United States v. Ganey, 13136.

• Decision Date: 30 June 1950
• Docket Number: No. 13136.,13136.
• Citation: 183 F.2d 273
• Parties: UNITED STATES v. GANEY.
• Court: U.S. Court of Appeals — Fifth Circuit

183 F.2d 273 (1950)

UNITED STATES v. GANEY.

No. 13136.

United States Court of Appeals Fifth Circuit.

June 30, 1950.

Hayford O. Enwall, Asst. U. S. Atty., Gainesville, Fla., George Earl Hoffman, U. S. Atty., Pensacola, Fla., for appellant.

Weldon G. Starry, Tallahassee, Fla., for appellee.

Before HOLMES, WALLER, and BORAH, Circuit Judges.

HOLMES, Circuit Judge.

This appeal is from the district court's refusal to order a forfeiture of an automobile used to violate the Internal Revenue Laws in the sale of tax-paid whiskey without the required retail liquor dealer's license. The undisputed facts are as follows:

James T. Ganey operated a place of business in Leon County, Florida, where it was unlawful to sell intoxicating liquors of any kind. An employee of the State Beverage Department bought tax-paid whiskey from him on six different occasions. On the last of these occasions, a representative of the federal government was with the state employee, and witnessed the sale. The whiskey was stored in the trunk of Ganey's automobile, which was parked in the rear of the premises, where he carried on his lawful business as a retail dealer in beer. On each of the occasions, the whiskey sold was taken from the back of this automobile. After the last sale had been made, Ganey was called upon to produce his federal retail liquor dealer's license. He admitted that he had not yet obtained the license, giving as his reason the fact that he did not have the money with which to purchase it.

Ganey was arrested, and charged in a six-count indictment with unlawfully carrying on the business of a retail liquor dealer, without the procurement of the retail liquor dealer's license required by Section 3250(b) (1), 26 U.S.C.A. The indictment charged a violation of 26 U.S.C.A. § 3253. Ganey entered pleas of nolo contendere on each of the six counts, and was adjudged guilty. At the time of said arrest, the automobile, out of the back of which the whiskey was sold, and a quantity of tax-paid whiskey, were seized, and a libel of information was filed for their confiscation. The libel of information was filed under Sections 3116 and 3321 of Title 26 U.S.C.A. On November 10, 1949, the lower court rendered a final judgment forfeiting to the libelant the spirits seized, but denying forfeiture of the automobile. The question presented is whether the car was subject to forfeiture under the provisions of Sections 3116 or 3321 of Title 26 U.S.C.A., and whether a prosecution of the retailer under 26 U.S. C.A. § 3253, for violation of Section 3250, is a bar to the forfeiture of such automobile.

Although the indictment against the owner of this car, and the forfeiture proceeding, arose from the same transaction, they are completely independent of each other, and should not be confused. Ganey was indicted under 26 U.S.C.A. § 3253, for a violation of Section 3250(b) (1), and on pleas of nolo contendere to each of the six counts was adjudged guilty. The libel of information was filed under 26 U.S.C.A. §§ 3116 and 3321, and is an entirely independent proceeding from the one under which the indictment was drawn. For this reason, we need only to decide whether or not the government is restricted to the forfeiture provisions of Section 3253, under which the indictment was drawn, or whether it may resort to the other forfeiture statutes under which the libel of information was filed.

It seems clear to us that Congress, in enacting Section 3116, intended to aid enforcement of revenue laws relating to intoxicating liquors by providing for forfeiture in any case of intended violation of those laws. A construction of Section 3116 which would preclude its application to a case in which some other forfeiture provision might conceivably be invoked would tend to nullify its effectiveness as a revenue enforcing measure, and would thwart the plain purpose of Congress in enacting it. This section provides for the forfeiture of property used in any violation of the internal revenue laws.

We are of the opinion now, and have so held in at least two prior decisions, that Sections 3116 and 3321 disclose a clear intent of Congress to forfeit to the government automobiles used in violation of internal revenue laws with intent to defraud the United States, regardless of penalties imposed in other sections of the Code. See Kent v. United States, 5 Cir., 157 F.2d 1, certiorari denied 329 U.S. 785, 67 S.Ct. 297, 91 L.Ed. 673; One Ford Tudor Automobile v. United States, 5 Cir., 164 F.2d 1020. This automobile, which was used to carry on the business of a retail liquor dealer, who had not paid the required tax, is subject to such a forfeiture under Sections 3116 and 3321 of 26 U.S.C.A. even though the dealer was found guilty of a violation of Section 3253, 26 U.S.C.A.

For the reasons above stated, the judgment is reversed, and the cause remanded for further proceedings not inconsistent with this opinion.

Reversed.

WALLER, Circuit Judge (dissenting).

The hauling of liquor in the automobile, or the concealing of liquor in the automobile, was not the offense with which the appellee here was charged. On the contrary, he was charged in six separate counts with having on six separate occasions unlawfully carried on the business of a retail liquor dealer without having purchased a $27.50 retail liquor dealer's license, as required by Section 3250, Title 26 U.S.C.A. He pleaded nolo contendere, was convicted, and received sentence of the Court. The section under which he was convicted for carrying on the business of a retail liquor dealer without a license was Section 3253, Title 26 U.S.C.A., which is part of the chapter dealing with occupational license taxes, the pertinent part of which reads as follows: "Any person who shall carry on the business of a brewer, rectifier, wholesale liquor dealer, retail liquor dealer, wholesale dealer in malt liquors, retail dealer in malt liquors, or manufacturer of stills, and willfully fails to pay the special tax as required by law, shall, for every such offense, be fined not less than $100 nor more than $5,000 and be imprisoned for not less than thirty days nor more than two years. And all distilled spirits or wines, and all stills or other apparatus, fit or intended to be used for the distillation or rectification of spirits, or for the compounding of liquors, owned by such person, wherever found, and all distilled spirits or wines and personal property found in the distillery or rectifying establishment, or in any building, room, yard, or enclosure connected therewith and used with or constituting a part of the premises, shall be forfeited to the United States."

Thus it should be observed that the section under which appellee was charged with the failure to pay the occupational license tax has its own special penalty and its own special forfeiture provision which authorize the forfeiture only of distilled spirits, stills, or other apparatus fit or intended to be used in distillation, compounding, or rectification of spirits and personal property found in the distillery or enclosure connected therewith, and used with, or constituting a part of, the premises. That this statute did not include an automobile is conceded by the United States and no right of forfeiture is claimed thereunder or based thereon. Concededly the liquor seized was subject to forfeiture under that section, but these proceedings for forfeiture were brought under Section 3321 of Title 26 U.S.C.A., and Section 3116 of Title 26 U.S.C.A.

Section 3321, supra, provides in part:

"Every person who removes, deposits, or conceals, or is concerned in removing, depositing, or concealing any goods or commodities for or in respect whereof any tax is or shall be imposed, with intent to defraud the United States of such tax or any part thereof, shall be liable to a fine of not more than $5,000 or be imprisoned for not more than 3 years, or both.

"(b) Forfeiture (1) Goods.

"Whenever any goods or commodities for or in respect whereof any tax is or shall be imposed, or any materials, utensils, or vessels proper or intended to be made use of for or in the making of such goods or commodities are removed, or are deposited or concealed in any place, with intent to defraud the United States of such tax, or any part thereof, all such goods and commodities, and all such materials, utensils, and vessels, respectively, shall be forfeited.

* * * * * *

"(3) Conveyances.

"Every vessel, boat, cart, carriage, or other conveyance whatsoever, and all horses or other animals, and all things used in the removal or for the deposit or concealment thereof, respectively, shall be forfeited."

The defendant-libelee here was not informed against or indicted under Section 3321. He, therefore, did not plead guilty, nor was it proven or stipulated that he made use of the car in removing, depositing, or concealing any goods or commodities for or in respect whereof any tax is or shall be imposed, with the intent to defraud the United States of such tax, for the reason that the liquors herein involved were tax-paid and no tax was imposed thereon which had not been paid. Clearly, therefore, Section 3321 was not applicable and did not authorize the forfeiture of the automobile in question. In fact, in oral argument, counsel for the libelant frankly expressed doubt as to the applicability of this section to the forfeiture.

This forces the Government to rely entirely on Section 3116 of Title 26 U.S.C.A. which reads as follows: "It shall be...