No. 184, Docket 27214.United States Court of Appeals, Second Circuit.Argued January 8, 1962.
Decided January 8, 1962.
Allen S. Stim, New York City (Robert Mitchell, New York City, on the brief), for appellants.
Daniel P. Hollman, Asst. U.S. Atty., Southern District of New York, New York City (Robert M. Morgenthau, U.S. Atty., and Arnold N. Enker, Asst. U.S. Atty., New York City, on the brief), for appellee.
Before LUMBARD, Chief Judge, and CLARK and FRIENDLY, Circuit Judges.
Appellant Davis was convicted on each of ten counts of substantive violations of 26 U.S.C. § 5604(a)(1), 26 U.S.C. § 5205(a), and 18 U.S.C. § 2, and, under 18 U.S.C. § 371, of conspiracy to violate those sections and 26 U.S.C. § 5121 and 5691. He was given concurrent sentences of 18 months on each of those counts. Appellant Brown was sentenced to imprisonment for 6 months on his conviction on the conspiracy count. Both waived jury trial and now appeal their convictions, arguing that there was insufficient evidence to make out a prima facie case as to either of them and that there was a fatal variance between indictment and proof on the conspiracy count in that a single conspiracy was alleged and at most the evidence tended to show two separate conspiracies.
We affirm the convictions in open court, holding both contentions to be wholly without support. There is ample evidence that Davis was the owner of a speakeasy, selling alcohol on which taxes had not been paid, that Brown was his chief lieutenant, and that they were engaged in a single conspiracy to conduct such an operation.