*1 clearly error court was district sustaining affirming referee above. particulars mentioned the several dis- judgment reason, For this cause and the reversed

trict court proceedings further remanded for opinion. with this inconsistent remanded.

Reversed Barrett, KNIGHT, Roy Lee Terrell

James Gainey, Cleveland Jackie Hamilton Ap Tucker, Prentis Johns and William pellants, America, STATES UNITED Joseph Davis, Elliott, H. J. Sewell Appellee. Macon, Ga., appellants. for No. 18966. Davis, Jr., William A. Asst. U. S. Appeals United States Floyd Atty., Atty., Buford, M. U. S. Fifth Circuit. Macon, Ga., appellee. for 12, 1962. Jan. TUTTLE, Judge, Before Chief Rehearing March Denied BROWN, CAMERON and Circuit Judges. Judge.

CAMERON, Circuit Barlow, Knight, James Terrell Amos Roy Colson, Lee Jim Jackie Gainey, Hamilton Cleveland Dan and William Prentis Stinson Tucker were conspiring, indicted for in violation of 371, to 18 U.S.C. violate sec- various § Code,1 of the Internal tions Revenue produc- possess and control stills spirits, tion mash distilled ferment distillation, to conceal and remove spirits, and otherwise violate distilled dealing with the sections unlaw- the Code handling liquors of distilled and the ful were manufactured means plead Amos Barlow distributed. guilty, court below and the eliminated he had been Stinson after convicted Dan 5691(a) 5222 of 5604(a), 7206(4), 5602, 5205(a) (2), 5179(a), 5601(a), 1. §§ Title U.S.C. *2 676

by remaining (‘In jury. prose- committed. cutions, The defendants all criminal jury guilty by enjoy and sen- were accused shall found right imprisonment. speedy public by trial, Colson a tenced to of terms and Knight, impartial jury appeal, did of and before us are an State Barrett, Gainey who District and Tucker wherein the crime shall have ’ * * * sentencing appeal judgments been from the committed U. S. jury’s Const., VI.) principle them This after conviction under Amend. statutory reflected in verdict. is enactments, numerous including 18, Rule Fed. charges twelve The indictment that Crim.Proc., provides Rules which engaged persons other in the named were except permitted, that as otherwise along conspiracy others same with divers prosecution ‘the be had in shall a grand jury. unknown to the district in which the offense was grand twelve were not indicted ’ * * * committed In ascertain- jury. four of The Government used ing locality are mindful that Coley,Jr., these, Bruns, Johnny Eddie B. questions deep of venue ‘raise issues Hodge, Mims, as Thomas W. and Monroe public light policy of of which largely witnesses, depends case * * legislation must be construed.’ upon testimony along of their that with provision vicinity The in trial government Williams, William em- W. a safeguard against of the crime is a ployee. hardship the unfairness and in- . upon appellants appeal base their prosecuted volvedwhen an accused is court various errors which claim the place. ain remote Provided its lan- below committed in the trial. Chief guage permits, question Act in among large these is that the number of given should be that construction violations of the revenue disclosed laws respect which will such considera- by the were not to be the shown tions.” single conspiracy; result of a and that reading long A careful of this charged against appel- the violations and muddled record convinces us that lants were not connected related to or there was sufficient evidence to connect conspiracy with the established appellants and Johns with the government; jurisdiction and that venue conspiracy which was established and in the Macon Division of the Middle Dis- charged with overt acts in the indictment Georgia trict of charges against as to not shown County, in committed Houston Geor appellants. the several . gia, Division, which is in Macon cf. charged by appel- The other errors Hyde States, 347, v. United 225 U.S. lants, may which be referred as minor 793, 1114, S.Ct. 56 L.Ed. and Ladner v. errors, up will taken be after discussion States, Cir., 1948, 168 F.2d point. of the main 771; but that the evidence was not suffi being charge conspir This a support judgments appealed cient acy 371, supra, of 18 violation U.S.C. § appellants Gainey as to from necessary that it is each of the accused important question No Tucker. conspiracy by be connected with the nothing involved, gain law will be beyond proof reasonable a doubt. Venue ed them, a detailed recital facts toas jurisdiction important an element of a inasmuch course as such would Concerning proof. it, Supreme any no benefit in be of connection with recently United States stated involving case other different facts. Cores, 405, 407, 875, 356 U.S. 78 S.Ct. Hodge By the witness it was establish- 873: 2 L.Ed.2d appellant Knight, operated ed that who stop County, “The Constitution makes it clear truck Houston came Hodge proper or determination near venue his residence in Wilcox requires County, Georgia, seeking in a criminal case deter- to enter into Hodge partnership mination where the crime was in the manufae- Hodges accompanied untax-paid Tucker handling ture, sale made, conspiracy place first several when Hodge owner liquor. definitely Hodge already operation, fixed rather which date stills Hodge February Later, outlet to furnish wanted *3 only Hodge Tucker whiskey testified that he had seen was moonshine for the manufacturing was en- in once and Tucker him that was when interest and to welding Hodge gaged Hodge’s in on a stills, shed setting up all of which other Knight. fifty- liquor appellant him and still for Knight operate on a to and fifty placed the up about Knight put some He as somewhere towas basis. February. part equip- Another wit- latter of additional some money, furnish to Tucker weld- ness also stated that he saw of additional installation ment for the ing Hodge’s The for on a still under shed. transportation stills, provide and to stills, eager Hodge whiskey. of those was destination ultimate the illicit prospec- agreement, he whether Tucker the because knew about to into the enter owners, the other adequate tive as all of market as well did not have concerning Tucker, testimony already of whiskey producing. was he was vague unconvincing Nor nature. negotiations transpired outside These identify any Tucker was to witness able of Division, a number Macon but the during trial. the defendants’ the at table charged in indictment were overt acts against place testimony or near of established have taken entire fabric to Knight’s brought stop question Divi- in Macon in truck Tucker is Knight Detroit, testimony appellants from in of a sion which witness along Michigan, of the other em a number who that he had with testified participants ployed in named as a truck for him individuals Tucker to drive territory in it de- not included as the Detroit and that Tucker indictment but fendants, participated, acts were which worked there him from the middle with January 1960, up conspiracy 10, entered of bound with until about March Hodge. during into which time he saw Tucker fre between gas hauling cylin- quently. placed of in included the butane The witness along component parts twenty ders, other with about cancelled checks two furnishing signature bearing distilleries, of illicit invoices all Knight’s tending stop pres for use in truck Tucker and vehicles at to establish his hauling transporting liquor, nearby points of whis- ence in Detroit or at dur ing key Stop, operations Truck to the the crucial dates around the middle centering stop part February. which around the truck latter The checks in to recover were carried on an effort were issued Tucker and to bore Tucker’s whiskey in from a still Wil- some stolen endorsement and were cashed or handled storing through County, cox materials in banks the Detroit dur area ing ap- period. home of manufacture of stills This evidence at the tended to Ramsey’s testimony pellant County, Colson in Houston and confirm and to estab Knight’s operation presence of a truck from truck lish Tucker’s there at the time whiskey Hodge Hodge’s stop placing backtracked to a was him at which was home away. Georgia.2 in still the woods about two miles appellants In activities several these although whole, there was On evi- partici- and Johns were active tending sustain dence Govern- pants. including case, checks, two ment’s evidence,particularly The Government made an ef- as extended think appellant participation conspiracy, fort Tucker connect with Tucker’s Hodge support conspiracy. his first testified that too weak conviction. February ary (2), An 25. invoice Checks issued to Tucker were cleared signed through near on Tucker had his name as banks or Detroit on February 5, February 11, receiving goods February February on 16 was also February February (two), Febru- introduced. any way respect opinion, or the to the intimate one with 'We think the same any testimony against person appellants other, as in the Barrett whether ‘ stated, guilty, but, purpose or Gainey,3 case no useful either the witnesses detailing here. the defendants. it will be served Appellants point of in- out a number objections briefly to the We will advert attorney prosecuting stances when the by appellants acts to various entered persistéd asking questions which were attorney during prosecuting trial. leading objectionable, tak- and otherwise attorney During picked argument, the his ing position ef- cumulative that the up opponent stated his what deny appellants fect of all of these was to case, file Government’s *4 a fair objection this trial. There no doubt that catalog is statement: have a whole “We factually supported is objection by Upon at- here.” evidence leading Throughout record. the trial 'torneys appellants, the court questions asked, were the court cau- and catalog “Yes, not been has stated: government against tioned practice counsel The Government’s introduced as such.” once; time, but, more than each .attorney responded right, I “All sir. objection the court and sustained the Thereupon the court corrected.” .stand could, corrected as far whatever as it your reference “I it that stated: take might prejudice have resulted. testimony simply from the is to stand.” whole, objections, on the trial, deal with the minutiae of the Again, prosecutor in his mentioned episode each as it arose . court handled charged closing argument that he had way not, opinion, a in our to such as opening .in more than statement that his rights .prejudice appellants in money $143,000 had been evaded tax are faced situation with which we operation conspiracy. .the He fol- In a close case where the evidence here. figures, which lowed with: “Now those ,is strong, not cumulation of errors this compiled were the Internal Revenue guilt .might call reversal. But the objection Service—” was made .when is clear so that and Johns appellants’ counsel: “If Your Honor . judg not to disturb the are constrained going please, perhaps I a think arewe against Hagans them. v. Cf. referring figures ment little too far in to-those * * * Cir., 1959, States, F.2d United 5 261 interrupt I but to counsel hate Fogarty 924, 928-929, respond- I I feel .must do so.” The court States, Cir., 263 F.2d “Well, is ed: course there .no actual seq. et compiled. as to how evidence you just M wish to infer from the evi- judgment of court below as to argue jury you to infer. dence that appellants- Terrell James proper, I -that think would be but there affirmed; appel- as to .Cleveland Johns specific no evidence to made as who Barrett, Roy lants James Hamilton Lee compilation.” Gainey and Prentis Tucker it is reversed - case is remanded for a new trial. Objection is also made that the court below, charge, merely in its defined what Judge TUTTLE, (concurring in Chief accomplice the law an was under with- dissenting part). part and explanation judge' out the that the was inferring anyone opinion agree part of the that I that not plice. accom- - objection judgment made, of the trial When affirms the that brought back, jury Johns and also and the court as court part ap- explanation reverses as that its reference to that a full as made Gainey. “alleged only pellants As Barrett accom- made had been assuring jury judgment of conviction William Pren- not plices,” that it did pending against involving crimes were testified that cases substantive Williams Gainey. Colson and Two respectfully dissent. Tucker I tis including Hodge, witnesses, one agreement participants primary stills, posi- operate the to tively construct participated that Tucker testified on in a shed building in Hodge’s property. of the stills fact that

I think the ambiguous testimony

there was jury to might have authorized most warrant does

find for Tucker an alibi holding jury not have did our from which it

before sufficient beyond a reasonable it determine could participated in the Tucker doubt that

conspiracy. judgment would, therefore, affirm the

I well Tucker as as to

of conviction

Knight and Johns. RELATIONS LABOR

NATIONAL Petitioner, BOARD, CORPORA DISTRIBUTING

ALLIED Optical Com and Standard TION Respondents. pany,

No. 6757. Appeals States Circuit. Tenth 11, 1961.

Dec. Brummel, Atty., National

A. Labor Board, Washington, Relations D. C. Rothman, (Stuart Counsel, Gen. Dom- Manoli, Counsel, Associate inick L. Gen. Mallet-Prevost, Asst. Marcel Gen. Coun- Brown, sel, Jr., Atty., Allison W.