Interbartolo v. United States, No. 5919.

CourtU.S. Court of Appeals — First Circuit
Writing for the CourtWOODBURY, , and HARTIGAN and ALDRICH, Circuit
Citation303 F.2d 34
Docket NumberNo. 5919.
Decision Date22 May 1962
PartiesJoseph INTERBARTOLO, Claimant, Appellant, v. UNITED STATES of America, Libellant, Appellee.

303 F.2d 34 (1962)

Joseph INTERBARTOLO, Claimant, Appellant,
v.
UNITED STATES of America, Libellant, Appellee.

No. 5919.

United States Court of Appeals First Circuit.

Heard March 5, 1962.

Decided May 22, 1962.


303 F.2d 35

Francis J. DiMento, Boston, Mass., with whom DiMento & Sullivan, Boston, Mass., was on brief, for appellant.

Paul J. Redmond, Asst. U. S. Atty., with whom W. Arthur Garrity, Jr., U. S. Atty., was on brief, for appellee.

Before WOODBURY, Chief Judge, and HARTIGAN and ALDRICH, Circuit Judges.

HARTIGAN, Circuit Judge.

This is an appeal from a judgment in favor of the United States in a libel for forfeiture of an automobile alleged to have been used in contravention of the provisions of the internal revenue wagering tax laws.1 Specifically, this case raises the question of whether an automobile used to transport wagering slips and adding machine tapes in the course of activity by a "pick-up man" in the numbers game is subject to forfeiture under the federal wagering tax laws.

In the argot of number pool wagering, it appears that the term "pick-up man" is applied to the individual who serves as a conduit in transporting the bets from a "writer" to a "banker."

A fuller description of the roles played by these individuals is given by the Supreme Court in United States v. Calamaro, 354 U.S. 351, 353, 77 S.Ct. 1138, 1 L.Ed.2d 1394 (1957):

"* * * A numbers game involves three principal functional types of individuals: (1) the `banker,\' who deals in the numbers and against whom the player bets; (2) the `writer,\' who, for the banker, does the actual selling of the numbers to the public, and who records on triplicate slips the numbers sold to each player and the amount of his wager; and (3) the `pick-up man,\' who collects wagering slips from the writer and delivers them to the banker. If there are winnings to be distributed, the banker delivers the required amount to the writer, who in turn pays off the successful players."

On October 13, 1959, Special Agents of the Intelligence Division of the Internal Revenue Service, assigned to investigate wagering tax violations, observed the automobile here in issue being used, as alleged in the libel "to transport, carry, convey, conceal, and possess certain envelopes, betting slips and other memoranda commonly used in the business

303 F.2d 36
of accepting wagers," by an individual whom the record clearly demonstrates functioned as a "pick-up man." This individual — who was not the owner of the automobile (the claimant here) — was identified at the hearing below simply as a "tall young man about 20-22 years of age, having wavy brown hair."

Seventeen days thereafter, on October 30, 1959, acting without a warrant, a duly authorized delegate of the Secretary of the Treasury seized the automobile while it was parked on a public street in Boston. In so acting the Secretary's delegate purported to invoke the following provisions of the Internal Revenue Code of 1954:

"§ 7302. Property used in violation of internal revenue laws
"It shall be unlawful to have or possess any property intended for use in violating the provisions of the internal revenue laws, or regulations prescribed under such laws, or which has been so used, and no property rights shall exist in any such property. * * *"
"§ 7321. Authority to seize property subject to forfeiture
"Any property subject to forfeiture to the United States under any provision of this title may be seized by the Secretary or his delegate."

In the district court, as here, the claimant resisted the government's seizure on the basis that — so far as is here relevant — under the decision of the Supreme Court in Calamaro, supra, the only individuals subject to the registration and occupational tax provisions of the wagering laws are "bankers" and "writers." There, the Court, after an examination of the pertinent sections of the revenue laws2 and their legislative history, concluded that these provisions had no application to a "pick-up man."3 Consequently, so claimant's argument goes, since the "pick-up man" in the instant case was not violating the pertinent provisions of the internal revenue laws at the time that he was observed transporting the wagering slips on October 13, 1959, the automobile which he utilized in this activity was not subject to forfeiture.

While the district court implicitly recognized the Calamaro holding, it ruled that the vehicle was subject to forfeiture. The court grounded its decision on the following reasoning:

"I find that the young man who used the automobile in question to transport the betting slips and adding-machine tapes from the Cafe did so with the knowledge, consent and authority of those who were carrying on the business of accepting wagers at the Cafe and that the transportation of the betting slips and tapes from the Cafe to Chick\'s Bargain Shoe Store was an integral part of the wagering business that was being conducted at the Cafe.
"Since in transporting the betting slips and tapes the young man was acting for persons who were engaged in the wagering business and who had neither paid the special occupational tax imposed by section 4411 of the Internal
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23 practice notes
  • Fell v. Armour, Civ. A. No. 6367.
    • United States
    • U.S. District Court — Middle District of Tennessee
    • November 27, 1972
    ...cause issue not be presented to a judicial official. See discussion as to desirability of warrant in Interbartolo v. United States, 303 F.2d 34 (1st Cir. The Court finds it desirable that a warrant be obtained prior to seizure of a conveyance under authority of the Act in furtherance of the......
  • Director of Finance of Prince George's County v. Cole, Nos. 107
    • United States
    • Court of Appeals of Maryland
    • September 2, 1983
    ...64 (Tenn.1976); see also United States v. $1,058.00 in United States Currency, 323 F.2d 211 (3rd Cir.1963); Interbartolo v. United States, 303 F.2d 34 (1st Cir.1962); State v. Merchandise Seized, 225 N.W.2d 921 (Iowa 1975). Certainly the dissent does not suggest that per se contraband must ......
  • U.S. v. One 1975 Pontiac Lemans, Vehicle I.D. No. 2F37M56101227, No. 79-1275
    • United States
    • U.S. Court of Appeals — First Circuit
    • May 9, 1980
    ...F.2d 1 (1st Cir. 1980). Section 7302 has been applied in light of this traditional view of forfeiture. In Interbartolo v. United States, 303 F.2d 34, 37 (1st Cir. 1962), we stated that "the thrust of Section 7302 is directed not at the individual but at property utilized to violate the pert......
  • U.S. v. Pappas, No. 78-1474
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • June 14, 1979
    ...on Berkowitz v. United States, 340 F.2d 168 (1st Cir. 1965). In that case we declined to apply the rule of Interbartolo v. United States, 303 F.2d 34 (1st Cir. 1962) that an illegal seizure does not bar forfeiture 6 in a case where the Page 306 "government's unconstitutional conduct went to......
  • Request a trial to view additional results
23 cases
  • Fell v. Armour, Civ. A. No. 6367.
    • United States
    • U.S. District Court — Middle District of Tennessee
    • November 27, 1972
    ...cause issue not be presented to a judicial official. See discussion as to desirability of warrant in Interbartolo v. United States, 303 F.2d 34 (1st Cir. The Court finds it desirable that a warrant be obtained prior to seizure of a conveyance under authority of the Act in furtherance of the......
  • Director of Finance of Prince George's County v. Cole, Nos. 107
    • United States
    • Court of Appeals of Maryland
    • September 2, 1983
    ...64 (Tenn.1976); see also United States v. $1,058.00 in United States Currency, 323 F.2d 211 (3rd Cir.1963); Interbartolo v. United States, 303 F.2d 34 (1st Cir.1962); State v. Merchandise Seized, 225 N.W.2d 921 (Iowa 1975). Certainly the dissent does not suggest that per se contraband must ......
  • U.S. v. One 1975 Pontiac Lemans, Vehicle I.D. No. 2F37M56101227, No. 79-1275
    • United States
    • U.S. Court of Appeals — First Circuit
    • May 9, 1980
    ...F.2d 1 (1st Cir. 1980). Section 7302 has been applied in light of this traditional view of forfeiture. In Interbartolo v. United States, 303 F.2d 34, 37 (1st Cir. 1962), we stated that "the thrust of Section 7302 is directed not at the individual but at property utilized to violate the pert......
  • U.S. v. Pappas, No. 78-1474
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • June 14, 1979
    ...on Berkowitz v. United States, 340 F.2d 168 (1st Cir. 1965). In that case we declined to apply the rule of Interbartolo v. United States, 303 F.2d 34 (1st Cir. 1962) that an illegal seizure does not bar forfeiture 6 in a case where the Page 306 "government's unconstitutional conduct went to......
  • Request a trial to view additional results

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