United States v. One 1953 Oldsmobile 98 4 Door Sedan, 6965.

• Decision Date: 10 May 1955
• Docket Number: No. 6965.,6965.
• Citation: 222 F.2d 668
• Parties: UNITED STATES of America, Appellant, v. ONE 1953 OLDSMOBILE 98 4 DOOR SEDAN, Motor Number R257687, Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

222 F.2d 668 (1955)

UNITED STATES of America, Appellant, v. ONE 1953 OLDSMOBILE 98 4 DOOR SEDAN, Motor Number R257687, Appellee.

No. 6965.

United States Court of Appeals Fourth Circuit.

Argued April 22, 1955.

Decided May 10, 1955.

L. S. Parsons, Jr., U. S. Atty., Norfolk, Va., for appellant.

Russell T. Bradford, Norfolk, Va., for appellee.

Before PARKER, Chief Judge, and SOPER and DOBIE, Circuit Judges.

DOBIE, Circuit Judge.

This is an appeal from an order of the United States District Court for the Eastern District of Virginia, entered January 21, 1955, which granted a motion to dismiss a libel of information in a cause for forfeiture and did further remit the forfeiture and grant possession to one Katherine A. Hoffler, of one 1953 Oldsmobile 98 4-Door Sedan, Motor No. R257687, which had been condemned by the United States of America under the Internal Revenue Laws relating to intoxicating liquors, Sections 3116 and 3321, Title 26, U.S.C.A.

Forfeiture of this 1953 Oldsmobile 98 4-Door Sedan is sought by the Government on the allegation that it was used as a "convoy" for another vehicle, a 1950 Oldsmobile. In the 1950 Oldsmobile were 150 gallons of non-tax paid spirits. As the officers approached the car containing the illicit whiskey, the driver of the 1953 Oldsmobile, one Selden Guy Hoffler, the Government alleges, attempted to place it in such position as to block the way and permit the escape of the 1950 Oldsmobile. The driver of the 1950 Oldsmobile, Hubert Earl Hoffler, attempting to escape, was apprehended and arrested. At the trial of both these defendants, Hubert Earl Hoffler, the driver of the 1950 Oldsmobile, was found guilty while the driver of the 1953 Oldsmobile, Selden Guy Hoffler, the so-called blocking or convoying car, was found not guilty.

The registered owner of the vehicle, Katherine A. Hoffler, who is the wife of Hubert Earl Hoffler and the sister-in-law of Selden Guy Hoffler, intervened in the forfeiture proceeding as did the General Motors Acceptance Corporation. The motion to dismiss the libel was based on the fact that Selden Guy Hoffler, the operator of the 1953 Oldsmobile, had been acquitted of the criminal charge based on the same facts upon which the forfeiture of the vehicle is predicated.

The only question before us on this appeal is whether or not the acquittal in the criminal action of Selden Guy Hoffler on May 21, 1954, for the acts specifically alleged as the grounds for the forfeiture of the car in the libel proceeding, constitutes a bar to the civil forfeiture proceeding in which the claimant is not Selden Guy Hoffler but Katherine Hoffler, the titled owner of the car.

It seems that the District Judge grounded his decision on the well known case of Coffey v. United States, 116 U.S. 436, 6 S.Ct. 437, 29 L.Ed. 684. We quote from his opinion:

"The Court is mindful of the frequent criticisms of the case of Coffey v. United States, 116 U.S. 436, 6 S.Ct. 437, 29 L.Ed. 684, but despite this criticism it appears that the Coffey case has still been followed by this Circuit. See United States v. One DeSoto Sedan, 1946 Model D.C., 85 F.Supp. 245, affirmed in a per curiam opinion; United States v. One DeSoto Sedan, 1946 Model 4 Cir., 180 F.2d 583."

A lot of water has gone over the dam, and a great deal of whiskey has come from the stills, since the Coffey decision nearly seventy years ago. The authority of that case, we think, has been seriously impaired by Helvering v. Mitchell, 303 U.S. 391, 58 S.Ct. 630, 82 L.Ed. 917. In that case it was held that, under the Revenue Act of 1928, the defendant's acquittal on a criminal charge of willful attempt to evade federal taxes does not bar the collection of the 50% addition to the tax imposed on the ground of fraud with intent to evade the tax. In his opinion in this case, Mr. Justice Brandeis had this to say of the Coffey case, 303 U.S. at pages 405-406, 58 S.Ct. at page 636:

"Mitchell insists that Coffey v. United States, 116 U.S. 436, 6 S.Ct. 437, 29 L.Ed. 684, requires affirmance of the judgment; the Government argues that this case is distinguishable, and, if not, that it should be disapproved. The Circuit Court of Appeals, citing Stone v. United States, 167 U.S. 178, 186-189, 17 S.Ct. 778, 42 L.Ed. 127, and later cases, recognized that the rule of the Coffey Case `did not apply to a situation where there had been an acquittal upon a criminal charge followed by a civil action requiring a different degree of proof\'; but construing section 293(b) as imposing a penalty designed to punish fraudulent tax dodgers `and not as a mere preventive measure,\' it thought that the Coffey Case and United States v. La Franca, 282 U.S. 568, 51 S.Ct. 278, 75 L.Ed. 551, required it `to treat the imposition of the penalty of 50 per cent. as barred by the prior acquittal of Mitchell in the criminal action.\' Since we construe section 293(b) as imposing a civil administrative sanction, neither case presents an obstacle to the recovery of the $364,354.92, the 50 per centum addition here in issue."

From this same opinion, we also quote, 303 U.S. at page 400, 58 S.Ct. at page 633:

"Forfeiture of goods or their value and the payment of fixed or variable sums of money are other sanctions which have been recognized as enforceable by civil proceedings since the original revenue law of 1789. Act of July 31, 1789, c. 5, § 36, 1 Stat. 29, 47. In spite of their comparative severity, such sanctions have been upheld against the contention that they are essentially criminal and subject to the procedural rules governing criminal prosecutions."

And again, 303 U.S. at pages 402-404, 58 S.Ct. at page 634:

"Civil procedure is incompatible with the accepted rules and constitutional guaranties governing the trial of criminal prosecutions, and where civil procedure is prescribed for the enforcement of remedial sanctions, those rules and guaranties do not apply. Thus the determination of the facts upon which liability is based may be by an administrative agency instead of a jury or if the prescribed proceeding is in the form of a civil suit, a verdict may be directed against the defendant; there is no burden upon the Government to prove its case beyond a reasonable doubt, and it may appeal from an adverse decision; furthermore, the defendant has no constitutional right to be confronted with the witnesses against him, or to refuse to testify; and finally, in the civil enforcement of a remedial sanction there can be no double jeopardy."

Though the Coffey case seems never to have been definitely overruled by the Supreme Court, the doctrine of the case has come in for no little criticism. And the Circuit Courts of Appeal have manifested a clear tendency to distinguish the case and limit its application.

From Judge Gilliam's opinion in United States v. One DeSoto Sedan, D.C., 85 F.Supp. 245, 246-247, we quote:

"So far as I know, the Coffey case has not been overruled. It is true that the holding has been criticized in subsequent cases as pointed out by Judge Clark in the case of United States v. One Dodge Sedan, 3 Cir., 113 F.2d 552, 553; in these words: `The learned district court rendered its judgment with obvious reluctance. That reluctance appears both in its opinion and in the colloquies. It felt itself bound, however, by the decision of the United States Supreme Court in the case of Coffey v. United States, 116 U.S. 436, 6 S.Ct. 437, 29 L.Ed. 684. That case has received a distinctly "unfavorable press." It has also suffered by implication, at least, in later decisions of the same tribunal. These cases certainly limit its holding to the particular facts. * * * We think that the particular facts of the principal case give us the necessary loophold and in so thinking we must disagree with the learned district judge.\'

"Conceding some reluctance on the Court\'s part, in view of cases since decided, to hold that the decision in the Coffey case controls a disposition of this case, it has not found the `necessary loophole\' to avoid such holding. In United States v. One Dodge Sedan, above cited, the claimant was the wife of the acquitted driver and was not a party to the criminal proceeding and the decision of the Court to the effect that the Coffey case was not controlling was based upon the fact that the parties in the two actions were not the same. On page 554 of 113 F.2d the Court said: `As we have said, the Coffey case has not been expressly overruled. It is nevertheless left in a tenuous position. A prior conviction has been held not to bar forfeiture. * * * So also the res judicata theory of it and earlier cases seems to have been disapproved * * *. Whether or not that disapproval has gone far enough to be followed by the "inferior" courts is not necessary to presently decide. Res judicata imports, by definition almost, the same par

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