United States v. One 1953 Oldsmobile Sedan, Civ. A. No. 623.

• Court: United States District Courts. 8th Circuit. Western District of Arkansas
• Writing for the Court: JOHN E. MILLER
• Citation: 132 F. Supp. 14
• Parties: UNITED STATES of America, Libelant, v. ONE 1953 OLDSMOBILE SEDAN, Motor No. R376229, Serial No. 539A5536.
• Docket Number: Civ. A. No. 623.
• Decision Date: 13 June 1955

132 F. Supp. 14

UNITED STATES of America, Libelant,
v.
ONE 1953 OLDSMOBILE SEDAN, Motor No. R376229, Serial No. 539A5536.

Civ. A. No. 623.

United States District Court W. D. Arkansas, Hot Springs Division.

June 13, 1955.

132 F. Supp. 15

Charles W. Atkinson, U. S. Atty., Henry M. Britt, Asst. U. S. Atty., Fort Smith, Ark., for libelant.

Richard W. Hobbs, Hot Springs, Ark., for defendant.

JOHN E. MILLER, District Judge.

The libel of information was filed on March 28, 1955, against the above-described automobile and alleged that the automobile was seized on land by investigators, Julian S. Majors and Robert Finley, of the Internal Revenue Service of the United States and that the same was being held by the Internal Revenue Service of the United States at a certain storage place in the City of Hot Springs, Arkansas, the appraised value of the motor vehicle being $1,350.

It was further alleged:

"That for cause of said seizure, said motor vehicle on or about March 15, 1955, was used by James T. Barker in violating the provisions of the Internal Revenue laws of the United States in that said motor vehicle was employed by James T. Barker to aid him in engaging in the business of wagering without having paid the Special Tax imposed under Section 4411 of the 1954 Internal Revenue Code 26 U.S.C.A. contrary to Section 7302 of the 1954 Internal Revenue Code of the United States."

On April 7, 1955, the alleged owner of the automobile filed his answer in which he admitted that his automobile had been seized by "agents of the Internal Revenue Service of the United States." However, the owner denied that the investigators named in the libel of information were the officers who seized the automobile. All other allegations in the libel of information were denied.

On the same date that the libel of information was filed, the United States Attorney filed an information against the said James T. Barker in Criminal Action No. 555, in which information the said defendant, James T. Barker, was charged in Count I with engaging, on March 15, 1955, in the business of wagering without having paid a Special Tax as required by law, in violation of Section 4411 of the 1954 Internal Revenue Code.

In Count II the defendant was charged with the offense of engaging in the business

132 F. Supp. 16

of wagering, on March 15, 1955, without having registered with the District Director of the Internal Revenue at Little Rock, Arkansas, as required by law, in violation of Section 4412 of the 1954 Internal Revenue Code

To this information the defendant entered a plea of not guilty to both counts and, on the 26th day of April, 1955, the charges contained in the information were tried to a jury. The government introduced five witnesses in support of the allegations contained in the information and the defendant introduced only himself and wife, Mrs. James T. Barker. The jury returned a verdict of not guilty, and the defendant was discharged.

At the conclusion of the trial of the criminal action, the instant case was called for trial. Whereupon, the United States Attorney, representing the libelant, and Mr. Richard W. Hobbs, representing the claimant of the automobile, agreed that the case should be submitted to the court "upon the evidence presented in Criminal Action No. 555." At the time, the United States Attorney suggested that certain evidence taken from the person of the said James T. Barker at the time of his arrest, but which evidence was suppressed at the trial of the criminal case, should be considered by the court. Apparently the suggestion was acceptable to the attorney for the claimant and the court included in the order of submission that such evidence would be considered, along with a statement, to be filed, of the witness who obtained the documentary evidence from the claimant at the time of his arrest.

It was suggested by the court that counsel should file briefs with the court on the question of jurisdiction "or any other question which they might desire to discuss."

The briefs have been filed and considered by the court, along with the testimony that was heard at the trial of the criminal case as aforesaid, and the court, having considered said testimony, together with the arguments and contentions of the attorneys for the respective parties, now makes and files herein its Findings of Fact and Conclusions of Law, separately stated:

Findings of Fact

1.

On March 15, 1955, the claimant of the automobile, James T. Barker, had not paid the tax levied upon persons engaged in receiving wagers for or in behalf of any person. Neither had he registered with the official in charge of the Internal Revenue District in which Hot Springs, Arkansas, is located.

2.

William Aronson is the brother-in-law of the claimant, James T. Barker, and lives at 230 Park Terrace in Hot Springs, Arkansas, His telephone number is 7169J. The claimant, Mr. Barker, lives at 210 Park Terrace and his telephone number is 1352. Aronson was engaged in the business of receiving wagers for and on behalf of persons who desired to place wagers with him, and he had paid the Special Tax and registered with the Director of Internal Revenue for the District of Arkansas at Little Rock.

The telephone in the home of the claimant, Mr. Barker, is private. Apparently, every day Mr. Aronson would go to the home of the claimant Barker, and it was generally known by prospective bettors that, if they desired to place a bet with Aronson, they should call telephone number 1352 which, as above stated, was in the home of Mr. Barker, the claimant. In fact, all of the witnesses who testified to having placed wagers with Aronson testified that they would reach him by calling that telephone number. Mr. Aronson stated that he used the claimant's telephone for convenience and that he spent the latter part of the morning and early afternoon of each day at the home of the claimant for the purpose of receiving wagers.

Most wagers were placed upon horse races and, after the race was run and the results known, Mr. Aronson would compile a list of the day's business showing the name of each person who had placed

132 F. Supp. 17

a wager, the amount of the wager and the result of the race. Aronson did not own a private automobile, but the claimant Barker owned the automobile now in question. Barker was not physically able to drive the automobile with safety. It was necessary for Aronson to keep in contact with the persons who made the wagers and, on the morning following the day the wager was made, he would call upon each one of his customers. If the bettor had won the wager, Aronson would pay according to the terms of the wager and, if the bettor lost, the bettor would in turn pay Aronson the amount of the bet. The automobile in question was used in making calls upon the...