United States v. King

• Decision Date: 06 March 1967
• Docket Number: Docket 30753.,No. 289,289
• Citation: 373 F.2d 813
• Parties: UNITED STATES of America, Appellee, v. Tyson KING, Defendant-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

373 F.2d 813 (1967)

UNITED STATES of America, Appellee, v. Tyson KING, Defendant-Appellant.

No. 289, Docket 30753.

United States Court of Appeals Second Circuit.

Argued January 16, 1967.

Decided March 6, 1967.

Donald F. McCaffrey, Asst. U. S. Atty., Brooklyn, N. Y. (Joseph P. Hoey, U. S. Atty. for Eastern Dist. of New

York, Brooklyn, N. Y., on the brief), for appellee.

Richard I. Rosenkranz, New York City (Joshua N. Koplovitz and Anthony F. Marra, New York City, on the brief), for defendant-appellant.

Before MEDINA, ANDERSON and FEINBERG, Circuit Judges.

MEDINA, Circuit Judge:

Tyson King appeals from a conviction by Judge Rayfiel, sitting without a jury, of aiding and abetting the "carrying on" of the business of a distiller without giving bond, in violation of 26 U.S.C. Section 5601(a) (4), finding it not necessary to apply the presumption of "carrying on" the illicit business from appellant's presence at the still site as provided in the statute. Appellant challenges the sufficiency of the evidence in the absence of the application of the presumption and also contends that the verdict was fatally inconsistent as appellant was acquitted on another count charging him with "engaging in" the business of a distiller in violation of 26 U.S.C. Sections 5601(a) (1) and 5179(a). We find the evidence sufficient to support the conviction. We also rule that the alleged inconsistency affords no basis for a reversal of the judgment.

At some date prior to May 11, 1964, agents of the Federal Alcohol Tax Unit learned of a suspected still site located near Bellport, Long Island. At approximately 11:00 P.M. of that day, Agents Zimmerman and Sanders examined the site and the 150 gallons of mash which was present and determined that the mash was ready for distillation. Continuous surveillance of the site was begun from a concealed point some 250 to 300 feet distant. The still site was located in a small clearing within a heavily wooded area. The agents placed themselves on the opposite side of a larger clearing and thus had a reasonably clear view of the path which led into the site.

At approximately 6:10 A.M. the following morning, Julius Caesar King, not a party to this appeal but a codefendant below, was observed to enter the still site carrying a large paper package. He stayed about 10 minutes, apparently working on the equipment, and then left without the package. At eight o'clock that evening, Julius Caesar King returned to the site, this time accompanied by appellant, Tyson King. Each of the two men was observed as he emerged from the wooded area and looked up and down the path and clearing as if watching for unwelcome visitors. After waiting for several minutes, the agents crawled to a position about 15 feet from the site, from which they observed Julius Caesar King handling the equipment while Tyson King was holding a lighted flashlight. At approximately 8:30 one of the agents shouted: "Federal Officers. Stay where you are." Tyson King attempted to flee but was arrested within 75 feet of the still by an agent who closed in from the other direction.

There was testimony to the effect that at the still site was all the equipment needed to operate a distillery, including a 125 gallon pot, a condenser, a gas burner, 30 gallons of gasoline, a funnel and six 50 gallon vats, three of which were filled with mash and two filled with water. A United States Chemist testified that the mash was fit to be distilled as it had been fermenting for four to five days. The agents testified that the equipment appeared to be in good working order and that the still could have been made operative within half an hour.

Tyson King did not testify and offered no evidence in his defense.

I.

This evidence was clearly sufficient to establish that the business of a distiller was being carried on. It is not necessary for a conviction under this section that the fires be lit. The showing made here that the equipment was fully assembled, albeit not entirely connected, and the mash fermented was more than enough to establish the basic fact.

But appellant insists that there was nothing in the proofs to connect him with the illegal enterprise. He points out that this Circuit has held "the mere furnishing of company to a person engaged in crime" is not an aiding and abetting. United States v. Garguilo, 310 F.2d 249, 253 (2 Cir. 1962). But Judge Friendly, writing for the Court in that case, also stated that "evidence of an act of relatively slight moment may warrant a jury's finding participation in a crime" and

(t)here may even be instances where the mere presence of a defendant at the scene of a crime he knows is being committed will permit a jury to be convinced beyond a reasonable doubt that the defendant sought "by his action to make it succeed" — for example * * * the maintenance at the scene of crime of someone useful as a lookout.

Here the evidence not only warranted a finding that Tyson King was acting as a lookout but also a finding that he...