United States v. Moses

205 F.2d 358, 1953 U.S. App. LEXIS 2587

• Court: Court of Appeals for the Second Circuit
• Decided: June 18, 1953
• Docket: 22697_1
• Status: Published

Opinions

AUGUSTUS N. HAND, Circuit Judge.

The defendant was tried and convicted— together with Valentino Viglietta — on two counts of an indictment. One count charged that the defendants had in their possession an unregistered still in violation of 26 U.S.C. § 2810, and the second charged that they had concealed goods and commodities on which a tax was due with intent to defraud the United States of the tax in violation of 26 U.S.C. § 3321. Section 2810 provides: “Every person having in his possession or custody, or under his control, any still or distilling apparatus set up, shall register the same * * *. Stills and distilling apparatus shall be registered immediately upon their being set up.” Since no contention is made by the government that a tax would be payable until the still was set up, the validity of the conviction on each count depends on whether the still was set up. 26 C.F.R. 181.15(b).

The government concedes that at the time the police officers arrived on the scene the still was not set up. The contention is made, however, that there was evidence that the still had been set up a few days prior to its discovery and that therefore the defendant could be found guilty despite the subsequent dismantling of the apparatus for repairs, since the still was not “registered immediately upon * * being set up.” 26 U.S.C. § 2810. An officer of the Alcohol Tax Unit testified without objection by the defendant, cf. United States v. Hall, 2 Cir., 178 F.2d 853, that Viglietta had stated that the still had been set up, but that it was found to leak and the dephlegmator could not be attached. A still to be “set up” does not have to be “in operation,” see United States v. Forty-Six Bottles of Alleged Home Brew, D.C.,E.D.N.Y., 39 F.2d 240, 241, but we think that the still must be “capable of being used” before registration is required, see Otto v. United States, 7 Cir., 29 F.2d 504, 505. Here more than minor adjustments were required before the still could be operated, as shown by the fact that it was dissembled to make necessary repairs. Therefore, since the still was not “set up” within the meaning of § 2810 there was no proof that the defendant was guilty of the two crimes with which he was charged and accordingly the judgment of conviction is reversed. Cf. United States v. Cafero, 2 Cir., 55 F.2d 219.

Judgment reversed.