United States v. ONE 1964 CHEVROLET IMPALA AUTOMOBILE, Civ. A. No. 5019.
| Decision Date | 18 November 1965 |
| Docket Number | Civ. A. No. 5019. |
| Citation | 247 F. Supp. 329 |
| Court | U.S. District Court — District of South Carolina |
| Parties | UNITED STATES of America, Libelant, v. ONE 1964 CHEVROLET IMPALA AUTOMOBILE, Serial No. 41447C122862. |
John C. Williams, U. S. Atty., and James D. McCoy, III, Asst. U. S. Atty., Greenville, S. C., for libelant.
Elford H. Morgan, of Butler, Chapman, & Parler, Spartanburg, S. C., for petitioner First Commercial National Bank, Spartanburg, S. C.
Action for remission of forfeited automobile, allegedly used in violation of internal revenue laws as contemplated in 26 U.S.C. § 73021 initiates issues for the Court. The fifth paragraph of the original libel, filed by the United States of America July 22, 1965 recited:
That on May 28, 1965, Investigators of the Alcohol and Tobacco Tax, Internal Revenue Service, Treasury Department, did seize on land in Spartanburg County, South Carolina, within the Western Judicial District of South Carolina, Spartanburg Division, as forfeited to the United States, certain property to wit: One 1964 Chevrolet Impala Automobile, Serial No. 41447C122862, its equipment and accessories, of the appraised value of $2,700.00, which vehicle was used on April 14, 1965 by Eddie Roberson in Spartanburg County, South Carolina, in violation of the internal revenue laws of the United States in the conduct of the business of retail dealer in liquors without the special tax imposed on said retail liquor dealer by Section 5121(a) of the Code having been paid. That said retail liquor business was being conducted by the said Eddie Roberson, Wilfred Arrington, and Alton Thomas Trotter without the persons named in this paragraph, or any other persons having paid the special tax imposed on every retail dealer in liquors by Section 5121(a) of the Code. That, more specifically, said vehicle was used on April 14, 1965 in then soliciting the sale of 36 gallons of untaxpaid distilled spirits to one Cora Spears by the said Eddie Roberson, which said untaxpaid distilled spirits thereafter on April 14, 1965 were delivered to Cora Spears in a vehicle other than said 1964 Chevrolet Impala Automobile, and the said 1964 Chevrolet Impala Automobile was used as aforesaid with intent to defraud the United States of the tax due by persons engaged in the business of retail dealer in liquors in violation of Sections 5686(a), 5691 and 7302 of the Code. Ever since said seizure said property has remained in the Western Judicial District of South Carolina in the custody of the Alcohol and Tobacco Tax, Internal Revenue Service, Treasury Department, and is now in storage at Cudd & Company, 150 North Liberty Street, Spartanburg, South Carolina.
A sixth paragraph sought to hang the government's hat on allegations that "said vehicle had concealed and deposited therein ½ pint of distilled spirits * *." After failure of proof, this was abandoned.
At the hearing before the Court the uncontradicted evidence revealed that Eddie Roberson had violated 26 U.S.C. § 5121(a),2 and 26 U.S.C. § 5691.3 This Court does not recall the sentence ultimately imposed upon him for such departures from lawful conduct, but he was in court by order of Court directing that he be brought here from a Federal Prison. The government has, unequivocably, exacted its "pound of flesh" and he is paying his debt to society for violation of the tax (internal revenue) statutes.
Other facts reveal that Eddie Roberson, is the registered owner of a libel automobile, on which the First Commercial National Bank, Spantanburg, South Carolina, has a lien equal to its value. On the day that the automobile is alleged to be subject to forfeiture, Roberson drove the automobile to the house of a female friend, picked her up, made a telephone call and then drove to the house of a woman in Federal employment. This woman had been previously contacted by Federal ATU Agents, furnished with names of suspected bootleggers and instructed to contact them. Roberson drove the libeled automobile to the house of the contact woman, and was given an order by her for 36 gallons of bootleg liquor, but did not take order, or money, while in the car. He then made contact with other liquor agents and 36 gallons were delivered in someone else's truck. No untaxed liquor was ever present in the libeled automobile nor was any delivery made in it or from it.
There is uncontradicted testimony from the automobile owner and the woman companion whom he picked up that prior to the time they drove out to the Federal contact woman, that they were riding in an automobile purely for entertainment. The companion stated that the only reason she was in the automobile was for purely social reasons and that she knew nothing of any liquor dealings at any time. Roberson testified that the contact woman had called his house earlier that morning and left her number with his wife (hearsay not objected to). While he and his lady friend were riding, he decided to call the woman and find out why she wished to see him.
There is controversy over whether liquor was ever mentioned over the telephone. The automobile owner denies that liquor was ever mentioned and testified that the woman instructed him to drive out to her house, where she wished to talk to him. He testified that if any liquor was mentioned, that he would certainly have taken the order over the telephone rather than take a chance of going out to her house; that he did not know why the woman wished to speak to him, until he arrived at her house. The contact woman admitted that she was given a bonus for the automobile owner's subsequent arrest at the time the liquor was delivered in the truck, which was seized, libeled forfeited and sold.
The tax statutes provide forfeiture as a facet of punishment for, deterrent against, violation of the law. Congress in its wisdom in enacting the revenue laws determined that the vehicles used in the production of the illegality were themselves tarnished by the iniquitous practice. But Congress did not intend, nor design, abandonment of reason, promote or expect extreme interpretations that would work hardship on those not otherwise participating. We have here a state of facts in which the Bank made some inquiry, but admittedly did not make a sufficiency to protect them. Fortunately for the Bank, another issue gives them protection.
At the hearing counsel for owner, Bank and government were present. They agreed orally on a sale of the car to prevent depreciation from effecting further ravages on the value. Counsel stated there was no statutory direction, or precedent, for the sale. The Court feels a sale is reasonable and proper, as it will take judicial notice that age quickly and surely takes its toll of the value of an automobile.
One wonders if next we are to have an invasion of the right of free communication. What of the telephone? According to some of the testimony many of the government traps were set up by the woman by use of a telephone. Shall we say now that the telephone should be forfeited in these cases? In this case since the original trap was attempted by telephone? This Court will not, if government ambition persists to such degree, decree or direct such forfeiture. Or, if the contact or order were made by telegraph, would the bicycle of the messenger be subject to forfeiture if he knew the purpose and object of his mission? If the professional maxim "hard cases make bad law" is given credence, we pursue here a path of difficulty which has no foreseeable end of hardship and permissive injustice.
The Bank, in this case, must stand in the shoes of Roberson because the government has met, and Bank has not controverted, conditions precedent required in 18 U.S.C. § 3617(b).4 Compliance with all three conditions precedent to remission must be proved by a claimant before the court has any right to remit or mitigate a forfeiture. Universal Credit Company v. United States, 111 F. 2d 764 (4th Cir. 1940). The granting of relief under the statute is not a matter of equity, therefore the court has no power to relax the express provisions of the statute. United States v. Dodd, 205 F. 2d 260 (5th Cir. 1953); United States v. One Hudson Coupe, 110 F.2d 300 (4th Cir. 1940). The conditions must be literally complied with and substantially fulfilled. One 1950 Mercury Coupe v. United States, 213 F.2d 133 (5th Cir. 1954).
Remission is not a matter of right, however, and even though all the statutory conditions are met, whether there shall be a remission or mitigation is still within the sound discretion of the court. United States v. One Ford Coach, 93 F.2d 771 (4th Cir. 1938), aff'd 305 U. S. 564. Although it may do so, the court is not compelled to exercise its discretion in remitting a forfeiture where the minimum statutory conditions are complied with if there are facts and circumstances which gave an unsatisfactory color or character to the transaction. Fulfillment of the conditions precedent permits the court to exercise its discretion, and equity and good conscience then become the controlling considerations. United States v. One 1936 Model Ford Coach, 307 U.S. 219, (1939). If the claimant has been negligent, or in good conscience ought not to be relieved, the court should deny his application.
Once it is established that claimant's interest arises out of an agreement under which a person having a record or reputation for violating the liquor laws has a right in the vehicle then the claimant must show that before he acquired his interest he made inquiry and was informed that such person had no record or reputation. This inquiry is not considered in conformance with 18 U.S.C. § 3617(b) (3) if it was made and the response thereto received subsequent to the acquisition of the claimant's interest. United States v. National Discount Corporation, 104 F.2d 611 (7th Cir. 1939).
The inquiry...
To continue reading
Request your trial