United States v. Arendale

• Decision Date: 23 June 1971
• Docket Number: No. 29963.,29963.
• Citation: 444 F.2d 1260
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Pete ARENDALE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

444 F.2d 1260 (1971)

UNITED STATES of America, Plaintiff-Appellee, v. Pete ARENDALE, Defendant-Appellant.

No. 29963.

United States Court of Appeals, Fifth Circuit.

June 23, 1971.

Pete Arendale, pro se.

Leon Farmer, Jr., Athens, Ga., Court appointed, Robert B. Thompson, Gainesville, Ga., for defendant-appellant.

William J. Schloth, U. S. Atty., D. L. Rampey, Jr., Charles T. Erion, Asst. U. S. Attys., Macon, Ga., for plaintiff-appellee.

Before RIVES, GOLDBERG and MORGAN, Circuit Judges.

RIVES, Circuit Judge:

Arendale appeals from his conviction for possessing an unregistered still and carrying on the business of a distiller in violation of 26 U.S.C. §§ 5179(a), 5601 (a), and 5173. He was charged in a five-count indictment along with three others, Donald Richard Smith, Rayford Carroll Childers, and Isaac (Ike) Robert Childers.¹

The case against Arendale is based entirely on the testimony of a named co-conspirator, Robert Clayton Ginn. Ginn and Donald Smith were arrested at the still site on Ginn's farm. Ginn had pleaded guilty to "illegal manufacturing at a liquor still," but had not been sentenced at the time of his testimony. We set out the Government's case as related by Ginn.

Ginn, in need of money, was amenable to the suggestion of Isaac Childers that the two men enter the bootlegging business as partners. Childers had the necessary apparatus but needed a location for the still. They reached an agreement in December 1968, and the still was set up in stages between mid-February and the first part of March 1969. It was run eleven times, between March 11 and March 28, 1969, and the arrest of Ginn and Smith at the still site was made on March 31, 1969.

Ginn further testified that Smith and Rayford Childers, a brother of Issac, were hired to run the still. Ginn and the four named defendants set up the still (T. 30), but the record reveals that the only act attributed to Arendale in "setting up" the still was to crawl inside the still pot and weld some cracks. At the time Arendale did this work, there were on the site two plywood mash boxes, one or both containing mash, and a copper radiator (used to condense the distilled spirits). Ginn, Smith and Rayford Childers were present at the time.

The stage of readiness of the still is important in determining Arendale's guilty knowledge. The Government contends that, when the welding was done, "all of the essential parts of the still, as well as mash, were present at the site; and the still apparently started operating immediately thereafter * * *." But the Government's proof belies its conclusion.

Special Investigator David A. Barrineau, Alcohol, Tobacco and Firearms Division

of the United States Treasury Department, one of the arresting officers, testified that the still operation utilized a fuel oil blower — a furnace that produces a high rate of heat, an electric pump with electric wire and plastic tubing running from a creek over 100 yards away,² and that he saw a 480 gallon whiskey box used to catch the distilled liquor, three 55 gallon fuel oil barrels, and three 960 gallon plywood fermenter boxes. Though on a verdict of guilty we must consider the evidence in the light most favorable to the Government, Glasser v. United States, 1942, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680, we are not bound to assume things which are not in evidence. The Government has failed to show that two essential elements for the operation of a still — a water and heat supply — were available when Arendale was present at the still site. Furthermore, the Government's conclusion that the still was operated immediately after Arendale's work is not supported by Ginn's testimony. Arendale did his work "about the first of March," but the still was first run on March 11.

The only other relevant acts attributed to Arendale were that on two occasions, on unknown dates, plastic jugs were picked up from his home. On one occasion Ginn saw Arendale and obtained four cases containing 64 jugs each.

We first discuss the sufficiency of the evidence to sustain each count. On the charge of possession of an unregistered still, we find the evidence so lacking as to require reversal. On the charge of carrying on the business of a distiller, we discuss the evidence to illustrate the closeness of the case, a necessary background to the determination of whether closing arguments by the prosecuting attorney constitute reversible error.

I.

Since Ginn, Donald Smith and Rayford Childers were present when Arendale did the welding, it can hardly be said that the Government has shown anything which would indicate that his work evidenced custody, possession or control of the still, which is necessary to convict under 26 U.S.C. § 5601(a)(1).

"In Bozza v. United States, 330 U.S. 160, 67 S.Ct. 645, 91 L.Ed. 818, the Court squarely held, and the United States conceded, that presence alone was insufficient evidence to convict of the specific offense proscribed by § 5601(a) (1), absent some evidence that the defendant engaged in conduct directly related to the crime of possession, custody or control. That offense was confined to those who had `custody or possession\' of the still or acted in some `other capacity calculated to facilitate the custody or possession, such as, for illustration, service as a care-taker, watchman, lookout, or in some other capacity.\' Id., at 164, 67 S.Ct. at 648. This requirement was not satisfied in the Bozza case either by the evidence showing participation in the distilling operations or by the fact that the defendant helped to carry the finished product to delivery vehicles. These facts, and certainly mere presence at the still, were insufficient proof that `petitioner ever exercised, or aided the exercise of, any control over the distillery.\' Ibid."

United States v. Romano, 1965, 382 U.S. 136, 140, 86 S.Ct. 279, 15 L.Ed.2d 210. The evidence on this count of the indictment is insufficient and it is reversed.

II.

The sufficiency of the evidence for carrying on the business of a distiller presents a closer question. This is "an offense which is one of the most comprehensive of the criminal statutes designed to stop the production and sale of untaxed liquor." United States v. Gainey, 1965, 380 U.S. 63, 67, 85 S.Ct. 754, 757, 13 L.Ed.2d 658, and one who aids and abets can be convicted as a principal. 18 U.S.C. § 2.

There are two activities attributed to Arendale which connect him with the illegal operation — the welding of the still pot and the supplying of jugs.

United States v. Falcone, 1940, 311 U.S. 205, 61 S.Ct. 204, 85 L.Ed. 128, held that conviction on conspiracy charges could not be sustained against persons who sold a large volume of sugar, yeast and cans to others for use in illegal distillation, even assuming that the sellers knew of the illegal intentions. "The evidence respecting the volume of sales to any known to be distillers is too vague and inconclusive to support a jury finding that respondents knew of a conspiracy from the size of the purchases even though we are to assume what we do not decide that the knowledge would make them conspirators or aiders or abettors of the conspiracy." 311 U.S. at 210, 61 S. Ct. at 206.

If Arendale had been arrested at the time he did the welding, it is not a foregone conclusion that he could have been convicted of carrying on the business of a distiller.³ Liverman v. United States, 4 Cir. 1958, 260 F.2d 284, held that the absence of a boiler and condenser or coils indicated that the still in question was not readily capable of being set up in an operating state, notwithstanding that the house heater and rubber hose present could have been pressed into service. We have found no decision indicating that a still is readily capable of being set up when it has no water or heat supply. Rewis v. United States, 5 Cir. 1957, 242 F.2d 508, stands only for the rule that conviction for carrying on the business of a distiller may be sustained even though actual distillation had not yet commenced. Nothing is said in that opinion about the stage of readiness. In Burke v. United States, 5 Cir. 1968, 387 F.2d 905, apparently all necessary equipment was found at the site.⁴

Whether Arendale's actions — the welding coupled with supplying of plastic jugs to persons later operating the still — are sufficient to convict him as an aider or abettor in carrying on the business of a distiller is a question we do not decide, for the conviction must be reversed on another ground and the evidence may be strengthened on a retrial.

III.

This appeal presents a serious question as to the propriety of certain closing arguments made to the jury. The challenged arguments must be viewed in context, which necessitates a detailed examination of the development of the case.

The defense called two witnesses. One was the defendant Smith who had been arrested with Ginn. Smith testified that his role was minor — that of a hired hand. He implicated Ginn and Isaac Childers, but sought to exculpate Rayford Childers and Arendale.

Smith testified that he first met Arendale only five or six weeks prior to trial. According to Smith, Arendale sought him out in an effort to locate Ginn. Smith said he accompanied Arendale to Ginn's home to introduce the two. Smith denied having any conversation with Ginn, and testified as follows:

"Well, Mr. Arendale asked him how he got his name involved with this. And I think Mr. Ginn mentioned something about losing his place, or something, and he was led into it, or something. Some name was mentioned that he signed the statement against Mr. Arendale. I don\'t know what kind of statement that was or nothing about that." (T. 115)

The other defense witness was William Howard Dean, who sought to provide an alibi for Arendale and to discredit Ginn. Dean testified that he had not known Arendale before working on a construction project with him from the first week in October 1968 to mid-January 1969. The job was a great distance from the...