United States v. ONE DE SOTO SEDAN, 1946 MODEL, ETC., Civ. No. 261.

• Decision Date: 09 August 1949
• Docket Number: Civ. No. 261.
• Citation: 85 F. Supp. 245
• Court: U.S. District Court — Eastern District of North Carolina
• Parties: UNITED STATES v. ONE DE SOTO SEDAN, 1946 MODEL, ETC.

85 F. Supp. 245

UNITED STATES v. ONE DE SOTO SEDAN, 1946 MODEL, ETC.

Civ. No. 261.

United States District Court E. D. North Carolina, New Bern Division.

August 9, 1949.

John H. Manning, U. S. Atty., Raleigh, N. C., Howard H. Hubbard, Asst. U. S. Atty., Clinton, N. C., for libelant

Henry P. Whitehurst, New Bern, N. C., for respondent.

GILLIAM, District Judge.

This libel of information was filed under Sec. 3321, Title 26 U.S.C.A., alleging that the accused automobile was used in the removal, deposit and concealment of two gallons of distilled spirits upon which the tax due the United States had not been paid, with intent to defraud the United States of such tax. This section of the Code provides: (a) that every offender of its provisions shall be liable to a fine or imprisonment, or both, and that (b) every conveyance used in the "removal or for the deposit or concealment thereof" shall be forfeited. Prior to a hearing on the libel the owner and claimant of the accused "conveyance" was tried under Sec. 2803, Title 26 U.S.C.A., on an indictment alleging that he was in possession on the same date set forth in the libel of the identical two gallons of distilled spirits referred to in the libel. He was acquitted by a jury and discharged.

The facts here are similar to the facts in Coffey v. United States, 116 U.S. 436, 6 S.Ct. 437, 440, 29 L.Ed. 684, where the holding was that a former acquittal of the claimant in a criminal action constituted a bar to the prosecution of a forfeiture action, as "the fraudulent acts and attempts and intents to defraud, alleged in the prior criminal information, and covered by the verdict and judgment of acquittal, embraced all of the acts, attempts, and intents averred in the information in this suit." In that case, 116 U.S. at page 443, 6 S.Ct. at page 440, the Court said: "Yet where an issue raised, as to the existence of the act or fact denounced, has been tried in a criminal proceeding instituted by the United States, and a judgment of acquittal has been rendered in favor of a particular person, that judgment is conclusive in favor of such person on the subsequent trial of a suit in rem by the United States where, as against him, the existence of the same act or fact is the matter in issue as a cause for the forfeiture of the property prosecuted in such suit in rem. It is urged as a reason for not allowing such effect to the judgment that the acquittal in the criminal case may have taken place because of the rule requiring guilt to be proved beyond a reasonable doubt, and that, on the same evidence, on the question of preponderance of proof, there might be a verdict for the United States in the suit in rem. Nevertheless, the fact or act has been put in issue and determined against the United States; and all that is imposed by the statute, as a consequence of guilt, is a punishment therefor. There could be no new trial of the criminal prosecution after the acquittal in it; and a subsequent trial of the civil suit amounts to substantially the same thing, with a difference only in the consequences following a judgment adverse to the claimant. When an acquittal in a criminal prosecution in behalf of the government is pleaded or offered in evidence by the same defendant, in an action against him by an individual, the rule does not apply, for the reason that the parties are not the same; and often for the additional reason that a certain intent must be proved to support the indictment, which need not be proved to support the civil action. But upon this record, as we have already seen, the parties and the matter in issue are the same."

So far as I know, the Coffey case has not been overruled. It is true that the holding has been criticized in subsequent cases as pointed out by Judge Clark in the case of United States v. One Dodge Sedan, 3 Cir., 113 F.2d 552, 553; in these words: "The learned district court rendered its judgment with obvious reluctance. That reluctance appears both in its opinion and in the colloquies. It felt itself bound, however, by the decision of the United States Supreme Court in the case of Coffey v. United States, 116 U.S., 436, 6 S.Ct. 437, 29 L.Ed. 684. That case has received a distinctly `unfavorable press.' It has also suffered by implication, at least, in later decisions of the same tribunal. These cases certainly limit its holding to the particular facts. * * * We think that the particular facts of the principal case give us the necessary loophole and in so thinking we must disagree with the learned district judge."

Conceding some reluctance on the Court's part, in view of cases since decided, to hold that the decision in the Coffey case controls a disposition of this case, it has not found the "necessary loophole" to avoid such holding. In United States v. One Dodge Sedan, above cited, the claimant was the wife of the acquitted driver and was not a party to the criminal proceeding and the decision of the Court to the effect that the Coffey case was not controlling was based upon the fact that the parties in the two actions were not the same. On page 554 of 113 F.2d the Court said: "As we have said, the Coffey case has not been expressly overruled. It is nevertheless left in a tenuous position. A prior conviction has been held not to bar forfeiture * * *. So also the res judicata theory of it and earlier cases seems to have been disapproved * * *. Whether or not that disapproval has gone far enough to be followed by the `inferior' courts is not necessary to presently decide. Res judicata imports, by definition almost, the same parties. It is not enough that in some court somewhere the same facts have been decided. Those same facts must be viewed from the point of view of the parties giving them legal scrutiny. Here the parties are not the same. * * * The claimant here is not even the person charged with crime. She is his quite innocent wife. She must then be held to her proof of the innocence of the chattels she now wishes to rescue from the clutches of the allegedly offended government."

The holding in United States v. One 1935 Model Pontiac Sedan, 6 Cir., 105 F.2d 149, is likewise based on the fact that the parties to the libel proceedings were not the same parties as those in the...