United States v. One 1961 Cadillac Hardtop Automobile

• Decision Date: 09 August 1962
• Docket Number: Civ. A. No. 3860.
• Citation: 207 F. Supp. 693
• Parties: UNITED STATES of America v. ONE 1961 CADILLAC HARDTOP AUTOMOBILE, Serial No. 61J028918, Grace Cunningham, Intervenor, and Rogers and Company, Inc.
• Court: U.S. District Court — Eastern District of Tennessee

207 F. Supp. 693

UNITED STATES of America v. ONE 1961 CADILLAC HARDTOP AUTOMOBILE, Serial No. 61J028918, Grace Cunningham, Intervenor, and Rogers and Company, Inc.

Civ. A. No. 3860.

United States District Court E. D. Tennessee, S. D.

August 9, 1962.

J. H. Reddy, U. S. Atty., Chattanooga, Tenn., for libelant.

Harold S. Duncan, Chattanooga, Tenn., for intervenor Grace Cunningham.

Cheek, Taylor & Groover, Knoxville, Tenn., for intervenor Rogers & Co., Inc.

FRANK W. WILSON, District Judge.

The United States has filed a libel for the forfeiture of a 1961 Cadillac automobile. In the libel it is charged that the automobile was used to transport heroin declared to be contraband as having been illegally imported into the United States. Use of the automobile for the transportation of the contraband heroin is alleged upon two occasions, one occasion being upon September 4, 1961 and the other occasion being use of the automobile for a trip from Chattanooga, Tennessee to Juarez, Mexico and return between the dates of September 20 through September 25, 1961. The libel alleges that Grace Cunningham is the registered owner of the vehicle and that Rogers and Company, Inc. held a lien thereon. An answer was filed by Grace Cunningham, who it appears undisputed in the record is now Grace Cunningham Graham, the wife of William Condon Graham, denying that the automobile was ever used to transport heroin and denying that it was ever used in violation of the laws relating to narcotics. An intervening petition has been filed by Rogers and Company, Inc. averring that it held a conditional sales contract upon the automobile with an unpaid balance of $1852.78 remaining due, averring further that it acted in good faith and without knowledge of any illegal use of the automobile and denying use of the automobile in violation of the laws relating to the transportation of narcotics. The intervening petition requests dismissal of the libel or, in the alternate, remission of the forfeiture to the extent of the lien.

The United States has filed a motion to dismiss the intervening petition of Rogers and Company, Inc. upon the ground that the Court is without jurisdiction to permit intervention by a lien-holder in a libel action for forfeiture under the narcotics laws and upon the further ground that the Court is without jurisdiction to grant a remission to a lienholder, even though it acted in good faith, in a libel for forfeiture under the narcotics laws.

Testimony with regard to the alleged use of this automobile in transporting narcotics was heard in a criminal action tried in this court in the cause entitled United States v. William R. Minnick, William Condon Graham, and Grace Cunningham, Docket No. 11,719. This criminal trial resulted in the conviction of each of the defendants upon certain counts and the acquittal of the defendant, William Condon Graham, upon other counts in an eleven-count narcotics indictment.

The parties have stipulated to submit this libel to the Court upon the basis of the testimony in the record on the trial of the above criminal action, with the additional stipulation as to the interests of Rogers and Company, Inc. in the said automobile being as alleged in its intervening petition. Likewise the Court understands that no issue is raised herein by the Government but that Rogers and Company, Inc. did act in good faith in acquiring its lien, after proper investigation and without knowledge of any likely or proposed use of the automobile for illegal purposes.

The Court will consider first the issues raised in the answer of Grace Cunningham Graham, the owner of the automobile, and then direct its attention to the intervening petition of Rogers and Company, Inc. and the motion of the United States with respect thereto.

This action is prosecuted under Sections 781-788 of Title 49 (Transportation) U.S.C.A., relating to the seizure and forfeiture of carriers transporting contraband articles. Among other matters, Section 781 declares it unlawful to use any vehicle to transport or "facilitate" in transporting any contraband articles. Contraband articles are defined to include illegal narcotics. Section 782 provides for the forfeiture of any vehicle used in violation of Section 781, providing relief from such forfeitures to common carriers under specified circumstances, and to owners when the car was illegally in the possession of another at the time of the offense. Section 784, among other matters, provides:

"All provisions of law relating to the seizure, summary and judicial forfeiture, and condemnation of vessels and vehicles for violation of the customs laws * * * shall apply to seizures and forfeitures incurred, or alleged to have been incurred, under the provisions of this chapter * *."

In determining where the burden of proof lies in an action such as this, it is clear that Section 784 would incorporate and adopt the provisions of 19 U.S.C.A. relating to the burden of proof in forfeiture proceedings under the customs laws. U. S. v. One 1949 Pontiac Sedan, 7 Cir., 194 F.2d 756. Title 19 (Customs Duties) U.S.C.A., Sec. 1615, provides that:

"In all suits or actions brought for the forfeiture of any * * * vehicle * * * where the property is claimed by any person, the burden of proof shall lie upon such claimant; * * * Provided, That probable cause shall be first shown for the institution of such suit or action, to be judged of by the court * * *."

U. S. v. Andreade, 9 Cir., 181 F.2d 42; W. E. Dean & Company v. U. S., 7 Cir., 171 F.2d 468.

Thus upon a showing by the United States that probable cause existed for the seizure of the automobile and institution of the libel action, the burden of proof for establishing that the automobile was not used in violation of 49 U.S.C.A. § 781 rests upon the claimants, Grace Cunningham Graham and Rogers and Company, Inc. Probable cause is established when the facts are of such a nature as to support a reasonable belief of a violation of the statute, and not necessarily such evidence as would constitute a prima facie case. 7 Cir., U. S. v. One 1949 Pontiac Sedan, 194 F.2d 756.

A brief summary of the testimony in the trial of the criminal case material to the issues in this libel action would be in order at this point. The principal witness for the Government was one Leland Green, a man with a lengthy record of criminal activities, who had been employed by the defendant, William Condon Graham, in the operation of the Casa Rio Supper Club, a combination supper club and gambling house. As described by Graham, Green was employed as a "shill." Green testified that he arranged to go to Mexico with William R. Minnick in the latter part of August, 1961, to smuggle narcotics back to Chattanooga, all with the knowledge of Graham. Upon his return to Chattanooga with the Mexican heroin late at night upon September 3, 1961, he called Graham and reported that he had the drug, whereupon Graham advised that he would come by Green's home and pick up a sample. Graham did go to Green's home about 2:30 a. m., driving the white Cadillac that is the subject of this libel. After getting a sample of the drug, Graham drove away in the car. The next day Graham advised Green the "stuff" was good and he would take it all, whereupon Green delivered it to Graham at his home in Dayton. Green's wife also testified that Graham came to their home on the night in question in the white Cadillac and left in it after obtaining a sample of the drug. This was the substance of the Government's testimony with reference to the first alleged use of the automobile to transport contraband narcotics in violation of 49 U.S.C.A. § 781.

With regard to this occasion, Graham admitted knowledge of the proposed trip to Mexico by Green, but denied any knowledge that it was for the purpose of obtaining narcotics. Rather he testified that he understood the purpose of the trip was for Green to ride as "shotgun" with Minnick and to roll or rob Minnick of his money during the trip. Graham testified that the purpose of his visit to Green's house in the early morning of September 4 was in response to Green's telephone call to deliver some "bread" money to Green, who was at that time being paid $50.00 per week to stay away from the Casa Rio Club to keep down trouble. Graham denied that there was any conversation or any transaction relating to narcotics on this visit. Graham likewise denies that Green delivered any narcotics to his home the following day, as Green had testified, and Grace Cunningham Graham supports her husband in this testimony. Minnick denied knowledge of any narcotics having been obtained on the trip, although he admits participating the day after his return in a sale of some unknown substance to an individual who turned out to be a federal narcotics agent for $250.00. The substance was later verified by chemical analysis to be Mexican heroin. Minnick's only explanation was that he didn't know what the substance was and that he had been "framed."

This was the substance of the defendants' testimony with reference to the first occasion upon which it is alleged that the Cadillac automobile was used in violation of 49 U.S.C.A. § 781.

The testimony with reference to the second occasion upon which it is alleged that the automobile was used to transport contraband narcotics related to the occasion of a third trip to Mexico for the purpose of smuggling narcotics, as testified to by Green. Green testified that on this occasion, around September 20-25, 1961, Graham gave him the white Cadillac automobile to make the trip in and furnished the money to buy the narcotics, and that he, Green, made a nonstop round trip to Mexico and back, some 3200 miles, in a couple of days' constant driving. Green testified that the narcotics obtained on this trip was also turned over to Graham. Both Graham and his wife denied that any such trip occurred, denied that the automobile was ever loaned to or used by Green during this period. Other...