Leo Frank 'Buddy' O'Quinn v. United States, 411 F.2d 78, 10th Cir. (1969)

411 F.
2d 78
Leo Frank 'Buddy' O'QUINN, Appellant,

v.
UNITED STATES of America, Appellee.
No. 9711.
United States Court of Appeals Tenth Circuit.

April 9, 1969, Rehearing Denied May 8, 1969.
Thomas J. Burns, Arvada, Colo., for appellant.

Bruce Green, U.S. Atty., Muskogee, Okl., for appellee.
Before WARREN L. JONES, 1 Senior Circuit Judge, and
BREITENSTEIN and HOLLOWAY, Circuit Judges.
HOLLOWAY, Circuit Judge.
Under 18 U.S.C. 371 appellant was convicted on one count for conspiracy to
violate Chapter 51 of the 1954 Internal Revenue Code by unlawful sale of
distilled spirits not evidencing required revenue stamps. He was also convicted
on four related counts for making such unlawful sales. The judgment imposed
three-year sentences for each of the five convictions, with provision for the
sentences to run concurrently. This appeal from that judgment is a companion
case to Davidson v. United States, 411 F.2d 75 (10th Cir. 1969), just decided
here, arising from the same prosecution.
For reversal of the convictions and a new trial appellant asserts that: (1) error
occurred when Government investigators were permitted to testify with the use
of summary statements; and (2) admission in evidence of jars and their whiskey
contents was error, due to allegedly insufficient identification. Supplemental
briefs also discuss whether the conviction on count 4 is sustained by any
evidence.
By the testimony of various investigators of the Treasury Department Alcohol

and Tobacco Tax Division, the prosecution showed the following. In October,
1965, Howard Vidrine, one of the Treasury agents, began an undercover
investigation in Choctaw County in Southeastern Oklahoma. On October 17

Vidrine and a contact who traveled to Oklahoma with him commenced
arrangements with a Constable Davidson for purchase of non-tax paid whiskey.
Deliveries began shortly and appellant participated in the delivery of 48 gallons
of moonshine whiskey and receipt of money for it on October 26. His
participation in this transaction and in subsequent similar ones within the
following month were shown. Appellant offered no evidence.
4
Appellant's first claim of error concerns the use of summary statements or

reports by the Government investigators during their testimony. Daily notes
were made by the agents during the investigation which extended over several
months. These were transferred to larger papers to get the notes in order. Then
progress reports were later typed for superiors in the Treasury Department.
When the investigation was completed summary statements were prepared by
each Government witness from his progress reports. The summary statements
of Government witnesses were produced and Vidrine's statement and all his
progress reports in possession of the Alcohol and Tobacco Tax Division were
also made available for examination by defense counsel.
The District Court properly examined the witnesses as to the purpose for which
the summary reports were being used by them and appellant conducted voir
dire examination on them. From all such examination it appeared that while the
witnesses could not remember such specifics as exact dates and the like, their
memories were clear as to the identity of appellant and his participation in the
transactions making up the substance of the offenses charged. Thus, the
summaries only served as a proper aid to present recollection refreshed.
Imperial Meat Company v. United States, 316 F.2d 435 (10th Cir. 1963), cert.
denied, 375 U.S. 820, 84 S.Ct. 57, 11 L.Ed.2d 54 (1963); Roberson v. United
States, 282 F.2d 648 (6th Cir. 1960), cert. denied, 364 U.S. 879, 81 S.Ct. 167, 5
L.Ed.2d 108 (1960); and see McWilliams v. Lewis, 75 U.S.App.D.C. 153, 125
F.2d 200 (D.C. Cir. 1941). The District Court had broad discretion, which was
not abused, in allowing the witnesses to use such memoranda. Imperial Meat
Company v. United States,supra; United States v. Riccardi, 174 F.2d 883 (3d
Cir. 1949), cert. denied, 337 U.S. 941, 69 S.Ct. 1519, 93 L.Ed. 1746 (1949).
The summary statements and progress reports produced, as stated above, were
made available to study for cross-examination of the witnesses. Appellant thus
had the customary opportunity and necessary material to challenge the
recollection of the witnesses. See United States v. Riccardi, supra at 890. We
conclude that no reversible error occurred by permitting use of the reports.
The second argument for reversal centers around the admission in evidence of
jars and their whiskey contents. Appellant contends that Vidrine's testimony
failed to establish a clear chain of possession of the exhibits. However, Vidrine

identified them as the jars and contents received in the transactions by
observation of the jars, the labels he placed on them and marks scratched on
their lids shortly after their delivery. He stated that at that time he either smelled
or tasted the contents of the jars and that all contained moonshine whiskey. We
conclude that the identification was proper as made by the Government
witnesses and that the District Court may not be said to have abused its
discretion in determining that such identification was satisfactory. Rosemund v.
United States, 386 F.2d 412 (10th Cir. 1967); Reed v. United States, 377 F.2d
891 (10th Cir. 1967); Brewer v. United States, 353 F.2d 260 (8th Cir. 1965).
There was no showing of any tampering with the exhibits and it was not to be
presumed that the investigators would do so. Brewer v. United States, supra at
263. Moreover, in view of all the proof as to appellant's part in the transactions,
the detection of whiskey at that time, and the absence of the required stamps,
appellant's guilt was compellingly and conclusively established. Under such
circumstances the admission of the exhibits, if an error, was not one which
would have had substantial influence on the outcome, and was harmless within
the meaning of Rule 52(a), F.R.Crim.P.; Guffey v. United States, 310 F.2d 753
(10th Cir. 1962).
7
The sufficiency of the evidence on count 4 is discussed in supplemental briefs.

There was no proof connecting O'Quinn with the arrangements for this
transaction and none that he participated in it. It is argued that there is sufficient
circumstantial evidence in proof of appellant's participation in other sales and in
the showing that this delivery occurred in the vicinity of the clubs where other
deliveries were made. Such circumstances raise a mere suspicion of guilt and
are insufficient to sustain the conviction on this count. Maestas v. United
States, 311 F.2d 457 (10th Cir. 1962), cert. denied, 372 U.S. 936, 83 S.Ct. 883,
9 L.Ed.2d 767 (1963); Glover v. United States, 306 F.2d 594 (10th Cir. 1962);
and see Davidson v. United States, 411 F.2d 75 (10th Cir. 1969), holding
similar circumstantial evidence insufficient.
For the reasons stated the judgment is affirmed as to the convictions on counts
1, 3, 5 and 6, and reversed as to the conviction on count 4, and the case is
remanded for further proceedings in accordance herewith and dismissal of the
indictment as to appellant on count 4.
Of the Fifth Circuit, sitting by designation

Leo Frank 'Buddy' O'Quinn v. United States, 411 F.2d 78, 10th Cir. (1969)

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411 F.

Leo Frank 'Buddy' O'QUINN, Appellant,

United States Court of Appeals Tenth Circuit.

Thomas J. Burns, Arvada, Colo., for appellant.

By the testimony of various investigators of the Treasury Department Alcohol

investigation in Choctaw County in Southeastern Oklahoma. On October 17

Appellant's first claim of error concerns the use of summary statements or

failed to establish a clear chain of possession of the exhibits. However, Vidrine

The sufficiency of the evidence on count 4 is discussed in supplemental briefs.

Of the Fifth Circuit, sitting by designation

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