United States v. One 1941 Pontiac Sedan

• Decision Date: 14 December 1948
• Citation: 83 F. Supp. 999
• Parties: UNITED STATES v. ONE 1941 PONTIAC SEDAN. UNITED STATES v. ONE 1941 DODGE SEDAN.
• Court: U.S. District Court — Southern District of New York

83 F. Supp. 999

UNITED STATES v. ONE 1941 PONTIAC SEDAN.

UNITED STATES v. ONE 1941 DODGE SEDAN.

United States District Court S. D. New York.

December 14, 1948.

John F. X. McGohey, United States Attorney for the Southern District of New York, New York City, proctor for libellant (Harold J. Raby, Assistant United States Attorney, New York City, of counsel).

Henry K. Chapman, New York City, proctor for Claimants.

LEIBELL, District Judge.

The above actions to forfeit two automobiles, alleged to have been used by John G. Ardito in facilitating the sale of contraband (narcotic drugs) were by agreement consolidated for trial. The main facts in relation to each action have been set forth separately in findings of fact which are being filed together with this memorandum. Ardito was a seller of narcotics and he was convicted in this Court, on a plea of guilty of having made an illegal sale of narcotics consummated April 30, 1946.

On November 29, 1946 the government filed the libels against the two automobiles seeking their forfeiture under 49 U.S.C.A. § 782. Michael Cestaro filed a claim to the Pontiac sedan on December 2, 1946, alleging that he is the owner thereof. Carmine Criscuolo on the same day filed a claim to the Dodge sedan, as the alleged owner thereof. The Pontiac is registered in the name of Anna Ardito, but the Government does not dispute Cestaro's contention that he is the actual owner. Ardito's use of the Pontiac, as hereinafter described, was with the consent of Cestaro, and his use of the Dodge was with the consent of Criscuolo.

The pertinent provisions of Chapter 11 of Title 49 of the United States Code Annotated are the following:

"§ 781. Unlawful use of vessels, vehicles, and aircrafts; contraband article defined

"(a) It shall be unlawful (1) to transport, carry, or convey any contraband article in, upon, or by means of any vessel, vehicle, or aircraft; (2) to conceal or possess any contraband article in or upon any vessel, vehicle, or aircraft, or upon the person of anyone in or upon any vessel, vehicle, or aircraft; or (3) to use any vessel, vehicle, or aircraft to facilitate the transportation, carriage, conveyance, concealment, receipt, possession, purchase, sale, barter, exchange, or giving away of any contraband article.

"(b) As used in this section, the term `contraband article' means —

"(1) Any narcotic drug which has been or is possessed with intent to sell or offer for sale in violation of any laws or regulations of the United States dealing therewith, or which is sold or offered for sale in violation thereof, or which does not bear appropriate tax-paid internal-revenue stamps as required by law or regulations;

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"§ 782. Seizure and forfeiture

"Any vessel, vehicle, or aircraft which has been or is being used in violation of any provision of section 781, or in, upon, or by means of which any violation of section 781 has taken or is taking place, shall be seized and forfeited:

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"§ 784. Application of related laws

"All provisions of law relating to the seizure, summary and judicial forfeiture, and condemnation of vessels and vehicles for violation of the customs laws; the disposition of such vessels and vehicles or the proceeds from the sale thereof; the remission or mitigation of such forfeitures; and the compromise of claims and the award of compensation to informers in respect of such forfeitures shall apply to seizures and forfeitures incurred, or alleged to have been incurred, under the provisions of this chapter, insofar as applicable and not inconsistent with the provisions hereof: * * *"

The word "facilitate", as used in § 781(a) (3) and applied to the facts as found in this case, means that the automobile was used to make easy, to promote, to help forward the purchase and sale of the heroin. See Webster's Universal Dictionary (1913) and the Concise Oxford Dictionary (1944). Facilitation has also been defined in several decided cases. Pon Wing Quong v. United States, 9 Cir., 111 F.2d 751; United States of America v. One Dodge Coupe, D.C., 43 F.Supp. 60; Platt v. United States, 10 Cir., 163 F.2d 165. An automobile used as an armed convoy for other vehicles loaded with smuggled liquors was held to violate a section of the internal revenue statutes, 26 U.S.C.A. § 3321, relating to the forfeiture of vehicles used in the removal or for the deposit or concealment of intoxicating liquors with intent to defraud the government of the tax. The automobile was forfeited because it "was the armed convoy, or pilot and guard, of the others, but itself contained none of said liquors." United States v. One Dodge Sedan, D.C., 28 F.2d 44, 45.

Statutes relating to frauds on the revenue, although they impose a penalty or forfeiture "are to be fairly and reasonably construed, so as to carry out the intention of the legislature." They "are construed less narrowly" than penal statutes and others involving forfeitures. United States v. Stowell, 133 U.S. 1, at page 12, 10 S.Ct. 244, at page 246, 33 L.Ed. 555; United States v. Ryan, 284 U.S. 167, at page 172, 52 S.Ct. 65, 67, 76 L.Ed. 224.

The statute, 49 U.S.C.A. § 781 et seq., which became a law August 9, 1939, was intended to have an expanded meaning. United States v. Pacific Finance Corp., 2 Cir., 110 F.2d 732. A comparison of clause (3) of subdivision (a) of § 781 with clause (1) thereof makes it clear that clause (3) was intended to embrace situations other than the actual transportation of the contraband in a vehicle. Clause (3) includes the use of a vehicle to facilitate the transportation of the contraband — something other than the actual transportation of the contraband. Indeed, clause (3) goes even further and includes the use of a vehicle to facilitate the purchase or sale of the contraband.

The purpose of Congress in enacting the statute appears from the following extracts from the report of the Ways and Means Committee of the House of Representatives (Report No. 1054 of the 76th Congress, 1st Session) submitted on H.R. 6556:

"It has been the experience of our enforcement officers that the best way to strike at commercialized crime is through the pocketbooks of the criminals who engage in it. By decreasing the profits which make illicit activity of this type possible, crime itself can also be decreased. Vessels, vehicles, and aircraft may be termed `the operating tools' of dope peddlers, counterfeiters, and gangsters. They represent tangible major capital investments to criminals whose liquid assets, if any, are frequently not accessible to the Government.

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"Special attention is called to the fact that the bill affords the same remedy for remission and mitigation of forfeiture to innocent owners (as well as innocent lienors and mortgagees) of seized vessels, vehicles, and aircraft as is now afforded them under the customs laws and that these customs provisions have been in effect ever since 1790 (act of May 26, 1890 1790, 1 Stat. 122). In this connection it is pertinent to mention that Congress since the very beginning of our Government has (in enacting forfeiture statutes directed against means of transportation used to facilitate violations of law) proceeded on the principle that the carrier, i. e., the vessel or vehicle, is the primary offender and if unlawfully used may be subjected to forfeiture irrespective of the innocence of the owners. Vessels and vehicles of innocent owners have been subject to forfeiture under the customs laws since the first Customs Administrative Act of July 31, 1789 1 Stat. 29. In Goldsmith-Grant Co. v. United States ((1921) 254 U.S. 505 41 S.Ct. 189, 65 L.Ed. 376) the Supreme Court of the United States in affirming a judgment of forefeiture against an automobile employed in the transportation of un-tax-paid liquor, notwithstanding the innocence of the conditional vendor of the vehicle, said (254 U.S. at p. 510 41 S.Ct. at page 191):

"`In...