STALEY, Circuit Judge.
The appellant, James Giuliano, was convicted in the District Court for the District of New Jersey on all five counts of an indictment, and he appeals from the judgment entered thereon.
It is contended by the appellant that the district court erred in failing to grant his motion for judgment of acquittal. Specifically, it is urged that the evidence adduced by the government failed to prove beyond a reasonable doubt that appellant was guilty of the crime of conspiracy or any of the four substantive counts.
At this juncture in the case, it is incumbent upon us to make a careful examination of the evidence to ascertain "whether all the pieces of evidence against the defendant, taken together, make a strong enough case to let a jury find him guilty beyond a reasonable doubt." United States v. Allard, 3 Cir., 1957, 240 F.2d 840, 841.
The facts as brought out at the trial may be fairly summarized as follows: At about 9:30 a. m. on the day the Alcohol and Tobacco Tax Unit raided the still operation at Laurel Hill Farm, Monmouth County, New Jersey, March 28, 1958, appellant was seen driving a heavily laden, yellow 1949 Studebaker pick-up truck south on McCarter Highway in Newark. The truck was followed by a black 1948 Studebaker sedan operated by Angelo Di Orio, a defendant and alleged co-conspirator. At approximately 11 o'clock the same day, the truck and car were seen entering the Laurel Hill Farm. The truck still appeared heavily laden and the rear portion was covered, frustrating any identification of its contents. The search warrant which had been previously obtained by the agent of the Alcohol and Tobacco Tax Unit was executed at 11:30 a. m. the same morning. The barn on the farm was found to contain a large alcohol still consisting of a boiler and all the equipment required for the distillation of alcohol. Within the same building four large wooden vats containing approximately 9,400 gallons of fermenting mash were discovered. The yellow truck which earlier had been observed entering the farm was found within the barn. At the time of the raid it merely contained empty sugar bags; however, beside the truck were stacked substantial quantities of sugar, yeast, and five-gallon cans. The appellant was observed
Prior to the day of the raid, on March 7, 12, 17 and 18, the appellant was observed driving the same yellow Studebaker truck on public highways in the vicinity of the farm or headed in that general direction. On at least one occasion it appeared to be heavily laden although its contents were not visible. Appellant was observed driving the same truck out of the barn on the farm on March 19. After parking the truck he entered the farmhouse and remained there for about fifteen minutes. He then returned to the truck and drove away. On that occasion one agent testified that several five-gallon cans were part of the load.
On three additional occasions, all prior to the raid, appellant was observed in the company of defendants Di Orio or Monticello. On March 20, 1958, the yellow Studebaker truck was observed entering a junk yard on Orton Street in Newark. Shortly thereafter, Di Orio twice drove past the yard in a green 1952 Oldsmobile sedan. Appellant and Monticello later left the junk yard, turned the corner of Orton and Grafton Streets, and reappeared a few minutes later in the green Oldsmobile driven by Di Orio. Four days thereafter, on March 24, 1958, appellant was seen in Newark checking the rear portion of the yellow Studebaker truck. He was joined by Di Orio and after some additional examination of the truck, appellant proceeded to an automobile repair shop. An unidentified man was later seen repairing the truck. Lastly, on March 26, 1958, the appellant was observed in the company of Di Orio in the vicinity of 90 Lock Street, Newark. He had driven to the spot earlier in the afternoon and, after spending some time in a building at that address, returned to the black Studebaker sedan he had been driving. From the sedan he took a tool which appeared to be a bright red pipe threader and placed it in the trunk of Monticello's Ford. Later Monticello drove away in his Ford. It was testified that the same tool or one similar thereto was found in the trunk of the black Studebaker sedan which was seized on the still premises.
Admittedly, it is not the proper function of an appellate court to weigh evidence anew or to try to determine the credibility of witnesses heard at the trial below. The verdict of a jury must be sustained if there is substantial evidence, taking the view most favorable to the government, to support it. Glasser v. United States, 1942, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680; United States v. Manton, 2 Cir., 1938, 107 F.2d 834.
The government relies solely on circumstantial evidence to sustain the convictions involved herein. This court has unmistakably indicated that a conspiracy charge may be sustained on circumstantial evidence standing alone. United States v. Migliorino, 3 Cir., 1956, 238 F.2d 7; United States v. Georga, 3 Cir., 1954, 210 F.2d 45. Although there may have been some doubt at an earlier date, it is now well settled that the evidence need not be inconsistent with every conclusion save that of guilt, provided it does establish a case from which the jury can find the defendant guilty beyond a reasonable doubt. Holland v. United States, 1954, 348 U.S. 121, 75 S.Ct. 127, 99 L.Ed. 150; United States v. Allard, 3 Cir., 240 F.2d 840, certiorari denied 1957, 353 U.S. 939.
Appellant asserts that the instant case, in regard to the conspiracy charge, is governed by the principle of United States v. Falcone, 1940, 311 U.S. 205, 61 S.Ct. 204, 85 L.Ed. 128, and United States v. Gerke, 3 Cir., 125 F.2d 243, certiorari denied, 1942, 316 U.S. 667, 62 S.Ct. 1033, 86 L.Ed. 1742. As the Supreme Court said in Direct Sales Co. v. United States, 1943, 319 U.S. 703,
In regard to the substantive offenses, it is not necessary that the government show the appellant personally committed the offenses in question, for by virtue of 18 U.S.C. § 2,
The judgment will be affirmed.