United States v. One 1946 Plymouth Sedan, Misc. No. 1106.

• Decision Date: 27 December 1946
• Docket Number: Misc. No. 1106.
• Citation: 73 F. Supp. 88
• Parties: UNITED STATES v. ONE 1946 PLYMOUTH SEDAN, MOTOR NO. P-15-116329, SERIAL NO. 11569665.
• Court: U.S. District Court — Eastern District of New York

73 F. Supp. 88

UNITED STATES v. ONE 1946 PLYMOUTH SEDAN, MOTOR NO. P-15-116329, SERIAL NO. 11569665.

Misc. No. 1106.

District Court, E. D. New York.

December 27, 1946.

Henry K. Chapman, of New York City, for owner and claimant, for the motion.

J. Vincent Keogh, U. S. Atty., of Brooklyn, N. Y. (Jesse Silverman, Asst. U. S. Atty., of Brooklyn, N. Y. of counsel) for libelant.

KENNEDY, District Judge.

During the evening of July 30, 1946, agents of the Bureau of Narcotics were conducting surveillance over a 1946 Plymouth Sedan owned by the claimant in this proceeding, one Thomas Toscano. In the early morning of July 31, 1946, these agents saw the claimant, accompanied by a second person carrying a package, enter the car, which they then trailed to La Guardia Airport in the county of Queens, New York City, where claimant and his passenger, emerging from the automobile, walked toward the Administration Building. It developed that the package carried by the passenger contained narcotics, and both claimant and his passenger were placed under arrest. The car was seized, and on October 15, 1946, the United States Attorney filed his libel of information, praying that it be condemned.

The owner of the car now moves for an order releasing the car if he files a stipulation (bond) in the amount of $1,154.70, the undisputed value of the automobile. He says that no drugs were found in his own possession or in the automobile, and that he needs the car for proper business purposes. In what I have to say hereafter, I am assuming, arguendo, that claimant is innocent of any offense, that he needs his car for legitimate purposes and will use it for no other, and that the amount of the bond suggested by him is adequate in amount — i. e., it is equal to the value of the automobile.

The seizure was made under the Act of August 9, 1939, c. 618, § 1, 53 Stat. 1291, 49 U.S.C.A. § 781. Barring certain peculiar provisions applicable to common carriers and not relevant here, that statute absolves owners of vehicles from the consequences of forfeiture only where the vehicle when seized is illegally in the possession of the actual offender. 49 U.S.C.A. § 782. Apart from that, the owner's remedy by way of remission of the forfeiture, and his only remedy, seems to be an application to the Secretary of the Treasury, because one section of the statute (49 U.S.C.A. § 784.) makes applicable in "contraband" cases (narcotics, firearms, counterfeit money, and machinery for making it) the laws relating to customs seizures. This must mean that remissions are governed by the customs statute giving full power over such matters to the Secretary of Commerce or the Secretary of the Treasury, as the case may be. Act of June 17, 1930, c. 497, Title IV, § 618, 46 Stat. 757, 19 U.S.C.A § 1618. As I understand it, the sole exception to this procedure is in the case of remission or mitigation of forfeitures under the liquor laws. Act of August 27, 1935, c. 740, § 204, 49 Stat. 878, 18 U.S.C.A. § 646. All of this is set forth in a recent and careful analysis of the statutes. United States v. One 1941 Plymouth Tudor Sedan, 10 Cir., 1946, 153 F.2d 19. And it amounts to saying, so far as the remission or mitigation of such forfeitures is concerned, that the District Courts are closed to innocent vehicle owners, who must suffer the consequences even of the surreptitious transmission of contraband by passengers, unless the Secretary of the Treasury chooses to be lenient.

I admit that on the argument of this motion I expressed unwillingness to believe that the forfeiture laws are as harsh as I have just said they are. But analysis of the cases demonstrates, at least to me, that the claimant has no remedy in this Court even if he is innocent. He relies upon an opinion by Judge Thacher (United States v. One Dodge Coupe, D.C., S.D.N.Y., 1927, 17 F.2d 661). That was a case where a car had been seized (because liquor was being transported in it) and was released on bond. The decision antedates the statute, already mentioned by me, which specifically gives the Court power to remit or mitigate forfeitures under the liquor laws (18 U.S.C.A. § 646). Judge Thacher, however, held that the Court had inherent power to relieve an innocent claimant by releasing his car pending trial of the cause of forfeiture so long as he furnished a bond. Claimant also relies on In re Jackson, D.C., N.D.N.Y., 1929, 35 F.2d 931, where a liquor-smuggling airplane was released on the giving of bond under the supposed authority of a section of the Judicial Code dealing with customs seizures based on defaults or deficiencies in the payment of duty, R.S. § 938, 28 U.S.C.A. § 751. The authority of In re Jackson, supra, has been badly weakened by The Seal, D.C., S.D.Cal., 1929, 45 F.2d 243, where it is pointed out that there is a wide difference between (1) a statutory seizure of the vessel itself for an offense against the law (in that case a false oath to procure a license, 19 U.S.C.A. § 498), and (2) a seizure of goods imported into this country under circumstances where the...