United States Court of Appeals Sixth Circuit. - 271 F.2d
261
Oct. 22, 1959
Robert I.
Doggett, Cincinnati, Ohio, for appellant.
Russell E. Ake,
U.S. Atty., argued by James Sennett, Jr., Asst. U.S. Atty., Cleveland, Ohio,
for appellee.
Appellant and
one Barney Majjesie were charged in the District Court in a three-count
indictment with (1) possession of a 300-gallon still which had not been
registered according to law, (2) engaging in the business of a distillery
without having given the required bond and (3) fermenting 275 gallons of mash
fit for distillation in violation of Title 26, 5174(a), 5606 and 5216,
respectively, of United States Code.
Majjesie
entered a plea of guilty.
Appellant
waived a jury and was tried by the Court. He was convicted on all three counts
of the indictment. He was sentenced to two years imprisonment on the first and
second counts, to be served concurrently, and one year and five months on the
third count, to be served consecutively after the sentences on counts one and
two had been served.
Appellant was
represented by counsel of his own choosing in the District Court and in this
Court by counsel assigned by the Court. He filed his own brief in this Court
Twelve
questions were presented here by the appellant, many of which have no bearing
on the issues in this case.
The principal
error relied on in argument was that the judgment of conviction was not
sustained by sufficient evidence.
A motion for
judgment of acquittal was made by appellant at the close of the Government's
evidence. It was not renewed at the close of all the evidence.
Under the
circumstances this Court was not required to review the evidence. Picciurro v.
United States, 8 Cir., 250 F.2d 585. While not obliged to do so, we
have, nevertheless, examined the record and find no merit in appellant's
contention as there was ample evidence to support each and every element of the
several offenses.
The District Court
had before it eyewitnesses who saw appellant purchase quantities of sugar and
grain at different stores. He also purchased a pressure tank, still parts and
half-gallon jars which he transported to the site where he constructed and
operated the still. His own partner in the venture, Barney Majjesie, testified
against him. A Government chemist determined that the mash had an alcoholic
content of 3.4% by volume.
Appellant also
testified as a witness in his own behalf and denied the material charges in the
indictment.
He did not
recall buying as much sugar as was claimed, but did admit purchasing some
supplies for Majjesie, including sugar sweepings. He was arrested on the scene
by Government agents who had a search warrant.
It was for the
trial judge to determine who to believe under the circumstances and we cannot
say from this record that he was wrong.
Appellant next
contends that only one offense was committed and that the sentence on the third
count should have been made to run concurrently with the sentences on counts
one and two. In our judgment, different evidence was required to establish
count three. It was, therefore, a separate offense. Bozza v. United States, 330 U.S.
160, 67 S.Ct. 645, 91 L.Ed. 818; Newman v. United States, 6 Cir., 212 F.2d 450; United States v. White, D.C., 156
F.Supp. 37.
14
Appellant
further contends that his sentences were excessive. This was a matter solely
within the province of the District Judge and with which we have no right to
interfere so long as they were within the statutory limit. Hunter v. United
States, 6 Cir., 149 F.2d 710 certiorari denied 326 U.S.
787, 66 S.Ct. 472, 90 L.Ed. 478. The Court had the right to take
into account appellant's past criminal record which included two violations of
the National Prohibiton Act and one robbery of the mails for which he received
a sentence of 25 years in 1934. He has admitted violating his conditional
release.
15
We have
considered the other errors charged and find them to be without substance.
16
The judgment of
the District Court is affirmed.