United States v. One 1956 Ford Tudor Sedan, 7564.

• Decision Date: 02 April 1958
• Docket Number: No. 7564.,7564.
• Citation: 253 F.2d 725
• Parties: UNITED STATES of America, Appellant, v. ONE 1956 FORD TUDOR SEDAN (Victoria) Motor No. M6NV-112513 (Steve Kaluk, Jr., Claimant), Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

253 F.2d 725 (1958)

UNITED STATES of America, Appellant, v. ONE 1956 FORD TUDOR SEDAN (Victoria) Motor No. M6NV-112513 (Steve Kaluk, Jr., Claimant), Appellee.

No. 7564.

United States Court of Appeals Fourth Circuit.

Argued January 23, 1958.

Decided April 2, 1958.

Percy H. Brown, Asst. U. S. Atty., Charleston, W. Va. (Duncan W. Daugherty, U. S. Atty., Huntington, W. Va., on brief), for appellant.

Joseph M. Sanders, Jr., Bluefield, W. Va. (Sanders, Smoot & Sanders, Bluefield, W. Va., on brief), for appellee.

Before PARKER, Chief Judge, and SOBELOFF and HAYNSWORTH, Circuit Judges.

HAYNSWORTH, Circuit Judge.

This is a proceeding under ?? 7301 and 7302 of the Internal Revenue Code of 1954, 26 U.S.C.A. ?? 7301, 7302 for the forfeiture of an automobile. The District Court reached the legal conclusion that the vehicle was not forfeitable, because, in its view, the substantially uncontradicted facts did not show that it had been used, or was intended for use, in violation of the internal revenue laws. The United States has brought the case here.

The owner of the Ford automobile, one DeHart, using a fictitious name, purchased for cash a large quantity of sugar in Bluefield, Virginia. At DeHart's direction, the sugar was loaded upon a truck and transported approximately 80 miles to a point in Franklin County, Virginia, where it was seized. The sugar and the truck were forfeited to the United States, and both DeHart and Weeks, the driver of the truck, were convicted of unlawful possession of the contraband sugar. See DeHart v. United States, 4 Cir., 237 F. 2d 227.

In the transportation of the sugar, DeHart, in his Ford automobile, accompanied the truck. The two vehicles proceeded at approximately thirty-five miles an hour, DeHart in the Ford being sometimes in front of the truck, at other times immediately behind it. Once they stopped at a filling station where gasoline for the truck was purchased by DeHart.

Weeks testified, and the District Judge found as fact, that there was no prearrangement by which DeHart, in the Ford, was to act as a "lookout" or "pilot" for the truck. They were concerned, he said, about the mechanical condition of the truck, and DeHart went along on the journey to render what assistance might be appropriate in the event of a mechanical breakdown.

In United States v. Lane Motor Co., 344 U.S. 630, 73 S.Ct. 459, 97 L.Ed. 622, it was settled that an automobile used by an illegal distiller solely to commute from his home to a point within walking distance of the distillery "is not used in violating the revenue laws" within the meaning of comparable forfeiture provisions of prior acts. In Lane, the distiller had no intention to use the vehicle for any purpose except to transport himself to a point near the place of his unlawful activity. We are not compelled to reach the same conclusion, however, when the use of the automobile bears a much more direct and immediate relation to the unlawful activity.

When distillers think it necessary to protect unlawful shipments of contraband with other automobiles containing guards and lookouts and the other automobiles are actually used for the prevention of attempted capture, use of the shepherding cars would seem, equally with that of the vehicles physically carrying the contraband, to be in violation of the revenue laws. Each type of vehicle, the truck and the protecting automobile, serves a special purpose, the one hardly less closely and immediately related to the successful accomplishment of the unlawful activity than the other. United States v. One 1952 Lincoln Sedan, 5 Cir., 213 F.2d 786; United States v. General Motors Acceptance Corporation, 5 Cir., 239 F.2d 102; United States v. One Dodge Sedan, 3 Cir., 113 F.2d 552; United States v. One 1950 Model Willys Jeep, D.C.W.D.S.C., 91 F.Supp. 822; United States v. One 1938 Buick, D.C. Mass., 29 F.Supp. 752; United States v. One Dodge Sedan, D.C.Cal., 28 F.2d 44.

For the present purpose, it is of no consequence that, during a particular trip, the disruption sought to be avoided does not become an immediate threat to the successful conclusion of the project. In war times, the convoying destroyers, which protect and screen merchant ships, are not rendered useless or deprived of their protective relation to the cargoes of the merchant vessels when, on a happy voyage, no enemy submarine is encountered.

The mechanical failure of the truck, the fear of which occasioned DeHart's protective activity in the Ford automobile, did not eventuate. But he was there in the Ford, and the condition of the truck was such that it was thought necessary or expedient that he be, to lend what assistance to the shipment the occasion required. Had there been mechanical failure of the truck, DeHart in the Ford could go wherever need be to obtain parts, tools and mechanics, to provide means of hiding the truck or to effect an escape for himself and Weeks.

The reason the Ford was...