Weathersbee v. United States

• Citation: 263 F.2d 324
• Decision Date: 22 December 1958
• Docket Number: No. 7732.,7732.
• Parties: Genelle WEATHERSBEE and Esther B. Ram, Appellants, v. UNITED STATES of America, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

263 F.2d 324 (1958)

Genelle WEATHERSBEE and Esther B. Ram, Appellants, v. UNITED STATES of America, Appellee.

No. 7732.

United States Court of Appeals Fourth Circuit.

Argued October 24, 1958.

Decided December 22, 1958.

Lonnie A. Garvin, Aiken, S. C. (Garvin, Williamson & Grant, Aiken, S. C., on the brief), for appellants.

Frank H. Cormany, Sr., Asst. U. S. Atty., Aiken, S. C. (N. Welch Morrisette, Jr., U. S. Atty., Columbia, S. C., on the brief), for appellee.

Before SOBELOFF, Chief Judge, HAYNSWORTH, Circuit Judge, and BRYAN, District Judge.

SOBELOFF, Chief Judge.

This appeal is from a judgment entered by the United States District Court for the Eastern District of South Carolina against Genelle Weathersbee and Esther B. Ram, individually and severally, for $1575.00 plus interest and court costs, in lieu of their returning to the United States one 1956 Model 2-Door Ford Victoria automobile. Federal officers had seized the vehicle pursuant to Title 26, U.S.C.A. §§ 7301, 7302, and 7321, on the claim that it was used in the transportation of illegal whiskey. When a bond was posted by Mrs. Weathersbee as principal and Mrs. Ram as surety, the car had been released to them.

It is appellants' contention that the District Court erred in denying their motion for nonsuit made at the close of the Government's testimony and in granting the Government's motion for a directed verdict made at the end of all of the evidence. The appellants maintain that the evidence failed to prove, as alleged in the libel, that (1) the Ford car was used as a lookout or convoy in the movement of non-tax-paid whiskey, and that (2) the car was legally seized.

1. Was the Ford a convoy car?

The non-tax-paid whiskey, the movement of which subjected the 1956 Ford to forfeiture, was carried from Berkeley County, South Carolina, to Aiken, South Carolina, in a 1946 Plymouth driven by a man who had been hired by the owners of the whiskey. The selection was an unfortunate one for the owners because the driver later proved to be an undercover informer for federal and state officers who were then conducting an extensive investigation into the illegal whiskey traffic in the area. Before making the trip, the informer advised the officers of the route over which the whiskey was to be moved and arranged to meet them along the highway so that they might view the cargo.

In these circumstances, contend the appellants, the movement of the whiskey was really under the direction and control of the officers, and therefore, the Ford could not possibly have been acting as a convoy or pilot car. This argument, however, overlooks the fact that even though the driver of the Plymouth was in co-operation with the government agents and in receipt of government pay, he followed the instructions of the owners of the whiskey. They designated the route over which the whiskey was transported, and it was delivered to places indicated by them.

When the movement of the whiskey began, the owners instructed the Plymouth's driver to follow the Ford which they were driving, so that they could lead him through the small towns "to keep the law off." The cars proceeded in this manner until they approached the point where the officers were waiting. The driver of the Plymouth then slowed down, allowing the Ford to proceed out of sight, in order to stop briefly without exciting the owners' suspicions. After the officers looked at the load of whiskey, the driver resumed his journey to Aiken where he was to make delivery to the owners. Before reaching Aiken, however, the car ran out of gas, and a passerby took the driver into town where he reported his predicament to one of the men who had employed him to transport the whiskey. The Ford was then used to bring gas to the stranded Plymouth and to push it in an effort to get it started. The above described activities were, we think, clearly sufficient to make the Ford a convoy car. Precisely in point is our recent decision in United States v. One 1957 Ford 2-Door Sedan, Serial No. D7 NV-106275, 4 Cir., 1958, 262 F.2d 651.

We have here no suggestion of entrapment. The fact that through the officers' adroitness or the violators' lack of caution, the former were able to detect the plan to move the illegal whiskey and could have prevented its successful completion, does not make its execution any less a crime. There is no reason to immunize violators or their equipment from the consequences of illegal conduct simply because a law enforcement agency has been able to infiltrate the criminal group. If those who plan to move illegal whiskey hope to avoid detection and forfeiture of the vehicles used by them, they will have to be more circumspect in the selection of their collaborators.

2. Did the circumstances of the seizure vitiate the forfeiture?

When an automobile is used in violation of the Internal Revenue Laws, it becomes legally forfeited at that time, even though it is not seized until later. Property rights in the vehicle, including the right of possession, become vested in the United States, DeBonis v. United States, D.C.W.D.Pa.1952, 103 F.Supp. 123, Harman v. United States, 4 Cir., 1952, 199 F.2d 34, and all that remains is for the property to be seized and for the District Court to confirm the Government's title in a condemnation proceeding. However, the appellants assert that in this case the federal officers obtained possession of the forfeited property as a result of an illegal search and seizure violative of rights protected by the Fourth Amendment, and that such a seizure vitiates the forfeiture and requires the return of the property to its owner.

The transportation which caused the Ford car to be forfeited to the United States occurred on January 15, 1957. The officers decided not to seize the Ford and the Plymouth used in this enterprise or to make any arrests then, in order to maintain the secrecy of the extensive undercover investigation they were conducting in the Aiken area. The officers believed that the Ford belonged to Cecil Reese, one of the owners of the illegal whiskey, who drove it the night of January 15, 1957, and in whose possession it was seen both before and shortly thereafter. However, the car was registered in the name of a D. C. Weathers, whose existence has never been definitely established but who is asserted to be Reese's sister-in-law.

On April 20, 1957, state and federal officers began a mass seizure of vehicles involved in illegal operations discovered during the months of the undercover investigation. In the interval, the officers saw the Ford several times, but...