One 1961 Lincoln Continental Sedan v. United States

• Decision Date: 10 May 1966
• Docket Number: No. 18177.,18177.
• Citation: 360 F.2d 467
• Parties: ONE 1961 LINCOLN CONTINENTAL SEDAN, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

360 F.2d 467 (1966)

ONE 1961 LINCOLN CONTINENTAL SEDAN, Appellant, v. UNITED STATES of America, Appellee.

No. 18177.

United States Court of Appeals Eighth Circuit.

May 10, 1966.

Peter Lindberg, Minneapolis, Minn., made argument for appellant and filed brief with Joseph Robbie, Minneapolis, Minn.

Patrick J. Foley, Asst. U. S. Atty., Minneapolis, Minn., made argument and filed brief with Miles W. Lord, U. S. Atty., Minneapolis, Minn.

Before MATTHES and GIBSON, Circuit Judges, and HUNTER, District Judge.

MATTHES, Circuit Judge.

The United States filed its libel in the United States District Court for the District of Minnesota under Title 26 U.S. C.A. § 7302 for the forfeiture of one 1961 Lincoln Continental automobile, United States currency in the amount of $171, and miscellaneous jackpot tickets and wagering paraphernalia.¹ The libel alleged that all of the mentioned property had been possessed and used by Andrew J. Kraska in Hennepin County, Minnesota, on January 10, 1964, and prior dates, in carrying on the business of receiving wagers for profit and conducting a wagering pool or lottery for profit, in violation of the internal revenue laws of the United States. The libel also averred that Kraska had not paid the special occupational tax imposed by 26 U.S.C.A. § 4411 and had not registered, as required by 26 U.S.C.A. § 4412.²

The issues were joined by the filing of an answer by claimant and the cause was tried before the court, Honorable Edward J. Devitt, without a jury. The court filed its memorandum order, containing findings, and entered a judgment of forfeiture. This appeal was timely taken and perfected.

Several points are advanced for reversal of the judgment. The only contention having merit goes to the sufficiency of the evidence to sustain the finding that the seized automobile and currency were intended for use or had been used for carrying on claimant's unlawful gambling operations.

The applicable law is well settled. The Government has the burden of proving the material allegations of the libel. Utley Wholesale Co. v. United States, 308 F.2d 157, 159 (5 Cir. 1962); United States v. One 1955 Mercury Sedan, etc., 242 F.2d 429-430 (4 Cir. 1957); Patenotte v. United States, 266 F.2d 647, 651 (5 Cir. 1959); D'Agostino v. United States, 261 F.2d 154, 157 (9 Cir. 1958), cert. den., 359 U.S. 953, 79 S.Ct. 739, 3 L.Ed.2d 760. The mere use of an automobile as transportation to and from a business prohibited by § 7302 does not subject the vehicle to forfeiture. United States v. Lane Motor Co., 344 U.S. 630, 73 S.Ct. 459, 97 L.Ed. 622 (1953); Simpson v. United States, 272 F.2d 229 (9 Cir. 1959); Wingo v. United States, 266 F.2d 421 (5 Cir. 1959).

The evidence is undisputed and conclusively established these facts. Claimant, a resident of Minneapolis, Minnesota, owned and possessed the forfeited Lincoln Continental Sedan. During December, 1963 and in January, 1964, he was engaged in unlawfully selling jackpot tickets on athletic events, such as football and basketball games. Claimant admittedly had failed to comply with the federal statutes requiring registration and the payment of the wagering tax.³ Claimant conducted his bookmaking business, in part at least, from different taverns in Minneapolis. He used the Lincoln Sedan as transportation to different taverns where he engaged in selling the jackpot tickets. The foregoing was proved by Government witnesses and was admitted by claimant, who testified in his own behalf.

Claimant was arrested pursuant to a warrant on January 10, 1964, while he was driving the Lincoln Continental. He admitted at the time of his arrest that he did not have the required federal wagering stamp. He disgorged and delivered to a Government agent fifty-four $1.00 bills which were in his right front pocket, and six $10.00 bills, five $5.00 bills, thirty-two $1.00 bills and four jackpot tickets which were in his left front pocket. Search of the automobile disclosed a brown paper bag under the right front seat. The bag contained seven jackpot ticket boards. Claimant testified that the boards had been given to him but he admitted ownership thereof and that he intended to use the boards in his bookmaking business.

Judge Devitt's appraisal of the evidence is summed up in this language:

"There appears to be, therefore, no question that the automobile was used to carry and transport jackpot tickets within the meaning of 26 U.S.C., Section 7302 which provides in part (statute is set forth)."

It is contended, in behalf of appellant, that the Government did not meet the burden of proving its case beyond a reasonable doubt. One 1958 Plymouth Sedan v. Com. of Pennsylvania, 380 U.S. 693, 85 S.Ct. 1246, 14 L.Ed.2d 170 (1965) is cited for the proposition that the proof must be "beyond a reasonable doubt." We do not regard Plymouth Sedan as apposite. That case does not consider the question of the degree of proof required in a forfeiture case. Overwhelming authority unequivocally holds that the essential facts must be established by a preponderance of the evidence and not beyond a reasonable doubt. Utley Wholesale Co. v. United States; United States v. One 1955 Mercury Sedan, etc.; Patenotte v. United States; D'Agostino v. United States, supra. Cf. United States v. Regan, 232 U.S. 37, 48, 34 S.Ct. 213, 58 L.Ed. 494 (1914).⁴

Appeals in forfeiture cases are governed by the Federal Rules of Civil Procedure. Rule 81(a) (2). Colusa Remedy Co. v. United States, 176 F.2d 554, 557 (8 Cir. 1949), cert. den., 338 U.S. 911, 70 S.Ct. 350, 94 L.Ed. 561; Utley Wholesale Co. v. United States, supra. Therefore, this case is here for review as ordinary civil cases tried by the Judge without a jury. We must accept the findings of the trial court unless clearly erroneous. Rule 52(a), F.R.Civ.P.; Colusa Remedy Co. v. United States; United States v. One 1955 Mercury Sedan, etc., supra.

We reject as untenable the argument that the Government failed to make a case. The evidence points irresistibly to the conclusion that the Lincoln Sedan and the $171 in currency were intended for use, and were used, for purposes proscribed by § 7302. Claimant's tools of his trade, the jackpot tickets, and currency in...