United States v. One 1952 Lincoln Sedan, 14897.

• Decision Date: 04 June 1954
• Docket Number: No. 14897.,14897.
• Citation: 213 F.2d 786
• Parties: UNITED STATES v. ONE 1952 LINCOLN SEDAN, MOTOR NO. 52LP22535H (MERCHANTS NAT. BANK OF MOBILE, Intervenor).
• Court: U.S. Court of Appeals — Fifth Circuit

213 F.2d 786 (1954)

UNITED STATES v. ONE 1952 LINCOLN SEDAN, MOTOR NO. 52LP22535H (MERCHANTS NAT. BANK OF MOBILE, Intervenor).

No. 14897.

United States Court of Appeals, Fifth Circuit.

June 4, 1954.

Jesse W. Shanks, Asst. U. S. Atty., Robert E. Hauberg, U. S. Atty., Jackson, Miss., for appellant.

James L. May, Jr., Mobile, Ala., McCorvey, Turner, Rogers, Johnstone & Adams, Mobile, Ala., of counsel, for appellee.

Before HUTCHESON, Chief Judge, and HOLMES, and BORAH, Circuit Judges.

BORAH, Circuit Judge.

The United States has appealed from the dismissal by the court below of the libel filed against a 1952 Lincoln Sedan for forfeiture, because of its use in violating the provisions of Section 3116 of the Internal Revenue Code, 26 U.S.C.A. § 3116. The district court, after a hearing, filed its findings of fact and conclusions of law and entered its judgment dismissing the libel and directing that the seized automobile be restored to the possession of the claimant Merchants National Bank of Mobile, Mobile, Alabama, and to purchaser Kenneth A. Fernandez jointly. The district court found that on December 8, 1952, the Lincoln Sedan was being used as a convoy or decoy car for one 1950 Ford Pick Up Truck, which was transporting 150 gallons of non-tax paid whiskey in one gallon jugs on which no stamps were affixed denoting the quantity and evidencing the payment of revenue taxes; that in addition to being used as a convoy or decoy car the Lincoln Sedan was used to block the federal officers' pursuit of the offending truck with the intent and purpose to aid the truck driver to escape with the non-tax paid whiskey.

The trial court found among other things the following:

"The Court finds as a fact that at no time did the Lincoln car here in controversy ever offend in any way, except as a convoy or decoy car, or aiding and abetting in the commission of a crime, when it undertook to interfere with the arrest of the truck that was being pursued.

"The Court finds as a fact that when Officer Barcus was pursuing the truck containing the liquor that Officer Barcus used his siren and that the driver of the Lincoln car, W. P. Fernandez, knew he was being pursued by the officer and that his purpose in blocking or attempting to block, as much as he could, the progress of the officer was to aid the truck in its efforts to escape. This Lincoln car on two other occasions had followed this same truck, but there is no evidence as to whether this truck was on those two occasions conveying whiskey, though the fair inference is, from all of the testimony, that it was conveying whiskey and that the Lincoln was watching the truck."

The conclusions of law of the district court were thus stated:

"1. The Court concludes as a matter of law that the Lincoln automobile here in controversy is not subject to forfeiture; that it was not violating any of the laws which would bring it within the statutes which require the forfeiture of an automobile or other vehicle. The case is governed by a recent decision of the Supreme Court of the United States and by the recent decision of the Court of Appeals of the Fifth Circuit, being the case of Graham Motor Company, wherein it was held that the automobile in that case was aiding in the manufacture of whiskey at a still in that it gave sounds and warnings to the operators of the still that the officers were there present and proceeding toward the still, and did aid and permit the offenders at the still to escape. The Court, in that case, held that the car, while sounding the warning, was not forfeitable, upon the theory that it was simply aiding and abetting and was not concealing any of the forbidden articles.

"2. The Court concludes as a matter of law that if the Court is wrong that the automobile should not be forfeited, and that if, as a matter of law, under the facts as found herein, the Lincoln car is to be forfeited, then the claim of the Merchants National Bank of Mobile, as Intervenors, must be denied for the reason that it failed to make inquiry of the officers mentioned in the Federal Statute, and when it fails to make inquiry and to receive a negative answer, it then assumes the risk, and if the purchaser of the automobile does have a reputation, even only with the policemen, still the Court is without jurisdiction to remit the forfeiture.

"So, that in the case now before the Court, the Court will dismiss the libel and direct that the Lincoln automobile be returned to the Merchants National Bank of Mobile and to Kenneth Fernandez jointly; and that no cost be taxed in the case."

In our opinion, the district court committed reversible error in dismissing the libel. Its view of the applicable law was based upon the erroneous belief that the case of United States v. Lane Motor Co., 344 U.S. 630, 73 S.Ct. 459, 97 L.Ed. 622, and our opinion in United States v. Jones, 5 Cir., 194 F.2d 283, were controlling and compelled the conclusions that the automobile was not forfeitable under the provisions of Section 3116 of Title 26 U.S.C.A. This section in pertinent part, authorizes the seizure and forfeiture of "property intended for use in violating * * * 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 liquor or property. * * *"

In United States v. Lane Motor Co., supra, the district judge found that the truck and automobile there involved had each been used by the operator of an illegal distillery to drive a number of miles from his home to a point one-half mile or more from the distillery, the operator walking from that point to the distillery. The district judge also found that the Government had not shown, as it had alleged, that the vehicles had been used for transporting raw materials, utensils, and vessels for use at the distillery, and ruled that the facts shown did not justify a forfeiture. The Court of Appeals for the Tenth Circuit affirmed and the Supreme Court granted certiorari and affirmed the judgment. In a short Per Curiam opinion the Supreme Court stated the facts as we have set them out and said: "We think it clear that a vehicle used solely for commuting to an illegal distillery is not used in violating the revenue laws." But this decision is not dispositive of the issue here for the reasons which the Court of Appeals for the Tenth Circuit carefully pointed out in its opinion.¹ We quote approvingly from that decision the following:

"The statute brings within its sweep automobiles used in transporting raw materials or supplies intended for use in the operation of a distillery in violation of the revenue laws; automobiles used in transporting the finished contraband from such a distillery; and automobiles used as lookouts in convoying other vehicles employed in transportation of that kind. United States v. One 1948 Plymouth Sedan, 3 Cir., 198 F.2d 399. But neither of the vehicles involved in these actions was used for any of those purposes. No raw materials or supplies intended for use in connection with the operation of a distillery in violation of law were transported in either of these vehicles. No finished product of such a distillery was transported in them. They were not employed for lookout purposes in convoying other automobiles used for transportation of that kind. Neither of them was otherwise used as an instrumentality in the operation of the illicit distillery. And there was no showing whatever that either of

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