United States v. Monticello, 12708.

• Decision Date: 04 March 1959
• Docket Number: No. 12708.,12708.
• Citation: 264 F.2d 47
• Parties: UNITED STATES of America v. John MONTICELLO, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

264 F.2d 47 (1959)

UNITED STATES of America v. John MONTICELLO, Appellant.

No. 12708.

United States Court of Appeals Third Circuit.

Argued January 6, 1959.

Decided March 4, 1959.

George R. Somer, Newark, N. J., for appellant.

John D. Wooley, Asst. U. S. Atty., Manasquan, N. J. (Chester A. Weidenburner, U. S. Atty., Newark, N. J., John D. Wooley, Asst. U. S. Atty., Manasquan, N. J., on the brief), for appellee.

Before BIGGS, Chief Judge, and GOODRICH and STALEY, Circuit Judges.

STALEY, Circuit Judge.

This is an appeal from conviction on five counts of an indictment brought against appellant, John Monticello, in the United States District Court for the District of New Jersey.¹ The first count charged defendant with being a party to a conspiracy to violate the Internal Revenue laws in regard to alcohol. The remaining four counts were substantive in nature: the second count charged appellant and others with carrying on the business of a distiller without having given bond; the third count charged them with possession of an unregistered still; the fourth count charged them with making and fermenting mash; and by the fifth count they were charged with the possession of distilled spirits and property intended to be used in violation of the Internal Revenue laws. The appellant stood trial in conjunction with co-defendants Dominick Zicaro and James Giuliano, and it is from a judgment of conviction that he appeals.

The evidence adduced by the government to sustain the charges may be summarized as follows: On March 28, 1958, agents of the Alcohol and Tobacco Tax Unit of the Internal Revenue Service executed a search warrant on the premises known as the Laurel Hill Farm in Millstone Township, Monmouth County, New Jersey. The search warrant was obtained after agents had smelled fermenting mash on the farm on March 13 and 14, 1958. Found in the barn in close proximity to the farmhouse were a large alcohol still, a boiler, and all equipment necessary for the distillation of alcohol. Approximately 9,400 gallons of fermenting mash were also discovered in four large wooden vats in the same barn, as well as large quantities of sugar, yeast, and five-gallon cans. The chemist who analyzed the samples seized by the agents testified that they contained varying amounts of alcohol. In addition the Supervisor of the Permit Unit of the Alcohol and Tobacco Tax Unit stated that no registration of the still in question had been filed and that none of the persons indicted had ever filed a notice of intention to engage in the business of a distiller or had filed the required bond.

A number of witnesses testified to the frequent association of appellant with co-defendants in the instant action. Additionally, evidence was presented to the effect that the appellant was a visitor to the farm on at least two occasions close to the time when the farm was raided. Summer, who lived on a farm adjacent to the Laurel Hill Farm, testified that in December of 1957 he observed appellant stuck in the snow in the driveway leading to the farm and that he pushed appellant's car into the garage with a tractor. Appellant then requested that he plow the snow out of the driveway and agreed to pay him ten dollars for doing so. Summer complied with the request and was invited into the farmhouse by appellant for a cup of coffee. He further testified that on the Sunday preceding the raid appellant, in the company of another, came to his farm and requested that he again plow the driveway leading to Laurel Hill Farm. On that occasion he was not paid by the appellant. However, on cross-examination, the attorney for the appellant elicited the fact from Summer that one of the co-defendants told him, when he objected that ten dollars was insufficient payment and that he desired ten dollars more, that "he would get it from Jerry the appellant and bring it down to me."

Laurel Hill Farm had been rented from a man named Sabin by Dominick Zicaro, who used the alias Gerald Anton. The account at the Suburban Propane Gas Corporation, which supplied gas to the farm, was kept in Anton's name on and after November 1957. On March 27, 1958, appellant appeared at the offices of the gas corporation and indicated that he desired to pay the balance due on that account. After having been told the amount of the bill, appellant indicated he was short of cash and left to get a sufficient amount. He was observed to approach a car parked outside the office and shortly thereafter returned and paid the bill.

On March 26, 1958, appellant was observed in the neighborhood of 90 Lock Street, Newark, as were his co-defendants Giuliano and Di Orio. At about 4:00 p. m. Giuliano was seen to put what appeared to be a red pipe-threader into the trunk of appellant's car. The same tool or one similar thereto was found in another car seized at the still on the day of the raid.

Although appellant concedes the existence of a conspiracy to run an illicit distillery at the Laurel Hill Farm, he submits that there is insufficient proof to support his connection therewith as a partner to the corrupt agreement. Specifically, he asserts that mere association with other defendants is not sufficient proof that he was a co-conspirator or that he had knowledge of the conspiracy. He cites a number of cases sustaining the proposition that one cannot be held as a conspirator unless and until there is proof that he entered into the unlawful agreement or combination or associated himself with the illegal enterprise. Among these cases are United States v. Falcone, 1940, 311 U.S. 205, 61 S.Ct. 204, 85 L.Ed. 128; Dennert v. United States, 6 Cir., 1945, 147 F.2d 286;...