may have been inaccurate or untruthful, this cannot substitute for proof of his complicity in the conspiracy. Again, the cesspools referred to serviced other buildings in the courtyard as well as 7 and 8, and it is undisputed that difficulties had been encountered in their operation. Ownership of building 16 is thought significant by the Government since 'this building, for all intents and purposes, was * * * a part of the still site.' The only comment necessary is that the basis for this assertion must be somewhere other than in the record of the trial, for it certainly is not there. The record also fails to substantiate the Government's contention that defendant was seen in building 8; for no witness so testified.
The only remaining factor the Government may rely upon to connect Markowitz with the conspiracy is the installation of the sewer line referred to along Spruce Street in the Fall of 1957 and the Spring of 1958. The Government argues that this was an aid to the conspirators in disposing of the waste material from the still. However, it clearly appears from the Government's evidence that this was an improvement needed by all of the buildings situated on the courtyard; and the contractor who performed the work even made reference to a conversation concerning such an installation that he had with a former owner of the David Realty Company. Moreover, the design and positioning of the sewer was undertaken by the contracting firm without instructions or suggestions from Markowitz or anyone else. The fairest comment that may be made about the incident is that it is no more susceptible of a guilty interpretation than an innocent one. Convictions should be based on sterner evidentiary material.
However, one additional fact was uncovered in relation to the sewerage system. It was discovered at the time of the raid that a disposal pipe had been illegally connected from buildings 7 and 8 to the trunk line of the sewer on Spruce Street. This pipe ran underground building 16 which was owned by Markowitz. Before any significance may be attributed to this fact, it would first have to be shown that Markowitz knew of the existence of the pipe. The only theory that would suggest such knowledge stems from his ownership of building 16. Since the pipe ran under this building, it might be argued that access to the building was necessary for the installation. From this it could be inferred that Markowitz permitted such access. It was impossible to run the pipe under building 16 without entering the building. However, the building was in a state of extreme disrepair, and ingress was easily accomplished. The pipe may well have been and was undoubtedly installed at night or over weekends when the other buildings in the area were vacant. Indeed, there was evidence presented by the Government indicating that operations were conducted at the still site at other than the normal working hours, and over weekends. In addition, the entire still was set up and operated for over a year, and yet no one apparently noticed any influx of machinery, equipment, or supplies, thus suggesting a well-concealed venture.
The possibilities are quite varied; and none is any more compelling than the others. The conclusion that Markowitz knew of this disposal pipe, while rationally permissible, is not one concerning which a reasonable person could fail to have a reasonable doubt. Since it is not, the conviction must fall and a judgment of acquittal will be entered. In light of this disposition, it need not be determined whether the other requisites in the Government's case could have been established had knowledge been proved.
Had the Court been in a position to review the evidence adequately at the trial, a directed verdict would have been entered at that time. However, as mentioned previously, the trial was a lengthy one, and the notes of testimony were not transcribed immediately. The Court, therefore, felt that the wiser course to pursue was to permit the case to go to the jury.
Counsel for these defendants whose motions are being denied have raised several objections other than those discussed. Among these are certain objections to the charge of the Court. These, however, in addition to being without merit were not advanced at the trial.
Reliance is also placed upon the recent case of Ingram v. United States, 1959, 360 U.S. 672, 79 S. Ct. 1314, 3 L. Ed. 2d 1503. There, defendants were convicted of conspiracy to evade the payment of taxes imposed on lottery operations. The court, in reversing the convictions of those who had other than a proprietary interest in the lottery, held that the Government must prove knowledge on the part of such defendants that the taxes in question were imposed and owing. The secretive nature of the operation was said to be insufficient for this purpose since the lottery was illegal under State law; and concealment might just as well have been dictated by a desire to avoid detection by the State authorities. Much the same situation obtains in the instant case, with one important difference. The Congress of the United States had within the past few years imposed a tax on gamblers and gambling operations. It is of recent origin as contrasted to this: the United States has regulated the distilling of whisky and alcohol since the Federal Government came into existence. This is a matter of common knowledge with an extensive history; a circumstance not equally true with respect to taxes on gamblers and gambling operations. Even during the prohibition era the Congress of the United States controlled the limited permissive distilling operations and exacted taxes for such operations. Under the circumstances of this case the jury was entitled to infer knowledge on the part of those convicted.
In conclusion and with particular respect to Markowitz, while as before stated there were many suspicious circumstances proved, there was no direct evidence of facts which would lead to the conclusion circumstantially that Markowitz had knowledge of the conspiracy or that he knowingly did any act with the intention of helping to effectuate the admittedly illegal venture.
An appropriate order will be entered in accordance with the conclusions above set forth.