United States v. One Chevrolet Four-Door Sedan

• Decision Date: 11 May 1957
• Docket Number: No. 7390.,7390.
• Citation: 244 F.2d 342
• Parties: UNITED STATES of America, Appellant, v. ONE CHEVROLET FOUR-DOOR SEDAN 1954 MODEL, Motor No. O20321-OT54Z (Lucille Darden, Jackson, N. C. and Standard Chevrolet Co., Inc., Ahoskie, N. C., Claimants), Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

244 F.2d 342 (1957)

UNITED STATES of America, Appellant, v. ONE CHEVROLET FOUR-DOOR SEDAN 1954 MODEL, Motor No. O20321-OT54Z (Lucille Darden, Jackson, N. C. and Standard Chevrolet Co., Inc., Ahoskie, N. C., Claimants), Appellee.

No. 7390.

United States Court of Appeals Fourth Circuit.

Argued April 4, 1957.

Decided May 11, 1957.

Julian T. Gaskill, U. S. Atty., Goldsboro, N. C., for appellant.

No brief or oral argument for appellee.

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

PARKER, Chief Judge.

This is an appeal from a judgment denying the forfeiture of an automobile found by the court to have been used by the owner in carrying on the business of a retail liquor dealer without paying the tax imposed by statute. The following statement of facts is taken from the judgment entered in the District Court:

"Upon consideration of the evidence, the Court finds as a fact that on December 2, 1955, agents of the Alcohol and Tobacco Tax Division of the Department of Internal Revenue went to the home of claimant, Lucille Darden, and that one of the agents went into her home and arranged for the purchase of two pints of tax paid whiskey; that the claimant, Lucille Darden, came out of the house and removed from under the front seat of the vehicle described herein the two pints of tax paid whiskey and upon returning to the house delivered same to the agent and received payment therefor; that at the time of the sale and the removal of the two pints of whiskey from the vehicle, the said Lucille Darden had not paid the special tax imposed on a retail dealer of tax paid whiskey nor had she obtained any Federal Retail Liquor Dealer\'s Stamp, as required by law, and as required by the provisions of Section 5121 of the Internal Revenue Code of 1954."

The District Judge held that a violation of 26 U.S.C. § 5691 was established by these facts¹ but that 26 U.S.C. § 7302, upon which the government relied for the forfeiture of the automobile, was not applicable. He based this decision upon the reasoning of the dissenting opinion in United States v. Ganey, 5 Cir., 183 F.2d 273, to the effect that the forfeiture provisions of 26 U.S.C. § 5691 provided the exclusive remedy by way of forfeiture and that, at all events, the automobile was not used in committing the offense of failing to pay the occupational license tax.

We think that the learned judge was in error in following the dissenting opinion in the Ganey case and that the law was correctly laid down, not in the dissenting, but in the majority opinion, which accords with the decision of this court in Jarrett v. United States, 4 Cir., 184 F.2d 532, 533. That case dealt with the forfeiture of a truck which had been engaged in hauling sugar to a distillery and we said with respect to section 3116, now section 7302, of Title 26 of the United States Code: "That statute clearly makes unlawful the possession of property used or intended to be used in violation of the internal revenue laws and makes such property forfeitable at the suit of the United States. See Kent v. United States, 5 Cir., 157 F.2d 1; United States v. Windle, 8 Cir., 158 F.2d 196." To like effect is the very recent decision of this court in cases Nos. 7341 and 7343, United States v. One 1955 Mercury Sedan (United States v. One 1954 Oldsmobile 2-Door Sedan), 4 Cir., 242 F.2d 429, in which we directed forfeitures of automobiles which had been engaged in transporting property, yeast in one case and pumps in another, to be used in violation of the Internal Revenue laws. Other decisions of this court directly in point are Shively v. United States, 4 Cir., 210 F.2d 131, where an automobile was forfeited for hauling fermenters, and Snead v. United States, 4 Cir., 217 F.2d 912, where a truck was forfeited for hauling yeast and malt.

The section relied on for forfeiture, 26 U.S.C. § 7302, is as follows:

"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. A search warrant may issue as provided in chapter 205 of title 18 of the United States Code and the Federal Rules of Criminal Procedure for the seizure of such property. Nothing in this section shall in any manner limit or affect any criminal or forfeiture provision of the internal revenue laws, or of any other law. The seizure and forfeiture of any property under the provisions of this section and the disposition of such property subsequent to seizure and forfeiture,

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