Johnny Scott and Eugene Scott, Appellants, v. United States of America, Appellee, 355 F.2d 799 (5th Cir. 1966)

Appellants were convicted of unlawfully possessing, transporting, and selling unstamped whisky in violation of 26 U.S.C.A. §§ 5205(a) (2) and 5604(a) (1).

The testimony of Eugene Scott which implicated Johnny Scott was admissible. Since the existence of a common enterprise between the two was shown, an incriminating statement made by one in furtherance of the joint venture was admissible against the other. See United States v. Pugliese, 2 Cir., 1945, 153 F.2d 497; Cossack v. United States, 9 Cir., 1936, 82 F.2d 214. The evidence, including proof that no revenue stamps were affixed to the whisky containers in question, was adequate. There was ample foundation for an inference to the effect that no such stamps were affixed. Rowe v. United States, 5 Cir., 1963, 324 F.2d 27. The tape recorded telephone conversation was admissible. Mach v. United States, 5 Cir., 1965, 352 F.2d 85; Broadus v. United States, 5 Cir., 1963, 317 F.2d 212; Carnes v. United States, 5 Cir., 1961, 295 F.2d 598, cert. den., 369 U.S. 861, 82 S. Ct. 949, 8 L. Ed. 2d 19 (1962). The remark of the revenue agent concerning the picture of Johnny Scott was responsive to the question of defense counsel, did not warrant a mistrial, and no cautionary instruction was requested. The alleged error in the charge of the court is frivolous.

Our view is that the evidence was sufficient to warrant the conviction of appellants and that their trial was free of prejudicial error.

Affirmed.