United States v. One 1958 Pontiac Coupe, 13378.

• Decision Date: 30 January 1962
• Docket Number: No. 13378.,13378.
• Citation: 298 F.2d 421
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. ONE 1958 PONTIAC COUPE, Serial No. P-858H2925, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

298 F.2d 421 (1962)

UNITED STATES of America, Plaintiff-Appellant, v. ONE 1958 PONTIAC COUPE, Serial No. P-858H2925, Defendant-Appellee.

No. 13378.

United States Court of Appeals Seventh Circuit.

January 30, 1962.

Edward R. Phelps, U. S. Atty., Marks Alexander, Asst. U. S. Atty., Springfield, Ill., John M. Daugherty, Asst. U. S. Atty., Peoria, Ill., for appellant.

James A. Cummings, Thomas Trager, Peoria, Ill., for appellee.

Before DUFFY, KNOCH and KILEY, Circuit Judges.

DUFFY, Circuit Judge.

This is a libel action by the United States of America based upon sec. 7302, Title 26 U.S.C., for the forfeiture of an automobile. This appeal is from an order dismissing the complaint (libel) and directing that possession of the automobile be delivered to Marie A. Juerjens whom the Court found to be the owner thereof.

The libel charged that the automobile was intended for use in violating the provisions of the Internal Revenue Act and regulations prescribed thereunder, and had been so used by one Frederick Juerjens, Sr. in the conduct of his business of accepting wagers and bets on sports events and contests at a time when he was required to pay a special occupational tax of Fifty Dollars per annum and was required to register with the District Director of Internal Revenue. It was alleged Juerjens failed and neglected to pay said tax and to so register.

Marie A. Juerjens, the former wife of Frederick Juerjens, Sr., but who, from time to time, lived in the same house with him, filed an answer to the libel. She alleged she was the owner of the automobile and was without knowledge that Frederick Juerjens, Sr. had used the automobile in violation of the Internal Revenue Act.

An agent of the Intelligence Division of the Internal Revenue Service testified that on February 14, 1959, he went to a certain tavern and placed a wager on the outcome of a basketball game. He was given a parlay card. A stub from the card and the money wagered were placed in a box on the back bar. Frederick Juerjens, Sr. came in to the tavern and obtained the money and stubs from the box on the back bar. The agent had seen Juerjens do the same thing about a week earlier. Juerjens then left the tavern and got into a 1958 Pontiac Coupe. Juerjens was then arrested and the automobile was searched. Many parlay cards were found in different places in the automobile together with Santa Anita Handicap racing booklets.

Although Juerjens was arrested on February 14, 1959, parlay cards were found in the automobile which bore various dates, some as early as October of 1958. A witness familiar with parlay cards testified the October 1958 cards would have no value on February 14, the day of the arrest, because they were parlays on games that were to be played during a designated week in October, 1958. The Government urges the reasonableness of an inference that they had been in the Pontiac automobile from approximately the date on the tickets.

Section 7302, Title 26, provides in part, "It shall be unlawful to have or possess any property intended for use in violating the provisions of the internal revenue laws, or regulations prescribed under such laws, or which has been so used, and no property rights shall exist in any such property. * * * The seizure and forfeiture of any property under the provisions of this section and the disposition of such property subsequent to seizure and forfeiture * * * shall be in accordance with existing laws or those hereafter in existence relating to seizures, forfeitures, and disposition of property or proceeds, for violation of the internal revenue laws." (Emphasis supplied)

This is a proceeding in rem. The parties are the United States of America and the motor vehicle. The material allegations of the libel charge wrong doing by violation of the Internal Revenue laws by the possessor and user of the vehicle. As far as the question of forfeiture is concerned, it is immaterial whether the owner-claimant was innocent of the violations or had knowledge thereof. In United States v. One 1942 G. M. C. Tractor Truck, 7 Cir., 182 F.2d 278, 280, we said: "Even so, it is settled that a proceeding of this character is against the truck, and if it has offended, the innocence of its owner is no defense." We cited Goldsmith, Jr.-Grant Co. v. United States, 254 U.S. 505, 513, 41 S. Ct. 189, 65 L.Ed. 376, and Busic v. United States, 4 Cir., 149 F.2d 794, 795.

While it is well settled that the innocence of the owner of the vehicle is no defense, there is some authority to the effect that forfeiture will not lie if the vehicle was being used without the knowledge or consent of the owner, having been obtained by the wrongdoer in violation of the criminal laws. United...