U.S. v. $7,382 in U.S. Currency

• Citation: 718 F.2d 776
• Decision Date: 03 November 1983
• Docket Number: No. 82-4493,82-4493
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. $7,382 IN UNITED STATES CURRENCY, Defendant, Jack Roberts, Intervenor-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. ONE (1) 1979 LINCOLN CONTINENTAL MARK V AUTOMOBILE, VIN F9Y89S646982F, Defendant, Jack Roberts, Intervenor-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 776

718 F.2d 776

UNITED STATES of America, Plaintiff-Appellee, v. $7,382 IN UNITED STATES CURRENCY, Defendant, Jack Roberts, Intervenor-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. ONE (1) 1979 LINCOLN CONTINENTAL MARK V AUTOMOBILE, VIN

F9Y89S646982F, Defendant,

Jack Roberts, Intervenor-Appellant.

No. 82-4493.

United States Court of Appeals, Fifth Circuit.

Nov. 3, 1983.

Michael B. Cohen, Chicago, Ill., for intervenor-appellant.

Dosite H. Perkins, Jr., Asst. U.S. Atty., Shreveport, La., for plaintiff-appellee.

Appeal from the United States District Court for the Western District of Louisiana.

Before BROWN, WISDOM and JOHNSON, Circuit Judges.

PER CURIAM:

This is an appeal from a judgment of forfeiture of a 1979 Lincoln Continental Mark V automobile. ¹ We affirm.

The Government brought the complaint for forfeiture under 26 U.S.C. Sec. 7302, alleging that the Lincoln had been forfeited to the United States by virtue of the claimant's use or intended use of the car in connection with his business of accepting wagers without having registered pursuant to 26 U.S.C. Sec. 4412, or having paid the special tax imposed on such business by 26 U.S.C. Sec. 4411 or the excise tax on wagers imposed by 26 U.S.C. Sec. 4401. The Lincoln was seized by special agents of the Internal Revenue Service on November 30, 1980. Roberts, the claimant, entered a guilty plea to a Bill of Information charging him with a violation of 26 U.S.C. Sec. 7203, in that during the then current fiscal year he engaged in the business of receiving wagers on behalf of himself and others, and did willfully and knowingly fail to pay the special tax of $500 imposed upon persons engaged in the business of accepting wagers.

The district court found that the Government had shown by a preponderance of the evidence that Roberts was engaged in the business of accepting wagers and that he used the Lincoln automobile in connection with that business. The court found that the totality of the circumstances demonstrated that the Lincoln was used in connection with the offense and that the car was an "essential ingredient" to Roberts' business of accepting wagers. The court therefore entered a Judgment of Forfeiture. The only issue on appeal is whether there is sufficient evidence in the record to support the court's finding that Roberts' car was used in connection with his business of accepting wagers. ² The judgment of forfeiture must be affirmed unless this Court determines that the finding of the district court is clearly erroneous.

The Government must show by a preponderance of the evidence that the Lincoln was used or intended to be used in violating the internal revenue laws, 26 U.S.C. Sec. 7302, in Roberts' acceptance of wagers without purchasing a gambling tax stamp. The mere use of a car as transportation to and from a business prohibited by section 7302 does not subject it to forfeiture. T.B. Wingo v. United States, 266 F.2d 421, 423 (5th Cir.1959). The property subject to forfeiture must have been intentionally used as an "active aid" in the violation of the internal revenue laws. United States v. One 1968 Ford, 425 F.2d 1084, 1085 (5th Cir.1970).

Roberts protests that the record is devoid of any evidence connecting the Lincoln automobile with his business of accepting wagers. The record reflects that the Lincoln was used on at least three specific occasions for the delivery of money from Shreveport, Louisiana: one trip to Armstead, Louisiana, where Roberts delivered $37,000 to Jimmy Black and two trips to Marshall, Texas, where Roberts delivered $11,000 to Robert Smith. It is Roberts' contention that he only pled guilty to accepting bets from certain persons ³ and that the evidence in the instant forfeiture case only shows that the Lincoln was connected to deliveries of money to Black and Smith, who were not among those from whom Roberts conceded he was accepting bets. At trial, it was Roberts himself who testified that the payments of money to Black and Smith had nothing to do with his business of accepting wagers but were merely related to his activities as a gambler or bettor. Roberts conceded the delivery of the money but claimed that he dropped the $37,000 off to Black as a favor to Stephens, and that the bets made by Black to Stephens were lawful because Stephens had a gambling tax stamp. Roberts' assertion relative to the conceded delivery of the money to Smith was that the payment was a "transfer payment" that had no connection with wagers by Roberts. ⁴

In making this argument, Roberts is asking this Court to give credence to his testimony concerning the Lincoln's lack of any connection to his business of accepting wagers, and give credence to that testimony only. In Wingo, however, this Court held that the district...