United States of America, Plaintiff-appellee, v. Billy Lafayette Burke, Defendant-appellant, 412 F.2d 319 (5th Cir. 1969)

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US Court of Appeals for the Fifth Circuit - 412 F.2d 319 (5th Cir. 1969) June 27, 1969

James A. Glenn, Jr., Gainesville, Ga. (Ct.Apptd.), for appellant.

Charles L. Goodson, U. S. Atty., Robert L. Smith, Beverly B. Bates, Asst. U. S. Attys., Allen L. Chancey, Jr., Acting U. S. Atty., Atlanta, Ga., for appellee.

Before JOHN R. BROWN, Chief Judge, DYER, Circuit Judge, and HUNTER, District Judge.


Burke appeals from a judgment entered on a jury conviction of possessing nontaxed whiskey in violation of 26 U.S. C.A. § 5604(a). We affirm.

Burke's sole contention on appeal is that there was insufficient evidence to support his conviction. We reject this argument because the testimony of a Government undercover agent, if believed, proved all of the elements of the offense charged. Burke relies upon the fact that he was able to present in his defense multiple witnesses who contradicted the agent's testimony. However, questions of credibility raised by contradictions in the evidence are to be resolved by the jury. United States v. Plata, 7 Cir. 1966, 361 F.2d 958, cert. denied 385 U.S. 841, 87 S. Ct. 94, 17 L. Ed. 2d 74; Wyatt v. United States, 5 Cir. 1959, 263 F.2d 304. Taking the view most favorable to the Government, so long as there exists substantial evidence to support the jury verdict, we must affirm. Glasser v. United States, 1942, 315 U.S. 60, 62 S. Ct. 457, 86 L. Ed. 680; Peters v. United States, 5 Cir. 1967, 376 F.2d 839; Downing v. United States, 5 Cir. 1965, 348 F.2d 594. In the case, sub judice, we find substantial direct evidence to support the jury verdict.