United States v. 673 Cases of Distilled Spirits and Wines, Civil Action No. 677.

• Court: United States District Courts. 8th Circuit. United States District Court of Minnesota
• Citation: 65 F. Supp. 896
• Decision Date: 01 March 1946
• Parties: UNITED STATES v. 673 CASES OF DISTILLED SPIRITS AND WINES.
• Docket Number: Civil Action No. 677.

65 F. Supp. 896

UNITED STATES
v.
673 CASES OF DISTILLED SPIRITS AND WINES.

Civil Action No. 677.

District Court, D. Minnesota, Third Division.

March 1, 1946.

William P. Murphy, Asst. U. S. Atty., of St. Paul, Minn., for libelant.

L. L. Drill and O. A. Blanchard, both of St. Paul, Minn., for claimants Samuel H. Taran and Jerry M. Londer.

JOYCE, District Judge.

The Government has seized and libeled a quantity of distilled spirits and wines for violation of the Internal Revenue laws. The answering claimants allege that the Government does not have lawful possession of the liquor because it was acquired by an unreasonable search and seizure in contravention of their constitutional rights guaranteed by the Fourth Amendment and therefore that the liquor is not "subject to forfeiture" and cannot be used as evidence in this proceeding.

This matter came on for hearing on February 6, 1946, pursuant to an understanding between court and counsel that there were certain questions which could be disposed of before trial on the merits. Counsel for claimants then stated it was his view that it was incumbent upon the Government to proceed to establish that it had lawful possession of the res. This the Government refused to do claiming it had been agreed that this hearing was not a trial on the merits. The claimants then introduced evidence

65 F. Supp. 897

tending to prove that the liquor was seized without a search warrant. The Government introduced no evidence. Claimants moved for a dismissal and vacation of the libel on the ground that "it conclusively appears that the liquors involved in this libel are not in the possession of the Government under a lawful seizure; * * * and the court is without power or jurisdiction to condemn." The motion was argued orally and briefs submitted. The language of the motion seems to raise a clear-cut issue, i. e., whether as a matter of law the court has jurisdiction of a libel proceeding where the Government has unlawful possession of the libeled res. But claimants' answers admit the jurisdiction of the court and their counsel emphatically stated in his briefs and on argument that the jurisdiction of the court was not under attack. It is apparently conceded that the Government's possession of the property, whether lawful or not, confers jurisdiction on the court but it is contended that if the possession is unlawful the court lacks the "power to condemn." By this counsel, I believe, does not actually mean that the court lacks judicial power but rather that lawful possession by the Government is an essential of its case and if it fails to sustain that burden the court would be in error in ordering condemnation

In support of their position claimants cite Daeufer-Lieberman Brewing Co. v. United States, 3 Cir., 8 F.2d 1, 3. But in that case the court states the question before it: "Having found the execution of the search warrant unlawful, did the court have such possession of the property as would give it jurisdiction of a case involving its forfeiture?" and answered the question in the negative. On petition for rehearing the court stated:

"Possession of the res as affecting the jurisdiction of the court in the libel proceeding was the possession which the government had when it filed the libel. Concededly, that possession was unlawful. Yet the government, by the libel, sought the forfeiture of property it had unlawfully seized and then unlawfully held. The point of our decision is, under authority of The Brig Ann 9 Cranch, 289, 3 L.Ed. 734, Gelston v. Hoyt 3 Wheat. 246, 4 L.Ed. 381, and Dobbins Distillery v. United States, supra 96 U.S. 395, 396, 24 L.Ed. 637, that cannot be done."

Without discussing the merits of this case the court there obviously considered unlawful possession a jurisdictional matter and the case therefore does not support claimants' position here where the claimants in argument and brief concede jurisdiction

United States v. Two Soaking Units, D. C. 44 F.2d 650, and United States v. Lot of Wine, D.C. 31 F.2d 495, were both District Court cases in New York where the libels were dismissed because of unlawful seizure. In each case the court stated that as the seizure of the res falls, the entire proceeding falls with it. Both decisions seem to consider the lawfulness of the seizure a jurisdictional matter rather than a matter going to the merits as both are disposed of on motion to vacate. However, any doubt on this question in the second circuit has been dispelled by Judge Augustus N. Hand's well reasoned opinion in United States v. 8 Boxes, 2 Cir., 105 F.2d 896, which holds that goods acquired by a search and seizure illegal under the Fourth Amendment will not prevent the court from acquiring jurisdiction upon filing of a libel for their forfeiture. Previous cases in that circuit seemingly to the contrary, such as United States v. Specified Quantities, 2 Cir., 7 F.2d 835, and In re Phoenix Cereal Beverage Co., 2 Cir., 58 F.2d 953, are distinguished or specifically overruled. The same rule is applied in the first circuit in Strong v. United States, 1 Cir., 46 F.2d 257, 79 A.L.R. 150, and in the sixth circuit in Bourke v. United States, 6 Cir., 44 F.2d 371. In the Ninth Circuit no definite position has been taken. There is some language in Ghisolfo v. United States, 9 Cir., 14 F.2d 389, to support the position taken by the third circuit in Daeufer-Lieberman Brewing Co. v. United States, supra, but in the later NG KA PY Cases, 9 Cir., 24 F. 2d 772, 773, the same court said:

"If it be conceded that the proposition finds a measure of support in certain language used in Ghisolfo v. United States, 9

65 F. Supp. 898

Cir., 14 F.2d 389, it is to be noted that there no seizure at all had been made, by search warrant or otherwise, and there was wholly wanting the jurisdictional prerequisite of possession of the offending res. The language relied upon was therefore unnecessary to the decision and must be regarded as obiter. That the real point intended to be decided was that possession is a necessary prerequisite to the...