United States v. Warren, 19991

• Decision Date: 12 June 1970
• Docket Number: 19992.,No. 19991,19991
• Citation: 428 F.2d 15
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Cleveland S. WARREN, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Leroy RANKIN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

428 F.2d 15 (1970)

UNITED STATES of America, Plaintiff-Appellee, v. Cleveland S. WARREN, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Leroy RANKIN, Defendant-Appellant.

Nos. 19991, 19992.

United States Court of Appeals, Sixth Circuit.

June 12, 1970.

Charles H. Brown, Detroit, Mich., Court Appointed for appellant Rankin.

James H. Brickley, U. S. Atty., Ralph B. Guy, Jr., Chief Asst. U. S. Atty., Detroit, Mich., for appellee.

Before WEICK and EDWARDS, Circuit Judges, and O'SULLIVAN, Senior Circuit Judge.

PER CURIAM.

Appellants Warren and Rankin appeal from conviction after jury trial before the United States District Court for the Eastern District of Michigan on three and four counts, respectively, alleging violations of the Federal Alcohol Tax laws.¹ Warren was sentenced to three three-year concurrent terms, with all terms suspended after service of 90 days. Rankin also received concurrent sentences (three of two years; one of one year) with all terms suspended after service of 60 days.

Fundamental reliance on appeal is placed upon a claim that the Alcohol Tax laws violate appellants' Fifth Amendment rights. This court has recently decided this issue to the contrary in United States v. Whitehead, 424 F.2d 446 (6th Cir. 1970).

Both appellants also contend that the evidence was insufficient to support the jury findings of guilty. As to this issue some recital of the facts is required.

Alcohol Tax Unit officers testified to a surveillance at a house at 549 Montcalm in the city of Detroit between May 29 and June 6, 1968. On various occasions they observed appellant Warren at 549 Montcalm. His Cadillac automobile was seen parked there. On other occasions Warren was seen there in a Chrysler. One of the officers testified that on June 1, 1968, he saw appellant Warren unloading this same Chrysler automobile at an address at 989 Benton in the city of Detroit. The Alcohol Tax Unit officer testified that Warren was unloading five-gallon black plastic containers which appeared to be heavy.

On June 6, 1968, the surveillance team followed appellant Warren while he drove to a neighborhood grocery store, bought three 60-pound sacks of sugar and took them to 549 Montcalm. They saw him, assisted by appellant Rankin, use a wheelbarrow to take these sacks of sugar into the house. They testified that both Warren and Rankin entered a first floor rear door, remained inside for half an hour, and then exited. On that occasion Rankin had some paper bags in his hand which he took to a trash container and burned.

On June 6, 1968, Alcohol Tax Unit officers also testified that for the second time² they detected the odor of whiskey mash in the vicinity of 549 Montcalm, and in their judgment, emanating from those premises. On that date the officers went before a United States District Judge and procured a search warrant for the premises. On executing the search warrant, they arrested both appellants at the scene, broke into an apartment in the rear of the first floor, where they found a 400-gallon whiskey still. They also found 900 gallons of fermenting mash. Warren had something over $400 in cash in his possession when he was arrested.

Rankin lived in the basement at 549 Montcalm. He performed some minor caretaker duties there. There is testimony that a key was found in the basement which fitted the lock on the apartment door where the still was discovered.

As to appellant Warren, the testimony pertaining to his presence at these premises where he did not live and where the still was ultimately discovered, coupled with the testimony concerning the unloading of heavy black plastic containers, plus the testimony of his purchase of three 60-pound bags of sugar and delivering them to the house on Montcalm combined to supply sufficient evidence from which the jury could have...