United States v. Romano, No. 158

• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
• Writing for the Court: PER CURIAM
• Citation: 330 F.2d 566
• Parties: UNITED STATES of America, Appellee, v. Frank ROMANO, John Ottiano, Edward Romano and Antonio Vellucci, Appellants.
• Docket Number: Docket 28227.,No. 158
• Decision Date: 25 March 1964

330 F.2d 566 (1964)

UNITED STATES of America, Appellee,
v.
Frank ROMANO, John Ottiano, Edward Romano and Antonio Vellucci, Appellants.

No. 158, Docket 28227.

United States Court of Appeals Second Circuit.

Argued January 6, 1964.

Decided March 25, 1964.

Motion for Rehearing and Stay of Mandate Denied April 21, 1964.

330 F.2d 567

Arnold Markle, Asst. U. S. Atty., New Haven, Conn. (Robert C. Zampano, U.

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S. Atty. for Dist. of Connecticut, and Anthony G. Apicella, Asst. U. S. Atty. for Dist. of Connecticut, New Haven, Conn., on the brief), for appellee

W. Paul Flynn, New Haven, Conn. (Frank J. Raccio, Kopkind & Flynn, New Haven, Conn., on the brief), for appellants.

Before LUMBARD, Chief Judge, and KAUFMAN and MARSHALL, Circuit Judges.

LUMBARD, Chief Judge.

Appellants Frank Romano and John Ottiano were found guilty by the jury of violating 26 U.S.C. § 5601(a) (1), possession of a distilling apparatus not registered as required by 26 U.S.C. § 5179(a). With appellants Edward Romano and Antonio Vellucci, they were also found guilty of violating § 5601(a) (8), producing distilled spirits when not being authorized to do so by the law, and of conspiring to violate § 5601(a) (8), 18 U.S.C. § 371. Of all the issues raised by the defendants-appellants as supporting a reversal of their convictions we find merit in only one — the invalidity of the statutory presumptions of 26 U.S.C. §§ 5601(b) (1) and (4) which were invoked as to two appellants on counts 1 and 2. We therefore affirm the judgment of conviction of all the appellants on the conspiracy charge, count 3, and the conviction of Edward Romano and Antonio Vellucci on count 2 for the unlawful production of distilled spirits. We reverse the convictions of Frank Romano and John Ottiano on counts 1 and 2.

The events leading to the issue of a search warrant and its subsequent execution are undisputed. On October 10, 1960, between 10:30 and 11:00 P.M., Agents Nadel and Sushman of the Alcohol and Tobacco Tax Division of the Internal Revenue Service, together with a State Police Officer, went to the site of the "Aspinook Mill" in Jewett City, Connecticut. "Aspinook Mill," owned by the Griswold Corporation, was a large complex of industrial buildings covering 42 acres of land. The agents had information that there was an illegal distilling apparatus located in the extreme northwest corner of the industrial complex. After gaining entrance through a hole in the fence, the agents proceeded through a series of buildings belonging to the Griswold Corporation which were not leased or occupied. They reached a position in an alleyway from where they detected the distinct odor of fermenting mash coming from the building known as building 9A, located in the northwest corner of the complex. They then left via their route of entry. That same evening between 7:00 P.M. and 10:00 P.M. another agent, Shaw, was located on high ground across the river bordering the industrial complex. Using binoculars, he observed the interior of building 9A where he saw a column still and other items used in the distilling of liquor. Agents Shaw and Sushman then applied to Chief Judge Anderson for a warrant to search building 9A on the basis of their affidavits in which they set forth their observations made on the evening of October 10, and the fact that no registration certificate had been issued by the Treasury Department permitting the distilling of spirits on those premises. Chief Judge Anderson issued the warrant to Shaw and Sushman on October 11.

At 7:30 A.M. on October 13, Shaw, with Federal Agents Norton and Nadel and Connecticut State Police Officers Marikle and Hart, after demanding entry and receiving no answer, forced the front door to building 9A. On the other side of the door was a 753-gallon capacity still and 9 mash vats which contained approximately 5756 gallons of mash. Appellants Frank Romano and John Ottiano were standing several feet from the still. In addition, they found a few hundred Knox glass jugs, 40 sixty-pound bags of Domino sugar and a plywood partition together with other equipment listed in the return. In Ottiano's pocket the agents found the keys to the doors of the building and the lock on the front gate to the mill property. Frank Romano told the agents that he did not know how long the still had been in operation

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and that he had been there four days. He showed the agents how to turn off the motor

As to Antonio Vellucci and Edward Romano, there was testimony that these two shopped together for and purchased a 1960 Ford truck in Vellucci's name about a month before the seizure of the still. There was testimony that this Ford truck was used on several occasions to pick up both Knox jugs and sixty-pound bags of Domino sugar, and Edward Romano and Frank Romano were identified as the drivers of the Ford truck on these occasions. On October 2 the watchman for the industrial complex observed the truck at the still site carrying bags of Domino sugar. When Edward Romano saw the watchman observing the truck, he covered the sugar with canvas. The watchman also saw Edward Romano and John Ottiano at the still site carrying the partition and the toilet that were found in building 9A at the time of the raid.

Vellucci was often seen in the company of Edward Romano during the few weeks preceding the raid. When questioned by an agent at his home shortly after the seizure, Vellucci asserted that his health had been such as to prevent his operating the truck, and that he had left the truck with the keys in the ashtray a few days before the truck was used by the Romanos. The hospital records which Vellucci claimed would substantiate his disability did not in fact do so. The evidence is sufficient to sustain convictions on all counts.

The appellants' first claim of error is that the execution of the search warrant violated the Fourth Amendment. They assert that the information...