W. T. Hagans, Appellant, v. United States of America, Appellee, 261 F.2d 924 (5th Cir. 1959)

Appellant Hagans was convicted under two counts of a seven count indictment charging violation of the Internal Revenue Laws relating to liquors.¹  The jury was unable to reach a verdict as to Counts 1, 2 and 6, and found the appellant not guilty under Counts 3 and 4. He was convicted under Count 5 charging transportation of moonshine whiskey on September 23, 1957, and Count 7 charging possession of moonshine whiskey on September 29, 1957. The court below entered a mistrial as to the counts upon which the jury were unable to reach an agreement.

The defense upon which appellant relied was entrapment, but he earnestly argues a half dozen errors, contending that the cumulative effect of the errors was to require reversal even though they were not deemed separately as reversible error, or were not covered by exceptions. The argument is, therefore, that, as to all except the entrapment defense, the errors were prejudicial primarily in their cumulative effect.

Appellant's brief begins the argument by quoting Rule 52(b), Federal Rules of Criminal Procedure, 18 U.S.C.A.: "Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court," citing Cook v. United States, 5 Cir., 1958, 254 F.2d 871, in which the foregoing quotation is repeated. It is apparent that appellant's main contention is that, in the interest of justice, we ought to reverse even though the record does not show that the requisite exceptions were taken to the challenged rulings of the court below.

Taking up first the questions raised by the defense of entrapment, we find no merit in appellant's argument that his motion for directed verdict at the close of all of the evidence should have been granted on the ground that the defense was established as a matter of law. Conceding that "There is a strong conflict of evidence as to how the enterprise between the officers and Hagans began," appellant claims that the testimony disclosed that, although he had been in the whiskey business and had been convicted or pled guilty to charges in the federal court some ten years before the time involved in this indictment, he had reformed and was not in the business at, or a short time before, the events of September, 1957 upon which his conviction rests.

It is true that appellant did testify that he was approached by the state enforcement officers and importuned to pay them protection money and that he finally yielded to their pressures and got back into the liquor business. On the other hand, Georgia Revenue Agent Harding testified categorically and at great length that appellant initiated negotiations with him by 'phone call on August 23, 1957 which resulted in a meeting between them in which appellant offered $75.00 a week for protection from molestation by Georgia law enforcement officers. He refused this offer, but told appellant that he would talk with him later. He immediately contacted a federal enforcement officer and it was decided that state and federal officers would cooperate in an effort to gather evidence upon which to convict Hagans, who was proven, without objection, to have a bad current reputation with respect to liquor law violations.² 

According to Agent Harding's testimony, appellant called him again at his home and asked if he had been able to make the arrangements which they had discussed. This led to a personal meeting at midnight between appellant and Harding in which Federal Officer Perry participated. Appellant agreed to pay each of the officers $100.00 a week, and paid Agent Perry $200.00 in currency at that meeting. Appellant advised them that, in return for the agreed payments, they were "to steer any agents, state or federal, out of the immediate area of the liquor still, that his still was set up in." Appellant told them of the location of his still and told them further that he wanted them to find some sugar for him and that, if they came across any liquor stashes, he would pay them $2.00 a gallon for the liquor.

Both Perry and Harding testified at length and in full detail to the negotiations and were subjected to rigorous cross-examination. Their testimony that it was appellant alone who initiated and pressed the negotiations was evidently accepted by the jury on the question of entrapment, and we think the jury was amply justified in believing the agents in preference to appellant and his witnesses.

Appellant makes an extensive argument that the charge of the trial judge on the issue of entrapment was prejudicially inadequate, relying chiefly on the opinion of Judge Learned Hand in United States v. Sherman, 2 Cir., 1952, 200 F.2d 880, and the decision of the Supreme Court in Sorrells v. United States, 1932, 287 U.S. 435, 53 S. Ct. 210, 77 L. Ed. 413. Laying aside for the moment the fact that appellant did not except to the charge,³  we find it to be unexceptionable.⁴  Most of the charge was devoted to the question of entrapment and, viewed as a whole, it was exceedingly liberal to the appellant, quoting almost totidem verbis the charges requested by him. We think that the point is wholly without merit.

Considering now the most stressed alleged errors whose "accumulated effect" appellant claims deprived him of a fair trial, we take up first the argument that the actions of the trial court after submission of the case to the jury tended to coerce the jury to reach a verdict. About three and one-half hours after the jury had received the case the court called its members back into the courtroom, asking if the jury was troubled by any question of law. The foreman responded that the law was clear — "It is just a matter of deciding which to believe." The court then instructed the jury in general terms about the duty of jurors to discuss the case with each other and to be persuaded by reason,⁵  and at its conclusion the parties were asked if they excepted to any portion of the charge. Appellant excepted in terms too general to conform to the requirement of Rule 30 of Federal Rules of Criminal Procedure.⁶  The court advised counsel that the charge had been read "practically verbatim" from one United States Supreme Court report and from two Georgia Supreme Court cases. The instruction was, in our opinion, a proper exercise of judicial discretion and was in no sense coercive, but was in keeping with good practice.⁷ 

The charge did not apparently produce results, and the judge called the jury back into the courtroom at eleven P.M., some five hours later. Upon being advised that the jury had not reached a verdict but was making progress, the judge asked the marshal to make arrangements for their accommodation for the night, suggesting that they resume negotiations the following morning. No exception was taken to this action by the court and no argument is predicated directly upon it.

The following morning the court received a communication from the jury containing two questions which it discussed with counsel out of the presence of the jury. By agreement of the parties certain testimony was read by the court reporter to the jury referring to the date when the large amount of sugar was unloaded on appellant's premises. Appellant entered no objection to what happened except that he requested the judge to instruct the jury that the possession of sugar itself was not a criminal offense. The court declined to do so and, as stated above, we do not think that its action was erroneous. Cf. Zavala v. United States, 5 Cir., 1958, 256 F.2d 164, and Samish v. United States, 9 Cir., 1955, 223 F.2d 358, 366.

The second question asked by the jury was whether it was necessary to reach a decision on all seven counts, to which the court responded that the jury "may return a verdict on any number of counts or any single count, one or all, as to which you are able to reach an agreement, and your verdict would be accepted as to those counts or that count upon which you are able to agree. And a mistrial will be declared only with respect to the remaining count or counts." Appellant advised that no exception was taken to that action of the court, counsel stating that he thought the court had the discretion so to act. Thereupon the jury brought in a verdict as indicated above. We find no error on the part of the court below in connection with its handling of the jury.

Appellant argues for a reversal because of what he refers to as "prejudicial testimony" of the United States Attorney arising from the following facts. While State Revenue Agent Harding was on the stand appellant brought out that, on one occasion, Harding was wearing a microphone (sometimes referred to as "the bug") and tape recording machine, which presumably had taken down some of the conversation between him and appellant. His attorney asked, in the presence of the jury, that the record and the entire device be brought into court and set up so that it could be played for the benefit of court and jury. The government attorney responded that he had not called for the mechanism to be produced, but would go out in the hall and see if any of the officers had it.⁸  The quoted statement was interrupted by an objection by appellant based upon the charge that the United States Attorney was testifying when he was not on the witness stand, followed by a request for a mistrial on the ground that appellant was entitled to a favorable inference from the Government's failure to produce the instrument, which the Government attorney should not be permitted to destroy by his statement. The whole episode was concluded by the court's statement: "Very well. You insist on your motion and I overrule it. But I will instruct the jury to pay no attention to why the apparatus is not here. That is, as to any showing made thus far. Now proceed with your questions."

It is difficult to see how the Government's attorney could have responded to appellant's request in any other way than he did. Appellant had requested that he go out into the hall and bring the contrivance back and set it in operation. That was in the presence of the jury and, responding to it, the attorney made a fair statement of why it was not available. An invited response to a question in open court if fairly given is, like provoked and invited argument, not improper. Schmidt v. United States, 8 Cir., 1956, 237 F.2d 542, 543.

The situation here presented is not at all like that with which we dealt in Nalls v. United States, 5 Cir., 1957, 240 F.2d 707. There, the United States Attorney had made a voluntary and unnecessary statement in the presence of the jury which was clearly prejudicial. The trial court refused to instruct the jury to disregard it. We held that, in a case such as that where the evidence was not fully developed and was unsatisfactory, the unprovoked statement of the United States Attorney was reversible error. We are not dealing with any such situation here.

We have considered these rulings, along with several others made by the trial court and earnestly urged by appellant as error. We do not find that, in a case such as the one before the Court where the commission of the acts charged against the accused is admitted and the defense is one of entrapment, the errors, even assuming that they were such, were sufficient to require reversal. We think that the record reflects that the appellant was given a fair trial and the jury was justified, by the overwhelming evidence, in rejecting his defense of entrapment. The judgment is, therefore,

Affirmed.