United States v. ONE 1955 MERCURY SEDAN, ETC.

• Citation: 242 F.2d 429
• Decision Date: 11 March 1957
• Docket Number: No. 7341-7343.,7341-7343.
• Parties: UNITED STATES of America, Appellant, v. ONE 1955 MERCURY SEDAN, MOTOR NO. 55ME-28101-M, (Allen C. Montgomery, owner), Appellee. UNITED STATES of America, Appellant, v. ONE 1954 CADILLAC 4-DOOR SEDAN, MOTOR NO. 54-62-14770, (Roosevelt Lunsford, owner), Appellee. UNITED STATES of America, Appellant, v. ONE 1954 OLDSMOBILE 2-DOOR SEDAN, MOTOR NO. 547W-5256, (Dorothy V. Hufner and The Bank of Virginia, claimants), Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

242 F.2d 429 (1957)

UNITED STATES of America, Appellant, v. ONE 1955 MERCURY SEDAN, MOTOR NO. 55ME-28101-M, (Allen C. Montgomery, owner), Appellee.

UNITED STATES of America, Appellant, v. ONE 1954 CADILLAC 4-DOOR SEDAN, MOTOR NO. 54-62-14770, (Roosevelt Lunsford, owner), Appellee.

UNITED STATES of America, Appellant, v. ONE 1954 OLDSMOBILE 2-DOOR SEDAN, MOTOR NO. 547W-5256, (Dorothy V. Hufner and The Bank of Virginia, claimants), Appellee.

Nos. 7341-7343.

United States Court of Appeals Fourth Circuit.

Argued January 17, 1957.

Decided March 11, 1957.

R. R. Ryder, Asst. U. S. Atty., Richmond, Va. (L. S. Parsons, Jr., U. S. Atty., Norfolk, Va., on the brief), for appellant.

Herndon P. Jeffreys, Jr., Richmond, Va., for appellee in No. 7341.

Louis Ellenson, Newport News, Va., for appellee in No. 7342.

J. Tivis Wicker, Richmond, Va., for appellee in No. 7343.

Before PARKER, Chief Judge SOBELOFF, Circuit Judge, and WILLIAMS, District Judge.

PARKER, Chief Judge.

These are three appeals taken by the United States from judgments refusing to declare a forfeiture of automobiles which the government sought to condemn because they had been used in transportation of property in violation of the Internal Revenue laws, 26 U.S.C. §§ 7301 and 7302. All three cases were tried before the same judge without a jury. He made findings of fact which pointed unmistakably, as did the preponderance of the evidence, to the fact that the cars had been used for the unlawful purposes charged; but notwithstanding the owners of the cars did not take the stand or explain the incriminating circumstances, he denied the forfeitures. This was evidently because he took the erroneous view that some different measure of proof was required in cases involving forfeitures from that required in ordinary civil cases. It is clear, however, that in such cases facts justifying a forfeiture need be established only by a preponderance of the evidence. Lilienthal's Tobacco v. United States, 97 U.S. 237, 266-267, 24 L.Ed. 901; Grain Distillery No. 8 of Eastern Distillery Co. v. United States, 4 Cir., 204 F. 429; Pocahontas Distilling Co. v. United States, 4 Cir., 218 F. 782.

The cases are here for review as ordinary civil cases tried by the judge without a jury, where we review the facts as well as the law. It is true that in such case we must accept the findings of the lower court unless clearly erroneous, Fed.Rules Civ.Proc. rule 52(a), 28 U.S.C.; but the rule contemplates a real review and not a mere perfunctory approval. Standard Accident Ins. Co. v. Simpson, 4 Cir., 64 F.2d 583, 588; Hoeltke v. C. M. Kemp Mfg. Co., 4 Cir., 80 F. 2d 912, 927. If upon such a review, we think that the findings of the judge below were clearly erroneous, i. e. that he misapprehended the evidence or went against the clear weight thereof, it is our duty to say so and reverse the decision. Wolf Mineral Process Corp. v. Minerals Separation North American Corp., 4 Cir., 18 F.2d 483, 486; Virginia Shipbuilding Corp. v. United States, 4 Cir., 22 F.2d 38, 51; United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 92 L.Ed. 746. We think that this is the course that must be taken in all three of the cases now before us.

No. 7341.

This case involved a Mercury Sedan owned by one Allen C. Montgomery of King William County, Virginia. Forfeiture was claimed because of the hauling of materials designed for use in the manufacture of intoxicating liquor, particularly 30 pounds of yeast. On July 2, 1955, Montgomery purchased at a grocery store in Richmond this 30 pounds of yeast, forty-five 100-lb. bags of sugar and thirty-four 100-lb. bags of grain. The sugar and grain were loaded in a Ford panel truck belonging to Montgomery and the yeast was carried by him in the Mercury sedan. The judge so found and the finding is supported by the testimony of a witness who saw him carrying the yeast in the direction of the sedan, which he entered and drove away, and not in the direction of the Ford panel truck, which was parked at an entirely different place. A few days later a garage adjoining the home of Montgomery's sister was searched and in it were found a thousand pounds of sugar, water hose, pipe fittings, a boiler smokestack and boards cut to a size to be used in distillery mash boxes. Montgomery admitted the ownership of this property. Between September 10, 1954 and July 2, 1955 he had purchased 39,700 pounds of sugar, 13,600 pounds of grain, 717 cases of half-gallon fruit jars and 190 pounds of yeast in 40 separate transactions. He was convicted of being a party to a conspiracy to engage in illicit distilling in violation of the Internal Revenue laws. He was not shown to be engaged in any legitimate business which would explain his purchase of the sugar, yeast, grain and fruit jars, and he did not take the stand to explain the purchases.

The trial judge, while finding that the yeast was transported in the Mercury sedan, denied forfeiture of the sedan on the ground, as stated in his opinion, that it was not shown that the yeast was transported for an unlawful purpose. This was clearly erroneous. The circumstantial evidence in the case admits of no other conclusion than that it was transported for use in the illicit distilling in which Montgomery was engaged. Any other theory as to the transportation of so large a quantity of yeast is purely fanciful, particularly in view of the attendant facts, viz., that it was purchased along with sugar and other materials used in illicit distilling, that Montgomery was not a baker nor engaged in any legitimate business in which yeast would be used, but was engaged in a liquor conspiracy, and that he did not take the stand to claim that he had the yeast for any proper purpose. See Snead v. United States, 4 Cir., 217 F.2d 912, 913-914; Mammoth Oil Company v. United States, 275 U.S. 13, 52, 48 S.Ct. 1, 72 L.Ed. 137.

No. 7342.

In this case forfeiture was sought of a Cadillac sedan belonging to one Lunsford on the ground that it had been used...