Interbartolo v. United States, 5919.

Citation303 F.2d 34
Decision Date22 May 1962
Docket NumberNo. 5919.,5919.
PartiesJoseph INTERBARTOLO, Claimant, Appellant, v. UNITED STATES of America, Libellant, Appellee.
CourtUnited 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.

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 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 Revenue Code of 1954, nor registered the place of business with the internal revenue district as required by section 4412 of the Code, I find that the automobile was used on October 13, 1959, in violating the internal revenue laws. The fact that the young man himself may not have been liable for the occupational tax under section 4411 did not render the automobile immune to forfeiture."

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
23 cases
  • Director of Finance of Prince George's County v. Cole
    • United States
    • Maryland Court of Appeals
    • September 2, 1983
    ...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
    • United States
    • U.S. District Court — Middle District of Tennessee
    • November 27, 1972
    ...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
    • United States
    • U.S. Court of Appeals — First Circuit
    • June 14, 1979
    ...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
    • United States
    • U.S. Court of Appeals — First Circuit
    • May 9, 1980
    ...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 ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT