Barrett v. United States, 19574.

• Decision Date: 05 September 1963
• Docket Number: No. 19574.,19574.
• Citation: 322 F.2d 292
• Parties: Roy Lee BARRETT, Jackie Hamilton Gainey and Cleveland Johns, Appellants, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

322 F.2d 292 (1963)

Roy Lee BARRETT, Jackie Hamilton Gainey and Cleveland Johns, Appellants, v. UNITED STATES of America, Appellee.

No. 19574.

United States Court of Appeals Fifth Circuit.

September 5, 1963.

Joseph H. Davis, Macon, Ga., for appellants.

William A. Davis, Jr., Asst. U. S. Atty., Floyd M. Buford, U. S. Atty., Macon, Ga., for appellee.

Before TUTTLE, Chief Judge, WISDOM, Circuit Judge, and JOHNSON, District Judge.

WISDOM, Circuit Judge.

The defendants-appellants raise an important issue — the constitutionality of the statutory presumptions which Section 5601(b), Title 26 U.S.C.A. establishes. These are presumptions of a defendant's possession of a still and of carrying on the business of a distiller on a showing of the defendant's unexplained presence at the site of an unregistered still. Reluctantly, because of a proper respect for Acts of Congress and because of the special competency of the legislature generally to establish rules of evidence and procedure,¹ we feel compelled to hold that these presumptions violate the due process clause of the Fifth Amendment.

About a quarter to five on the morning of March 25, 1960, Roy Barrett, Jackie Gainey, and Cleveland Johns, the defendants, drove up in a truck to an unregistered still. Gainey got out and, seeing several officers, started to run. The officers outran him and arrested him. Barrett and Johns rolled up the windows of the cab, locked the doors, and tried to back the truck out of the yard. One of the officers broke a window with his flashlight and arrested the two men. The truck carried a full cylinder of butane gas similar to eight other cylinders found at the site of the still. The still, composed of two 2250-gallon tanks, was capable of producing between 450 and 500 gallons of whiskey. At the trial the officers testified that Barrett, shortly after his arrest, said that the still belonged to all three men. They had gone to the still "to make the first run."

The defendants were convicted on three of four counts of violating the Internal Revenue Code provisions relating to illegal distilling. The first two counts charge the defendants with possessing an unregistered still and with carrying on the business of a distiller without having given the bond required by law. 26 U.S.C.A. § 5601(a) (1) and (4). Count Three charges them with carrying on the business of a distiller with intent to defraud the United States of the taxes imposed upon liquor. 26 U.S.C.A. § 5602. Count Four charges the defendants with "working in a distillery for the production of spiritous liquors upon which no sign was placed and kept, showing the name of the person engaged in the distilling and denoting the business." The trial judge directed a verdict of not guilty on this last count. The district court sentenced Barrett to one year and one day, Gainey to fifteen months, and Johns to two and one-half years in the custody of the Attorney General.

I.

Section 5601 provides in part:

"(a) Offenses. — Any person who —

"(1) Unregistered stills. — has in his possession or custody, or under his control, any still or distilling apparatus set up which is not registered, as required by section 5179 (a); or

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"(4) Failure or refusal of distiller or rectifier to give bond. — carries on the business of a distiller or rectifier without having given bond as required by law;

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"(b) Presumptions. —

"(1) Unregistered stills. — Whenever on trial for violation of subsection (a) (1) the defendant is shown to have been at the site or place where, and at the time when, a still or distilling apparatus was set up without having been registered, such presence of the defendant shall be deemed sufficient evidence to authorize conviction, unless the defendant explains such presence to the satisfaction of the jury (or of the court when tried without jury).

"(2) Failure or refusal of distiller or rectifier to give bond. — Whenever on trial for violation of subsection (a) (4) the defendant is shown to have been at the site or place where, and at the time when, the business of a distiller or rectifier was so engaged in or carried on, such presence of the defendant shall be deemed sufficient evidence to authorize conviction, unless the defendant explains such presence to the satisfaction of the jury (or of the court when tried without jury)."

These presumptions were added to the Internal Revenue Code by the Excise Technical Changes Act of 1958, 72 Stat. 1398. According to the report of the Senate Finance Committee recommending the changes, the purpose of these provisions was to overcome the effect of Bozza v. United States, 1947, 330 U.S. 160, 67 S.Ct. 645, 91 L.Ed. 818:

"Their purpose is to create a rebuttable presumption of guilt in the case of a person who is found at illicit distilling or rectifying premises, but who, because of the practical impossibility of proving his actual participation in the illegal activities except by inference drawn from his presence when the illegal acts were committed, cannot be convicted under the ruling of the Supreme Court in Bozza v. United States (330 U.S. 160, 67 S.Ct. 645, 91 L.Ed. 818).

"The prevention of the illicit production or rectification of alcoholic spirits, and the consequent defrauding of the United States of tax, has long been rendered more difficult by the failure to obtain a conviction of a person discovered at the site of illicit distilling or rectifying premises, but who was not, at the time of such discovery, engaged in doing any specific act.

"In the Bozza case, the Supreme Court took the position that to sustain conviction, the testimony `must point directly to conduct within the narrow margins which the statute alone defines.\' These new provisions are designed to avoid the effect of that holding as to future violations." S.Rep. No. 2090, 85th Cong., 2d Sess. (1958); 3 U.S.Code Cong. & Adm. News 4395, 4580 (1958).

The difficulty the Government has in proving illicit distilling is in connecting a defendant with the particular offense with which he is charged. This difficulty results in part from the statute: each step in the process of illicit distilling is narrowly defined as a separate offense. As the Supreme Court pointed out in Bozza:

"The Internal Revenue statutes have broken down the various steps and phases of a continuous illicit distilling business and made each of them a separate offense. Thus, these statutes have clearly carved out the conduct of making mash as a separate offense, thereby distinguishing it from the other offenses involving other steps and phases of the distilling business. Consequently, testimony to prove this separate offense of making mash must point directly to conduct within the narrow margins which the statute alone defines. One who neither engages in the conduct specifically prohibited, nor aids and abets it, does not violate the section which prohibits it." Bozza v. United States, 1947, 330 U.S. 160, 163, 67 S.Ct. 645, 91 L.Ed. 818.

There is little doubt of Congress' power in civil cases to establish a rule of law of presumptive evidence that is essentially a regulation of the burden of proof. See Mr. Justice Holmes' opinion in Casey v. United States, 1928, 276 U.S. 413, 418, 48 S. Ct. 373, 72 L.Ed. 632 and Mr. Justice Cardozo's opinion in Morrison v. People of State of California, 1934, 291 U.S. 82, 90, 54 S.Ct. 281, 78 L.Ed. 664. When, however, the legal effect of the rule is to allow an accused person to be found guilty of a crime solely on the basis of the presumption, unless he comes forward with evidence to overcome the nonexistence of the presumed fact, the practical effect is to coerce the accused into taking the stand in spite of the Fifth Amendment provision that "No person * * * shall be compelled in any criminal case to be a witness against himself." The presumption gives short shrift to the constitutional privilege. It is all very well to say that the defendant need not take the stand: all he has to do is to come forward with evidence.² But should the accused exercise his constitutional privilege of remaining silent, the presumption amounts to decisive, unanswerable comment on his Fifth Amendment right not to testify. Even if an accused should take the stand, the effect of the presumption does not disappear, since the law provides that the presumption is still "sufficient evidence to authorize conviction." A person accused of a crime has more than the right to present evidence in his defense. He has the constitutional right to sit on his hands. As Justice Peaslee of the New Hampshire Supreme Court ably said:

"It is said that so long as the defendant has preserved to him the right to fully present his defense, and then have the evidence weighed, he has nothing to complain of. But the right to make defense is not the whole right secured to one charged with crime. He has also the right to insist that before he can be found guilty there must be substantial evidence upon every fact essential to the establishment of his guilt, and that this evidence shall be weighed by the jury and found sufficient to prove the case. It is his right to decline to produce any evidence and to stand solely upon the proposition that the state must prove a case against him.

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"The rule of the Constitution is that the defendant in a criminal case cannot be compelled to go forward.

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"In a criminal prosecution, nonaction of the defendant cannot be substituted for action upon the part of the state, as to any matter required to be established as a part of the state\'s case. Neither the burden of proof nor the burden of proceeding with any evidence to prove such case can be imposed upon the party charged with crime." State v. Lapointe, 1924, 81 N.H. 227, 123 A. 692, 696, 31 A.L.R. 1212.

"It is not within the province of a legislature," Justice Holmes has said, "to declare an individual guilty or presumptively guilty of a crime." McFarland v. American Sugar Refining Co., 1916,...