Byron White

“ 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 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, 63 S.Ct. 1241, 1245, 87 L.Ed. 1519.
The United States has presented no cases in the courts which have sustained a conviction for possession based solely on the evidence of presence. ”

“ 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. ”