United States v. Kensil

• Decision Date: 05 June 1961
• Docket Number: Crim. No. 20384.
• Citation: 195 F. Supp. 115
• Parties: UNITED STATES of America v. Mamie KENSIL, Walter Klopfer, Dominic Sparagno, Richard Ferraro, Leroy Haith, Jacqueline Haith, et al.
• Court: U.S. District Court — Eastern District of Pennsylvania

195 F. Supp. 115

UNITED STATES of America v. Mamie KENSIL, Walter Klopfer, Dominic Sparagno, Richard Ferraro, Leroy Haith, Jacqueline Haith, et al.

Crim. No. 20384.

United States District Court E. D. Pennsylvania.

June 5, 1961.

COPYRIGHT MATERIAL OMITTED

Walter E. Alessandroni, U. S. Atty., Joseph J. Zapitz, Asst. U. S. Atty., Philadelphia, Pa., for plaintiff.

Lawrence Goldberg, Philadelphia, Pa., for Mamie Kensil, defendant.

Jos. A. Hagerty, Philadelphia, Pa., for Walter Klopfer, defendant.

Louis Lipschitz, Philadelphia, Pa., for Dominic Sparagno and Richard Ferraro, defendants.

Thos. L. Hicks, Jr., Richmond, Va., and Alvin E. Echols, Jr., Philadelphia, Pa., for Leroy Haith and Jacqueline Haith.

KRAFT, District Judge.

Of the nineteen defendants indicted in this proceeding nine pleaded guilty; the charges against three were dismissed by the Court; one was acquitted by the jury; the remaining six were found guilty on the conspiracy count; and one of the six, Mamie Kensil, was found guilty on the substantive counts.

Now before us are motions for judgment of acquittal, or, in the alternative, for a new trial, filed by the six defendants found guilty by the jury.

The indictment is in four counts. The first count charged all defendants with conspiracy (1) to engage in and carry on the business of a distiller without having given the bond required by law; (2) to possess and control a still and distilling apparatus without legally registering the same; (3) to make and ferment mash fit for distillation on premises other than an authorized distillery; (4) to transport, possess, buy, sell and transfer distilled spirits in immediate containers not stamped to evidence the determination of the tax. The remaining counts are substantive in nature and charge certain of the defendants with the same overt acts as are alleged to have been the first three objects of the conspiracy.

In considering the motions for judgment of acquittal as to each defendant, it is incumbent upon us to make a careful examination of the evidence to ascertain "whether all the pieces of evidence against the defendant, taken together, make a strong enough case to let a jury find him guilty beyond a reasonable doubt." United States v. Allard, 3 Cir., 1957, 240 F.2d 840, 841. The verdict must be sustained if there is substantial evidence, taking the view most favorable to the Government, to support it. Glasser v. United States, 1942, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680.

On February 9, 1960, agents of the Alcohol and Tobacco Tax Unit raided an illicit still on premises known as the Old Schmidt Farm, on Hunt Road, Bedminster Township, Bucks County, Pa. The uncontradicted evidence established that several of the defendants were actively engaged in the operation of the still from about November 1, 1959, to the day of the raid.

Mamie Kensil

The Government's case against Mrs. Kensil rests largely upon the testimony of Lewis Hiatt, named, but not indicted, as a co-conspirator. Hiatt's testimony may be briefly summarized. In the latter part of 1959, Hiatt was employed by Edward Kensil "to take supplies and finished product to and from an illicit still." (Edward Kensil, husband of Mamie Kensil, was a prime mover in the illegal enterprise and pleaded guilty during the trial). On or about October 20, 1959, Mr. and Mrs. Kensil and Hiatt left the Kensil home in Philadelphia, in Kensil's car, to go to the Schmidt Farm. Hiatt testified that, during the trip, Mrs. Kensil "told me that I had to be very careful in my travels to and from the place so that I wouldn't be seen entering it or leaving it." On their arrival at the farm, Mrs. Kensil went into the house and Kensil and Hiatt proceeded to the barn, which was 150 to 200 feet from the house. Several of the defendants were working in the barn and Kensil pointed out the "pot" and the "thumper" and explained their purposes. On the way back to Philadelphia that evening, Mrs. Kensil stated that "she didn't see how they expected a joint to operate without drops or vehicles," and again cautioned Hiatt that he would have to be very careful going "to and from the place." In the course of a conversation at the Kensil home that same evening, Kensil further explained to Hiatt "the workings of a still, and how to pick up supplies and deliver them, and how to take the goods out and dispose of them." Mrs. Kensil was present at this conversation and said to Hiatt, "you listen to Eddie. He knows what he is doing."

Mr. and Mrs. Kensil, together with Hiatt, went to the still site the following day, again in Kensil's automobile. Mrs. Kensil went into the house while Hiatt and Kensil repaired to the barn. The same defendants were in the barn as on the previous visit, and one of them was engaged in erecting vats. Hiatt testified that Kensil "further explained the mash and all to me."

Hiatt went to the Kensil home the next morning and Kensil stated that to complete the erection of the still they would need bricks "for a fire base to erect the boiler upon, and some sort of a drainage system for what they call slop." Mrs. Kensil was present and joined in the conversation. Mr. and Mrs. Kensil and Hiatt then proceeded to the still site in Kensil's automobile, and Kensil "talked further on getting the still erected so it would operate, and the disposition of the goods, and the use of vehicles and drops." Mrs. Kensil joined in this conversation, and again warned Hiatt to be "careful". Mrs. Kensil stayed in the house, while Kensil and Hiatt worked in the barn.

Hiatt testified that he returned to the still site with Kensil, in the latter's car, every day until the 4th or 5th of November (1959), and that Mrs. Kensil was with them "with the exception of a couple of times."

On an occasion when Hiatt was about to remove an oil "burner" from the still site, Mrs. Kensil told him several times to be sure and file off "all the numbers and identifying marks and emblems."

In the latter part of January 1960, according to Hiatt, Mrs. Kensil was in the automobile when Kensil drove him to Rising Sun, Maryland, to pick up supplies for the still.

Finally, Hiatt testified that on one occasion Mrs. Kensil brought food to the farmhouse and sat at the table with her husband and others of the defendants.

In addition, there was testimony by Robert Kennedy, who leased the still premises and who pleaded guilty, that Mrs. Kensil was present during the discussion about the still between the witness and Kensil at the latter's home in Philadelphia.

Counsel for Mrs. Kensil contends that, granting the evidence established the existence of a conspiracy, the Government has failed to show that Mrs. Kensil was at any time a member of the conspiracy. We disagree. The elements necessary to constitute one a conspirator were well stated in Jones v. United States, 10 Cir., 1958, 251 F.2d 288, at page 293:

"A person does not become liable as a conspirator unless he knows of the existence of the conspiracy, agrees to become a party, and with that knowledge commits some act in furtherance thereof. United States v. Falcone, 311 U.S. 205, 61 S.Ct. 204, 85 L.Ed. 128; Laska v. United States, 10 Cir., 82 F.2d 672, certiorari denied 298 U.S. 689, 56 S. Ct. 957, 80 L.Ed. 1407; Skelly v. United States, 10 Cir., 76 F.2d 483, certiorari denied 295 U.S. 757, 55 S.Ct. 914, 79 L.Ed. 1699; Booth v. United States, 10 Cir., 57 F.2d 192. This knowledge and participation may be inferred from the circumstances, acts and conduct of the parties."

Hiatt's testimony, if believed, established beyond peradventure that Mrs. Kensil knew of the existence of the conspiracy, and, with such knowledge, directed, advised and counselled in the attainment of its objectives. That she agreed to become a party to the conspiracy follows as an irresistible conclusion. Hiatt's credibility and the inferences to be drawn from his testimony were for the jury.

Counsel suggests that Mrs. Kensil's statements and actions were equally consistent with innocence, and were made "in the interest of her husband's welfare and safety." Defendant's conduct, her instructions to Hiatt, her extended relationship with admitted conspirators and the circumstances of her association with them,—all these pointed unerringly to guilt. There was more than mere "casual and unexplained meetings" with others who were convicted as conspirators. United States v. Falcone, 1940, 311 U.S. 205, 210, 61 S.Ct. 204, 85 L.Ed. 128. Whether defendant's motivation was concern for her husband's welfare, was left to the jury in a charge to which there were no objections or exceptions. The jury might well have found that wifely solicitude would have counselled total abstention from participation in the illegal venture.

Equally untenable is the contention that the evidence was insufficient to sustain the verdict on the substantive counts. Our review of Hiatt's testimony persuades us that the jury was fully warranted in finding Mrs. Kensil guilty as one who "aids, abets, counsels, commands, induces or procures" the commission of the offense. 18 U.S.C. § 2(a). Moreover, her presence at the still site raises a statutory presumption sufficient to authorize her conviction. 26 U.S.C. § 5601(b) (1) (2) (3) (4).

In support of her motion for a new trial, Mrs. Kensil complains of error in the charge in that the Court failed "to explain to the jury the relationship of conspiracy to the substantive crimes, and the differences between aiding, abetting and conspiring." Because of the inherent nature of conspiracy, the difficulties it presents to both the lay and professional understanding and the dangers implicit in its injudicious and indiscriminate use, we were at particular pains to clarify as best we could a confused and confusing subject. We need only refer to the masterly concurring opinion of Mr. Justice Jackson in Krulewitch v. United States, 1949, 336 U.S. 440, 69 S.Ct. 716, 93 L.Ed. 790. We shall not lengthen our opinion by tedious...