Anderson v. United States, 13214.

• Court: U.S. Court of Appeals — Fifth Circuit
• Writing for the Court: HUTCHESON, , and HOLMES and BORAH, Circuit
• Citation: Anderson v. United States, 185 F.2d 343 (5th Cir. 1950)
• Decision Date: 08 November 1950
• Docket Number: No. 13214.,13214.
• Parties: ANDERSON v. UNITED STATES.

185 F.2d 343 (1950)

ANDERSON v. UNITED STATES.

No. 13214.

United States Court of Appeals, Fifth Circuit.

November 8, 1950.

Wesley R. Asinof, Atlanta, for appellant.

J. Ellis Mundy, U. S. Atty., and Lamar N. Smith, Asst. U. S. Atty., Atlanta, for appellee.

Before HUTCHESON, Chief Judge, and HOLMES and BORAH, Circuit Judges.

BORAH, Circuit Judge.

This is an appeal from a judgment entered in an action of libel filed by the United States of America, in the United States District Court for the Northern District of Georgia for the purpose of condemning and forfeiting a certain Dodge (Army) Truck and Buick automobile which had theretofore been legally seized on land as the property of one William Ensley Anderson. There was no appearance or claimant on behalf of the truck and it is not involved in this proceeding. The appellant, William Ensley Anderson, as claimant of the automobile filed an answer to the libel and the cause was heard by a judge without a jury. Evidence was taken and on February 13, 1950 the court below rendered a final judgment condemning and forfeiting to the libellant the said automobile and further ordering that same be delivered to the District Supervisor, Bureau of Internal Revenue, Treasury Department, Alcohol Tax Unit, Atlanta, Georgia for official use. From this judgment and decree the owner and claimant of the automobile has appealed.

The libel of information was filed under 26 U.S.C.A. Internal Revenue Code, §§ 3116 and 3321. Section 3116 makes it unlawful to have or possess any liquor or property intended for use, or which has been so used, in violating the provisions of the internal revenue laws or regulations prescribed thereunder and provides for the seizure and forfeiture of such liquor or property in accordance with the laws relating to seizure and forfeiture of property for violation of the internal revenue laws. The plain meaning of this section is that the violation or intended violation of any valid internal revenue law or regulation relating to spirituous liquors gives rise to its operation and any property such as an automobile which is used or intended to be used in such violation is forfeitable thereunder. Kent v. United States, 5 Cir., 157 F.2d 1; United States v. Windle, 8 Cir., 158 F.2d 196; One 1941 Buick Sedan v. United States, 10 Cir., 158 F.2d 445; One Ford Tudor Automobile, 1946 Model v. United States, 5 Cir., 164 F.2d 1020; United States v. Ganey, 5 Cir., 183 F.2d 273.

The libel alleges that the automobile and truck when seized on July 20, 1949, were then and there used in violation of the internal revenue laws of the United States in that they were used in the removal, deposit and concealment of 159¼ gallons of nontax paid distilled spirits, one-quarter gallon and twenty gallons of which were in the automobile and truck respectively. The libel further alleges that the automobile and truck were used on July 20, 1949, in violation of the internal revenue laws of the United States in that the automobile and truck were used in the removal, deposit and concealment of 159¼ gallons of distilled spirits, of which one-quarter gallon was in the automobile and twenty gallons were in the truck, and on which distilled spirits the taxes imposed by the laws of the United States had not been paid with intent to defraud the United States of such tax. Under the issues as framed the burden was upon the government to establish the material allegations of the libel, but it was not necessary to prove these allegations beyond a reasonable doubt. Lilienthal's Tobacco v. United States, 97 U.S. 237, 24 L.Ed. 901; Coffey v. United States, 116 U.S. 436, 6 S.Ct. 437, 29 L.Ed. 684.

The substance of the evidence, so far as it is necessary to state it, is as follows: On July 18, 1949, Investigator Marvin Swann was proceeding in an automobile in the vicinity of Bremen, Georgia, at which time he met an ambulance-type truck, immediately followed by a 1949 Oldsmobile in which William Ensley Anderson was a passenger. After the Oldsmobile passed Anderson turned in his seat to observe Swann who, becoming suspicious, back-tracked the vehicles a distance of about fourteen miles to the vicinity of the home of Herman Cole. As a result of this other agents were called in to make a search in the vicinity and on July 20, 1949, they found a cache of 159 gallons of non-tax paid distilled spirits concealed in the edge of Herman Cole's cornfield, just off a rural public road in the rear of an old abandoned house.

Upon finding the cache two of the investigators established a watch over it and at about 7:55 P.M. they saw an ambulance-type truck pass the abandoned house and proceed up the road in the direction of Cole's home. About an hour thereafter they observed a 1949 Buick automobile with two occupants therein travelling in the same direction. The Buick proceeded up the public road and in about ten minutes after it was heard to stop at the home of Cole, the ambulance-type truck returned to the abandoned house and backed up to within a few steps of the cache of distilled spirits. Thereafter parties unknown began loading the distilled spirits into the truck. Within a few minutes after the loading operation had commenced the Buick returned and stopped in the public road in front of the abandoned house, whereupon one unknown party got out of the Buick, walked over to the ambulance, and started talking to the...