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?

Media for United States v. Romano

Audio Transcription for Oral Argument - October 14, 1965 in United States v. Romano

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 –-