United States v. One 1956 2-door Chevrolet

• Decision Date: 24 February 1960
• Docket Number: 16184.,No. 16183,16183
• Citation: 275 F.2d 240
• Parties: UNITED STATES of America, Appellant, v. ONE 1956 2-DOOR CHEVROLET, etc., Appellee. UNITED STATES of America, Appellant, v. ONE 1957 FORD, etc., et al., Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

275 F.2d 240 (1960)

UNITED STATES of America, Appellant, v. ONE 1956 2-DOOR CHEVROLET, etc., Appellee.

UNITED STATES of America, Appellant, v. ONE 1957 FORD, etc., et al., Appellees.

Nos. 16183, 16184.

United States Court of Appeals Eighth Circuit.

February 24, 1960.

Edward L. Scheufler, U. S. Atty., Joseph L. Flynn, Asst. U. S. Atty., Kansas City, Mo., for appellant.

Clifford H. Casey and William O. Russell, Joplin, Mo., for appellee, Bankers Investment Co.

Before JOHNSEN, Chief Judge, and SANBORN and VAN OOSTERHOUT, Circuit Judges.

JOHNSEN, Chief Judge.

One Hardesty and one Banfield had been charged, in the Western District of Missouri, with attemping to transport intoxicating liquor from Missouri to Oklahoma (then a "dry" State), in violation of 18 U.S.C. § 1262. On a trial without a jury, the court acquitted them of the charge, after suppressing as evidence the liquor involved, on the ground of illegal search and seizure.

The Government further had instituted forfeiture proceedings, under 18 U.S.C.A. § 3615, against the liquor and against a Chevrolet automobile belonging to Hardesty and a Ford automobile belonging to Banfield, which the Alcohol Tax Unit agents had seized in connection with the liquor. Each of the cars was at the time subject to a lien and right of possession in favor of a finance company, and these companies intervened in the proceedings to assert such rights. Banfield also intervened, seeking to have the liquor returned to him.

As to the lien on the Chevrolet, the Government conceded that its circumstances had been such as to entitle the finance company to mitigation, under 18 U.S.C.A. § 3617, of any forfeiture declarable against Hardesty. As to Banfield's Ford, however, the Government recognized no such right to remission or mitigation in favor of the lienholder, under the conditions of § 3617. And the liquor, of course, the Government contended was, from its alleged unlawful transportation, entirely contraband.

On a trial to the court of the proceedings, the evidence failed to satisfy the court that what Hardesty and Banfield were engaged in doing, when the seizures and arrests were made, was required or entitled to be regarded as representing an attemped transportation from Missouri to Oklahoma. It accordingly denied the Government any forfeiture relief and directed that the automobiles be turned over to the respective finance companies and that the liquor be returned to Banfield.

The Government has appealed. In view of its concession as to the lienholder's right to mitigation of any forfeiture relating to the Chevrolet, no challenge is here made against the court's order as to that car. Reversal only is sought of the court's denial of forfeiture as to the liquor and as to the Ford. Thus, the question for our determination is simply whether it was clearly erroneous for the court to refuse to find that the liquor was on the occasion involved being attempted to be transported from Missouri to Oklahoma and that the Ford was (under the language of § 3615) being "used in the transportation thereof".

Admittedly, all of the liquor when seized was contained in the Chevrolet, and no part of it was claimed to have ever been in the Ford. Banfield was driving the Chevrolet, and Hardesty was traveling behind him in the Ford. It was the Government's theory that Banfield was intending at some point to turn the Chevrolet over to Banfield and then drive off in the Ford, and that the Ford in accompanying the Chevrolet for this purpose was being "used in the transportation" of the liquor.

The Government's evidence showed that Banfield was the operator of a duly licensed Missouri liquor store, situated on a highway several miles outside the city of Joplin in that State. Some three months before the incident which is here involved, he had admitted to an agent of the Federal Alcohol Tax Unit that he had been selling liquor to Oklahoma "haulers" and had made inquiry of the agent as to "how to show that on my records". Also, his purchases of liquor had for some months been considerably greater than was normal for such a liquor store as he was operating.

On the occasion here involved, just shortly before 9 o'clock p. m., a Tax Unit agent, who was keeping the liquor store under surveillance, saw some one get into the Ford, which was standing in front of the store, and drive off. Within a minute thereafter, the Chevrolet came out of a garage, which was attached to the rear end of the store, proceeded in the same direction as the Ford, and shortly afterwards passed around it on the highway. The route toward Oklahoma was westward from the store. The two cars traveled at all times in the opposite direction, toward the city of Joplin. One of the agents admitted in his testimony that "if you go east from his Banfield's store, you ultimately end up in the city of Joplin". Both cars so proceeded the entire distance and had entered the city limits of Joplin, when the agents engaged in stopping the vehicles.

The evidence showed that Hardesty was a resident of Oklahoma; and that his Chevrolet ws carrying Arkansas license plates. The Ford had Missouri license plates. Hardesty was reputed to be in the business of selling liquor in Oklahoma. But none of this had constituted a factor in the agents' stopping of the cars. The agents did not know to whom the automobiles belonged; had not observed what license plates they carried; and had no knowledge of who was driving either vehicle at the time they engaged in halting them in the city of Joplin.

All that the agents had seen was that the cars...