United States v. 21 Lbs. 8 Oz. More or Less of Platinum, Civ. No. 2026.

• Decision Date: 14 January 1944
• Docket Number: Civ. No. 2026.
• Citation: 53 F. Supp. 971
• Parties: UNITED STATES v. 21 LBS. 8 OZ. MORE OR LESS OF PLATINUM.
• Court: U.S. District Court — District of Maryland

53 F. Supp. 971

UNITED STATES v. 21 LBS. 8 OZ. MORE OR LESS OF PLATINUM.

Civ. No. 2026.

District Court, D. Maryland.

January 14, 1944.

Bernard J. Flynn, U. S. Atty., of Baltimore, Md., for U. S.

William Curran, of Baltimore, Md., for claimant.

COLEMAN, District Judge.

This case is before the court on petition of Juan Tomas Bareno for restoration of a certain quantity of platinum, filed pursuant to Section 403 of Title 22 U.S.C.A. which is part of the Espionage Act of June 15th, 1917, 40 Stat. 217, 223.

In order that Section 403 may be properly understood it is appropriate to quote not merely that Section but also Sections 401, 402, 404 and 405 of the same Act, as follows:

Sec. 401: "Whenever an attempt is made to export or ship from or take out of the United States any arms or munitions of war, or other articles, in violation of law, or whenever there shall be known or probable cause to believe that any such arms or munitions of war, or other articles, are being or are intended to be exported, or shipped from, or taken out of the United States, in violation of law, the several collectors, comptrollers of customs, surveyors, inspectors of customs, and marshals, and deputy marshals of the United States, and every other person duly authorized for the purpose by the President, may seize and detain any articles or munitions of war about to be exported or shipped from, or taken out of the United States, in violation of law, and the vessels or vehicles containing the same, and retain possession thereof until released or disposed of as directed in sections 402-408 of this title. If upon due inquiry as provided in such sections the property seized shall appear to have been about to be so unlawfully exported, shipped from, or taken out of the United States, the same shall be forfeited to the United States."

Sec. 402: "It shall be the duty of the person making any seizure under sections 401-408 of this title to apply, with due diligence, to the judge of the district court of the United States, or to the judge of the United States district court of the Canal Zone, or to the judge of a court of first instance in the Philippine Islands, having jurisdiction over the place within which the seizure is made, for a warrant to justify the further detention of the property so seized, which warrant shall be granted only on oath or affirmation showing that there is known or probable cause to believe that the property seized is being or is intended to be exported, or shipped from or taken out of the United States in violation of law; and if the judge refuses to issue the warrant, or application therefor is not made by the person making the seizure within a reasonable time, not exceeding ten days after the seizure, the property shall forthwith be restored to the owner or person from whom seized. If the judge is satisfied that the seizure was justified under the provisions of sections 401-408 of this title, and issues his warrant accordingly, then the property shall be detained by the person seizing it until the President, who is hereby expressly authorized so to do, orders it to be restored to the owner or claimant, or until it is discharged in due course of law on petition of the claimant, or on trial of condemnation proceedings, as provided in sections 403-408 of this title."

Sec. 403: "The owner or claimant of any property seized under sections 401-408 of this title may, at any time before condemnation proceedings have been instituted, as provided in sections 404-408 of this title, file his petition for its restoration in the district court of the United States, or the district court of the Canal Zone, or the court of first instance in the Philippine Islands, having jurisdiction over the place in which the seizure was made, whereupon the court shall advance the cause for hearing and determination with all possible dispatch, and, after causing notice to be given to the United States attorney for the district and to the person making the seizure, shall proceed to hear and decide whether the property seized shall be restored to the petitioner or forfeited to the United States."

Sec. 404: "Whenever the person making any seizure under sections 401-408 of this title 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, or (b) the owner or claimant fails to file a petition for restoration within thirty days after the seizure, the United States attorney for the district wherein it was seized, upon direction of the Attorney General, shall institute libel proceedings in the United States district court or the district court of the Canal Zone or the court of first instance of the Philippine Islands having jurisdiction over the place wherein the seizure was made against the property for condemnation; and if, after trial and hearing of the issues involved, the property is condemned, it shall be disposed of by sale, and the proceeds thereof, less the legal costs and charges, paid into the Treasury: Provided, That the court shall order any arms and munitions of war so condemned delivered to the War Department of the United States."

Sec. 405: "The proceedings in such summary trials upon the petition of the owner or claimant of the property seized, as well as in the libel cases provided for in section 404 of this title, shall conform, as near as may be, to the proceedings in admiralty, except that either party may demand trial by jury of any issue of fact joined in such libel cases and all such proceedings shall be at the suit of and in the name of the United States: Provided, That upon the payment of the costs and legal expenses of both the summary trials and the libel proceedings provided for in section 404 of this title, and the execution and delivery of a good and sufficient bond in an amount double the value of the property seized, conditioned that it will not be exported or used or employed contrary to the provisions of sections 401-408 of this title, the court, in its discretion, may direct that it be delivered to the owners thereof or to the claimants thereof."

The Government denies claimant's right to restoration of the platinum for reasons that will be hereinafter stated. The material facts in the case, which have been stipulated, are as follows:

On or about October 6, 1942, agents of the Federal Bureau of Investigation arrested five persons, including the present claimant, engaged in an attempt to export some twenty one pounds of platinum from the Port of Baltimore, on board the Steamship Motomar, in violation of Section 701 of Title 50 U.S.C.Appendix, and the Presidential Proclamations and Executive Orders issued thereunder, prohibiting the exportation of platinum without a license. At the same time the platinum, found concealed aboard the vessel, was seized by the agents of the Federal Bureau of Investigation. The statute just referred to, commonly known as the Export Control Law, was enacted as Section 6 of the War Powers Act of July 2, 1940, Chapter 508, and is as follows: "(a) The President is hereby authorized to prohibit or curtail the exportation of any articles, technical data, materials, or supplies, except under such rules and regulations as he shall prescribe. (b) Unless the President shall otherwise direct, the functions and duties of the President under this section shall be performed by the Board of Economic Warfare. (c) In case of the violation of any provision of any proclamation, rule, or regulation issued hereunder, such violator or violators, upon conviction, shall be punished by a fine of not more than $10,000, or by imprisonment for not more than two years, or by both such fine and imprisonment. (d) The authority granted by this section shall terminate on June 30, 1944, or upon any prior date which the Congress by concurrent resolution, or the President, may designate; except that as to offenses committed, or rights or liabilities incurred prior to such date, the provisions of this section and such rules, regulations, and proclamations shall be treated as remaining in effect for the purpose of sustaining any suit, action, or prosecution with respect to such right, liability, or offense."

On January 19, 1943, all five persons, including the present claimant, were indicted in this district, for violating the requirements of Section 801.2 as amended, and Section 801.7 of the General Regulations of the Board of...