412 F2d 319 United States v. Burke

412 F.2d 319

UNITED STATES of America, Plaintiff-Appellee,
Billy Lafayette BURKE, Defendant-Appellant.

No. 27107.

United States Court of Appeals Fifth Circuit.

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.


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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.