United States v. Fine

• Decision Date: 09 April 1968
• Docket Number: Crim. No. 6952.
• Citation: 293 F. Supp. 189
• Parties: UNITED STATES of America, Plaintiff, v. Furman FINE, Defendant.
• Court: U.S. District Court — Eastern District of Tennessee

293 F. Supp. 189

UNITED STATES of America, Plaintiff, v. Furman FINE, Defendant.

Crim. No. 6952.

United States District Court E. D. Tennessee, Northeastern Division.

April 9, 1968.

J. H. Reddy, U. S. Atty., Chattanooga, Tenn., for plaintiff.

Ben Hooper, II, Newport, Tenn., Dale Quillen, Nashville, Tenn., for defendant.

MEMORANDUM OPINION AND ORDER

NEESE, District Judge.

The defendant Mr. Fine was indicted on five counts, which charged: that he possessed, controlled or had custody of an unregistered distillery, that he carried on the business of a distiller of spirituous liquors without having given the required bond, that he worked in an unposted distillery, that he made mash fit for distillation and for the production of spirituous liquors on premises not designated for such purpose according to law, and that he possessed unstamped whiskey. By oral motion prior to the commencement of trial herein, Mr. Fine sought a dismissal of the indictment against him, claiming that his compliance with any of the statutes proscribing the aforementioned activities would have compelled him in a criminal case eventually to be a witness against himself, in violation of his right against self-incrimination guaranteed him by the Fifth Amendment to the federal Constitution.

Counsel for Mr. Fine relied for the relief sought on three decisions¹ of the Supreme Court which had been announced only 18 days previously. As the motion was made after this action had been called for trial before a jury, had not been reduced to writing and supported with a brief with authorities as required by our local Rule 12(a), and as the Court was unwilling to act precipitously on issues of such far-reaching significance, the Court took the motion under advisement and proceeded with the trial. Mr. Fine was convicted by the jury of the charges contained in each of the five counts of the indictment. He was allowed 15 days from his conviction to reduce his motion to written form and to supply a brief with authorities.

This Court is of the opinion that the defendant's motion lacks merit in so far as is concerned the third count of the indictment. Therein, Mr. Fine was charged with having "* * * worked in a distillery for the production of spirituous liquors, on the outside of which distillery no sign bearing the name of the distiller and denoting the business was placed and kept as required by law. * * *" The gravamen of the offense, under the statute charged by this count, was Mr. Fine's working in a distillery for the production of spirituous liquors, on the outside of which distillery no sign bearing the name of the distiller and denoting the business was placed and kept as required by law, 26 U.S.C. § 5681(c). He was not required by statute to place or keep such a sign; he was merely proscribed from working in a distillery on the outside of which no sign had been placed and kept as required by law. Accordingly, he was not compelled by 26 U.S.C. § 5180 (a) to be a witness eventually against himself in a criminal case by any act of posting or keeping the required sign.

The constitutional guarantee that Mr. Fine will not be compelled to be a witness against himself not being infringed by either 26 U.S.C. §§ 5180(a) or 5681 (c), his motion as to the third count of the indictment herein hereby is

Overruled.

The indictment herein charged that the violations of federal laws by Mr. Fine were committed in the Northeastern Division of the Eastern District of Tennessee. Cocke County, Tennessee is among the counties of which that District and Division is comprised. 28 U.S. C. § 123(a) (2). Except where² the manufacture of intoxicating drinks is made lawful by local option vote within the boundaries of a county, T.C.A. §§ 57-101 et seq.; see Clark v. State ex rel. Bobo (1938), 172 Tenn. 429, 113 S.W.2d 374, it is unlawful in Tennessee for any person to manufacture or to attempt to manufacture any intoxicating whiskey or brandy, except³ alcohol of not less than 188 proof for chemical, pharmaceutical, medical, or bacteriological purposes, T.C.A. § 39-2521, and, with the foregoing exception, for any person to manufacture or attempt to manufacture, for purposes of sale, any intoxicating liquor, including all vinous, spirituous, or malt liquors, T.C.A. § 39-2522. These offenses are deemed in Tennessee to have been committed by any person who attempts to manufacture intoxicating liquor, either by assembling the necessary apparatus for the purpose of manufacturing intoxicating liquor as prohibited by law, or by the doing of any act preparatory to such manufacture, T.C.A. § 39-2523.

It is also unlawful in Tennessee for any person to have in his possession or control any still or other apparatus, or part thereof, used or intended to be used for the purpose of manufacturing intoxicating liquor as prohibited by law, T.C.A. § 39-2524. When any person is found in the possession or control of any still or apparatus, or part thereof, suitable or designed for the manufacture of intoxicating liquor, such possession or control is deemed in Tennessee prima facie evidence in a prosecution under §§ 39-2521-39-2524, supra, that such possession or control was for the purpose of manufacturing intoxicating liquor as prohibited by law, T.C.A. § 39-2525.

It was charged in the first count herein that Mr. Fine "* * * did have in his possession and custody and under his control a still and distilling apparatus set up for the production of spirituous liquors which was not registered as required by law. * * *." 26 U.S.C. § 5179(a) requires that: "* * * Every person having in his possession or custody, or under his control, any still or distilling apparatus set up, shall register such still or distilling apparatus with the Secretary of the Treasury or his delegate immediately on its being set up, by subscribing and filing with the Secretary or his delegate a statement in writing, setting forth the particular place where such still or distilling apparatus is set up, the kind of still and its capacity, the owner thereof, his place of residence, and the purpose for which said still or distilling apparatus has been or is intended to be used (except that stills or distilling apparatus not used or intended to be used for the distillation, redistillation, or recovery of distilled spirits are not required to be registered under this section). * * *"

Thus, it is patent that the manufacturing, or the attempting to manufacture, of intoxicating liquor in Cocke County, Tennessee is "* * * an area permeated with criminal statutes * *", and that those engaged in such endeavor in that county are a group "* * * inherently suspect of criminal activities. * * *" Albertson v. Subversive Activities Control Board (1965), 382 U.S. 70, 79, 86 S.Ct. 194, 15 L.Ed.2d 165, 172 7, cited in United States v. McGee,⁴ D.C.Tenn. (1968), 282 F.Supp. 550 order of March 15, 1968 of Middle District of Tennessee, Columbia Division, criminal no. 2331. If Mr. Fine had registered his distillery with the Secretary of the Treasury "* * * immediately on its being set up * * *", the registration requiring a declaration of the purpose for which the still or distilling apparatus "* * * has been or is intended to be used * * *", he would have been obliged to accuse himself of a conspiracy to violate Tennessee prohibitions against the manufacture of intoxicating liquor. Cf. Marchetti v. United States, supra, 390 U.S. 39, 88 S.Ct. 697, 19 L.Ed.2d at 900, citing Acklen v. State (1954), 196 Tenn. 314, 267 S.W.2d 101. If the admission of a crime cannot be compelled from witnesses in oral testimony from the witness stand, "* * we do not see how compulsion in writing makes a difference for constitutional purposes. * * * It follows that compliance with 26 U.S.C. § 5179(a) is inconsistent with the protection of the Self-Incrimination Clause. * * *" Albertson v. Subversive Activities Control Board, supra, 382 U.S. at 78, 86 S.Ct. at 198, 15 L.Ed.2d at 171.

Mr. Fine "* * * was confronted by a comprehensive system of federal and state prohibitions against `moonshining' activities; he was required by 26 U.S.C. § 5179 (a) on pain of criminal prosecution to provide information which he might reasonably suppose would be available see, infra, to prosecuting authorities, and which would surely prove a significant `link in the chain' of evidence tending to establish his guilt. Unlike the income tax return in question in United States v. Sullivan, 274 U.S. 259, 47 S.Ct. 607, 71 L.Ed. 1037 51 A.L.R. 1020, every portion of these requirements had the direct and unmistakable consequence of incriminating the movant; the application of the constitutional privilege to the entire registration procedure was in this instance neither `extreme' nor `extravagant'. See id., at 263, 47 S.Ct. 607 71 L.Ed. at 1040, 51 A.L.R. 1020. It would appear to follow that movant's assertion of the privilege as a defense to this prosecution was entirely proper, and accordingly should suffice to prevent his conviction. * * *" (References to footnotes omitted.) Marchetti v. United States, supra, 390 U.S. at 48, 88 S.Ct. at 703, 19 L.Ed. 2d at 898.

Both the federal and the Tennessee state governments have agencies whose primary function it is to enforce the respective federal and state laws relating to intoxicating liquor. Agents of both sovereigns were engaged in investigations toward this end when, collectively, they apprehended Mr. Fine at his distillery.

If the federal revenue agents, who are subordinates of the Secretary of the Treasury, 5 Appen.U.S.C., Reorganization Plan No. IV of 1940, § 2, with whom 26 U.S.C. § 5179(a) required Mr. Fine to register his distillery, properly performed their duties, 26 U.S.C. § 7608, and if Mr. Fine had complied with 26 U.S.C. § 5179(a), and registered his distillery, information concerning the registration by Mr. Fine of his distillery would have become available to agents of the Tennessee alcoholic beverage commission, whose duty it...