Pappas v. Lufkin

• Decision Date: 23 February 1927
• Docket Number: No. 3526.,3526.
• Parties: PAPPAS v. LUFKIN, Collector of Customs.
• Court: U.S. District Court — District of Massachusetts

17 F.2d 988 (1927)

PAPPAS v. LUFKIN, Collector of Customs.

No. 3526.

District Court, D. Massachusetts.

February 23, 1927.

Jasper Johnson, of Boston, Mass., for plaintiff.

Clifford H. Byrnes, Asst. U. S. Atty., of Boston, Mass., for defendant.

BREWSTER, District Judge.

On August 21, 1926, there was on the premises of the petitioner, Nick Pappas, a large quantity of intoxicating liquor. It was then and there seized by customs officers holding a search warrant issued under section 595 of the Tariff Act of 1922 (Act Sept. 21, 1922, c. 356, 42 Stat. 983 Comp. St. § 5841h15), and is now in the possession of the respondent as collector of customs. This petition is brought by Pappas, who claims to be the owner of the liquor, and who seeks a return thereof on two principal grounds:

(1) That at the time of the seizure by the federal officers the liquor was in contemplation of law within the custody of the state court, which had previously assumed jurisdiction.

(2) That the federal search warrant upon which the seizure was made was invalid.

The facts material to the first issue are largely matters of record and not disputed. It appears that on June 29, 1923, the liquor was seized by a police officer of the town of Peabody, acting under a search warrant issued by the district court of Peabody. The officer duly made a return of the search warrant to the court issuing it. That court found that the value of the property taken was over $1,000, and, pursuant to the laws of Massachusetts (G. L. c. 138), forfeiture proceedings were made returnable to the superior court for the county of Essex. In these proceedings Pappas appeared specially as claimant, and at all times denied the jurisdiction of the state courts. Before any final disposition of the proceedings had been made in the superior court, Pappas addressed to the district court of Peabody a motion in which he alleged that the search and seizure were wholly unlawful and made upon an invalid search warrant. In his motion Pappas asks the district court to amend its records and make such orders as of such former times as law and justice require, adjudicating papers now in the files of said court and purporting to be the complaint and warrant null and void, and to issue its writ of supersedeas annulling and vacating the "notice to serve with notice" which has been improvidently issued, and also to make such other orders in the case as justice may require, and to certify its action forthwith to the superior court for criminal business, sitting at Salem, in and for the county of Essex.

Upon this motion on August 17, 1926, the district court entered an order, the last paragraph of which is significant. It reads as follows:

"Therefore this is to notify the honorable the superior court and all persons interested in these proceedings that all the proceedings taken in the case before said district court were and are null and void, and that the certificate and notice requiring persons to appear in the superior court is without legal force and effect, and is null and void, and that said alleged proceedings were entered in your honorable court without right and without complying with the law in said case made and provided, and should be dismissed therefrom forthwith as entered by mistake, and it is so requested."

This order of the lower court was received and entered on the docket of the superior court on August 18, 1926. On August 17, 1926, the district court entered nunc pro tunc as of June 30, 1923, another order directing the officer who had made the illegal seizure to return to Pappas, the claimant, the liquor then in the custody of the officer. During the intervening time between June 29, 1923, and August 17, 1926, the liquor has been kept at the Peabody police station. Acting upon the order of return, the officer delivered the liquor to the premises of Pappas, where it was on the following day seized by the federal agents, who were not wholly unaware of what had taken place. There was some evidence introduced, and more offered, to show that there existed dehors the record some understanding between the district court and Pappas' counsel that the order of return would not be executed until the superior court had made appropriate entries or orders dismissing the case. It was not until after the seizure by federal agents that a docket entry dismissing the proceedings was made in the superior court.

I fail to see the materiality of any such arrangements. An adjudication of the court that it had no jurisdiction over the res had been made a matter of record, both in the district court and in the superior court. An appropriate order of return had been issued and executed. Nothing appears on the record of either court to indicate that the return of the liquor was to be delayed. The court had given no such instruction to the officer. But, whatever the understanding, the officer received the order for return and within two or three days arranged with the owner, or his attorneys, for a return at an early hour on the morning of August 20, 1926. With knowledge and acquiescence of the claimant, the liquor was carried to Pappas' garage and the officer's return shows a receipt signed by Pappas for the liquor.

On the face of this record, it is idle to argue that the liquor was still in the custody, actually or constructively, of the state court. Whether or not the district court of Peabody, which issued the warrant, was the proper tribunal to determine in the first instance the validity of the warrant, it had entertained Pappas' motion and had decided that the warrant was void and that all proceedings based thereon were "without legal force and effect" and "null and void," and, having certified the decision to the superior court, nothing was left for the higher court to act upon. Whether any right of appeal from this decision existed, it is not necessary to consider as the government clearly acquiesced in the results. I can see no legal impediment in the way of a prompt and effectual execution by the officer of the order of return. Furthermore, it is only when property is in the custody of a court of competent jurisdiction on appropriate proceedings that it is beyond the jurisdiction of other courts with co-ordinate jurisdiction. Lion Bonding & Surety Co. v. Karatz, 262 U. S. 77, 43 S. Ct. 480, 67 L. Ed. 871. Proceedings in rem cannot stand on a wrongful seizure. The Brig Ann, 9 Cranch, 289, 3 L. Ed. 734; Daeufer-Lieberman Brewing Co., Inc., v. U. S. (C. C. A.) 8 F.(2d) 1.

The state court having decided that the proceedings were not "appropriate" and that they were predicated on a wrongful seizure, the only course open to this court is to accept this judgment as final. It cannot be collaterally attacked in these proceedings. Mutual Reserve F. L. Ass'n v. Phelps, 190 U. S. 147, 23 S. Ct. 707, 47 L. Ed. 987; Lion Bonding & Surety Co. v. Karatz, supra.

There was therefore no conflict of jurisdiction which would prevent the federal court from exercising its right to take this liquor into custody upon proper proceedings. I come now to the second ground upon which petitioner bases his claim to a return of the liquor, viz. that the warrant upon which the seizure was made was invalid.

It should be noted that the warrant was issued pursuant to section 595 of the Tariff Act of 1922. This section provides that the collector of customs shall be entitled to a search warrant if he "shall have cause to suspect the presence in any dwelling house, store, or other building or place of any merchandise upon which the duties have not been paid, or which has been otherwise brought into the United States contrary to law," and shall "make application, under oath, to * * * any United States commissioner."

I find that James W. Carr, United States inspector of customs, an officer authorized to make searches and seizures, applied to United States Commissioner Jenney for a warrant to enter and search petitioner's premises for liquor, particularly described as "392 cases Lawson Scotch whisky, 11 cases Peter Dawson Scotch whisky, and 42 cases John De Kuyper gin." Carr made oath that he had cause to suspect that no duties had been paid on the liquor, or that it had been brought into...