United States v. Bryan, 17240.

• Decision Date: 16 April 1959
• Docket Number: No. 17240.,17240.
• Citation: 265 F.2d 698
• Parties: UNITED STATES of America, Appellant, v. Walter H. BRYAN and Riverside Bank of Jacksonville, Claimants of One 1957 Ford Wrecker-Truck, Serial No. F80F7H13614, Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

265 F.2d 698 (1959)

UNITED STATES of America, Appellant, v. Walter H. BRYAN and Riverside Bank of Jacksonville, Claimants of One 1957 Ford Wrecker-Truck, Serial No. F80F7H13614, Appellees.

No. 17240.

United States Court of Appeals Fifth Circuit.

April 16, 1959.

E. Coleman Madsen, Asst. U. S. Atty., James L. Guilmartin, U. S. Atty., Southern District of Florida, Jacksonville, Fla., for appellant.

John W. Muskoff, W. Gregory Smith, Jacksonville, Fla., for appellees.

Before HUTCHESON, Chief Judge, and TUTTLE and JONES, Circuit Judges.

TUTTLE, Circuit Judge.

This is an appeal from a judgment entered on a directed verdict in favor of the claimants of a tow truck libeled by the United States. The single question presented for our consideration is whether the United States made a sufficient showing the vehicle was being used at the time of its seizure so as to be subject to forfeiture under the provisions of section 7301(e) of the Internal Revenue Code of 1954, 26 U.S.C.A. § 7301(e). The lower court held that it had not.

We conclude that this was error.

The appellees submitted the case here without argument and without filing a brief. The case was tried in the district court before a jury, but at the end of the government's case the district court granted a directed verdict in the claimants' favor on the ground that the appellant's evidence was not sufficient to prove intent to violate the internal revenue laws. The court stated that "the inference is equally strong, if not stronger" that neither the owner nor the driver of the vehicle had such intent.

On a motion for directed verdict, the evidence must be viewed in the light most favorable to the party opposing the motion, giving him the benefit of every favorable inference which may be fairly drawn. Atlantic Greyhound Corp. v. Crowder, 5 Cir., 177 F.2d 633. Whenever the evidence is such that fair minded men might draw differing inferences therefrom and might reasonably disagree as to what the verdict should be, the motion must be denied. American Fidelity and Cas. Co. v. Drexler, 5 Cir., 220 F.2d 930.

With these fundamental rules in mind, we briefly summarize some of the evidence and inferences which the jury could reasonably have drawn therefrom.

On November 18, 1957, at 2:00 A.M., two troopers of the Weight Division of the Florida Highway Patrol were driving on Florida State Highway 23 north of Macclenny, Florida, and were looking for overweight trucks which might be attempting to wait out a road block in Macclenny. They observed a 1946 Chevrolet van truck parked at a truck stop about two miles north of Macclenny. This truck was formerly owned and used by a linen service company, but had since been sold and had its signs painted over so that its panels were blank and without identifying trade signs. (This is the van which was being towed by the tow truck when they were both seized by the law enforcement officers.)

On the afternoon of November 18, at about 3:45 P.M., the state troopers observed the tow truck traveling west toward Macclenny on U.S. Route 90 from Jacksonville, Florida. At about 4:40 P.M., a local sheriff passed the tow truck, which had apparently passed through Macclenny on Route 90 and turned north on Florida State Road 127, which runs parallel to and west of Highway 23.

At about 6:45 P.M. on this same day, the state troopers observed the tow truck pulling the van coming south on Highway 23 in Macclenny and turning east toward Jacksonville on Route 90. The troopers followed the trucks and observed that the rear tires on the van, the front tires of which were suspended above the ground by the tower, were mashed down quite flat, indicating that the truck might be very heavily loaded. The officers stopped the trucks and questioned the driver of the tow truck. The doors to the van were padlocked shut, but the officers were able to detect through a crack in the door that the truck was loaded with bags of sugar. Upon making this discovery they notified internal revenue liquor agents and waited until they came to take custody of the trucks.

In the cab of the wrecker the troopers found a young man named Grady Allen Shad. Shad told them he had been hitchhiking and had been picked up just north of the Florida-Georgia state line on the Georgia extension of Route 23. This statement conflicted with the statement of the driver of the wrecker, Rhodes, who stated he picked up Shad in Florida. Shad said he had been cutting pulpwood in the woods all day, but the officers testified that his hands and clothes were clean.

Rhodes told them that when he picked up the van there was no one around it and that he had simply gone after the truck as a result of a telephone call to the garage operated by claimant Bryan in Jacksonville. However, a new denim jacket which fitted Shad perfectly and which bore the same brand name as the new denim pants Shad was wearing was found in the cab of the van-truck. In addition, the telephone call to claimant's garage was shown to have been made by Shad.

Rhodes told the officers that he had picked up the van on Florida...