United States v. Edward Brookins
434 F.2d 41
5th Cir.
1971
Check Treatment

*2 BROWN, Before JOHN Chief R. GEWIN, Judge, RIVES, WISDOM, COLEMAN, THORNBERRY, BELL, GOLDBERG, AINSWORTH, GOD- DYER, MORGAN, BOLD, SIMPSON, INGRAHAM, Judg- CLARK Circuit es. THE

BY COURT: granting The Order heretofore entered rehearing hereby en banc vacated panel is remanded com- case Judges posed RIVES, COLEMAN MORGAN.

ON PETITION FOR REHEARING RIVES, MOR- Before COLEMAN and GAN, Judges. Circuit Judge: RIVES, Circuit original Our mistake on hear ing treating the offense for appellant which the arrest possessing unregistered ed as proscribed by (a) (1) subsection of Title 5601, U.S.C.,2 section rather than that of on the dis business of a Guarisco, Toney, Toney S. Gunter & proscribed by (4) (a) tiller subsection Tallahassee, Fla., appellant. the same section two 5601.3 The Schloth, Atty., William Man- J. U. S. appear closely related, crimes but ley Brown, Jr., Rampey, F. D. L. Asst. is a carry critical difference. As to Attys., Macon, Ga., Wilson, U. S. Will distiller, Supreme the business of a Atty. Gen., Division, Dept, Asst. Crim. constitutionality Court sustained the Justice, C., Washington, appellee. D. presumption created a 1958 Act Congress Fla., amicus, Parks, Miami, appearing Robert L. now as subsection Kilgen. (b) (2) 5601,4 upon of section the ra- Opinion reported, 1. “(b) Presumptions.— 423 F.2d 463. “(a) Any person who— Offenses. — “(2) Failure or or distiller refusal of “(1) Unregistered stills. —has in his give bond. —Whenever rectifier trial possession custody, or under his con- (a) violation of subsection trol, any distilling apparatus still or the defendant is shown to have been up registered, set which is not as re- place where, site and at * * quired by section when, time a distiller or “(a) Any person who— engaged Offenses. — rectifier was so in or carried on, presence such of the defendant shall “(4) Failure or distiller or be deemed sufficient evidence to author- refusal of give conviction, bond. —carries ize rectifier unless the ex- defendant plains business of a distiller or rectifier with- to the satisfaction having given required out jury (or bond as of the of the when tried court * * law jury).” margin.5 exceptions noted, the some to be quoted in the Contrari- With tionale accurately fully stated

wise, facts are as to (423 original opinion Judge Supreme held unconstitu- Coleman’s Court presumption and in the writer’s F.2d at 464 tional a like created 468). (423 special F.2d at appearing as subsee- concurrence now same 1958 Act quote *3 (1) An inaccurate statement occurs on (b) of section 5601.6 We tion officer, arresting 467, Nowicki, margin that the part which in of the the fairly Brookins, within points “knew that the the difference be- out essential past, a recent had been convicted of the two tween offenses.7 “(b) Presumptions.— rationality provid 5. “The of the inference “(1) Unregistered 5601(b) (2) be in stills. —Whenever § ed must viewed (a) (1) trial for violation of subsection the the substantive of context of broad 5601(a) (4) supports. the defendant is shown to have been at fense it Section enterprise place where, proscribes ‘carrying the site at the time the of on’ when, distilling apparatus illegal a still or distillation —an offense which is up having registered, comprehensive without set been one of the most of the presence stop pro designed of the be defendant shall criminal statutes to the liquor. sufficient evidence to authorize deemed duction and sale of untaxed See conviction, 666, explains States, unless the defendant Vukich v. United presence (C.A. Cir.). such jury (or the satisfaction of the to 9th Those who aid and 669 enterpriser of the court when tried with- abet the come within the stat jury).” 2 out 18 § ute’s reach virtue of U.S.C. Giuliano, (1958 ed.). v. Term, in v. (C.A. Cir.). “Just last United States Suppliers, 3d 263 F.2d 582 754], Gainey, [85 380 63 S.Ct. haulers, U.S. and a host of other functionaries validity passed upon of a com- Court panion the statute. have been convicted under 5601(b) (1) section to of the Pritchard, § F. v. 55 See United States Supp. Internal Revenue Code. Constitu- (D.C.W.D.S.C.), 145 F. 201 aff’d tionality legislation of was held to de- (C.A. Cir.) Congress was un 2d 240 doubtedly 4th upon ‘rationality pend of the connec- of aware that manufacturers proved the facts and the tion “between liquor illegal the deft are notorious for ’ U.S., presumed.” at fact 380 they ultimate spots which locate arcane ness with rule, [85 757]. S.Ct. at Tested this Legislative plying rec their trade. provision of 26 sustained the the Court ognition implications of seclusion of the declaring presence 5601(b) (2) only § U.S.C. confirms what folklore teaches— evidence to au- a to be sufficient at still strangers illegal rare that to business § conviction under 26 U.S.C. secrecy.6 thorize ly penetrate curtain of We 5601(a) (4) busi- on the 5601(b) (2) sat therefore hold that § giving of the ness of isfies the test Tot v. United any- required Noting almost bond. 463, 1241, supra. 63 S.Ct. [319 U.S. could rea- site of secret still one at the 1519]. L.Ed. sonably said be ‘Very “6. be few of the illicit distill- aiding abetting it and that business or Congress any one, except their most ers allow accorded the evidence friends, approach their intimate only force,’ probative ‘natural rule, its places, distilleries. Such presumption. the Court sustained ground, the reason are forbidden markedly different from “This case when the violators are arrested Gainey, supra. Congress has chosen prove them is a difficult matter to it guilty, provisions relevant Internal persons few when so phas- upon various Revenue Code to focus operating them their dis- ever seen aspects distilling of the Atkinson, es Moon- tilleries.’ shiners, By After the separate make each of them Raiders, at One of the charg- this indictment crime. Count p. 23. * “ * * custody ‘possession, con- es requisite ‘The first illicit separate, illegal dis- of an still as a trol’ good water. still is a stream cool (1) 5601(a) obvi- offense. Section tinct “ coverage ously much has a narrower requisite next is seclusion. ‘The sweep- its with than has ing prohibition placed § one ever It travels, where no must distilling aon traveling.’ or even thinks business.” Id., p. 18.” Romano, 1965, 1965, Gainey, 382 U.S. United States v. U.S. 282, 136, 139, 140, L. S.Ct. & S.Ct. Ed.2d 210. L.Ed.2d mistake arrest him liquor intention to and a similar violation” merely tes- Nowieki p. are 464. The facts occurs on ar- placed Brookins under that “I been so convicted tified Brookins had finding (R. p. (R. the 25 years prior p. after to his arrest rest” some five jug corks, spout, 56), the severed Nowieki admitted but paper Brook- which sacks time of arrest he did not know lunch in the two (R. 37). carrying, ins’ and before conviction O’Steen. arrival of his fellow officer original opinion In the failed we explicit: Brookins’ version was more following part call attention testimony: up Nowicki’s he He to me and “A. walked liquor said ‘Ain’t “Q. Now, you yourself did station T don’t know ?’ said over that distil- somewhere to watch *4 my ‘That’s what it is.’ I said lery? though, business down here Yes, “A. I did. He said heard that fuss.’ “Q. why you And rather did do that ’ your ‘Ed name? I said ‘What’s arresting going in than on and ‘Yeah, He that’s Brookins.’ said Johnson? still,’ liquor under a said ‘You’re ” expecting “A. We were of the owner (R. pp. arrest, down.’ sit distillery the to come down to it.” 49.) (R. 18.) participant Thus, neither testified arrest significance Of more is mistaken any by to statement Nowieki Officer emphasis (423 upon 465) placed F.2d at ground pos- that of for arrest was part testimony, a of Nowicki’s and sessing unregistered Apparent- an still. erroneous conclusion drawn in the at- ly ground that remained mere undis- a tached footnote: closed intention.8 “ ‘Q. why you approach And did him ? drawn in conclusion orig A. With quoted the intention to arrest heretofore footnote to the opinion him. (423 inal that F.2d n. unregistered “the still was Q. you arrest to What did intend only possible a basis for the arrest” is him for? probable mistake. had to Nowieki cause unregistered Possessing dis A. carrying arrest Brookins for on the busi tillery.’ supplied].1 [Emphasis ness of a distiller. At the time of “1. as then ex Under the circumstances arrest, Nowieki about and Brookins were only obviously pos isting this was yards still, witnessing from in it Prior sible for the there basis arrest. operation, smelling and the mash. Just nothing show that to was to there expected carrying that time had Nowieki the business was Brookins working a at a distiller making appear. owner to spirits. possession An distilled or in a beeline for Nowieki knew actively person was en unidentified only yards the still was from gaged in activities but he these home, Brookins’ he knew Brookins’ was then not and there been arrested him reputation “major between no known connection as a violator” of the Brookins.” liquor in laws It rea was area. 1.) (423 465 & sonable F.2d at for to entertain the be Nowieki part lief fur that Brookins had in some testimony Actually no we find thering operation Car- of the still.9 his Brookins Nowieki ever disclosed probable arrest cause existed cause only ac- for the sake of This mentioned of a distiller. on the business for that, develop presently curacy, we will positively Brook- carry- told if Nowieki had abetting even aiding course, 9. Of pos- ground was ing of his arrest would ins the aof distiller principal. punishable the ar- make Brookins session of an legal § 2. 18 U.S.O. be- held rest should nonetheless be rying on a distiller was on the view that the business of of Brookins was based clearly probable for Brookins’ cause reasonable basis Nowicki had to have possessing an un Brookins arrest. arrest registered testified still Nowicki because was Nowicki Even if his intention. Treasury Agent To the Alcohol and ripened into a intention had state authority11 His bacco Tax Division.10 ground ment of that as the offense was confer to make and seizures arrests arrest, cause existence (4): red 26 U.S.C. § for arrest on the business of Authority rev- internal "§ prevent the arrest from distiller would enue officers enforcement being illegal. held That much is now “(a) subtitle E [Al- firmly Enforcement the well-reasoned established cohol, Other Ex- Certain Tobacco Klingler including Taxes, Chap. 5001- cise §§ Cir. cert. pertaining laws and other 5066] den. U.S. 24 L.Ed. S.Ct. tobacco, liquor, Any in- and firearms. — 2d. 110.13 vestigator, agent, or other internal arrested at des- If Brookins had been revenue whatever term officer Secretary itself, ignated, would or his whom the delegate duty justified charges en- his conviction for with the forcing criminal, seizure, any of a Under the business distiller. *5 existing circumstances, provisions Brookins’ direct E or forfeiture subtitle approach any when No to the still at a time law of the United States other subject expected appear pertaining wicki the owner to to the commodities still, place yards for en- from the to tax under such subtitle about Secretary amply operation, then in full furnished forcement of which the may— probable delegate responsible, that he intend his is cause to believe present

ed to be for some at the still site operation reason connected with “(3) respect performance to the Thus, probable for the the still. cause duty, of such arrests make without independently arrest existed fruits any against warrant for offense bags. paper The of the search of the two pres- United committed in immediately perfected arrest was almost ence, any felony cognizable bags after the contents of the were re under the laws United States In it not vealed. these circumstances is grounds if he has reasonable to believe preceded material the search the ar person to be arrested has States, rest. Lovelace v. United Cir. committing, committed, or is such fel- 1966, 306, 310; v. Henderson ; ony 874, 1968, 5 Cir. F.2d “(4) respect performance to the 875; 780, Annotation, 89 A.L.R.2d duty, proper- of such seizures of make seq. et ty subject to forfeiture to the United and, Rehearing granted judg- is States.”12 ment of conviction is affirmed. finding original hearing on The probable of lack of for the cause arrest Affirmed. Littlejohn, parently

10. See v. United States E.D. the earliest time that exact in- N.Y., 1966, F.Supp. 278, complaint against 279. formation of the him given person has to be arrested Costner, 11. See United States v. E.D. an officer a warrant is when he Tenn., F.Supp. 1. is taken before a See commissioner. (b), Rule Fed.R.Orim.P. may It statute be noted does require Valentine, not inform the officer to the ac- 13. Followed in United States v. ground Ap- cused his arrest. 8 Cir. F.2d Judge (dissent- COLEMAN, Circuit

ing). America, UNITED STATES Appellee, orig- respectfully The views dissent. inally expressed at F.2d remain Jeffrey BUJESE, Appellant. unchanged. No. Docket 30574. original majority The adheres its Appeals, Court lawfully not that Brookins could view Second Circuit. possession of been arrested Oct. ground entirely proposition new shifted lawfully he have been arrested could of a dis- getting There is no around tiller. testimony experienced of the trained and

agent pos- that he arrested Brookins for

sessing NOT for

business of a distiller.

If, however, a factor which had noth-

ing to do with arrest when made is injected life-saving hypodermic as a arrest, then I am of the invalid there was no cause arrest Brookins for

business of distiller. through

Walking paper a field with a

sack, even if dis- in the direction of the

tillery, enough is not for me to hold that'

there was cause for an arrest on the business of a distill- if, especially

er. And this is true case, already somebody

this there is operating it.

My highly esteemed Brethren

majority say that “If Brookins been itself,

arrested at the still justified

there would have his conviction of a dis- point

tiller”. The is that he was not comprehend I am unable to walking open in an field on one’s

property in the direction of still can legally synonymous being pres-

made “might

ent at the still. What Brookins enough.

do” is not The crucial factor actually doing

what he when stopped

officer him. compelled

I am to dissent.