Brief for the United States in Opposition — Roth v. United States

Suthe Supreme Court of the Wnited States

OcTosEeR TERM, 1964

No. 286

L. Burorp Hari, L. FELToN HALL, and

ERNEsT W. HALL, PETITIONERS

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR TUE FIFTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

The opinion of the court of appeals (Pet. App. 17-18;

II R. 488-489)’ is reported at 330 F.2d 558.

JURISDICTION

The judgment of the court of appeals was entered on

April 16, 1964 (II R. 490). A petition for rehearing

(II R. 491-495) was denied on May 22, 1964 (II R.

496). On June 18, 1964, Mr. Justice Black extended

1**R’’ designates the two-volume record on file with the Clerk

of this Court.

2

the time for filing a petition for a writ of certiorari to

and including July 15, 1964, and the petition was filed

on that date. The jurisdiction of this Court is invoked

under 28 U.S.C. 1254(1).

QUESTION PRESENTED

Wuether the evidence supports petitioners’ convic-

tions under either of two counts of the indictment.

STATEMENT

After a jury trial in the United States District Court

for the Northern District of Georgia, petitioners were

convicted on each count of a four-count indictment

charging them with forcibly assaulting an Internal

Revenue agent with a dangerous weapon in violation

of 18 U.S.C. 111 (count one), and with violating the

provisions of the Internal Revenue Code relating to

distilled spirits (counts two-four) (I R. 2-4, 23-24; Ff

R. 481-482) .?

1. The evidence at trial showed that on the evening

of September 2, 1962, an Internal Revenue agent dis-

covered a temporarily inactive illegal distillery in a

heavily wooded area in Clayton County, Georgia. While

at the site, the agent placed some ‘‘flourescent paste’’

on the handle of a shovel and on other equipment which

he found there (II R. 295-296). Thereafter, on the

night of September 24, other agents checked the site

and found fermenting mash fit for distillation and the

still set up and ready to operate (I R. 189-190, 203).

2 Count two charged possession, custody and control of an un-

registered still and distilling apparatus (26 U.S.C. 5601(a)(1));

count three charged the fermentation of mash on unauthorized

premises (26 U.S.C. 560i(a)(7)); and count four charged knowing

possession of distilled spirits in containers not having the requird

stamps affixed thereto (26 U.S.C. 5604(a)(1)) (I R. 3-4).

3

The following evening, federal agents returned to the

vicinity of the still and heard sounds which indicated

that the still was in operation. They also saw a large

truck parked in the area and on several occasions wit-

nessed men carrying flashlights walking to and from

the truck from the direction of the distillery (I R. 136-

138, 191-192; II R. 233-236). At about 10:30 p.m.,

some men were seen to come from the direction of the

still, ever the truck and start to drive it away with the

lights off (I R. 141, 192-193). At this point, Internal

Revenue Agent Howell stepped from behind a tree

into the path of the slowly-moving truck, turned his

flashlight on, and, in a loud voice, shouted that he was

a federal officer. He ordered the occupants (who turned

out to be the petitioners) to stop the truck (I R. 143,

156-157 ; II R. 235-236). Instead of heeding this com-

mand,* the truck’s headlights were put on and it was

accelerated in Howell’s direction. The agent jumped

aside and leaped onto the running board on the pas-

senger side of the truck and again told the occupants

that he was a federal officer and that they should

stop (I R. 143, 158, 217 ; II R. 250, 394-395). The two

passengers (L. Buford Hall and Ernest W. Hall (I R.

209 ; II R. 431) )* attempted to pull Howell into the cab

of the truck, and struck him numerous times about the

face and head with some ‘‘metal object’? (I R. 143-

144; II R. 402-403). While the struggie continued

with the truck still moving, agent Howell pulled his

revolver and again ordered petitioners to stop (I R.

144). The occupants then attempted to seize the agent’s

3 Petitioner Ernest W. Hall testified for the defense that no such

identification was made, nor such command given (II R. 432-433).

* Petitioner L. Felton Hall was driving the truck (I R. 209; II

R, 431).

4

gun and, in the scuffle, a shot was fired. The agent fired

several more shots into the cab and was then knocked

off the truck by the occupants, or pulled off by an ad-

jacent barbed wire fence. After he fell, the truck was

apparently driven over his right forearm and hip.

As a result of his injuries the agent was hospitalized

(I R. 144-146, 170-172, 196; II R. 237). The truck

was then driven away.

Some time later, the truck was discovered parked in

the rear of the residence of a relative of petitioners (II

R. 262). Inside the truck the agents found a shovel,

a flashlight and some clothing (II R. 263, 304). Exam-

ination of the shovel and clothing revealed that they

bore fluorescent material identical to that placed

by the federal officer on the shovel and other items

found at the still on September 2, 1962 (see supra, p. 2;

II R. 295-296, 305, 325). Additionally, fragments of

a ‘‘dough like’’ substance, similar to the kind found

at the distillery, were discovered on the flashlight and

on articles of clothing worn by petitioners (I R. 199,

209-211; II R. 264, 376-382, 388-389). Moreover, ‘‘un-

usual boot-prints’’ found by the officers at the still-site

on September 24, and 26, 1962, were similar to prints

made by the boots of petitioner L. Buford Hall (I R.

189-190 ; II R. 330, 366, 369).

The distillery itself was in operation on the night of

the assault ox agent Howell and was found to consist of

two stills, a quantity of mash fit for distillation, and

over 250 gallons of whiskey. There was no sign posted

to indicate that the distillery was registered, nor did

the barrels containing the whiskey have the requisite

tax stamps affixed (I R. 199-200; II R. 297-298, 308,

311, 329-330).

@

D

Petitioners’ defense, primarily presented in the tes-

timony of petitioner Ernest W. Hall, was that on the

evening of the assault the petitioners were fishing in an

adjacent pond and had nothing to do with any still;

that while they were driving in the truck away from

the pond they heard a pistol shot; that four other shots

fired at them followed in rapid succession; and that

they heard no one announce he was a federal officer cr

tell them to stop before the shots were fired, nor did

they know that the person who fired the shots was a fed-

eral agent (II R. 426-448; 420-423).

2. In his instructions to the jury relating to the

charge contained in count one (assaulting a federal

officer with a deadly weapon) the court stated, inter

alia (II R. 466, 477) :°

Now there are three essential elements that are

required to be proved in order to establish the of-

fense charged in the first count in the indictment:

First: The act or acts of forcibly assaulting an

investigator for the Alcohol and Tobacco Tax Di-

vision of the Internal Revenue Service while such

officer was engaged in the performance of his offi-

cial duties, as charged:

Second: The act or acts of using a deadly or

dangerous weapon, as charged, in the commission

of the alleged forcible assault ; and

Third: Doing such act or acts willfully.

Defense counsel excepted to the charge requesting,

inter alia, that the jury be informed that before they

‘‘would be authorized to convict on Count one, they

5 The court gave the instructions on count one twice—the second

time at the request of the jury (II R. 474).

6

must first find that the defendants knew that the person

assaulted was a federal officer ; and also that defendants

knew such officer was in the discharge of his official

duties’? (II R. 479). The court refused to so charge.

As the court of appeals held, there is no need to

examine into the validity of petitioners’ convictions on

counts two and three of the indictment—charging

possession, custody and control of an unregistered still

(count two) and fermentation of mash in unauthorized

premises (count three) —since the general sentences

imposed on each of the petitioners is fully supportable

on either count one of four. Claassen v. United States,

142 U.S. 140, 146-147; Pinkerton v. United States, 328

U.S. 640, 641-642, n. 1; Emspak v. United States, 349

U.S. 190, 195, n. 9.

As for count one—forcibly assaulting an Internal

Revenue agent with a dangerous weapon—the jury

could find from the evidence that petitioners had se-

verely beaten agent Howell with a ‘‘metal object”’ and

driven over him with a truck, even after he had made

known to them his identity as a federal officer and

* With respect to these two counts the jury was charged, in accord

with the statutory presumptions contained in 26 U.S.C. 5601(b) (1)

and (3), that unexplained presence of petitioners at the still site

authorized, but did not require their conviction (II R. 469-470).

The question as to the constitutionality of the presumptions em-

bodied in 26 U.S.C. 5601(b) (1) and (2) is presently pending before

this Court on a writ of certiorari to the Court of Appeals for the

Fifth Cireuit in United States v. Barrett, No. 13, O.T., 1964. The

government had also filed a petition for writ of certiorari from the

Second Cireuit decision in United States v. Romano, No. 172, O.T.,

1964, involving the constitutionality of the presumption contained

in 26 U.S.C. 5601(b) (4) as well as subsection (b)(1). The court

below had held the presumptions contained in (b)(1) and (2) un-

constitutional in Barrett.

7

ordered them to stop the vehicle. (See Statement,

supra. pp. 3-4.) Petitioners argue (Pet. 10-12) that the

trial court gave an inadequate instruction on knowl-

edge, in that it failed to charge that in order to convict

on count one, the jury had to find that, at the time of

the assault, petitioners knew that Howell was a federal

officer in the discharge of his duties. While earlier

eases in the Fifth Circuit support the view that the

jury must so find, (e.g., Hall v. United States, 235 F. 2d

248; Carter v. United States, 231 F. 2d 232, certiorari

denied, 351 U.S. 984; Hargett v. United States, 183 F.

2d 859", a more recent decision in the Fifth Circuit

has, at least by implication, rejected this view and

ruled that 18 U.S.C. 111 does not require ‘‘that the

doer of the act have knowledge that the person who is

assaulted, resisted, opposed, impeded, intimidated, or

interfered with is a federal officer’’. Bennett v. United

States, 285 F. 2d 567, 569-570, certiorari denied, 366

U.S. 911; see also, McNabb v. United States, 123 F. 2d

848, 854-855, (C.A. 6), reversed on other grounds, 318

U.S. 332 (relating to the killing of an officer) ; United

States v. Bruce, 33 F.R.D. 133, 135 (N.D. Miss.) ;

United States v. Combs, 73 F. Supp. 813, 814 (E.D.

Ky.) ; ef. Hanis v. United States, 246 F. 2d 781, 785

(C.A. 8). Obviously the later rulings are sound; if it

is established that the defendant committed an as-

sault—itself, a criminal act—the statute requires only

proof that the victim was in fact an officer engaged in

the performance of his duties.

This Court’s decision in Pettibone v. United States,

148 U.S. 197, on which petitioners rely (Pet. 10), is

™There are also district court decisions to that effect. United

States v. Miller, 17 F.R.D. 486 (D. Vt.) ; United States v. Bell, 219

F. Supp. 261 (E.D. N.Y.) ; see also Sparks v. United States, 90 F.

2d 61 (C.A. 6).

— oe Se

PGE PL SES

8

not to the contrary. Pettibone involved the entirely

different situation of a charge of conspiracy to obstruct

administration of justice. Obviously, where, as in

Pettibone, the essence of the crime is an agreement,

there must be knowledge of the unlawful purpose.

In any event, petitioners’ convictions are wholly sus-

tainable on count four charging possession of distilled

spirits in containers not having the requisite tax stamps

affixed. The evidence showed that over 250 gallons of

whisky in unmarked barrels were found at the still.

That this alcohol was in petitioners’ possession within

the meaning of the statute was shown by the following

facts: fluorescent material placed on equipment at

the still was found on a shovel and clothing found in

the truck driven by petitioners; a ‘‘dough iike’’ sub-

stance used at the still was found on a flasislight in the

truck and on elothing worn by petitioners (see State-

ment supra, p. 4); and it appears that petitioners were

the only persons present there. In short, there was

ample evidence from which the jury could find that

petitioners were the operators of the illegal distillery

and possessors of the untaxed alcohol found at the

still-site.

CONCLUSION

For the foregoing reasons, it is respectfully sub-

mitted that the petition for a writ of certiorari should

be denied.

ARCHIBALD Cox,

Solicitor General.

- HErRBert J. MIL_er, JR.,

Assistant Attorney General.

BEATRICE ROSENBERG,

JEROME M. Fert,

Avaust 1964. Attorneys.

TY. S. GOVERNMENT PRINTING OFFICE 1964—741109/P.0. 132