United States v. One 1951 Cadillac Coupe De Ville
| Decision Date | 10 November 1952 |
| Docket Number | Civ. 9856. |
| Citation | 108 F. Supp. 286 |
| Parties | UNITED STATES v. ONE 1951 CADILLAC COUPE DE VILLE, ENGINE NO. XXXXXXXXX. |
| Court | U.S. District Court — Eastern District of Pennsylvania |
Edward C. Boyle, U. S. Atty. Philip O. Carr, Asst. U. S. Atty., Pittsburgh, Pa., for libellant.
J. U. Anderson, Jr., Kirkpatrick, Pomeroy, Lockhart & Johnson, Pittsburgh, Pa., for claimant Peoples Consumer Discount Co.
Paul F. Jones, Pittsburgh, Pa., for claimant, Herman Ross.
The Government filed a libel for forfeiture of an automobile, one 1951 Cadillac Coupe DeVille, Engine No. XXXXXXXXX, allegedly used to transport narcotics in violation of 49 U.S.C.A. § 781. Both the owner and the chattel mortgagee have filed answers to the libel, each asserting a claim to the automobile. A hearing was held on the libel at which time it was agreed by all parties that the case be submitted on the transcript of the trial of the criminal action brought against the owner and growing out of the same state of facts. Upon this transcript and the record in this case, we make the following findings of fact.
1. The respondent, Herman Ross, is the registered owner of one 1951 Cadillac Coupe DeVille, Engine No. XXXXXXXXX, and was the owner thereof on August 6, 1951 and for some time prior thereto.
2. On August 6, 1951, the said motor vehicle, operated by Herman Ross and in which Pearl Wilkinson Ross was riding, was stopped on the Pennsylvania Turnpike by two state patrolmen and the two occupants were taken into custody.
3. At that time, the motor vehicle was being used to transport 220 grains of heroin which, in violation of Section 2553 of Title 26 U.S.C., had not been purchased in the original stamped package or from the original stamped package and which did not bear appropriate tax-paid internal-revenue stamps as required by law.
4. On or about August 6, 1951, the motor vehicle was seized by William T. Duffy, Agent, United States Bureau of Narcotics, Treasury Department.
5. On September 11, 1951, the United States filed a libel for forfeiture of the said motor vehicle.
6. Pursuant to an order of this Court dated September 11, 1951, the usual warrant of seizure and monition was issued on that date.
"It shall be unlawful (1) to transport, carry, or convey any contraband article in, upon, or by means of any vessel, vehicle, or aircraft; * * *."
"As used in this section, the term `contraband article' means—(1) any narcotic drug * * * which has been acquired or is posessed, sold, transferred, or offered for sale, in violation of any laws of the United States dealing therewith; * * * or which does not bear appropriate tax-paid internal-revenue stamps as required by law or regulations".
3. Section 2550(a) of Title 26 U.S.C., imposes a tax on heroin as a derivative of opium and Section 2553 of the same title makes it unlawful to purchase any heroin except in the original stamped package and provides that the absence of appropriate tax-paid stamps from the drug container shall be prima facie evidence of a violation thereof.
4. Therefore, since the heroin transported in the motor vehicle here involved did not bear appropriate tax-paid internal revenue stamps and since it was not purchased in the original stamped package or from the original stamped package, it was a "contraband article" within the meaning of Section 781.
5. Section 782 of Title 49 U.S.C.A., provides:
"Any vessel, vehicle, or aircraft which has been or is being used in violation of any provision of section 781 of this title, or in, upon, or by means of which any violation of section 781 of this title has taken or is taking place, shall be seized and forfeited".
6. On August 6, 1951, the motor vehicle here involved was being used in violation of Section 781.
7. Consequently, the said motor vehicle will be declared forfeited to the United States. An appropriate order will be entered.
There are several facets to this case which require discussion. First, respondent-claimant, Herman Ross, argues that since a judgment of acquittal was entered on his behalf at the close of the government's case in the criminal action growing out of this same set of facts, and since that same trial resulted in a verdict of not guilty as to Pearl Wilkinson Ross, the Court may not forfeit the motor vehicle for the reason that the judgments of acquittal in the criminal case are determinative of the issue here. This is not the law. An acquittal in the criminal action does not bar these forfeiture proceedings. United States v. Physic, 2 Cir., 1949, 175 F.2d 338; United States v. One 1949 Lincoln Coupe Auto, D.C.S.D.N.Y.1950, 93 F.Supp. 666. Further, the action of the Court in granting the motion for a judgment of acquittal at the close of the Government's case with respect to the owner, Herman Ross, is not inconsistent with a finding here to the effect that the motor vehicle was being used to transport the narcotics. While the evidence would not support a finding that Herman Ross was in possession of the narcotics, an element essential to prove the crime charged in the indictment, it does support the finding here made to the effect that the narcotics were in the motor vehicle and that it was being used to transport them. Finally, while the burden of proof in the criminal case was on the Government, the burden of proof in this forfeiture proceeding is on the claimant.1 United States v. Andrade, 9 Cir., 1950, 181 F.2d 42; W. E. Dean & Co. v. United States, 5 Cir., 1948, 171 F.2d 468. The Government presented enough evidence to make out a prima facie case establishing probable cause for seizure thereby casting the burden on claimants. This burden has not been met in this case.
This case is further complicated by the fact that the motor vehicle was mortgaged. The chattel mortgagee has filed an answer to the libel asserting innocence on its part, and asking that in the event a decree of forfeiture be entered, payment to the chattel mortgagee by the United States of the chattel mortgagee's lien be made a concurrent condition to such forfeiture. It is well settled that the innocence or want of knowledge of the owner or lienor is no bar to forfeiture. United States v. Andrade, supra; United States v. One 1949 Lincoln Coupe Auto, supra; United States v. Childs, D.C.N.D.Ga.1942, 43 F.Supp. 776. This is true only where the motor vehicle is lawfully in the possession of the person operating it at the time of its illegal use since Section 782 of Title 49 U. S.C.A., provides:
"That no vessel, vehicle, or aircraft shall be forfeited under the provisions of this chapter by reason of any act or omission established by the owner thereof to have been committed or omitted by any person other than such owner while such vessel, vehicle, or aircraft was unlawfully in the possession of a person who acquired possession thereof in violation of the criminal laws of the United States, or of any State."
In this case, it is clear that the motor vehicle was lawfully in the possession of Herman Ross and in fact the chattel mortgagee does not contend otherwise.
Moreover, this Court has no jurisdiction to grant the remission of forfeiture requested by the chattel mortgagee. United States v. Andrade, supra; United States v. Gramling, 5 Cir., 1950, 180 F.2d 498; United States v. Heckinger, 2 Cir., 1947, 163 F.2d 472; United States v. One 1941 Plymouth Tudor Sedan, 10 Cir., 1946, 153 F.2d 19; United States v. One 1946 Plymouth Sedan, D.C.E.D.N.Y.1946, 73 F. Supp. 88. Under these decisions and the applicable statutes, the sole remedy of the innocent lienor is an administrative one by application to the Secretary of the Treasury as provided in Section 1618 of Title 19 U. S.C.A. This section is made applicable...
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