Dean & Co. v. United States
| Decision Date | 14 December 1948 |
| Docket Number | No. 12405.,12405. |
| Parties | W. E. DEAN & CO. v. UNITED STATES. |
| Court | U.S. Court of Appeals — Fifth Circuit |
James McCollum Burnett and Eugene C. Williams, both of San Antonio, Tex., for appellant.
Henry W. Moursund, U. S. Atty., and Joel W. Westbrook, Asst. U. S. Atty., both of San Antonio, Tex., for appellee.
Before HUTCHESON, SIBLEY, and McCORD, Circuit Judges.
The libel was for the forfeiture1 of an automobile seized for the transportation of contraband, to-wit: heroin. W. E. Dean and Company, an automobile financing company, denying that the automobile was forfeit and contesting the forfeiture, filed claim to the car as a good faith lienor. The evidence was brief and uncontested.
The United States had one witness, Johnson, the narcotic agent who had found the heroin in the car. On direct examination he testified that, having reliable information that contraband, to-wit, heroin, would be transported in the car, he and another officer followed and stopped it. When they did, he saw on the floorboards of the car, between the two men sitting in the front seat, a package consisting of a paper sack containing a piece of cloth in which was wrapped five unstamped waxed paper packages containing 59 grains of heroin, whereupon the automobile was seized as forfeit. On cross-examination by claimant, he testified that he never saw anybody in the car in possession of the package, that the owner of the car was not there at the time, and that he does not know how the heroin came to be there. The claimant offered only its chattel mortgage.
The district judge, finding the facts as above, that there was probable cause for the seizure and the libel, and that claimants had not sustained the burden imposed by Sec. 1615, Title 19 U.S.C.A., found the automobile forfeit and gave judgment accordingly.
Claimant is here insisting that the proof was insufficient to show that the heroin was contraband, and that it was transported, and the judgment must, therefore, be reversed.
As to the failure of proof that it was contraband, he argues: that the burden was on the government to prove that it was; that Sec. 2550(a) of Title 26 U.S. C.A. imposes the tax only when the narcotic is (1) sold, (2) removed for consumption, or (3) removed for sale; and there is no direct evidence that any person had either sold, or removed, for consumption or sale, the heroin found in this case.
As to the failure of proof that it was transported, he argues that the burden was on the government to make proof that the heroin was being transported by some person in the car, and there was no...
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