United States v. Jensen

• Decision Date: 10 July 1923
• Citation: United States v. Jensen, 291 F. 668 (E.D. N.Y. 1923)
• Parties: UNITED STATES v. JENSEN et al.
• Court: U.S. District Court — Eastern District of New York

291 F. 668

UNITED STATES v. JENSEN et al.

United States District Court, E.D. New York.

July 10, 1923

Ralph C. Greene, U.S. Atty., of Brooklyn, N.Y. (Guy O. Walser Asst. U.S. Atty., of New York City, of counsel), for the United States.

Abraham H. Kesselman, of Brooklyn, N.Y. (Alexander S. Drescher, of Brooklyn, N.Y., of counsel), for defendants.

GARVIN District Judge.

This is a motion for an order directing the Federal Prohibition Director to turn over 1,500 bottles of Sherwood rye whisky to the defendant Shannon, who with four others was arrested and was later discharged after a hearing before one of the United States commissioners. The commissioner has made an order directing the return of this property. It does not appear to be questioned that the seizure was unlawful. The moving papers set forth that the defendant Shannon was in possession of this whisky, and that after the commissioner made an order directing its return the Federal Prohibition Director declined to take action, except upon an order of this court. The government opposes the return sought, upon the ground that the moving papers fail to allege any facts showing how in what manner, when, and by what means the petitioner Shannon, originally acquired possession of the whisky involved, and relies upon the presumption contained in title 2, section 33, of the National Prohibition Law (41 Stat. 317) that the possession of the liquor was unlawful.

Section 33 reads as follows:

'After February 1, 1920, the possession of liquors by any person not legally permitted under this title to possess liquor shall be prima facie evidence that such liquor is kept for the purpose of being sold, bartered, exchanged, given away, furnished, or otherwise disposed of in violation of the provisions of this title.'

The same section also provides:

' * * * The burden of proof shall be upon the possessor in any action concerning the same to prove that such liquor was lawfully acquired, possessed, and used.'

The government contends that the petitioner is required to show the circumstances from which it may be held that he lawfully acquired, possessed, and used this liquor. The case of Chicco v. U.S. (C.C.A.) 284 F. 434, sustained a refusal of the court below to order the return of property, where the petition failed to contain an allegation that petitioner had any ground for the return of the property which the court was asked to return. From all that appears in the moving papers in the pending application, the petitioner may have been merely a temporary bailee, without any legal right whatever to possession, or, indeed, may have been a thief holding stolen property.

The precise point involved is not determined by the case of United States v. O'Dowd (D.C.) 273 F. 600, but it may be inferred from the reference therein to the declaration, contained in section 25, title 2, of the National Prohibition Law, to the effect that no property rights shall exist in liquor intended for use in violating that title, that the court is not warranted in making an order to return liquor, except upon proof that the applicant for the order was in lawful possession of the liquor when it was seized.

In the case of Rose v. United States (C.C.A.) 274 F. 245, the court had occasion to consider the competency of evidence received. There a defendant testified that he had liquor in his home under what he considered lawful circumstances. The court held that mere possession raised a presumption that that possession was unlawful. United States v. Masters (D.C.) 267 F. 581, held that the return of liquor unlawfully seized must be refused when the claimant fails to set forth facts showing a legal possession at the time of such seizure. This case recognizes the presumption contained in section 33, supra.

Two cases are advanced with confidence by the petitioner: United States v. Descy (D.C.) 284 F. 724, and Giles v. United States (C.C.A.) 284 F. 208. In the Descy Case, the petitioner alleged that the officers of the government, 'unlawfully and without warrant of authority so to do, entered the defendant's said home, to wit, private dwelling, and seized certain liquors which were lawfully possessed and used by defendant. ' There is no allegation of 'lawful possession' in the moving papers now before the court. In the Giles Case, I have secured a copy of the record, and I find that the affidavit upon which the return of the property was demanded contains no allegation that the liquor was lawfully acquired or possessed. The opinion, it is true, held that a denial of the motion for a return of liquor seized was error; but there is nothing to indicate that the point now raised was submitted to the court for determination, and that case cannot, therefore, be regarded as controlling authority.

Petitioner also relies upon Murphy v. United States (C.C.A.) 285 F. 801. That case deals with and...