Interbartolo v. United States, 5919.
Citation | 303 F.2d 34 |
Decision Date | 22 May 1962 |
Docket Number | No. 5919.,5919. |
Parties | Joseph INTERBARTOLO, Claimant, Appellant, v. UNITED STATES of America, Libellant, Appellee. |
Court | United States Courts of Appeals. United States Court of Appeals (1st Circuit) |
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.
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):
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 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:
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:
Claimant argues that the district court's finding of consent, authority and agency as a basis for the forfeiture constitutes an impermissive circumvention of the Calamaro holding and would effectively blur the distinctions which the Supreme Court apparently felt it essential to make therein.
We believe that appellant seeks to derive too much comfort from Calamaro. That case was decided in the context of a criminal proceeding for non-payment of the wagering tax and has no application to the instant proceedings — a civil action to enforce a libel for forfeiture. The question in Calamaro was whether a pick-up man or messenger is engaged in "the business of accepting wagers * * * or conducts any wagering pool or lottery * * *." 26 U.S.C. § 3285(d) (1939 Internal Revenue Code). As noted previously, the court answered this question in the negative.
However, it is quite another thing to say that because the driver of the car did not himself require a licensing stamp, the operation in which the automobile was used was legal. Under Section 7302, the automobile was subject to forfeiture if it was property either intended for use or previously used "in violating the provisions of the internal revenue laws." In the instant case the district court found that the claimant knew that his automobile was being used to transport betting slips and tapes and that he allowed it to be used for that purpose. Since it cannot be gainsaid that the transportation of these items was vital to the successful operation of those who were carrying on the business of "accepting wagers" and, who on the present record had not paid the requisite tax, we believe that the automobile was "used in violating the provisions of the revenue laws" and thus was forfeitable under Section 7302. In sum, the thrust of Section 7302 is directed not at the individual but at property utilized to violate the pertinent revenue laws. And, while under Calamaro the driver here may be innocent of violating the federal gambling laws, the automobile was subject to forfeiture.
Claimant next contends that the action of the government in seizing his automobile without a warrant some seventeen days after its use and while it was innocently parked on a public highway violated the prohibition of the Fourth Amendment against unreasonable seizures. The government argues that once the vehicle was used in the proscribed activity, the owner thereupon lost whatever property rights he may have had in it and, consequently, government agents were under no obligation to procure a warrant before proceeding to seize the automobile. We are thus faced with the question of whether a forfeiture may be enforced...
To continue reading
Request your trial-
Director of Finance of Prince George's County v. Cole
...S.W.2d 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 contraban......
-
Fell v. Armour
...the probable 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. 1962). The Court finds it desirable that a warrant be obtained prior to seizure of a conveyance under authority of the Act i......
-
U.S. v. Pappas, 78-1474
...relied 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 "government's unconstitutional conduct went to t......
-
U.S. v. One 1975 Pontiac Lemans, Vehicle I.D. No. 2F37M56101227
...615 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 ......