“I drunk his liquor,” said one potential juror.

“And honestly, I really like moonshine,” said another.

The jury selection in a 2018 trial in western North Carolina was proving to be complicated.

On paper, the matter appeared straightforward. A woman called 9-1-1 when her husband attempted to kill himself. Responders to the scene found marijuana and illegal booze. As a result, the woman, Michelle Lynn, and her husband both faced charges. Lynn was specifically charged with one felony (intent to sell or deliver marijuana) and several misdemeanors (possession of marijuana paraphernalia, possession of non-tax-paid alcohol, and maintaining a dwelling for a controlled substance).

It was the non-tax-paid alcohol that was problematic.

The alcohol allegedly belonged to Popcorn Sutton, a legend in the area. Sutton was born in 1946 in Maggie Valley, North Carolina. He was a modern-day bootlegger, not only producing but selling and promoting moonshine. For those of you who didn’t grow up in the South (or watching the Dukes of Hazzard), moonshine typically refers to alcohol made in secret – by the shine of the moon.

Sutton became something of a moonshine hero, writing an autobiography and being featured in documentaries and a self-produced video. He once remarked, “I’ve made all kinds of liquor in my time. I’ve made the fightin’ kind, the lovin’ kind, the cryin’ kind. I even made some one time and sold it to this couple – they was happily married. The next damn week, they was divorced.”

His rebel persona was bolstered when he was convicted – for the second time – of owning untaxed liquor in 2007. The following year, his property was raided again after he told an undercover federal officer that he had nearly 1,000 gallons of moonshine for sale: he was subsequently charged with producing moonshine and owning a firearm after being convicted of a felony. A guilty plea in 2009 resulted in two 18-month sentences to be served concurrently. The 62-year-old man committed suicide rather than serve time.

Not surprisingly, his legend lived on. There was even a song written about him:

Unlike Sutton, Lynn eschewed a plea and took her chances at trial. She disputed the charges against her, claiming, among other things, that the liquor found on her property was part of an inheritance. She told the court that, “Popcorn said the taxes on the liquor had been paid.”

While the jury was deliberating the charges, the bailiff relayed several questions to the judge, including one involving paying taxes on moonshine that is gifted to someone. Lynn was eventually found guilty of maintaining a dwelling for a controlled substance, but not guilty of possession with intent to sell or deliver marijuana.

The jury deadlocked on the moonshine charge. That piece was slated to go back to trial, but it never happened. The detective handling the matter left the sheriff’s office, and the case was dismissed.

A week later, Lynn filed a motion to get her moonshine back. The state’s response? It has to be destroyed.

Authorities had initially argued that the taxes had not been paid when the moonshine was seized in 2016. While Lynn disputed that fact in her first trial, she provided the court a receipt and stamps indicating that she paid the tax ($230.40) on June 21, 2019 – about two weeks before she filed for its return. But Agent Steve Myers, (now retired, SBI, Alcohol Law Enforcement division) had originally testified during Lynn’s trial that “illegal liquor can’t transmogrify into lawfully possessed liquor simply by paying taxes to the N.C. Department of Revenue.”

The judge eventually ruled that “only a local ABC Board or a properly licensed distillery can pay excise tax on liquor” and gave deputies 30 days to destroy the liquor. Lynn – now Michelle Sutton – appealed the matter, but it was ultimately dismissed.

She’s still holding out hope after filing a stay of destruction, telling local media, “He’s history, a historic figure in Haywood County.”

“People used to come from all around to see him and get his liquor. Anywhere I go, as soon as I say I’m from Maggie Valley, people ask about Popcorn Sutton. Now I’m fighting for the last bit of his liquor there is on this earth.”

(Author’s Note: In 2010, Hank Williams, Jr. announced a partnership with J&M Concepts LLC and Popcorn’s widow, Pam Sutton, to distill and distribute whiskey named after Sutton. In 2016, Sazerac bought the distillery, but not the brands.)

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Kelly Phillips Erb is a tax attorney, tax writer, and podcaster.

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