United States v. One Chevrolet Stylemaster Sedan

• Decision Date: 08 June 1950
• Docket Number: Civ. A. No. 3045.
• Citation: 91 F. Supp. 272
• Parties: UNITED STATES v. ONE CHEVROLET STYLEMASTER SEDAN, etc.
• Court: U.S. District Court — District of Colorado

91 F. Supp. 272

UNITED STATES v. ONE CHEVROLET STYLEMASTER SEDAN, etc.

Civ. A. No. 3045.

United States District Court D. Colorado.

June 8, 1950.

Max M. Bulkeley, United States Attorney, Henry E. Lutz, Assistant United States Attorney, Denver, Colo. for plaintiff, the United States.

A. E. Small, Jr., Denver, Colo., for defendant-claimant Marvin Hyman Ginn.

Kobey, Mitchell & McCarthy, Denver, Colo., for defendant-claimant, Publix Cab Co.

KNOUS, District Judge.

Findings of Fact

Marvin Hyman Ginn is the owner of the car above described. Preceding the transactions here involved, under a Herdic arrangement, Ginn engaged himself and said automobile in the taxicab service for the Publix Cab Company in Denver, Colorado. As a part of this arrangement the Publix Company installed in the automobile the radiophone and taximeter hereinabove mentioned and had Ginn transfer the record title to the car to the Publix Company as security for the equipment installed by it. The Publix Company dispatches its cabs by means of radio communication between them and its central office. The car involved herein was designated as Publix Cab No. 33 and at all times mentioned herein was driven by Ginn himself.

On the night of November 26, 1949, C. D. Lindsley, Investigator for the Alcohol Tax Unit, accompanied by his wife, engaged another Publix Cab driven by Creighton E. Wilson. While traveling along the streets of Denver, Lindsley inquired of Wilson, the driver, whether he knew where Lindsley could obtain a bottle of whiskey. Wilson thereupon, by radiophone, contacted the central office and requested the location of Cab No. 33 and, pursuant to the information returned, proceeded to a location near the Vann Hotel at 1544 Welton Street, Denver, Colorado, where Ginn was found awaiting them. The car involved in this libel proceeding was parked nearby.

After some negotiations with Lindsley, Ginn entered the Vann Hotel and soon appeared with a pint bottle of whiskey which for a consideration of $5 he delivered to Lindsley. Admittedly, Ginn had not paid the special tax required of a retail liquor dealer by Section 3253 of the Internal Revenue Code, Title 26 U.S.C.A. § 3253.

Wilson, the taxicab driver, testified that upon a number of occasions, at the request of passengers seeking to purchase whiskey, he had contacted Ginn, usually by a radio call to the central office, who had produced and sold them bottled whiskey in substantially the same manner as was effected in the Lindsley transaction. On several occasions, for diverting customers to him, Ginn paid Wilson a portion of the proceeds on the sale.

On the night of December 3, 1949, Investigator Lindsley, by a telephone call to the central office of the Publix Company, asked that Cab 33 be sent to Seventeenth and Tremont Streets in Denver. In due course Cab 33, driven by Ginn, arrived at this location where Investigator Lindsley and C. F. Preshaw, another Investigator for the Alcohol Tax Unit were waiting. Lindsley asked Ginn whether he could procure a bottle of whiskey for him. Ginn thereupon "wanted to know who told me to call him." Lindsley advised Ginn that, "I was talking to a fellow in a bar and he gave me the cab number and name." Upon being so informed Ginn said "he would take care of me," whereupon Lindsley entered the car involved in this libel proceeding, which was driven by Ginn to a point near the Vann Hotel. Ginn alighted from the car and proceeded into the hotel. In a short time he returned and upon the payment of $5 by Lindsley, Ginn delivered to him a pint bottle of whiskey. Ginn at the time tried to sell to Lindsley another bottle of whiskey which he had in his possession, offering a "reduced" rate of $8 for the two bottles.

Ginn was then placed under arrest by Investigator Lindsley who took over the operation of the taxicab and returned to Seventeenth and Tremont Streets where Investigator Preshaw had been left waiting. W. E. Lukens, another Investigator of the Alcohol Tax Unit, whose car had been parked near the Vann Hotel, followed the taxicab to the Seventeenth and Tremont rendezvous and the three agents, with Ginn, then returned to the Vann Hotel. Under Ginn's guidance they proceeded to Room 119, of which he was the tenant. On the way to this room Ginn removed from his pockets two bottles of whiskey and delivered them to the officers saying they "may as well have these." Upon arriving at Ginn's room the officials found and seized fifteen pint bottles of whiskey. The fifteen bottles so seized, together with the two bottles surrendered by Ginn, as well as those previously sold by him to Wilson, had been purchased from local retail dealers and were tax paid. Ginn advised Lindsley that he had so procured the liquor seized and in the conversation also stated that he did not know that he was required by law to pay a special tax before reselling it.

Following the visit to Room 119, the car involved was taken into the custody of the officers where it since has remained. In due course an information was filed, to which Ginn later entered a plea of nolo contendere and was sentenced to thirty days in jail, charging that he, "did on or about and between the dates of November 26, 1949 and prior thereto, and December 3, 1949, at Room 119, Vann Hotel, 1544 Welton Street, Denver Colorado, and on the public streets in the vicinity of said premises and in a taxicab owned by him, carry on the business of a retail liquor dealer, and then and there and at all times herein mentioned wilfully failed to pay the special tax as such retail liquor dealer as required by law, in violation of Section 3253 of the Internal Revenue Code (Title 26 U.S.C.)."

On the trial of the libel proceeding Ginn was called to the stand by the Government and admitted that the car mentioned in the information was the same as the one involved in the libel proceeding. However, Ginn did not testify in his own behalf in the libel proceeding.

It is not questioned that the Publix Company is the owner of the radiophone and taximeter. The evidence also shows that these accessories are readily detachable from the car. The evidence disclosed that under the ordinances of the City and County of Denver taxicab drivers are required to have special licenses which are issued under the authority of the Manager of Safety (ex officio Sheriff) only after special investigation as to fitness and moral character by the city authorities. At the time of his employment by the Publix Company, Ginn had such a license. It is also required that the city authorities be notified of the employment of individual taxi drivers by taxicab companies and this procedure was followed by the Publix Company in the employment of Ginn.

Conclusions of Law

1. The plea of nolo contendere entered by Ginn cannot be considered in disposing of the issues. It is a confession only for the purpose of the criminal prosecution and does not bind the defendant in a civil action for the same wrong. United States v. Plymouth Coupe, D.C., 88 F.Supp. 93; Berlin v. United States, 3 Cir., 14 F.2d 497.

2. A positive violation...