Rimmer v. United States, 12510.

• Decision Date: 25 February 1949
• Docket Number: No. 12510.,12510.
• Citation: 172 F.2d 954
• Parties: RIMMER v. UNITED STATES.
• Court: U.S. Court of Appeals — Fifth Circuit

172 F.2d 954 (1949)

RIMMER v. UNITED STATES.

No. 12510.

United States Court of Appeals Fifth Circuit.

February 25, 1949.

COPYRIGHT MATERIAL OMITTED

T. Gilbert Sharpe, of Brownsville, Tex., for appellant.

Brian S. Odem, U. S. Atty., and William R. Eckhardt, III, Asst. U. S. Atty., both of Houston, Tex., for appellee.

Before HUTCHESON, WALLER, and LEE, Circuit Judges.

HUTCHESON, Circuit Judge.

Filed under Sec. 404 of the Espionage Act¹ for the forfeiture of an automobile, the libel alleged that it had been seized under Sec. 401 of the Act from one Rimmer; that he was then and there exporting and intending to export and attempting to ship it from, and take it out of, the United States; and that it was, therefore, forfeit.

The claimant Rimmer, denying that he was exporting or about to export the automobile when it was seized, opposed the forfeiture on the added grounds that the application for warrant for further detention, which is provided for in Sec. 402 and there made a condition precedent for filing the libel provided for in Sec. 404(a), (1) was not made within the time prescribed in Sec. 402, to-wit, "a reasonable time, not exceeding ten days"; and (2) was not made by the proper person making the seizure as provided in that section.

The evidence² concluded and the motion for directed verdict of government and claimant, and claimant's request for charges, denied, the court took the jury's verdict on this single issue:

"Do you find from a preponderance of the evidence that the claimant, William Rimmer, did, at the time of the detention of the 1946 Cadillac in question, intend to take said automobile from the United States of America into the Republic of Mexico without first having obtained an export control license therefor?"

The jury having answered the question in the affirmative, there was a judgment of forfeiture.

Claimant, appealing from the judgment, is here assigning many errors. Of these, the one most vigorously urged is that the provisions of Sec. 402³ of the Act "warrant for detention of seized property" are mandatory and jurisdictional and that the warrant of detention was not applied for within the time or by the person required by law, and the libel ought, therefore, to have been dismissed and the car returned to him.

In the alternative, appellant insists that the libel did not allege, and the proof did not show that the automobile was "about to be unlawfully exported, shipped from, or taken out of the United States" within the meaning of Sec. 401 of the Act, and the judgment ought, therefore, to have been for claimant.

Finally, he insists that if neither of these positions is sound, the judgment should, nevertheless, be reversed for the errors, (1) of admitting the hearsay testimony of one Winters as to statements made to him by one Lovett after his arrest; (2) of submitting the cause to the jury on an incorrect issue; and (3) of refusing to submit it on the correct charges and issues asked by claimant.

On the first point, appellant and appellee are in complete disagreement as to every point of fact and law. Appellant insists that the seizure was made on Feb. 2, 1947, when the car was stopped and detained; appellee that it was not made until Feb. 10, 1947, when the application for a warrant for further detention was made by Mike Cantu, Inspector of Customs. Appellant insists that the application made by Cantu was not legal or proper since not he but other customs officers made the actual seizure on Feb. 2nd. Appellee insists that the stopping and detention of Feb. 2nd was not the seizure spoken of in the statute and that this was not made until Cantu made it on February 10th. Appellant insists that the warrant for further detention was not applied for until Feb. 13th, when the court acted on it, and that this was one day late. Appellee insists that the application must be considered to have been made on February 10, 1947, the day it was sworn to, and, if not, since the precise date on which it was actually presented to the court does not appear in the record, it will be presumed in support of the court's detention order that it was timely presented and not acted on until the 13th, since the 12th was a national holiday.

Finally, appellee insists that if the ten days fixed in the statute did commence to run from Feb. 2nd, the day the car was first detained, and if it was not presented until Feb. 13th, the day it was granted, this would not effect the jurisdiction of the court in the libel suit. This attached upon the filing of the libel on April 16, 1947, while the car was still in detention, and the judgment refusing to dismiss the libel was right and should be affirmed.

Appellant, in support of his contention that the ten day period fixed was jurisdictional, relies heavily on United States v. 21 Lbs. of Platinum, 4 Cir., 147 F.2d 78; and United States v. Three Cadillac Coupes, 5 Cir., 157 F.2d 792.

The United States insists that what was said in these cases as to the necessity for compliance with the ten day period was not decision but discussion and dicta since in both of these cases it was held that the applications had been filed within ten days. In emphasis of its position that if there was failure to comply with the time provisions of Sec. 402, this did not deprive the court of jurisdiction to proceed with the libel, it points to the express provision of Sec. 401 authorizing seizure and forfeiture of war materials about to be unlawfully exported "if upon due inquiry as provided in secs. 402-408, the property seized shall appear to have been about to be so unlawfully exported, shipped from, or taken out of the United States." It points, too, to the provision of Sec. 403 authorizing a person whose property has been seized to petition the court for its restoration, "at any time before condemnation proceedings have been instituted" (emphasis supplied). Finally it points to Sec. 404 providing that whenever the person making any seizure applies for and obtains a warrant for the detention of the property and (a) upon the hearing and determination of the petition of the owner or claimant, restoration is denied, of (b) the owner or claimant fails to file a petition for restoration within thirty days after the seizure, "the United States attorney * * * shall institute libel proceedings * * *".

So pointing, it insists that the provisions of Sec. 402 for applying for a warrant of further detention are not designed to fix limits to the jurisdiction of the libeling court, but are designed (1) to compel the seizing officer to proceed promptly and (2) to give a right to the claimant before, but not after, a libel has been filed, to obtain his property back by petition for restoration if such prompt action is not taken.

We agree with appellant that the seizure was made on February 2nd, and the application for the warrant was not made until Feb. 13th, but we cannot agree with him that these facts require a dismissal of the libel or the return of the automobile. For we agree with the United States that the application for the warrant was timely filed and by a proper person.

Appellant concedes that if February 12th, Lincoln's birthday, can be excluded from the computation, the application was within ten days, and that Rule 6, Federal Rules of Civil Procedure, 28 U.S.C.A., if applicable, provides for such exclusion. He insists, however, that the proceeding is in admiralty until after the filing of the libel and that Rule 6 does not apply.

We cannot agree with this view. In Reynal v. United States, 5 Cir., 153 F.2d 929, 931, on the authority of 443 Cans of Frozen Egg Products v. United States, 226 U.S. 172, 33 S.Ct. 50, 57 L.Ed. 174, we declared:

"We agree with the government that, except as to filing the libel and obtaining jurisdiction, admiralty procedure does not apply."

It is true that in the following sentence we did use the word "after", but this, as a reading of Reynal case and the case cited shows, was a mere inadvertence. In the Frozen Egg Products case, supra, the court said 226 U.S. 172, 33 S.Ct. 52:

"Under this statute it has been uniformly held that the district court, as to seizures on land, proceeds as a court of common law, with trial by jury, and not as a court of admiralty."

Under the express provisions of Rule 6, the application was filed in time.

We...