Repeat Offender

Of Liquor Laws

Is Sentenced By

Judge Greer

By BILL JONES

Staff Writer

Legendary Cocke County moonshiner Marvin "Popcorn" Sutton's luck in receiving probationary sentences finally ran out on Monday.

Sutton, 62, of 324 Upper Road, Parrottsville, was sentenced by U.S. District Judge Ronnie Greer on Monday afternoon to 18 months in federal prison.

Sutton, who had achieved folk-hero status in recent years thanks, in part, to his autobiography "Me and My Likker" and appearances in moonshining documentaries on cable television's History Channel and Discovery Channel, pleaded guilty last year to a two-count federal information that charged him with:

• possessing a .380-caliber semi-automatic pistol and a .38-caliber revolver (after having been convicted of numerous felonies); and

• illegally producing distilled spirits by distillation from mash and other material.

During a lengthy sentencing hearing on Monday afternoon at the James H. Quillen U.S. Courthouse, Judge Greer also ordered Sutton to spend three years on supervised federal probation after he completes his prison sentence.

The judge, however, said he would allow Sutton to "self report" to prison when he is notified to do so. Until then, Sutton must remain under house arrest subject to electronic monitoring, the judge said.

Sutton's defense attorney, Assistant Federal Defender Tim S. Moore, had argued to the court that Sutton was too frail to withstand a prison sentence and asked that he be placed on probation.

Moore described Sutton as "an old-timer" who realized that he was "nearing the end of the trail."

At one point, Moore also said Sutton was "62 and looks like he's 82."

Sutton, wearing overalls and a denim jacket, promised the court he would never again make whiskey, doing so as he stood with a walking cane during sentencing.

But Judge Greer noted that he never heard Sutton express any remorse for violating federal and state laws relative to production of untaxed whiskey.

In imposing sentence, Judge Greer said he could not impose a sentence of probation in Sutton's case because Sutton had four prior convictions for which he had received sentences of probation.

That comment resulted in a murmur from a group of about 25 of Sutton's supporters who came to watch the sentencing hearing. Judge Greer, in response, said he would have U.S. marshals remove anyone else who made a noise from the courtroom.

Judge Greer also said he was concerned about the "repeat nature" of Sutton's criminal conduct and the fact that he was on probation from Cocke County Circuit Court for manufacturing moonshine at the time he was charged with federal alcohol and firearms violations in March 2008.

The judge also said he had considered imposing a sentence of 24 months in Sutton's case, but decided against it because of Sutton's age and medical condition.

"If 18 months (in prison) doesn't deter you, I don't think 24 months will either," the judge said of his decision to impose a sentence at the bottom of the federal advisory sentencing guideline range.

In comments to the court, Sutton had said he was now too frail to continue making moonshine.

But the judge said he had seen nothing in medical records submitted to the court that indicated Sutton was "on the verge of death" or suffered from medical conditions that could not be successfully treated in federal prison medical facilities.

Dozens Of Supporters

Assistant Federal Defender Moore also had filed numerous "petitions for leniency" signed by dozens of East Tennessee and western North Carolina residents on Sutton's behalf.

The petitions state, in part:

"The undersigned are personally acquainted with Marvin 'Popcorn' Sutton. We trust him in any matters of great importance in our everyday lives and welcome him as a neighbor. Considering his basic nature, age, and significant medical problems, we ask the court to consider leniency in sentencing Popcorn."

The judge said he had taken notice of the dozens of petitions  that called for the court to show leniency in sentencing Sutton.

But the judge said he believed that if many of those who signed the petitions were asked if placing a man who had been convicted five times on probation again would serve their interest, most would say "no."

"Citizens in a free society do not have the right to pick and choose the laws by which they will reside," the judge said.

Opposed Probation

In his sentencing memorandum to the court Assistant U.S. Attorney Robert Reeves maintained that Sutton's past state court convictions had failed to deter Sutton from continuing to manufacture illegal alcohol or possess firearms after having been convicted of felonies.

Reeves pointed out that Sutton was manufacturing hundreds of gallons of moonshine for resale in Cocke County and was in possession of multiple firearms after having been convicted of numerous felonies at the time of his most recent arrest.

"What aggravates these circumstances even more is the fact that Sutton was on probation in Tennessee state court for felony possession of untaxed liquor when the present offense was committed," Reeves wrote.

"Sutton had been sentenced to two years of unsupervised probation for the state felony charges. This probation did not stop or even slow Sutton's illegal activities."

Previous Convictions

Reeves wrote in the sentencing memo that Sutton in 1975 was convicted in U.S. District Court on numerous federal charges relating to the manufacturing and possession of an unregistered still, having distilling apparatus and untaxed liquor. He was given probation.

In 1980, Sutton was convicted on a felony drug offense and was again given a five-year suspended sentence. He was sentenced to prison for the first time in 1985, on a conviction for an assault with a deadly weapon with intent to kill, according to Reeves' sentencing memo.

"Since that time, he has been arrested on misdemeanor alcohol violations in North Carolina, felony untaxed liquor violations in Tennessee, and four offenses that were dismissed including burglary, larceny, and alcohol-related offenses," Reeves wrote.

The memo noted that federal prosecutors also "had downloaded videos from the Internet that Sutton made including one on how to manufacture alcohol and one of Sutton bragging about his possession of firearms."

"Sutton has lived his life without respecting the law by committing violent and controlled substances offenses in addition to his numerous alcohol-related offenses," Reeves wrote.

"Sutton seems to be proud of his disregard for the law and no sentence thus far has deterred him from his continuing criminal activities," Reeves added.

ATF Agent Testifies

Gregory Moore, an agent with the federal Bureau of Alcohol, Tobacco, Firearms and Explosives, testified Monday that Sutton had been found last year to have been operating three moonshine-making stills in a barn in the Parrottsville area and had sold more than 200 gallons of untaxed whiskey to an undercover agent.

Two of the stills were made from steel, while the third was made from copper, Agent Moore said.
The ATF agent also testified that Sutton had shown the undercover agent two firearms that he had at his residence even though he was prohibited from possessing firearms because of previous felony convictions.

Assistant U.S. Attorney Reeves also played for the court videos featuring Sutton that showed him surrounded by firearms, dancing and demonstrating how to make moonshine whiskey.

Agent Moore also noted that an undercover agent employed by the ATF purchased moonshine from Sutton at a cost of $50 per gallon (or $30 per gallon if more than 50 gallons was purchased).

A plea agreement that Sutton signed last year said that on Feb. 7, 2008, an undercover agent of the Tennessee Alcoholic Beverage Commission (TABC) met Sutton for the purpose of purchasing moonshine in excess of 50 gallons, according to the plea agreement.

On Feb. 14 and Feb. 28, 2008, an undercover TABC agent met Sutton for the purpose of purchasing moonshine in excess of 100 gallons.

The week of March 3, an undercover TABC agent had a phone conversation with Sutton, and Sutton said he had 500 gallons of moonshine to sell in Tennessee and 400 gallons to sell in Maggie Valley, N.C.

On March 12, 2008, Sutton took an undercover TABC agent to a barn on Scott Pond Road, where three moonshine stills were located.

A total of 1,110 gallons of sour mash that would have produced approximately 130 gallons of moonshine were seized by the TABC and the Bureau of Alcohol, Tobacco, Firearms and Explosives, according to the plea agreement.

Moonshine Varieties

Moore also said the undercover agent purchased flavored varieties of moonshine from Sutton, including one called "Apple Pie" that featured apple and cinnamon flavors.

Other flavored varieties turned out by Sutton included those made with peaches and cherries, agent Moore said.