Katsaris v. U.S.

• Decision Date: 01 September 1982
• Docket Number: No. 80-6015,80-6015
• Citation: 684 F.2d 758
• Parties: William Kenneth KATSARIS, Sheriff of Leon County, Florida, Plaintiff-Appellee, v. UNITED STATES of America, Defendant-Appellant, and Leon County, Defendant-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 758

684 F.2d 758

William Kenneth KATSARIS, Sheriff of Leon County, Florida Plaintiff-Appellee, v. UNITED STATES of America, Defendant-Appellant and Leon County, Defendant-Appellee.

No. 80-6015.

United States Court of Appeals Eleventh Circuit.

Sept. 1, 1982.

Carleton D. Powell, Thomas M. Preston, Jr., Attys., John F. Murray, Acting Asst. Atty. Gen., Michael L. Paup, Chief, Appellate Section, Tax Div., Dept. of Justice, Washington, D.C., for defendant-appellant.

Ronald A. Labasky, Tallahassee, Fla., for Katsarsis.

F. E. Steinmeyer, III, Folsom & Steinmeyer, Tallahassee, Fla., for Leon County.

Appeal from the United States District Court for the Northern District of Florida.

Before GODBOLD, Chief Judge, RONEY and WOOD, ^* Circuit Judges.

PER CURIAM:

This is an appeal from an order of the district court dismissing the Internal Revenue Service's claim to $220,031.10 against a fund interpleaded by the Sheriff of Leon County, Florida. ¹ The sole issue is whether the judgment of the District Court was clearly erroneous in determining that there had been an abandonment of the money in question by the defendant Acosta. We reverse.

I.

Jose Luis Acosta and Luis Fulgencio Bosch were arrested in a motel in Tallahassee, Florida, on July 22, 1978, and were charged with possession of firearms and conspiracy to distribute marijuana. A search of the motel room produced two automatic pistols and ammunition, $100,021.10 in a brown paper bag, $120,010 in a plastic bag, $4,435 from Acosta's wallet, and $143 from Bosch's wallet.

At the time of their arrests, it has been stipulated that both Bosch and Acosta "denied any ownership or knowledge of the money other than that found in their wallets." Subsequently, however, Acosta stated in a sworn statement given on September 29, 1978 that he had been entrusted with the possession of the $220,031.10 for the purpose of making a real estate investment for some unnamed investors from the South Florida area. The money was seized by the Sheriff of Leon County, Florida and has remained in his possession.

On July 31, 1978, the Internal Revenue Service, pursuant to 26 U.S.C. § 6851, ² made an assessment against Acosta for federal income taxes in the amount of $486,314.63 and gave notice and demand for payment thereof on that day. The Internal Revenue Service also filed a notice of federal tax lien with the Clerk of the Circuit Court, Dade County, Florida, with respect to the outstanding unpaid balance. Additionally, the Internal Revenue Service served a notice of levy on the Sheriff of Leon County with respect to all property and rights to property in his possession which belonged to Acosta. ³

On June 21, 1979, both Acosta and Bosch pleaded guilty to state charges of unlawful possession of firearms, the other charges being nolle prosequi. They were sentenced to probation and assessed a fine of $60,000 each, which they paid in cash. The Circuit Court ordered the Sheriff of Leon County to maintain custody of the funds seized at the time of the arrests, until possession and ownership of the money were finally determined.

On June 27, 1979, the Sheriff of Leon County, William Katsaris, filed this interpleader action in the Circuit Court of Leon County. Sheriff Katsaris named as defendants, the United States of America, Acosta, Bosch, and Leon County, averring therein that each of these parties was able to claim an interest in the seized money in his possession, and further, that he was merely a stakeholder in the fund with no personal interest whatsoever. On August 3, 1979, the United States filed a petition to remove the case to the District Court for the Northern District of Florida pursuant to 28 U.S.C. §§ 1442(1), 1444 and 2410. ⁴

Neither Acosta nor Bosch filed any pleadings with respect to this interpleader action. The United States filed an answer alleging that the funds in question were reduced to its constructive possession on July 31, 1978, when the notice of levy was served on Sheriff Katsaris. Leon County answered claiming that the funds in question were unclaimed personal property which belonged to the County pursuant to Section 925.06, Florida Statutes Annotated (Supp.1978). ⁵

After a hearing Judge Higby concluded that the "money in Acosta's wallet and the bags was plainly Acosta's when he was arrested." The Court awarded the IRS the $4,435 found in Acosta's wallet, but concluded that the balance, $220,031.10, had been abandoned by Acosta and therefore was not subject to the IRS's lien. Thus resolving the United States' interest in the stake, the District Court remanded to State court for additional proceedings as to the ownership of the $220,031.10. ⁶ The United States appealed.

II.

We have jurisdiction pursuant to 28 U.S.C. § 1291 to review the final judgment of the District Court dismissing the government's claim to the $220,031.10 remainder of the interpleaded fund, even though the order resulted in a remand to state court for resolution of the remaining issues. While by statute "(a)n order remanding a case to the State court from which it was removed is not reviewable on appeal," 28 U.S.C. § 1447(d), the Supreme Court's decision in Waco v. United States Fidelity & Guaranty Co., 293 U.S. 140, 55 S.Ct. 6, 79 L.Ed. 244 (1934), is controlling. See also Southeast Mortgage Co. v. Mullins, 514 F.2d 747 (5th Cir. 1975). The District Court explicitly announced the effect of its ruling by stating, "Jurisdiction over this case was founded solely upon the United States' claim. This order disposes of its claim. There is no reason to continue exercising jurisdiction." Under the reasoning in Waco, the order dismissing the government's claim is the proper subject of an appeal because if not reversed or set aside it will remain conclusive upon the petitioner.

III.

The District Court dismissed the government's claim by determining that Acosta abandoned all interest in the money found in the bags in the motel room at the time of his arrest and before the government lien could attach. Therefore, Acosta had no interest in the property to which the government could attach its tax lien. ⁷

Fourth Amendment Constitutional law notions of abandonment do not apply. Abandonment in the strict property right sense is to be distinguished from abandonment in search and seizure cases where the issue is merely whether the individual has relinquished his interest in property so that he could no longer retain a reasonable expectation of privacy with regard to it at the time of the search. United States v. Williams, 569 F.2d 823 (5th Cir. 1978); United States v. Colbert, 474 F.2d 174 (5th Cir. 1973). "Mr. Justice Frankfurter in Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960), admonishes that it is unnecessary and ill-advised to import into the law of constitutional search and seizure the subtle distinctions of private property law." United States v. Edwards, 441 F.2d 749, 753 (5th Cir. 1971). As this is not a search and seizure case it must be decided in accordance with the private property law of Florida. But a search of Florida law discloses little to guide us in the circumstances of this case. ⁸

Guidance concerning the law of abandonment of personal property is equally limited in other jurisdictions. While the cases are few and old, "abandonment" as applied to property and property rights has long had a generally accepted and a well defined and technical meaning. St. Peter's Church v. Bragaw, 144 N.C. 126, 56 S.E. 688 (1907). What constitutes an "abandonment" as relates to property has been defined by the Fifth Circuit and other courts. "There must be a voluntary intention to abandon, or evidence from which such intention may be presumed." The No. 105, Belcher Oil Co. v. Griffin, 97 F.2d 425, 426 (5th Cir. 1938); Mason v. Hasso, 90 Ariz. 126, 367 P.2d 1 (1961); Commonwealth v. Koontz, 258 Pa. 64, 101 A. 863 (1917). Abandonment is always voluntary and involves a positive intention to part with ownership. McIver v. Norman, 187 Or. 516, 527, 213 P.2d 144 (1949). It is essential that the owner act without coercion or pressure. Manello v. Bornstine, 44 Wash.2d 769, 270 P.2d 1059 (1954); Huffman v. Smyth, 47 Or. 573, 84 P. 80 (1906). The doctrine of abandonment has no application unless there is a total desertion by the owner without being pressed by any necessity, duty, or utility to himself, but simply because he no longer desires to possess the thing and willingly abandons it to whoever wishes to possess it. State Mutual Life Assurance Co. of Worcester, Mass. v. Heine, 141 F.2d 741 (6th Cir. 1944); Helvering v. Jones, 120 F.2d 828 (8th Cir. 1941); Dickens v. Singer Sewing Machine Co., Inc., 19 La.App. 735, 140 So. 296 (1932); Sandy River Coal Company v. Champion Bridge Company, 243 Ky. 424, 48 S.W.2d 1062 (1932). "(T)here can be no abandonment absent a composite fact, one element visible, the other sounding in intention, motive." Linscomb v. Goodyear Tire & Rubber Co., 199 F.2d 431, 436 (8th Cir. 1952). It is, however, the question of intent that weighs most heavily. See J. C. Vereen & Sons, Inc. v. City of Miami, 397 So.2d 979 (Fla.App.1981); Dade County v. City of North Miami Beach, 69 So.2d 780 (Fla.1953). See also Irion v. Hyde, 107 Mont. 84, 81 P.2d 353 (1938); Moore v. Sherman, 52 Mont. 542, 159 P. 966 (1916). Intent is a question of fact. United States v. Minker, 312 F.2d 632 (3d Cir. 1962), cert. denied, 372 U.S. 953, 83 S.Ct. 952, 9 L.Ed.2d 978 (1963). More particularly, intent is a question of ultimate fact and proof of intention is of necessity, largely circumstantial. Inferences must be drawn from all the facts and circumstances surrounding the transaction. United States v. Alden, 576 F.2d 772 (8th Cir. 1978), cert. denied, 439 U.S. 855, 99 S.Ct. 167, 58 L.Ed.2d 161 (1978).

We are well aware that a trial court's determinations of issues of fact are generally entitled to a presumption of correctness, not subject to reversal unless shown to be...