Zarranz v. United States, 13099.

• Decision Date: 11 July 1950
• Docket Number: No. 13099.,13099.
• Citation: 182 F.2d 650
• Parties: ZARRANZ et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Fifth Circuit

182 F.2d 650 (1950)

ZARRANZ et al. v. UNITED STATES.

No. 13099.

United States Court of Appeals, Fifth Circuit.

May 29, 1950.

Rehearing Denied July 11, 1950.

T. Gilbert Sharpe, Brownsville, Texas, for appellant.

William R. Eckhardt, III Assistant U. S. Attorney, Houston, Tex., Brian S. Odem, U. S. Attorney, Houston, Tex., for appellee.

Before HUTCHESON, Chief Judge, and McCORD and WALLER, Circuit Judges.

HUTCHESON, Chief Judge.

Brought under the export control laws, Title 22 U.S.C.A. § 401 et seq., the libel of information was for the forfeiture of an automobile which had been properly seized and was being held under warrant in accordance with the precise terms of the statute.¹

Denying the allegation that the persons named were exporting and intending to export, and attempting to ship the automobile through the port of Brownsville without complying with the provisions of the Act of July 2, 1940, 50 U.S.C.A.Appendix, § 701, the claimants, Zarranz and Abasolo, prayed that the libel be dismissed and the automobile be returned to them.

Tried to a jury, claimants' motion for directed verdict was overruled, and there was a verdict and judgment of forfeiture.

Assigning as error that the evidence was insufficient to establish that the car was about to be unlawfully exported, that a verdict for claimants was, therefore, demanded, and that it was error to deny their motion for a direction, claimants have appealed.

Admitting that there had been an intention, and at one time a plan, to export the automobile unlawfully, appellants urge upon us that the undisputed evidence shows: that this intention, and particularly this plan, was abandoned; and that at the time of the actual seizure, while there remained a general intention, there was neither present imminent intention nor present effective plan for imminent exportation.

Basing their argument on the last sentence of Sec. 401,² they insist that it could not be said that it was made to "appear that (the automobile) was about to be unlawfully exported, shipped from, or taken out of the United States".

The United States, on its part, agrees that the carefully devised plan for getting the car over by bribery had been interrupted. It agrees, too, that the undisputed facts show that upon advice from Garcia, the confederate in the Customs Office, that things were too hot at Brownsville at that time, and instructions from him to return with the car to Laredo and remain there until a propitious time for crossing, when Garcia would call, one Alarcon, who was to drive the car across, did take the car back to Laredo to wait for the call as advised.

It points out, though, that, on the third day after returning there, claimants decided that it would be better to return to Brownsville to be in a position to take prompt advantage of the first opportunity for crossing, and they did return. There under instructions not to be seen with the car, they parked it several blocks away from their hotel, and upon their way to make inquiries about their further movements in connection with the crossing, they were arrested. The car was detained, and Garcia and a confederate were arrested, convicted, and sentenced on charges of conspiring with an American Customs Officer to export two automobiles at, or about, that time.

It is appellants' contention that the words "about to be", as used in the statute, contemplate not merely a present active intention to export illegally, but also the present existence of an effective plan for carrying that intention out. Admitting that the intention to illegally export had not been abandoned, and that the claimants were standing ready to go on with the plan as soon as advised that it would work, appellants urge upon us that until the obstacle to the effective working had been removed and the plan was in course of being carried out the car could not be regarded as "about to be exported", because the American Customs Officer, with whose collusion Garcia was to get the car across, had refused to let it be taken over on his shift. They insist, in short, that all of the preparation made by bringing the car to Brownsville, taking it back to Laredo, and bringing it to Brownsville again so that it could be carried over, and its hiding out, so that it could not be identified with them and picked up, must be completely disregarded, and it must be found, as matter of law, that the car, when picked up, was not, within the meaning of the statute, "about to be exported".

This is the second export control case³ in which this court finds itself divided upon the sufficiency of the evidence, as matter of law, to support the finding and judgment. In the first case, U. S. v. Moreno, 5 Cir., 1950, 182 F.2d 258, the finding and judgment were against forfeiture, and the division, with the writer in dissent, was over whether the evidence did not, as matter of law, demand a finding and judgment in favor of forfeiture. In this case, the finding and judgment was in favor of the forfeiture, and the division is over whether the evidence did not, as matter of law, demand a finding and judgment against forfeiture.

In the Moreno case, the writer was of the opinion that the majority held and gave expression to the view that an intention, no matter how positive, definite, or continuing, would not subject the car to forfeiture under the act unless it was in process of being, or about to be, carried out under some effective plan under which the exportation was imminent. Holding an opinion quite the contrary of that he understood the majority to entertain, in his dissent in the Moreno case the writer gave expression to these views: that, as matter of law the tires there became subject to seizure and forfeiture from and after the time when a firm intention to export illegally at the first opportunity, matured, and there were overt acts manifesting this intention; that it remained so subject as long as that intention remained active and was persisted in; and that the fact that there had been a temporary frustration of the plan, a temporary check in carrying the intention out, was immaterial.

The undisputed evidence here showing, as to the car, that neither the intention nor the plan to export it had been abandoned, the writer is in no doubt that the judgment was right and must be affirmed.

In addition, he is in agreement with the views of Judge McCord,...