United States v. Romano, 382 U.S. 136 (1965). · Go Syfert
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United States v. Romano, 382 U.S. 136 (1965). Cases Citing This Book View Copy Cite
1,113 citation events (29 in the last 25 years) across 92 distinct courts.
Strongest positive: Overstock.com, Inc. v. New York State Department of Taxation & Finance (ny, 2013-03-28)
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discussed Cited as authority (rule) Overstock.com, Inc. v. New York State Department of Taxation & Finance
NY · 2013 · confidence medium
In People v Leyva ( 38 NY2d 160, 165-166 [1975]), we described certain United States Supreme Court cases as requiring “a rational connection between the facts which are proved and the one which is to be inferred with the aid of the presumption” (see Tot v United States, 319 US 463, 467-468 [1943]; United States v Romano, 382 US 136, 139-141 [1965]), and others as requiring a “substantial assurance that the presumed fact is more likely than not to flow from the proved fact on which it is made to depend” (Leary v United States, 395 US 6, 36 [1969]).
examined Cited as authority (rule) State v. Fonte (3×) also: Cited "see"
Wis. Ct. App. · 2004 · confidence medium
There must be a "rational connection between the fact proved and the ultimate fact presumed." United States v. Romano, 382 U.S. 136, 139 (1965). ¶20 Fonte argues that the jury instruction given by the court allowed the jury to draw an inference unwarranted by statute and thereby gave the State an unfair advantage in the matter of proof of the element of intoxication.
discussed Cited as authority (rule) Jones v. State
Ala. Crim. App. · 1999 · confidence medium
E.g. , Turner v. United States , 396 U.S., at 407 [ 90 S.Ct., at 647 ]; Leary v. United States , 395 U.S., at 31-32 [ 89 S.Ct., at 1545 -46 ]; United States v. Romano , 382 U.S. at 138-139 [ 86 S.Ct. at 280 -81 ].' "Court of Ulster County, New York v. Allen, 442 U.S. 140 , 156-60 , 99 S.Ct. 2213 , 2224-26 , 60 L.Ed.2d 777 (1979) (footnotes omitted, emphasis in original)." Beard v. State , 612 So.2d 1335 , 1342-43 (Ala.Cr.App. 1992).
discussed Cited as authority (rule) Manuel v. State
Ala. Crim. App. · 1997 · confidence medium
E.g., Turner v. United States, 396 U.S., at 407 [ 90 S.Ct. at 647 ]; Leary v. United States, 395 U.S., at 31-32 [ 89 S.Ct., at 1545-46 ]; United States v. Romano, 382 U.S. at 138-139 [ 86 S.Ct. at 280-281 ]’ ” Beard, 612 So.2d at 1342 -43 (quoting County Court of Ulster County, New York v. Allen, 442 U.S. 140, 156-60 , 99 S.Ct. 2213, 2224-26 , 60 L.Ed.2d 777 (1979) (footnotes omitted, emphasis in original)).
cited Cited as authority (rule) People v. Watts
Ill. App. Ct. · 1996 · confidence medium
Ed. 2d 210, 213 , 86 S. Ct. 279, 281 (1965).
discussed Cited as authority (rule) Beard v. State
Ala. Crim. App. · 1992 · confidence medium
E.g., Turner v. United States , 396 U.S., at 407 [ 90 S.Ct., at 647 ]; Leary v. United States , 395 U.S., at 31-32 [ 89 S.Ct., at 1545 -46 ]; United States v. Romano , 382 U.S. at 138-139 [ 86 S.Ct. at 280-81 ]".
cited Cited as authority (rule) State v. Ward
N.H. · 1991 · confidence medium
State v. Stauff, 126 N.H. 186, 189 , 489 A.2d 140, 142 (1985) (quoting United States v. Romano, 382 U.S. 136, 141-42 (1965)).
discussed Cited as authority (rule) McMillan v. Pennsylvania (2×)
SCOTUS · 1986 · signal: cf. · confidence medium
Cf. United States v. Romano, 382 U. S. 136, 138, 144 (1965).
discussed Cited as authority (rule) State v. Stauff
N.H. · 1985 · confidence medium
While we agree with the defendant that mere presence in the vicinity of the stolen property “unilluminated by other facts [is] insufficient proof of possession,” United States v. Romano, 382 U.S. 136, 141-42 (1965), the State’s evidence did more than simply prove the defendant’s mere presence in a car with stolen weapons.
discussed Cited as authority (rule) Robert Steven Zelenka v. Thomas Israel
7th Cir. · 1983 · confidence medium
County Court of Ulster County v. Allen, 442 U.S. 140 , 99 S.Ct. 2213 , 60 L.Ed.2d 777 (1979); United States v. Romano, 382 U.S. 136, 141, 144 , 86 S.Ct. 279, 284 , 15 L.Ed.2d 210 (1965); Tot v. United States, 319 U.S. 463, 467-68 , 63 S.Ct. 1241 , 1244—45, 87 L.Ed. 1519 (1943).
discussed Cited as authority (rule) Evans v. McCoy
Md. · 1981 · confidence medium
Here, the conclusion of the General Assembly that a testator’s use of one of the designated generic terms is presumably intended to include adoptees, absent evidence of a *588 contrary intent, is not an inference which is " 'so strained as not to have a reasonable relation to the circumstances of life as we know them. .. .”’ United States v. Romano, 382 U.S. 136, 139 , 86 S. Ct. 279, 281 , 15 L.
discussed Cited as authority (rule) County Court of Ulster Cty. v. Allen (2×)
SCOTUS · 1979 · confidence medium
I In the criminal law, presumptions are used to encourage the jury to find certain facts, with respect to which no direct evidence is presented, solely because other facts have been proved. [1] See, e. g., Barnes v. United States, 412 U. S. 837 , 840 n. 3 (1973); United States v. Romano, 382 U. S. 136, 138 (1965).
discussed Cited as authority (rule) County of San Diego v. Brown
Cal. Ct. App. · 1978 · confidence medium
(United States v. Romano, 382 U.S. 136, 139 [ 15 L.Ed.2d 210, 212-213 , 86 S.Ct. 279 ].) Such legislation is constitutional so long as there is a rational connection between the fact proved and the ultimate fact presumed. *307 Where the inference of one from the proof of the other is arbitrary because of the lack of a connection between the two in the common experience or where the inference “is so strained as not to have a reasonable relation to the circumstance of life as we know them,” it is not competent for the Legislature to create such rule governing procedures of court.
discussed Cited as authority (rule) United States v. MacKin Construction Company
D. Mass. · 1975 · confidence medium
The basic difference is illustrated by the cases of United States v. Gainey, 1965, 380 U.S. 63 , 85 S.Ct. 754 , 13 L.Ed.2d 658 , and United States v. Romano, 1965, 382 U.S. 136 , 86 S.Ct. 279 , 15 L.Ed.2d 210 .
discussed Cited as authority (rule) Barnes v. United States (2×)
SCOTUS · 1973 · signal: cf. · confidence medium
Cf. United States v. Romano, 382 U. S. 136, 138 (1965). [1] Tot v. United States was decided in 1943, four years after the passage by Congress of the 1939 amendment to the present Act eliminating the need to prove knowledge that the property had been stolen from the mails.
discussed Cited as authority (rule) United States v. Edward Brookins (2×)
5th Cir. · 1971 · confidence medium
Section 5601(a) (1) obviously has a much narrower coverage than has § 5601(a) (4) with its sweeping prohibition of carrying on a distilling business.” United States v. Romano, 1965, 382 U.S. 136, 139, 140 , 86 S.Ct. 279, 282 , 15 L.
discussed Cited as authority (rule) United States v. Whitlock
E.D. Tenn. · 1971 · confidence medium
While the Court is in agreement with defense counsel that Mr. Whitlock’s unexplained presence at site of this illicit distillery, standing alone, is insufficient evidence to authorize his conviction under 26 U. S.C. § 5601(a) (1), United States v. Romano (1965), 382 U.S. 136, 138-139 , 86 S.Ct. 279 , 15 L.Ed.2d 210, 212 [1], as indicated earlier, his conviction under the first count does not stand “alone” on his unexplained presence at the distillery site.
discussed Cited as authority (rule) Turner v. United States (2×)
SCOTUS · 1970 · confidence medium
The defendant was found guilty by the jury; however, the Court of Appeals reversed for reasons not directly related to the trial judge's treatment of the question about the origins of heroin possessed in this country. [8] See Leary v. United States, 395 U. S. 6, 31-32 (1969); United States v. Romano, supra at 138-139 (1965); Bailey v. Alabama, 219 U. S. 219, 234-235 (1911).
discussed Cited as authority (rule) United States v. Clyde Marvin Thompson, Jr.
3rd Cir. · 1970 · confidence medium
The cases upon which the defendant relies, Tot v. United States, 1943, 319 U.S. 463 , 63 S.Ct. 1241 , 87 L.Ed. 1519 , and United States v. Romano, 1965, 382 U.S. 136 , 86 S.Ct. 279 , 15 L.Ed.2d 210 are thus distinguishable on their facts and under the statutes there involved.
discussed Cited as authority (rule) City of Detroit v. Bowden
Mich. Ct. App. · 1967 · confidence medium
For that reason cases dealing with such presumptions are relevant here. ■ In Manley v. Georgia (1929), 279 US 1, 5, 6 ( 49 S Ct 215 , 73 L ed 575), the Supreme Court of the United States detailed the distinctions between valid and invalid statutory presumptions saying, in part, at 6: ' “A statute creating a presumption that is arbitrary or that operates to deny a fair opportunity to repel it violates the due process clause of the 14th Amendment. * * * Mere legislative fiat may not take the place of fact in the determination of issues involving life, liberty or property. ‘It is not within…
discussed Cited as authority (rule) Joseph L. Travers v. United States
1st Cir. · 1966 · confidence medium
Tot v. United States, 1943, 319 U.S. 463 , 63 S.Ct. 1241 , 87 L.Ed. 1519 , and United States v. Romano, 1965, 382 U.S. 136 , 86 S.Ct. 279 , 15 L.Ed.2d 210 , both involving rebuttable presumptions in criminal cases, are cited as authority for the supposed flaw in this case.
examined Cited "see" American Library Ass'n v. Thornburgh (3×)
D.D.C. · 1989 · signal: see · confidence high
See United States v. Romano, 382 U.S. 136, 141 , 86 S.Ct. 279, 282 , 15 L.Ed.2d 210 (1965) (striking down an inference from the defendant’s presence at a still that the defendant was in control of the still, despite the acknowledged problems of trying to prove who controls stills.) Indeed, even the traditionally strict liability offenses of statutory rape and selling alcohol to minors have not included criminal presumptions that the person involved was *481 a minor — and these offenses do not threaten prosecution for First Amendment protected activity, as would prosecution for failure to c…
examined Cited "see" Davis v. Scully (3×)
S.D.N.Y. · 1987 · signal: see · confidence high
See United States v. Romano, 382 U.S. 136, 138 , 86 S.Ct. 279, 280-81 , 15 L.Ed.2d 210 (1965); Benton v. Maryland, 395 U.S. 784, 787-93 , 89 S.Ct. 2056, 2058-62 , 23 L.Ed.2d 707 (1969); Sibron v. New York, 392 U.S. 40, 50-58 , 88 S.Ct. 1889, 1896-1900 , 20 L.Ed.2d 917 (1968). .
examined Cited "see" Davis v. State (6×)
Tex. Crim. App. · 1983 · signal: see · confidence high
See, generally, United States v. Romano, 382 U.S. 136 , 86 S.Ct. 279 , 15 L.Ed.2d 210 (1965); County Court of Ulster County, New York v. Allen, 442 U.S. 140 , 99 S.Ct. 2213 , 60 L.Ed.2d 777 (1979); Leary v. United States, 395 U.S. 6, 31-32 , 89 S.Ct. 1532, 1545-1546 , 23 L.Ed.2d 57 (1969); Tot v. United States, 319 U.S. 463, 467-468 , 63 S.Ct. 1241, 1244-1245 , 87 L.Ed. 1519 (1942); Sandstrom v. Montana, 442 U.S. 510 , 99 S.Ct. 2450 , 61 L.Ed.2d 39 (1979); Connecticut v. Johnson, ___ U.S. ___, ___, 103 S.Ct. 969, 976 , 74 L.Ed.2d 823 (1983).
examined Cited "see" Sneed v. Smith (3×)
4th Cir. · 1982 · signal: see · confidence high
See United States v. Romano, 382 U.S. 136, 140-44 , 86 S.Ct. 279, 281-83 , 15 L.Ed.2d 210 (1965); see also Leary v. United States, 395 U.S. 6 , 36 n.64, 89 S.Ct. 1532, 1548, n.64 , 23 L.Ed.2d 57 (1968); Tot v. United States, 319 U.S. 463, 466-67 , 63 S.Ct. 1241, 1244 , 87 L.Ed. 1519 (1943).
examined Cited "see" Sneed v. Smith (3×)
4th Cir. · 1982 · signal: see · confidence high
See United States v. Romano, 382 U.S. 136, 140-44 , 86 S.Ct. 279, 281-83 , 15 L.Ed.2d 210 (1965); see also Leary v. United States, 395 U.S. 6 , 36 n.64, 89 S.Ct. 1532, 1548, n.64 , 23 L.Ed.2d 57 (1968); Tot v. United States, 319 U.S. 463, 466-67 , 63 S.Ct. 1241, 1244 , 87 L.Ed. 1519 (1943).
examined Cited "see" United States v. Frank Sizemore and Elzie Sizemore (3×)
6th Cir. · 1980 · signal: see · confidence high
See United States v. Romano, 382 U.S. 136, 141 , 86 S.Ct. 279, 282 , 15 L.Ed.2d 210 (1965); United States v. Birmley, 529 F.2d 103, 107 (6th Cir. 1976).
examined Cited "see" United States v. Carla Jabara, John T. McClain Earl Moore, Ella Hood, Evelyn Hatch, Curtistine Rideout (3×)
9th Cir. · 1980 · signal: see · confidence high
See United States v. Romano, 382 U.S. 136, 138 , 86 S.Ct. 279, 280 , 15 L.Ed.2d 210 (1965); Barnes v. United States, 412 U.S. 837 , 848 n. 16, 93 S.Ct. 2357, 2364 , 37 L.Ed.2d 380 (1973); Jordan v. United States, 416 F.2d 338, 346 (9th Cir. 1969), cert. denied, 397 U.S. 920 , 90 S.Ct. 930 , 25 L.Ed.2d 101 (1970).
cited Cited "see" Adams v. State
Wis. Ct. App. · 1979 · signal: see · confidence high
See United States v. Romano, 382 U.S. 136 (1965); United States v. Gainey, 380 U.S. 63 (1965); Tot v. United States, 319 U.S. 463 (1943).
cited Cited "see" Freeman v. Zahradnick
SCOTUS · 1977 · signal: see · confidence high
See 382 U. S., at 140-144 .
examined Cited "see" William Stubbs v. H. J. Smith, Superintendent, Attica Correctional Facility (3×)
2d Cir. · 1976 · signal: see · confidence high
See United States v. Romano, 382 U.S. 136, 138-39 , 86 S.Ct. 279, 280-81 , 15 L.Ed.2d 210, 212-13 (1965) (conviction for possession of illegal still overturned where presumption of guilt from unexplained presence at site of still was charged).
examined Cited "see" Hazel v. State (3×)
Tex. Crim. App. · 1976 · signal: see · confidence high
See United States v. Romano, 382 U.S. 136 , 86 S.Ct. 279 , 15 L.Ed.2d 210 .
examined Cited "see" United States v. Clyde Eugene Garner, United States of America v. Lorene Brown, United States of America v. Dennis Dwayne Garner (3×)
6th Cir. · 1976 · signal: accord · confidence high
Accord, United States v. Romano, 382 U.S. 136 , 86 S.Ct. 279 , 15 L.Ed.2d 210 (1965).
examined Cited "see" United States v. Herbert McCoy (3×)
6th Cir. · 1975 · signal: see · confidence high
As we have observed elsewhere, the crime for which appellant was convicted “require[s] some degree of possession, custody, or control over the forbidden objects, and the law is clear that mere presence ... in the vicinity of illegal distilled spirits ... is not enough, by itself, to prove possession.” United States v. Jackson, 418 F.2d 786, 788 (6th Cir. 1969); see United States v. Romano, 382 U.S. 136 , 86 S.Ct. 279 , 15 L.Ed.2d 210 (1965); McFarland v. United States, 273 F.2d 417, 419 (5th Cir. 1960).
examined Cited "see" Milne v. Berman (3×)
S.D.N.Y. · 1974 · signal: accord · confidence high
Accord, United States v. Romano, 382 U.S. 136 , 86 S.Ct. 279 , 15 L.Ed.2d 210 (1965) (possession, custody or control of still, presumed by statute from presence at site unless defendant explains presence violates due process clause).
examined Cited "see" Woolridge v. State (3×)
Tex. Crim. App. · 1974 · signal: see · confidence high
See United States v. Romano, 382 U.S. 136 , 86 S.Ct. 279 , 15 L.Ed.2d 210 .
examined Cited "see" State v. Watson (6×)
Conn. · 1973 · signal: see · confidence high
However, "a criminal statutory presumption must be regarded as `irrational' or `arbitrary,' and hence unconstitutional, unless it can at least be said with substantial assurance that the presumed fact is more likely than not to flow from the proved fact on which it is made to depend." Leary v. United States, supra, 36; see United States v. Romano, 382 U.S. 136 , 86 S. Ct. 279 , 15 L.
examined Cited "see" United States v. James Herbert Weaver (3×)
5th Cir. · 1973 · signal: see · confidence high
See. 5601(a)(1), .in obedience to the holding of Romano that “absent some showing of the defendant’s function at the still”, the connection of presence “with possession is too tenuous to permit a reasonable inference of guilt” and that “presence alone unilluminated by other facts [is] insufficient proof of possession.” op. cit. 382 U.S. 136, 140 , 86 S.Ct. 279, 282 , 15 L.Ed.2d 210 , 213 2 Additionally, the charge was not objected to, either' when the trial judge announced it would be given, or later, when opportunity to object was provided after it had been delivered.
examined Cited "see" United States v. Richard Baum and Joseph Scapoli (3×)
2d Cir. · 1973 · signal: see · confidence high
See, United States v. Romano, 382 U.S. 136, 141 , 86 S.Ct. 279 , 15 L.Ed.2d 210 (1965).
examined Cited "see" United States v. John Massarotti (3×)
unknown court · 1972 · signal: see · confidence high
See United States v. Romano, 382 U.S. 136, 141 , 86 S.Ct. 279 , 15 L.Ed.2d 210 (1965); United States v. Vilhotti, 452 F.2d 1186, 1188-1189 (2d Cir.1971); United States v. Kearse, 444 F.2d 62 (2d Cir.1971); United States v. Casalinuovo, 350 F.2d 207, 209-210 (2d Cir.1965).
examined Cited "see" United States v. Jeter (3×)
cma · 1972 · signal: see · confidence high
See United States v Romano, 382 US 136, 138 , 15 L Ed 2d 210 , 86 S Ct 279 (1965).
examined Cited "see" United States v. Rudolph Vilhotti (3×)
2d Cir. · 1971 · signal: see · confidence high
See United States v. Romano, 382 U.S. 136 , 86 S.Ct. 279 , 15 L.Ed.2d 210 (1965).
examined Cited "see" Frank James Stevens v. United States (6×)
6th Cir. · 1971 · signal: see · confidence high
See United States v. Romano, 382 U.S. 136 , 86 S.Ct. 279 , 15 L.Ed.2d 210 (1965); United States v. Gainey, 380 U.S. 63 , 85 S.Ct. 754 , 13 L.Ed.2d 658 (1965).
examined Cited "see" United States v. Edward Johnson and Lonnie Eugene Johnson (3×)
6th Cir. · 1970 · signal: see · confidence high
See United States v. Romano, 382 U.S. 136, 140 , 86 S.Ct. 279 , 15 L.Ed.2d 210 (1965).
examined Cited "see" United States v. James Newsome (3×)
5th Cir. · 1970 · signal: see · confidence high
Notes: * [1] Rule 18, 5th Cir.; See Isbell Enterprises, Inc. v. Citizens Casualty Co. of New York et al., 5th Cir., 1970, 431 F.2d 409 , Part I 1 Besides Powell, Federal Investigators O'Day, Braxton, and Higgenbothen and State Agent Huff assumed positions surrounding the still preparatory to the anticipated raid 2 The specific publication read to appellant was Treasury Document 5661 which, as appellant does not dispute, adequately complies with the guide lines set forth by the Supreme Court in Miranda v. State of Arizona, 1966, 384 U.S. 436 , 86 S.Ct. 1602 , 16 L.Ed.2d 694 3 United States v. R…
discussed Cited "see" Leary v. United States (2×)
SCOTUS · 1969 · signal: see · confidence high
See id., at 468 . [62] The two subsequent cases in which this Court ruled upon the constitutionality of criminal statutory presumptions, United States v. Gainey, 380 U. S. 63 (1965), and United States v. Romano, 382 U. S. 136 (1965), involved companion sections of the Internal Revenue Code dealing with illegal stills.
examined Cited "see" Louis Samuel Cotton v. United States (3×)
10th Cir. · 1969 · signal: see · confidence high
See Galbraith v. United States, 387 F.2d 617 (10th Cir. 1968) and United States v. Romano, 382 U.S. 136 , 86 S.Ct. 279 , 15 L.Ed.2d 210 (1965).
examined Cited "see" United States v. Thompson (3×)
D. Del. · 1968 · signal: see · confidence high
See United States v. Romano, 382 U.S. 136 , 86 S.Ct. 279 , 15 L.Ed.2d 210 (1965); Tot v. United States, 319 U.S. 463 , 63 S.Ct. 1241 , 87 L.Ed. 1519 (1943).
discussed Cited "see" United States v. Adams (2×)
S.D.N.Y. · 1968 · signal: see · confidence high
See United States v. Romano, supra, 382 U.S. at 141 , 86 S.Ct. 279 . *783 While the point has not been, and probably cannot be, put statistically, it ought “rarely” to be the case that the inference will be contradicted by the actual experience of relationships in the real world.
examined Cited "see" Joseph William Gable v. United States (3×)
5th Cir. · 1967 · signal: see · confidence high
See United States v. Romano, 382 U.S. 136, 141 , 86 S.Ct. 279 , 15 L.Ed.2d 210 (1965) and Tot v. United States, 319 U.S. 463, 467 , 63 S.Ct. 1241 , 87 L.Ed. 1519 .
Retrieving the full opinion text from the archive…
UNITED STATES
v.
ROMANO Et Al.
2.
Supreme Court of the United States.
Nov 22, 1965.
382 U.S. 136
Louis F. Claiborne argued the cause for the United States. On the brief were Acting Solicitor General Spritzer, Assistant Attorney General Vinson, Beatrice Rosenberg and Jerome M. Feit., W. Paul Flynn argued the cause and filed a brief for respondents.
White, Black, Gainey, Douglas, Fortas.
Cited by 366 opinions  |  Published
[*137] Mr. Justice White

delivered the opinion of the Court.

Federal officers, armed with a search warrant, entered one of the buildings in an industrial complex in Jewett City, Connecticut. There they found respondents standing a few feet from an operating still. Respondents [1] were indicted on three counts: Count 1 charged possession, custody and control of an illegal still in violation of 26 U. S. C. § 5601 (a)(1); [2] Count 2, the illegal production of distilled spirits in violation of 26 U. S. C. § 5601 (a) (8); [3] and Count 3, a conspiracy to produce distilled spirits. Both respondents were convicted on all three counts, both were fined on Count 1 and both sentenced to concurrent terms of imprisonment on each of the three counts.

The Court of Appeals affirmed the convictions on Count 3. 330 F. 2d 566. It reversed the convictions on Counts 1 and 2 because the trial court in instructing the jury read verbatim provisions of § 5601 (b)(1) [4] and[*138] § 5601 (b)(4), [5] which provide in part that the presence of the defendant at the site of an illegal still “shall be deemed sufficient evidence to authorize conviction, unless the defendant explains such presence to the satisfaction of the jury . . . .” This instruction and the statutory inference which it embodied were held by the Court of Appeals to violate the Due Process Clause of the Fifth Amendment. We granted certiorari to consider this constitutional issue. 380 U. S. 941.

We agree as to the invalidity of § 5601 (b)(1) and the reversal of the convictions on Count 1. It is unnecessary, however, to consider the validity of § 5601 (b)(4) and the convictions on Count 2 since the sentences on that count were concurrent with the sentences, not here challenged, which were imposed on Count 3. United States v. Gainey, 380 U. S. 63, 65; Sinclair v. United States, 279 U. S. 263, 299.

If we were reviewing only the sufficiency of the evidence to support the verdict on Count 1, that conviction would be sustained. There was, as the Court of Appeals recognized, ample evidence in addition to presence at the still to support the charge of possession of an illegal still. But here, in addition to a standard instruction on reasonable doubt, the jury was told that the defendants’ presence at the still “shall be deemed sufficient evidence to authorize conviction.” This latter instruction may have been given considerable weight by the jury; the jury may have disbelieved or disregarded the other evidence of possession and convicted these defendants on[*139] the evidence of presence alone. We thus agree with the Court of Appeals that the validity of the statutory inference in the disputed instruction must be faced and decided.

The test to be applied to the kind of statutory inference involved in this criminal case is not in dispute. In Tot v. United States, 319 U. S. 463, the Court, relying on a line of cases dating from 1910, [6] reaffirmed the limits which the Fifth and Fourteenth Amendments place “upon the power of Congress or that of a state legislature to make the proof of one fact or group of facts evidence of the existence of the ultimate fact on which guilt is predicated.” Id., at 467. Such a legislative determination would not be sustained if there was “no rational connection between the fact proved and the ultimate fact presumed, if the inference of the one from proof of the other is arbitrary because of lack of connection between the two in common experience. . . . [WJhere the inference is so strained as not to have a reasonable relation to the circumstances of life as we know them, it is not competent for the legislature to create it as a rule governing the procedure of courts.” Id., at 467-468. Judged by this standard, the statutory presumption in issue there was found constitutionally infirm.

Just last Term, in United States v. Gainey, 380 U. S. 63, the Court passed upon the validity of a companion section to §5601 (b)(1) of the Internal Revenue Code. The constitutionality of the legislation was held to depend upon the “rationality of the connection ‘between the facts proved and the ultimate fact presumed.’ ” 380

U. S., at 66. Tested by this rule, the Court sustained the provision of 26 U. S. C. § 5601 (b)(2) declaring pres[*140] ence at a still to be sufficient evidence to authorize conviction under 26 U. S. C. § 5601 (a) (4) for carrying on the business of the distillery without giving the required bond. Noting that almost anyone at the site of a secret still could reasonably be said to be carrying on the business or aiding and abetting it and that Congress had accorded the evidence of presence only its “natural probative force,” the Court sustained the presumption.

This case is markedly different from Gainey, supra. Congress has chosen in the relevant provisions of the Internal Revenue Code to focus upon various phases and aspects of the distilling business and to make each of them a separate crime. Count 1 of this indictment charges “possession, custody and . . . control” of an illegal still as a separate, distinct offense. Section 5601 (a)(1) obviously has a much narrower coverage than has § 5601 (a)(4) with its sweeping prohibition of carrying on a distilling business.

In Bozza v. United States, 330 U. S. 160, the Court squarely held, and the United States conceded, that presence alone was insufficient evidence to convict of the specific offense proscribed by § 5601 (a)(1), absent some evidence that the defendant engaged in conduct directly related to the crime of possession, custody or control. That offense was confined to those who had “custody or possession” of the still or acted in some “other capacity calculated to facilitate the custody or possession, such as, for illustration, service as a caretaker, watchman, lookout or in some other capacity.” Id., at 164. This requirement was not satisfied in the Bozza case either by the evidence showing participation in the distilling operations or by the fact that the defendant helped to carry the finished product to delivery vehicles. These facts, and certainly mere presence at the still, were insufficient proof that “petitioner ever exercised, or aided the exercise of, any control over the distillery.” Ibid.

[*141] Presence at an operating still is sufficient evidence to prove the charge of “carrying on” because anyone present at the site is very probably connected with the illegal enterprise. Whatever his. job may be, he is at the very least aiding and abetting the substantive crime of carrying on the illegal distilling business. Section 5601 (a)(1), however, proscribes possession, custody or control. This is only one of the various aspects of the total undertaking, many of which have nothing at all to do with possession, as Bozza made quite clear and as the United States conceded in that case. Presence tells us only that the defendant was there and very likely played a part in the illicit scheme. But presence tells us nothing about what the defendant’s specific function was and carries no legitimate, rational or reasonable inference that he was engaged in one of the specialized functions connected with possession, rather than in one of the supply, delivery or operational activities having nothing to do with possession. Presence is relevant and admissible evidence in a trial on a possession charge; but absent some showing of the defendant’s function at the still, its connection with possession is too tenuous to permit a reasonable inference of guilt — “the inference of the one from proof of the other is arbitrary . . . .” Tot v. United States, 319 U. S. 463, 467.

The United States has presented no cases in the courts which have sustained a conviction for possession based solely on the evidence of presence. All of the cases which deal with this issue and with which we are familiar have held presence alone, unilluminated by other facts, to be insufficient proof of possession. [7] Moreover, the[*142] Government apparently concedes in this case that except for the circumstances surrounding the adoption of the 1958 amendments to the Internal Revenue Code, which added the presumptions relating to illegal distilling operations, the crime of possession could not validly be inferred from mere presence at the still site. [8]

According to the Government, however, the 1958 amendments were, among other things, designed to overrule Bozza and must be viewed as broadening the substantive crime of possession to include all those present at a set-up still who have any connection with the illicit enterprise. [9] So broadened, it is argued, the substantive[*143] crime of “possessing,” under the teachings of Gainey, could be acceptably proved by showing presence alone.

We are 'not persuaded by this argument, primarily because the amendments did not change a word of §5601 (a)(1), which defines the substantive crime. Possession, custody or control remains the crime which the Government must prove. The amendments, insofar as relevant here, simply added §5601 (b)(1) and permitted an inference of possession from the fact of presence. Moreover, the inference was not irrebuttable. It was allowable only if the defendant failed to explain his presence to the satisfaction of the jury. Plainly, it seems to us, the defendant would be exonerated if he satisfactorily explained or the circumstances showed that his function at the still was not in furtherance of the specific crime of possession, custody or control. If a defendant is charged with possession and it is unmistakably shown that delivery, for example, was his sole duty, it would seem very odd under the present formulation of the Code to hold that his explanation had merely proved his guilt of “possessing” by showing some connection with the illegal business.

The Government’s position would equate “possessing” with “carrying on.” We are not convinced that the amendments to the Code included in the Excise Tax Technical Changes Act of 1958 were intended to work any such substantive change in the basic scheme of the Act, which was, in the words of the Government’s brief in this Court, “to make criminal every meaningful form of participation in, or assistance to, the operation of an illegal still by an elaborate pattern of partially redundant provisions — some specific and some general — designed to close all loopholes.” Possession, custody or control was[*144] one of the specific crimes defined in the Code and we do not think that the 1958 amendments worked any change in this regard. [10] On the legislative record before us, we reject the Government’s expansive reading of the 1958 amendments.

Congress may have intended by the 1958 amendments to avoid the Bozza case. But it chose to do so, not by changing the definition of the substantive crime, but by declaring presence to be sufficient evidence to prove the crime of possession beyond reasonable doubt. This approach obviously fails under the standards traditionally applied to such legislation. It may be, of course, that Congress has the power to make presence at an illegal still a punishable crime, but we find no clear indication that it intended to so exercise this power. [11] The crime remains possession, not presence, and, with all due deference to the judgment of Congress, the former may not constitutionally be inferred from the latter.

Affirmed

MR. Justice Black concurs in the reversal of these convictions for the reasons stated in his dissent against affirmance of the conviction in United States v. Gainey, 380 U. S. 63, 74. Mr. Justice Douglas concurs in the result for the reasons stated in his opinion in United States v. Gainey, 380 U. S. 63, 71. Mr. Justice Fortas concurs in the result.
1

Respondents were indicted with two others whose convictions are not in issue here.

2

Section 5601 (a)(1) provides that any person who “has in his possession or custody, or under his control, any still or distilling apparatus set up which is not registered, as required by section 5179 (a) . . . shall be fined not more than $10,000, or imprisoned not more than 5 years, or both . . . .”

3

Section 5601 (a) (8) provides that any person who, “not being a distiller authorized by law to produce distilled spirits, produces distilled spirits by distillation or any other process from any mash, wort, wash, or other material . . . shall be fined not more than $10,000, or imprisoned not more than 5 years, or both

4

Section 5601 (b)(1) of 26 U. S. C. provides: “Whenever on trial for violation of subsection (a)(1) the defendant is shown to have been at the site or place where, and at the time when, a still or distilling apparatus was set up without having been registered, such presence of the defendant shall be deemed sufficient evidence to authorize conviction, unless the defendant explains such presence to the satisfaction of the jury (or of the court when tried without jury).”

5

Section 5601 (b)(4) of 26 U. S. C. provides: “Whenever on trial for violation of subsection (a)(8) the defendant is shown to have been at the site or place where, and at the time when, such distilled spirits were produced by distillation or any other process from mash, wort, wash, or other material, such presence of the defendant shall be deemed sufficient evidence to authorize conviction, unless the defendant explains such presence to the satisfaction of the jury (or of the court when tried without jury).”

6

Mobile, J. & K. C. R. Co. v. Turnipseed, 219 U. S. 35; Bailey v. Alabama, 219 U. S. 219; Lindsley v. Natural Carbonic Gas Co., 220 U. S. 61; McFarland v. American Sugar Rjg. Co., 241 U. S. 79; Manley v. Georgia, 279 U. S. 1; Western & Atlantic R. Co. v. Henderson, 279 U. S. 639; Morrison v. California, 291 U. S. 82.

7

E. g., Pugliese v. United States, 343 F. 2d 837 (C. A. 1st Cir., 1965); Barrett v. United States, 322 F. 2d 292 (C. A. 5th Cir., 1963), rev’d on other grounds, sub nom. United States v. Gainey, 380 U. S. 63; McFarland v. United States, 273 F. 2d 417 (C. A. 5th Cir., 1960) (dictum); Vick v. United States, 216 F. 2d 228 (C. A.[*142] 5th Cir., 1954); United States v. De Vito, 68 F. 2d 837 (C. A. 2d Cir., 1934); Graceffo v. United States, 46 F. 2d 852 (C. A. 3d Cir., 1931).

8

Brief for petitioner, p. 14. See also brief for petitioner, p. 33, United States v. Gainey, 380 U. S. 63; Bozza v. United States, 330 U. S. 160, 164.

9

The relevant Senate and House Reports discussing the presumptions added by § 5601 (b) are in identical language, which was borrowed from an analysis prepared by the Alcohol and Tobacco Tax Division of the Internal Revenue Service (see Hearings before a Subcommittee of the House Committee on Ways and Means on Excise Tax Technical and Administrative Problems, Part I, 84th Cong., 1st Sess., p. 208):

“These paragraphs are new. Their purpose is to create a rebut-table presumption of guilt in the case of a person who is found at illicit distilling or rectifying premises, but who, because of the practical impossibility of proving his actual participation in the illegal activities except by inference drawn from his presence when the illegal acts were committed, cannot be convicted under the ruling of the Supreme Court in Bozza v. United States (330 U. S. 160).

“The prevention of the illicit production or rectification of alcoholic spirits, and the consequent defrauding of the United States of tax, has long been rendered more difficult by the failure to obtain a conviction of a person discovered at the site of illicit distilling or rectifying premises, but who was not, at the time of such discovery, engaged in doing any specific act.

“In the Bozza case, the Supreme Court took the position that to sustain conviction, the testimony ‘must point directly to conduct within the narrow margins which the statute alone defines.’ These[*143] new provisions are designed to avoid the effect of that holding as to future violations.” S. Rep. No. 2090, 85th Cong., 2d Sess., pp. 188-189; H. R. Rep. No. 481, 85th Cong., 1st Sess., p. 175.

10

In reference to the re-enactment of § 5601 (a) (1), the provision that defines the substantive offense, the Reports merely say, “This paragraph is a restatement of existing law. . . S. Rep. No. 2090, 85th Cong., 2d Sess., p. 186; H. R. Rep. No. 481, 85th Cong., 1st Sess., p. 173.

11

The Government advanced a somewhat similar contention in Tot. It was rejected, partly on the ground that it was not supported by legislative history. Tot v. United States, 319 U. S. 463, 472. Cf. United States v. Universal C. I. T. Credit Corp., 344 U. S. 218.