Jesse Huie Maddox, Appellant, v. United States of America, Appellee, 337 F.2d 234 (5th Cir. 1964)

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U.S. Court of Appeals for the Fifth Circuit - 337 F.2d 234 (5th Cir. 1964) October 8, 1964

James R. Venable, Atlanta, Ga., for appellant.

Bobby C. Milam, Asst. U. S. Atty., Atlanta, Ga., Charles L. Goodson, U. S. Atty., for appellee.

Before TUTTLE, Chief Judge, BELL, Circuit Judge, and WHITEHURST, District Judge.


The judgment of conviction of appellant on this four count indictment for violation of the liquor laws is affirmed. The testimony of the federal agent concerning conversations he heard over an electronics listening device, under the circumstances of this case, is admissible. Lopez v. United States, 373 U.S. 427, 83 S. Ct. 1381, 10 L. Ed. 2d 462; On Lee v. United States, 343 U.S. 747, 72 S. Ct. 967, 96 L. Ed. 1270. There is no merit in the contention that the government had the burden of showing that agents operating the listening device were familiar with the mechanics of the device. There is no merit in the argument that the evidence tending to prove the guilt of the appellant was insufficient to warrant the submission of the case to the jury. Moreover, if there had been a failure to prove the count dealing with alleged possession by appellant of non-tax-paid liquor on May 21st and May 28th, such failure would not affect the results, because the sentence of two years was below the maximum that could have been imposed on the remaining counts in the indictment. See Hall v. United States, 5 Cir., 1964, 330 F.2d 558.

The judgment is affirmed.