United States v. Romano

PETITIONER:United States
LOCATION:Antinook Mill

DECIDED BY: Warren Court (1965-1967)
LOWER COURT: United States Court of Appeals for the Second Circuit

CITATION: 382 US 136 (1965)
ARGUED: Oct 14, 1965
DECIDED: Nov 22, 1965

Facts of the case

On the night of October 10, 1960, Internal Revenue Service agents, along with a state patrol officer, went to the site of the “Apinook Mill” in Jarrett City, Connecticut. Agents gained entrance to the grounds, smelled the distinctive odor of ground mash indicating the presence of a still, and visually confirmed the presence of a column still in building 9A. The federal agents then applied for a warrant, after noting that the Treasury Department had not registered the still in question. The warrant was granted on October 11th.

On October 13th, federal agents entered building 9A by force after demanding entry and hearing no reply. They discovered an operating still inside, and found Frank Romano and John Ottiano standing nearby. Ottiano had the key to the facility on his person. Romano stated that he had been at the site for four days and claimed not to know how long the operation had existed.

Section 5601(b)(1) of the Excise Tax Technical Changes Act of 1958 (“ETTCA”), established a presumption of guilt for anyone shown to be at the place or site of an unregistered still. Section 5601(b)(1) was an amendment to Section 5601(a)(1), which defines the crime of possessing an unregistered still.

The United States charged Romano and Ottiano with three counts: possession of an illegal still, the illegal production of distilled spirits, and conspiracy to produce distilled spirits. Judge T. Emmet Clarie instructed the jury with a verbatim reading of the relevant provisions of the ETTCA. The jury found both men guilty of all counts. The court sentenced Romano and Ottiano to concurrent sentences on all three counts and fined them for possession of the unregistered still.

Chief Judge J. Edward Lumbard of the U.S. Court of Appeals, Second Circuit, reversed the sentences for possession and illegal production of spirits. He held that the trial court’s application of Section 5601(b)(1) was an unconstitutional violation of Romano and Ottiano’s Fifth Amendment due process rights. He reasoned that the inference of possession did not necessarily follow from a defendant’s presence, given that the defendant could be a purchaser of the product or simply a visitor to the site.


Did Romano and Ottiano’s presence at the illegal operation in and of itself justify their convictions for possession? If jury instruction was invalid, is that sufficient to invalidate the charges for possession?

Earl Warren:

No. 2 United States Petitioner versus Frank Ramona.

Mr. Claiborne you may proceed with your argument.

Louis F. Claiborne:

Mr. Chief Justice, may it please the Court.

This is a moonshine case.

It’s the second installment, really a sort of stepchild of the Gainey case decided last term.

Here as in that case, the issue is whether certain so called statutory presumptions, which were added to the Alcohol Tax Chapter of the Internal Revenue Code in 1958, are sufficiently rational to satisfy the test of the Fifth Amendment.

The statutes involved here are printed at the front of our brief and of course, I will come to them later.

I should like first to say something briefly about the facts of the case.

The moonshine operation here, unlike Gainey, was in an otherwise vacant dilapidated warehouse building, part of a large industrial complex, on the edge of Jewett City, Connecticut.

The complex itself comprising some 42 acres was surrounded on three sides by a fence, on the other side by a river.

At the time of the raid, which led to this case, the building was locked, most of the windows were obscured.

The agents who had obtained a warrant had to force their way in breaking the lock.

The agents found inside, what I’m told is a large illicit still operation, one that could produce almost 400 gallons of whiskey a day.

There were also other evidence of the operation, including quantities of the distilled spirits and bags of sugar on the premises.

The two petitioners before the Court now were found a few feet from the still.

One of them said he had been three for three days that the still had been going all that time.

The still was in full operation at the time.

On the person of the other petitioner were found keys to the building and to the gate and the fence, which surrounded the complex.

Together with two others, the petitioners were brought to trial before a jury, and all those whose cases went to the jury were convicted on all charges against them.

All four, the two petitioners and two others, were convicted for conspiring to illegally produce distilled spirits and also for the substantive offense of producing spirits without a license.

The petitioners and the petitioners alone were additionally charged and convicted with illegally possessing a unregistered still.

The petitioners were sentenced to concurrent jail sentences on all three counts, conspiracy to produce, production and possession, but in addition a fine was imposed as to each of the petitioners on the possession count.

Potter Stewart:

Which means that under the rule of Classen against the United States, both of these statutory inferences are necessarily before us in this case, does it not, because the sentences were concurrent identical sentences, were they?

Louis F. Claiborne:

I must have mislead Your Honor.

As to the — what we may call a fed count, the possession count, that question is necessarily before the Court —

Potter Stewart:


Louis F. Claiborne:

– because there was an additional fine —

Potter Stewart:

Yeah, it’s just –-

Louis F. Claiborne:

– but as to the second count, production —

Potter Stewart:

That concerns –-

Louis F. Claiborne:

— that concurrent with the conspiracy —

Potter Stewart:

I see.

Louis F. Claiborne:

Now as I will explain, the conspiracy convictions were affirmed by the Second Circuit, a petition from those affirmances was taken here and denied.

Therefore, those convictions are final, the three-year and two-year sentences imposed, one as to Ramona the other as to Ottiano on that count, the conspiracy count fully supports the sentence, identical concurrent sentence on the second count, which is produced.

Potter Stewart:

So only possession is necessarily before us, is that it?

Louis F. Claiborne:

Yes, on the other the Court of Appeals, perhaps unnecessarily, did reach the conviction on the second count and did hold unconstitutional the presumption involved in the second count applicable to the crime of production.

For that reason, we argue it, though we recognize that is not necessarily before this Court, that the Court is free to do as it did in Gainey and simply to reverse on the ground that the court below need not have reached the question and without this Court itself reaching the question, that is what the Court did in Gainey with respect to the possession count.

William J. Brennan, Jr.:

Well, what would that leave for us to decide?

Louis F. Claiborne:

Only the possession —

William J. Brennan, Jr.:

Only the possession.

Louis F. Claiborne:

The possession, presumption.

William J. Brennan, Jr.:


Louis F. Claiborne:

Now I may say even as to that, that the court below it had no occasion to reach it under its holding, might have avoided even a decision there had it thought the cumulative sentences were improper in the circumstances, thus eliminating the fine of the third count and leaving only sentences concurrent with the one count, which is finally affirmed and not open here.

In our view, very large in the background of this case, in controlling it in many respects, perhaps in most respects, is this Court’s decision last term in Gainey.

As the Court would remember, in Gainey, you sustained the rationality and therefore the constitutionality of a statutory provision, a so called statutory presumption that authorized the jury to convict the person found at the site of a still whose presence was not satisfactorily explained by the evidence of illegally carrying on the business of a distiller.

The Court so concluded in light of two considerations, first the breadth of that substantive offense carrying on the business of a distiller, which the Court concluded included as principles that are under the aider and abettor statute, all persons connected in a business way with the illegal operation, that is the owner, the operator, his helpers, his suppliers, his distributors.

The second consideration was the unlikelihood that anyone other than those mentioned would be found at the still in light of the isolated location of such stills, the traditional secrecy of moonshine operation and the policy of deterring a way of discouraging any stray person who might wander on to the premises.

It may be important to note preliminarily, a possible distinction between Gainey and this case in that here, we have a city still whereas in Gainey we had a country still.

We think the distinction is unimportant and I must say that counsel for respondents does not make anything of it, but on its face one might suppose that here there was no isolation in the same sense as in Gainey and that ingredient of the Court’s decision was lacking here.

However, in a different sense, there is equal inaccessibility to the still site here in the city as there in the country.

It’s not attributable to same factors.

We couldn’t describe the premises here as an arcane spot, but on the other hand, the chances that an outsider would accidentally penetrate the compound is perhaps even less than in Gainey.

I need only to remind to the court that the building housing the still was firmly locked, but to approach it a curiosity seeker would have to penetrate a normally locked fence surrounding the entire complex, guarded by a watchman and it’s certainly no one was likely to stumble on to this building most uninviting and dilapidated as it was by accident.

Now my opponent seems to suggest a reconsideration of Gainey recognizing its force in our case.

I assume that, that decision rendered only last term is too recent to warrant by supposing that the Court would want to hear a re-argument today.

Accordingly, I confine myself to building on Gainey without repeating the arguments made at that time to sustain it.

The issue here as I said is the constitutionality of two statutory presumptions quite comparable to that sustained in Gainey.

Here, they involve presumptions applicable to the Crime of Possessing a still and to the crime of producing distilled spirits without a license.

Whereas in Gainey, the offense and the presumption applicable to it was carrying on the business of the distiller without a bond.

In light of the Gainey ruling, the only real question here is whether these offenses, like the offense of carrying on the business involved in Gainey is also all comprehensive, so as to include everyone likely to be found at the site of the still.

Louis F. Claiborne:

If so, then the inference which the statute permits from presence at the site is rational and constitutional as it was in Gainey.

If the substantive offenses here on the contrary are much narrower, then we cannot sustain the rationality of the statutory presumption.

Before discussing each of the substantive offenses here and their relative broadness, it may be important to say and to emphasize that the three crimes involved, the two here and the one in Gainey are not wholly overlapping.

If they were, that would tend to make nonsense out of the congressional scheme.

It would be difficult to understand why Congress had written three provisions which in all circumstances covered the identical conduct by the same people.

Moreover if that was the fact, we would confront problems of election and accumulation of sentences.

They are important differences between the three crimes, albeit we say they are all three broad crimes.

The offense of possession of an unregistered still unlike the other two production and carrying on the business even expanded as we said was in 1958, probably encompasses only persons physically connected with the skill — with the distill, whose proximity to the still is immediate.

That is clearly not true of the offense of carrying on the business nor is it true of the crime production.

Here the two the co-defendants who were not found at the still were convicted of producing.

William J. Brennan, Jr.:

[Inaudible] in the way of what’s required of the government to prove in addition to presence at the Crime of Possession?

Louis F. Claiborne:

So far as this case is concerned and the situation involved in this case, Mr. Justice Brennan, the proof is the same in this respect.

There are other differences which I’ll point to.

The actual different element required to be proved here is in the case of possession, the failure to register the still, in the case of carrying on the business, the failure to post a bond, quite separate requirement.

William J. Brennan, Jr.:

[Inaudible] and became carrying on production and possession?

Louis F. Claiborne:


William J. Brennan, Jr.:

And if there is, what I’m asking is, the presumptions permit inferences based on their presence, do they not?

Louis F. Claiborne:

But that presence, Mr. Justice Brennan, is not identical in all three cases.

The presumptions do preserve the distinctions in this respect also.

The presumption with respect to possession applies from the time the still is set up, that is from the time when it is essentially operable and continues until the still is taken down, the presumption and so does the Crime of Possession stretch for that long time span.

By contrast, the crime of carrying on the business and the presumption applicable to it, comes into play only after operations have begun, not merely when the still has been set up and cease once the business has ended, even though the still may remain on that site.

The Crime of Production and the presumption applicable to it come into play only during those intermittent periods when the still is actually operating.

Though the intervals within the larger span in which the business is carried on, the still has periods of rest between runs.

During those periods, if one is found at the the still, he is not presumed guilty of production.

He may be presumed guilty of carrying on the business and of possession.

William J. Brennan, Jr.:

Well, in any of those circumstances, he might be where the still is actually operating, his mere presence might support where it’s operating, and the government’s proof is that it was operating, convictions on counts for all three when all the reason in the way of proof is he was there, nearby, and that the still was operating?

Louis F. Claiborne:

That is true that is —

William J. Brennan, Jr.:

As there for three counts, there could be convictions of all three?

Louis F. Claiborne:

Yes, Your Honor.

He is —

William J. Brennan, Jr.:

And that’s that much proof and no more?

Louis F. Claiborne:

In some cases as in this case when the still is actually in full blown operation, the elements of all the presumptions are satisfied, except as I mentioned the additional ingredient which must be proved even over and above the presence which is failure to register or failure to obtain a bond or in the cases of production failure to obtain an operating permit.

Those respects quite similar to the distinction between selling narcotics from an unstamped package and selling narcotics without a prescribed form.

Abe Fortas:

If a truck driver were delivering supplies to the still and was found there, would the presumption and the possession apply to him?

Louis F. Claiborne:

Your Honor, if he was found on the inside, next to the still, the presumption would apply to him.

Abe Fortas:

The still would —

Louis F. Claiborne:

I think it would have to, so as to justify the inference that anyone found there is likely to be guilty of the substantive presence.

Abe Fortas:

The statute makes that distinction between inside and outside of the still?

Louis F. Claiborne:

It says at the site of the still.

Normally, this refers to a country still and the clearing where the still is located and proximity is perhaps — less easily judged.

Abe Fortas:

Suppose somebody came to the still to pick up some of the beverage I think it’s that’s produced there, would the presumption apply to him and would he therefore be presumed that he was engaged in the Crime or Possession on the still?

Louis F. Claiborne:

We would say so Your Honor.

We view the Crime of Possession as equally broad as the crime of carrying on the business was held last term in Gainey and through aider and abettor statute, if not directly, as encompassing all of those who contribute in the one case to the business and in the other case to the possession, though we concede that as to possession there must be that physical proximity which is not a necessary ingredient to carrying on the business.

Abe Fortas:

Perhaps that is rather unusual use of the word possession?

Louis F. Claiborne:

We concede that that is so Your Honor though preserving the element of physical proximity it seems to us does limit the amount of strain we impose on the word.

We reach that result on the ground that, when in 1958 the Congress amended the Alcohol tax law, they inserted with reference to the crime of possession an inference, that anyone found at a setup still could be convicted of possession.

We view that as perhaps an awkward way, but nevertheless a clear way of broadening the offense of possession and saying in other words, anyone found at the still shall be deemed to be a possessor thereafter.

That is brought out rather clearly by the legislative history, which shows an intent to overrule the Bozza case, which on the contrary it helped possession to be a very narrow crime.

The only effective way of resolving the problem created by the Bozza case was a good deal to enlarge the substantive offense.

To attribute any rationality to what Congress was doing, we must assume that it did not create an impossible inference, but through that device enlarged the substantive offense itself

Abe Fortas:

I don’t want to protrude this, but as I understood you a moment ago, you said that there is a difference between the various crimes clustering around this offense.

Would it therefore be incorrect for me to assume that you are intending to tell us, that in your mind there is a difference between possession, the crime of possession and the crime of carrying on the business?

Louis F. Claiborne:

Your Honor, I say there is a difference in terms of the time span covered by the two offenses, in terms of the proximity to the skill, to this still involved and in terms of the purpose of the two statutes.

I should emphasize that these three statutes, albeit they overlap in many respects were plainly designed to enforce three separate requirements of the Alcohol Tax Law.

They serve to implement on the one hand the requirement that a still be registered, which is the first step.

Secondly, the additional requirement that a distiller post a bond to assure that the taxes due will be paid.

And finally, with reference to production, the requirement, that before operations begin, an operating permit be obtained.

These remarkably stringent requirements aimed at eliminating a traffic, which has been known in this country and dealt with by the Congress since the first law on the subject in 1791 shows a perhaps very detailed and very determined effort to deal at every conceivable step with the illicit moonshining, which nevertheless continues.

William J. Brennan, Jr.:

[Inaudible] it might depend exactly where on the site or how near the site the accused was, whether he could be prosecuted for possession as against carrying on or as against production, did you make a distinction on that?

Louis F. Claiborne:

Well, I was only suggesting an answer to a question, Mr. Justice Brennan that a person found on the outside of the building in our case might not be viewed as sufficiently close to the still to be in possession of it or for that matter for any of these presumptions to come into play, all of which depend upon presence at the site of the still.

Louis F. Claiborne:

I would think that with reference to an enclosed building, the site is inside and not on the outside.

William J. Brennan, Jr.:

This would apply to all three presumptions?

Louis F. Claiborne:

That applies to all three presumptions.

William J. Brennan, Jr.:

Well, then I didn’t understand you to make a distinction between his location as determining whether he could be prosecuted for possession as against production as against carrying out?

Louis F. Claiborne:

With reference to a person there, no sir, but with reference to a person not there, he couldn’t be prosecuted for possession I say, whereas he could be prosecuted without benefit of the presumption for the other two crimes.

William J. Brennan, Jr.:

May I ask and that is certainly — where there is evidence, which might support an inference, if the trial judge obliges to submit the question of guilt from presence in the government’s view, perhaps not in Gainey, is that it?

Louis F. Claiborne:

We fully accept the decision in Gainey and in no way are attempting here to expand it with reference to the other crimes.

William J. Brennan, Jr.:

No, but to apply that same rule —

Louis F. Claiborne:

We would apply that —

William J. Brennan, Jr.:

As the judge’s discretion to all of these offenses?

Louis F. Claiborne:

And likewise, we would emphasize the rule very clearly articulated in Gainey that the judge is not to suggest to the jury that they are required to infer a guilt from presence, but are merely authorized or permitted to do so.

William J. Brennan, Jr.:

And on Gainey not even required to submit to the jury at all?

Louis F. Claiborne:

That is correct.

Also in this case the practice suggested is the better practice in the footnote, Gainey was not followed, but that is only because this case came up –-

William J. Brennan, Jr.:

Before –-

Louis F. Claiborne:

– before that opinion was written.

With reference to the offense of producing, which we say is a broad crime indeed from practice it is as broad in the sense of the number of persons it covers as the crime of distilling without bond.

It seems to us, the language there lends itself to that conclusion.

Carrying on the business of distiller really means distilling, that is the job of a distiller.

Here we talk about producing distilled spirits that seems to be very much the same thing or at least to lend itself to an equally broad construction.

It’s true that here we don’t have the same number of precedents showing a jurisprudence in the lower courts of reading broadly the statute, but there are no decisions the other way, are they?

The reasonable conclusion is that there are more cases in which the charge was carrying on the business than producing without permit, the reason for that —

Potter Stewart:

If this is a narrower offense insofar as the — in this offense, the still has to actually be producing whiskey, doesn’t it?

Louis F. Claiborne:

In terms of the time that which it comes into play, it is narrower and that reason alone suggests why there are more cases of involving carrying on the business.

Taking into account the presumption, it seems to us clear that this crime also is one broad enough to encompass all those likely to be found at the still, especially likely to be found at the still at the very moment when the operation is in full — during runs that is to say at a time when secrecy is most important, when precautions to keep outsiders excluded almost strict, at a time when those connected with the operation are least anxious to be caught red handed.

Therefore here, perhaps even more so than in Gainey, the inference from presence at this most incriminating period in the operation of the still quite reasonably justifies the conclusion that only those who need be there, are there, that is to say those connected in some business way with the still operation so —

William J. Brennan, Jr.:


Louis F. Claiborne:

I am sorry Your Honor, I don’t know, I am informed that it is a place of about 3,000.

Hugo L. Black:

[Inaudible] said that whenever any presence is found at the scene of a murder, the man has been killed recently, the jury is charged to assume he didn’t?

Louis F. Claiborne:

I should hope I would not have to defend that presumption Mr. Justice Black.

Hugo L. Black:

Well, at present he is there?

Louis F. Claiborne:

But so may other innocent bystanders very likely to be there.

Here, the peculiar setting of moonshine operations makes it wholly unlikely that anyone who need not be there will choose to be there, will find the site or will be permitted to be there, not so on a murder scene, which rather attracts the outsiders.

Hugo L. Black:

[Inaudible] that it probably has a right, but it does not have a right to search that the jury should find the man guilty, by certain evidence, [Inaudible] legislature does have the right to do so that the Court must permit the jury to find the man guilty, if they find the his presence, presence by the still’s operation?

Louis F. Claiborne:

We don’t say must, Mr. Justice Black.

We —

Hugo L. Black:

I know you don’t say they must do it, but they must, that must be enough to permit them to do it?

Louis F. Claiborne:

But the trial Judge –-

Hugo L. Black:

Whether the Jury and Court make it should be enough?

Louis F. Claiborne:

Well, that is true sir, but we do recognize the caveat in Gainey that the Trial Judge need not even submit to the Jury a case in which presence is shown and remains unexplained.

I’ll save what minutes I have, if I may, for rebuttal.


Louis F. Claiborne:

I think not, Mr. Justice Harlan, I think that matter is fully dealt with in our brief.

All I would say is that the Judge was careful to say to the Jury, they might, but need not evoke the inference in finding guilt.


Louis F. Claiborne:

No objections made for judgment.

Earl Warren:

Mr. Flynn.

W. Paul Flynn:

Mr. Chief Justice and members of the Court.

Answering Mr. Justice Harlan’s question Jewett City, is about 50 miles east of New Haven.

If you’ve ever been out to the Yale Harvard Crew you’d pass through —


W. Paul Flynn:

— well, it’s on the Turnpike.

You would get off at the Griswold exit, Mr. Justice Harlan, and you drive about 6 miles North along that Quinebaug River and you would come to the Aspinook Mill.

It was originally a gray goods mill that manufacturers un-dyed woolen products.

It is the largest single industrial complex in the community and when anything happened at Aspinook Mill, everybody in town was interested.

It was used as a sugar warehouse.

As a matter of fact, testimony in this trial indicated that there was a Brooklyn Cooperage Company that was a sugar warehousing concern right next door, strangely enough.

It was also a repository for lumber supplies for a company operated by a man by the name of Rumpler who was a co-owner of Aspinook Mill Incorporated of the Griswold Corporation.

I’m sure that my worthy adversary has never been near a still in his life, especially where there has been mash that has been fermenting, because it has an unmistakable odor.

And to say that this was an area removed and remote or that all stills are located in areas that are removed and remote is to use an inductive conclusion as the major premise in your stilligism, because in fact, all stills are not out in the country, at least not in New England.

W. Paul Flynn:

As a prosecutor myself, I’d prosecuted them whether they had been in the store, right in downtown Bridgeport and they had a 400 gallon capacity and there were people living upstairs and many a small entrepreneur in the New England area has his little piece of equipment down in the basement, supposed to manufacture his own personal stock and he is regularly arrested and prosecuted for it.

So, I’m sure they don’t hang a sign out in front of the house saying inside being operated a private distillery.

I’m sure that in that sense they are secreted and secluded, but I am equally sure that the conclusion reach by this Court in Gainey for a major premise that they are always secreted and secluded is an inductive major premise and fallacious, somewhat akin to a rationale used by one of my teachers in my youth all Irish men are drunks, Flynn is an Irish man, that conclusion is inevitable, Flynn is a drunk.

All stills are in some remote and removed portion of the geography is not true, it is not factual.

In fact, the Department of Justice knows or should know that there are countless numbers of prosecutions for illicit still operations where the entire operation is conducted within the confines of a metropolitan area.

Hugo L. Black:

We’ve had many cases here on that, haven’t we?

W. Paul Flynn:

I beg your pardon, sir.

Hugo L. Black:

As I recall it, we’ve had a number of cases —

W. Paul Flynn:

I would think that — I would think so Mr. Justice Black.

I would think that they would have been before this Court for other reasons on a number of occasions, but the conclusion in Gainey is that they are always removed and remote.

And I must admit that I coin the conclusions reach by this Court in Gainey to be somewhat fearsome for the purposes for which it can be used, not the purposes for which it will be, but can be used.

Would it be improper for example, for a prosecutor at the conclusion of a case in which the evidence showed that a man arrived at the front door to a building, opened the building and ten minutes later, he was being searched against the wall?

Would it be improper if this man had a criminal record two pages long and decided to exercise his rights to remain silent?

Would it be improper for the prosecutor to say that Congress of the United States has said that if you find a man on the premises at a time when and a place where distilled spirits are then and there being produced, you may find him guilty and the only other evidence they have is they got a still and he is there and that still isn’t registered.

That means they put on a clerk from the registry office, they put on an investigator to say that it was a still and they put the man present.

Potter Stewart:

What if we didn’t have this statute at all in the — that’s all the evidence you had and that’s what the instructions to the Jury were, would that be an error?

W. Paul Flynn:

I would think Mr. Justice Stewart that the Trial Judge would use what I understand to be a classical description of proof when there is not specific evidence, circumstantial evidence.

The cat and the mouse, example, if you put the cat with a mouse in a steel box and close the lid on it and lock it up in the closet and come back an hour later and take the lid off of the box and there is only a very smiling looking mouse inside you may presume that the cat ate the mouse.

I would think that type of charge would be proper, that’s calling upon the personal experience of the jury.

That’s not what happened in this case.

As a matter of fact, if the Court will go back to the original transcript at Page 163, Judge Cleary said, at that time when there was colloquial between counsel, “Isn’t it true with respect to Ottiano that all the government has to do is put him in the building at a time when and a place where there is a still that’s not registered?”

Hugo L. Black:


W. Paul Flynn:

I beg your pardon, Sir.

Hugo L. Black:

He said he’d been there three days.

W. Paul Flynn:


No, not Mr. Ottiano, sir.

Mr. Frank Romano indicated that he had been there three days.

The evidence was that John Ottiano had arrived at the still premises, that’s the 43-acre tract at 7:30 in the morning.

At 7:40 in the morning they had him against the wall inside the still.

Hugo L. Black:

He even had the keys in his trousers?

W. Paul Flynn:

Yes sir and the evidence is unmistakable in this case that the gate was open.

Tom C. Clark:

But he had the key?

W. Paul Flynn:

Yes sir, but that doesn’t give any possession Mr. Justice Clark.

If I can drive into the parking lot of the Supreme Court building underground here, if it takes a key to get in someone might construe me to be in possession if that was the evidence and I was there, they might.

Although I think that is not a rational connection, but how about if the door is open and anybody can go in and there are three other businesses being conducted on the premises.

The fact that a man has a key that will open the lock doesn’t put him in possession of a still.

And if he’s only been in the room for ten minutes, if he’s only been in the building for ten minutes, it seems to me irrational to say that he now has custody, possession and control as this Court said in the Bozza case, when they said that it means you have to have a watchmen or a caretaker.

The only evidence of a caretaker in this case was Mr. Lockwood, witness for the government.

He indicated that he had been through all over these premises at or about the time when this crime was supposed to have been committed.

[Inaudible] case within the four corners of Gainey, because up to now you have been saying that Gainey is wrong I think, I guess I misunderstood you?

W. Paul Flynn:

Yes sir.

If the Gainey case is correct in that you may from the circumstances of the crime and the intent of Congress, they couldn’t get a conviction in any other way, so they need a presumption.

If Gainey is incorrect, then you would have to go I think to the specific charge in this case and see whether or not this Court used language that is fairly comparable to the language used by the trial Judge in the middle district of Georgia in Gainey and I can’t find it Mr. Justice Harlan.

I have read that charge 30 or 40 times.

I know that he charged the jury as every trial judge does, what a reasonable doubt is and I know that he said that you are the finders of fact, and I also know that he said, that there is a presumption, you can convict on the basis of that presumption.

He followed that with an aider and abettor charge and he followed the aider and abettor charge with a charge on conspiracy, so it was from Tinkers to Evers to into the pot, everything was cooked and the jury at that stage I am convinced could have been infected by the presumption charge.

And in effect, what the court is saying in this case is Ottiano and Romano and in fact Vellucci, they didn’t testify and you may find them guilty, if you find that they were present, but doesn’t the trial judge have to reach a finding of fact first?

Doesn’t he have to find that each of these accused were present in order to make the charge, because in the language of Gainey, he is not required to make the charge, I assume, if he doesn’t make that finding of fact, but if he makes a finding of fact, what do we have the 12 people in the box for.

The jury served no useful purpose or they were led to a conclusion by what I contend to be an erroneous charge, that violates the constitutional protections of each of these accused.

And in the language of the granting a certiorari in this case, I think the infection reached every defendant in the courtroom, that went to the jury, but that wasn’t every defendant in this case, one of them was discharged at the end of the prosecutions case and one of them withdrew his plea of not guilty in the — after about two or three days of trial and changed this plea to a lesser offense.

I must tell you gentlemen.

Pardon me sir.

I want to ask you one question, perhaps you are coming to it, do you agree with the government, that the effect of the 1958 enactment of the presumption was to increase the scope of the crime and possession?

W. Paul Flynn:

No sir, I do not, because if they were intended to do that they would have changed the language in the possession statute from that which was before this Court in Bozza and they didn’t change the language one bit, all they did is add a presumption.

As legislative history that indicates they wanted to overrule Bozza?

W. Paul Flynn:

I think that there is evidence or some intent on the part of Congress and the Department of Justice in preferring and Internal Revenue Service in preferring this legislation.

I respectfully submit that the evidence says that we can’t convict them any other way gentlemen, give us a presumption, because if they intended in some way to enlarge this — I would say in 1958 elect to enact 11 different ways in which the statute can be violated.

There are 11 different offenses under 5601(a).

Each one of them is separate and distinct crime and for anyone operating a still, I would think under this presumption it would be possible to convict him of four offenses.

He didn’t give a bond, he didn’t register, he is producing distilled spirits and he is in possession, that means in effect he can face $40,000 worth of fines and 20 years in prison.

W. Paul Flynn:

In theory, I think this Court might accept certiorari if that happened, but in theory, they have made a separate and distinct offense, they have not changed the descriptive language of the crime from Bozza.

All they have done is add, they said, well — the Department of Justice says, well we can’t get a conviction under Bozza, then we think that the defendant ought to explain what he is doing there and if he doesn’t that he can be convicted of the crime of possession.

Hugo L. Black:

Well, the position as I understand it, Congress can overrule Bozza insofar as it held what was sufficient evidence on which a court would permit a conviction, a case to go to jury.

Do you think they can constitutionally overrule it?

W. Paul Flynn:

I would say that if they are attempting, if it is the conclusion of this Court that they are attempting to determine what constitutes the elements of the crime that they are constitutionally permitted to do that.

If they are attempting to determine what constitutes sufficient constitutional proof of those evidence — of that evidence, they are not permitted.

Only this Court or only the judiciary is permitted to do that.

I respectfully submit that Congress can’t say that the fact that I have a dollar bill in my pocket will convict me of counterfeiting if I don’t know that it’s a counterfeit dollar bill and I got it as change downstairs in a cafeteria.

If Congress attempts to do that, that’s an unconstitutional exercise of their legislative prerogative in my judgment.

Hugo L. Black:

Well, if maybe suggested that they could change the burden of proof, put the burden on the defendant, show that he is not guilty?

W. Paul Flynn:

Well, that’s the language that Judge Cleary has used.

He did not use burden of proof, I beg your pardon.

He used the language, the burden of persuasion shifts, once they show he is there, not the burden of proof, the burden of going forward rests —

Hugo L. Black:

That is the legalistic method of getting around the question that whether he should be convicted, before he can be convicted, it has to be proved satisfactory to the jury beyond a reasonable doubt without any legislative buttressing of it by its decision to what’s enough?

W. Paul Flynn:

Well Your Honor, if there is going to be a determination that a criminal defendant in the Courts of the United States has a burden of ever going forward if he wishes to exercise his prerogative of silence that’s a new position.

I have never heard this Court reach that conclusion before.

A man does exercise a risk if you find him with a smoking gun, somebody breaks into the room right after a loud rapport and there is a dead body on the ground and he is yelling “I killed him, I killed him” that is a pretty good inference that he killed him, but not, I contend, not sufficient inference so that you can compel him to take the witness stand and if doesn’t do so, he does it at his peril, that’s what these statutes do.

They compel a man to take the witness stand regardless of what ancillary peril he maybe faced with and in the process he may very well prove “I wasn’t in possession of this place, but I was at a place and at a time when they were selling some of the entrepreneur’s product and that probably convicts him of some other subsection of 5601(a).

So when in exculpating himself from 5601(a)(8) which is the production statute, he probably convicts himself of some other subsection of 5601.

I contend gentlemen that the force of the Gainey decision if applied and I am frank to admit that I don’t understand that the Gainey decision tells the trial judge that he doesn’t have to charge under this statute, I think every prosecutor in this country is going to be in with a request a charge.

It is going to quote the language of the statute and is going to say that statute has been sustained by United States and Gainey and the judge is going to charge on it.

He is going to read and if he doesn’t, the prosecutor is going to say well, the United States and Gainey for example has been sustained, if United States and Romano were sustained, they are going to have two more that they can use and the prosecutor is going to stand up and say that Congress of the United States in its legislative wisdom has determined that you may find this defendant guilty if you find him on the premises, if you find as a fact that he was on the premises at a time when and at a place where distilled spirits were then and there being produced.

And if I understand the Wilson case from 1892, such a comment in any other criminal prosecution would be error, manifest error, but apparently for moonshiners that’s not so.

I respectfully submit to this Court that no matter how the Gainey decision is read, when it is applied to the facts in the Romano case, its major premise fails in that Romano case did not involve a still out in the country side surrounded by trees and foliage, it wasn’t the biggest plant in town with three other companies at least doing business on the premises.

And insofar as keeping the public away, I can respectfully suggest that the public was never kept away from the premises, because one afternoon I drove out and took a look at the place and I — the place was wide open.

It apparently is wide open six days a week.

From the testimony in this case, I respectfully submit that there is error, that this Court ought to reverse the findings.

Earl Warren:

Very well.