 1958,
369,
1960,
Moye’s employ-
man v.
356 U.S.
United
some weeks after
819, 2 L.Ed.2d
78
S.Ct.
ment.
Gargano
States,
Cir.,
States,
v.
1944,
2. See
United
5
4. See Mitchell v. United
322
625;
1928,
71,
65, 70,
896,
24 F.2d
Demos v. United
64
U.S.
S.Ct.
88 L.Ed.
Cir.,
States,
1953,
596;
1140; Upshaw
States, 1948,
5
205 F.2d
Ac
v. United
States,
1958,
Cir.,
410,
170,
cardi v. United
5
257
335 U.S.
69 S.Ct.
93 L.Ed.
168;
States,
100; Mallory
States,
F.2d
Suarez v. United
1957, 354
Cir.,