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Case Basics
Docket No. 
United States
(for the petitioner)
(for the respondent)
Location: Antinook Mill
Facts of the Case 

On the night of October 10, 1960, Internal Revenue Service agents, along with a state patrol officer, went to the site of the “Apinook Mill” in Jarrett City, Connecticut. Agents gained entrance to the grounds, smelled the distinctive odor of ground mash indicating the presence of a still, and visually confirmed the presence of a column still in building 9A. The federal agents then applied for a warrant, after noting that the Treasury Department had not registered the still in question. The warrant was granted on October 11th.

On October 13th, federal agents entered building 9A by force after demanding entry and hearing no reply. They discovered an operating still inside, and found Frank Romano and John Ottiano standing nearby. Ottiano had the key to the facility on his person. Romano stated that he had been at the site for four days and claimed not to know how long the operation had existed.

Section 5601(b)(1) of the Excise Tax Technical Changes Act of 1958 (“ETTCA”), established a presumption of guilt for anyone shown to be at the place or site of an unregistered still. Section 5601(b)(1) was an amendment to Section 5601(a)(1), which defines the crime of possessing an unregistered still.

The United States charged Romano and Ottiano with three counts: possession of an illegal still, the illegal production of distilled spirits, and conspiracy to produce distilled spirits. Judge T. Emmet Clarie instructed the jury with a verbatim reading of the relevant provisions of the ETTCA. The jury found both men guilty of all counts. The court sentenced Romano and Ottiano to concurrent sentences on all three counts and fined them for possession of the unregistered still.

Chief Judge J. Edward Lumbard of the U.S. Court of Appeals, Second Circuit, reversed the sentences for possession and illegal production of spirits. He held that the trial court’s application of Section 5601(b)(1) was an unconstitutional violation of Romano and Ottiano’s Fifth Amendment due process rights. He reasoned that the inference of possession did not necessarily follow from a defendant’s presence, given that the defendant could be a purchaser of the product or simply a visitor to the site.


Did Romano and Ottiano’s presence at the illegal operation in and of itself justify their convictions for possession? If jury instruction was invalid, is that sufficient to invalidate the charges for possession?

Decision: 9 votes for Romano, 0 vote(s) against
Legal provision: 26 U.S.C. 5601

No and yes. Writing for a unanimous court with three concurrences, Justice Byron White held that the jury could not simply infer possession from Romano and Ottiano’s presence at the still. Romano and Ottiano’s presence near the still created a rebuttable presumption; hence, the jury was improperly instructed that presence necessarily required a finding of guilt. Justice White rejected the government’s argument that the amendment signified Congress’ intention to overrule Section 5601(a)(1), effectively equating presence with possession. He found no evidence of this intention in the legislative history and noted that the government presented no cases where possession of a substance was proven solely by a defendant’s presence near that substance.

The Court did not rule on Romano and Ottiano’s charge for production of distilled spirits because its sentence was concurrent with the conspiracy charge, which was not at issue.

Justice Hugo Black concurred. Referring to his dissent in United States v. Gainey, he held that the statute itself was an unconstitutional violation of Romano and Ottiano’s Fifth Amendment right to due process, right against self-incrimination, and Sixth Amendment right to a trial by jury because the statute compels defendants to testify in order to rebut a presumption of guilt.

Justice William Douglas also concurred. He referred to his own dissent in Gainey, where he interpreted Section 5601(b)(1) as a description of a rule of evidence allowing but not mandating a jury to infer possession from a defendant’s presence near an unregistered still.

Justice Abraham Fortas concurred without comment.

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UNITED STATES v. ROMANO. The Oyez Project at IIT Chicago-Kent College of Law. 03 June 2015. <http://www.oyez.org/cases/1960-1969/1965/1965_2>.
UNITED STATES v. ROMANO, The Oyez Project at IIT Chicago-Kent College of Law, http://www.oyez.org/cases/1960-1969/1965/1965_2 (last visited June 3, 2015).
"UNITED STATES v. ROMANO," The Oyez Project at IIT Chicago-Kent College of Law, accessed June 3, 2015, http://www.oyez.org/cases/1960-1969/1965/1965_2.