74 F. Supp. 622 | D. Minnesota | 1947
Libel by United States of America against 673 cases of distilled spirits and wines for violation of the internal revenue laws-. Samuel H. Taran and Jerry M.-Londer, claimants. Claimants filed a motion for a dismissal of the libel for want of lawful seizure of the liquors in question, which was denied without prejudice to claimants to renew it on the trial, and the case was set down for trial on the merits. United States v. 673 Cases of Distilled Spirits and Wines, D.C., 65 F.Supp. 896. At the commencement of the trial on the merits, claimants renewed their motion for dismissal of the dibel for want of lawful seizure of the said liquors and also moved to suppress all of the evidence which was obtained by means of such allegedly unlawful seizure.
■ The libel alleges that .Sam. H. Taran and Herman Paster, individually and as co-partners, under the firm name of Mayflower Novelty Company, and others unknown, violated the internal revenue laws by engaging in business as wholesale liquor dealers without having paid the special tax provided therefor as required by Section 3253 of Title 26 U.S.C.A. Int.Rev. Code; and possessing liquor intended for use in violating the internal revenue laws under Section 3116 of Title 26 U.S.C.A. Int.Rev.Code.
The answer filed by Sam Taran states that he is the sole owner of the liquor in question; that he operated the Mayflower Novelty Company at 2218 University Avenue, St. Paul, Minn., and that Herman Paster was merely his employee. A claim of ownership was filed by Taran, and another such claim was interposed by Jerry M. Louder as to a portion of the liquors involved. Londer also filed an answer to the libel.
It appears from the evidence that the Mayflower Novelty Company is a corporation organized under the laws of Minnesota for the purpose of engaging in the coin operated machine business, that during the period in question here Taran was its manager and Herman Paster an employee subordinate to Taran. In April 1943 Taran rented a storeroom on the second floor of the Kedney Warehouse, 389 East 8th St., St. Paul, stating to the warehouse manager that he was “interested in a finance company” and that he desired storage space for liquor financed by this company. In June or July of 1943 he also rented room 420 and another fourth floor room at the same ware- . house, at which time he stated that part of this space was desired for liquor being financed for the Snelling Liquor Store of St. Paul. Taran furnished his own locks for these storerooms and paid the rent on a flat monthly basis, thereby absolving the warehouse management of any responsibility for their contents as well as the duty of keeping records of storage withdrawals or additions. The liquor that was stored in these rooms was generally handled by a Negro employee of the Mayflower Company, James Tiffin, who was sometimes assisted by a fellow employee, Lee, and occasionally by Herman Paster. Early in October of 1943 the St. Paul branch of the Federal Alcohol Tax Unit received reliable information that a wholesale liquor business was being conducted at the premises of the'Mayflower Novelty Company and pursuant to such information two investigators were detailed to keep said premises under surveillance. While so engaged in the late afternoon of October 5th, they observed a large truck back into the loading station of the building, remain there a little over an hour, and then pull out preceded by Herman Paster in his car. The investigators followed the truck to the intersection of U. S. Highways Nos. 10 and 8, northwest of St. Paul, where they observed Paster turn around and head back
1. The libel alleges violation of Section 3253 and also “that certain property used and intended for use in such violation was seized by agents of Alcohol Tax Unit and is subject to forfeiture within the meaning of Section 3116 of the Internal Revenue Code. Section 3116 provides that “It shall be unlawful to have or possess any liquor or property intended for use in violating the provisions of this part, or the internal-revenue laws, or regulations prescribed under such parts or laws, or which has been so used, and no property rights shall exist in any such liquor or proper£y *1® ^ ¥ **
It might be well to first note the recent decision of the Eighth Circuit Court of Appeals in the case of United States v. Windle, 8 Cir., 158 F.2d 196, wherein a
2. It is elementary that the burden of proof is upon the government to show affirmatively the existence of every fact which is an element of a proceeding for forfeiture of distilled spirits as alleged in the information of libel. Jackson v. United States, C.C., 21 F. 35; In re Quantity of Distilled Spirits, Fed.Cas. No. 11494; and United States v. One Marmon Automobile, D.C., 5 F.2d 113, 115. 'Therefore it is incumbent upon the govern-jment in the instant case to affirmatively ■show that the liquor seized was in the possession of claimants, or either of them; that -it had been used in violation of the Internal Revenue Laws or regulations prescribed -.under such laws; and that it was intended for use in violation of the provisions of the Internal Revenue Laws or regulations prescribed under such laws.
However, the burden of proof resting upon the government is satisfied by proof which establishes the necessary elements by a “reasonable preponderance of the evidence.” In United States v. Regan, 232 U.S. 37, 49, 34 S.Ct. 213, 217, 58 L.Ed. 494, which was a suit by the government to recover $1,000 as a penalty for an alleged violation of Section 4 of the Alien Immigration Act, 34 Stat. 898, the question for decision was whether it was essential to a recovery that the evidence should establish the violation beyond a reasonable doubt. The court said: “ ‘The rule of evidence- requiring proof beyond a reasonable doubt is generally applicable only in strictly criminal proceedings. It is founded upon the reason that a greater degree of probability should be required as a ground of judgment in criminal cases, which affect life or liberty, than may safely be adopted in cases where civil rights only are ascertained. 2 Russell, Crimes, 7th Am.Ed., 727. It often happens that civil suits involve the proof of acts which expose the party to a criminal prosecution. Such are proceedings under the statute for the maintenance of bastard children, proceedings to obtain a divorce for adultery, actions for assaults, actions for criminal conversation or for seduction, and others which might be named. And in such actions, which are brought for the determination of civil rights, the general rule applicable to civil suits prevails, that proof by a reasonable preponderance of the evidence is sufficient.’ ”
The Circuit Court of Appeals of the Seventh Circuit applied the rule of the Regan case in a libel action for the forfeiture of land and certain personal property which had been allegedly used in the production of distilled spirits with intent to defraud the government of taxes imposed thereon, United States v. About 151.682 Acres of Land, 99 F.2d 716. The court said, 99 F.2d at page 718: “ * * * It is also claimed the burden was on the Government to establish its libel beyond a reasonable doubt. This contention is answered and disposed of adversely to claimants in United States v. Regan, * * *, wherein the cases cited and relied upon by claimants are distinguished.”
See also Grain Distillery No. 8 of Eastern Distillery Co. v. United States, 4
Does the evidence adduced herein on the part of the government establish the necessary elements of its libel action by a preponderance of the evidence ? This question must I think be answered in the affirmative. The lot of 142 cases seized at the Mayflower Novelty Company premises were under Taran’s direct control and he admitted to the government agents at the time of their original search that he owned this liquor. With reference to the 531 cases seized at the Kedney Warehouse, the testimony of government witnesses clearly established that the rooms in which this liquor was stored had been rented by Taran personally and the contents had been handled exclusively by his employees, Tiffin, Lee or Paster. This evidence constitutes a sufficient showing of possession by claimant Taran.
Further, it appears without dispute that within the period of time covered by the libel of information Taran made at least two sales and deliveries of liquor in wholesale quantities without having paid the special tax imposed upon wholesale liquor dealers. These two transactions were proved at the trial by the introduction in evidence, over the objections of counsel for claimants, of the record of an information in Criminal Case No. 6930
The question of intent is likewise in this case. The libel of information charges Taran with the possession of liquor or property used and “intended” for use in violating the Internal Revenue Laws. What was said in Neff v. United States, 8 Cir., 105 F.2d 688, 691, is equally pertinent here: “‘The intent and disposition with which one does a particular act must be ascertained from his acts and declarations before and at the time; and when a previous act indicates an existing purpose, which from known rules of human conduct may fairly be presumed to continue and control the defendant in the doing of the act in question, it is admissible in evidence. * * * The practical limit to its admission is that it must be sufficiently
Therefore, the evidence of two previous sales in wholesale quantities within a ■period of less 'than two months previous to the seizure of the liquor in question was admitted as bearing upon the question of what Taran intended to do with this considerable quantity of liquor in his possession at the time of its seizure by government agents. Such evidence seems to be •sufficiently significant, in point of time as well as character, to bring it within “the practical limit” of the exception to the .general rule set forth in the Neff case.
As to the sufficiency of the evidence •to sustain the allegations of the libel of information, it is well established that evidence of a single sale is sufficient to sustain a conviction of a defendant of carrying on a wholesale liquor business without payment of the special tax provided therefor, where there are corroborating circumstances tending to show that defendant was engaged as a wholesale liquor deal-er or where defendant had liquor on hand, or was ready and able to procure it, in either case with the purpose of selling some or all of it to such persons as he might accept as customers. Bailey v. United States, 6 Cir., 259 F. 88, 92; Sodini v. United States, 6 Cir., 261 F. 913; Conyer v. United States, 6 Cir., 80 F.2d 292, 294; Johnson v. United States, 5 Cir., 84 F.2d 114, 115, certiorari denied 299 U.S. 574, 57 S.Ct. 37, 81 L.Ed. 423; Wilson v. United States, 6 Cir., 149 F.2d 780, 781, certiorari denied 326 U.S. 753, 66 S.Ct. 92, 90 L.Ed. 451; Supreme Malt Products Co. v. United States, 1 Cir., 153 F.2d 5, 7; Rood v. United States, 4 Cir., 7 F.2d 45, 47. The Circuit Court of Appeals of the Eighth Circuit in the case of Taran v. United States, 88 F.2d 54, indicated that it was in accord with the above rule when it said 88 F.2d at paga 58: “ * * * There was also evidence that defendant held himself out as ready, willing, and able to deliver liquor in quantities exceeding five gallons in one sale. Through Larson, he was attempting to effect such sales, and this was sufficient to show that he was carrying on the business * * * of a wholesale liquor dealer. Day v. United States, 8 Cir., 31 F.2d 71; Hodge v. United States, 8 Cir., 191 F. 165; Sodini v. United States, 6 Cir., 261 F. 913; Bailey v. United States, 6 Cir., 259 F. 88. This is not a case in which there was an isolated sale unconnected with circumstances showing that defendant was in the business of selling. Hi Hi H«
There are such corroborating circumstances in this case. The evidence introduced by the government shows that on October 7, 1943, Bruce Motor, an interstate trucking concern, received a telephone order to pick up some freight at the Mayflower Novelty Company premises. Upon arriving there the pick-up driver found 6 crates with a bill of lading listing their contents as coin operated machines, which actually were found to contain 12 cases of liquor upon their arrival at the freight terminal of the Bruce Motors. The bill of lading covering these crates listed the Weiner Novelty Company of Des Moines, Iowa as consignee and Northwest Novelty Company as consignor. When the government agents were notified of this shipment they allowed it to go through, but no one called for it at Des Moines. It was later confiscated there at which time it was determined that there was no such company as the Weiner Novelty Company in existence in Des Moines. It is true that neither Taran nor the Mayflower Novelty Company is mentioned in the bill of lading covering this shipment. However, there was no explanation offered at the trial as to why these crates were picked up at the Mayflower premises if they were the property of the Northwest Novelty Company; nor was there an explanation as to who or what the latter company was and/or its connection with the Mayflower Company; nor as to why the shipment was consigned to a fictitious consignee in Des Moines, Iowa.
Evidence was also introduced that three truck loads of liquor were hauled from St. Paul to Duluth by McKeown Trucks, another truck common carrier, and that its
Throughout these various transactions there is a,web of circumstances connecting Taran’s name. While the evidence of these dealings may not be sufficient of itself to establish as a concrete fact that Taran was the seller or was interested personally in each of these sales, it does constitute sufficient corroborating circumstances, with the two sales definitely proved, to establish that Taran was engaged in the business of a wholesale liquor dealer during the time covered by the libel. Such ■evidence is regarded as sufficient to sustain .a criminal conviction of engaging in the business of a wholesale liquor dealer without the proper authority, where the burden is upon the government to establish defendant’s guilt beyond a reasonable doubt. Plence, it will amply sustain the government’s lesser burden here of proof by a preponderance of the evidence. And having established that Taran was engaged in the business of a wholesale liquor dealer in violation of the Internal Revenue laws, it can be fairly presumed from the “known rules of human conduct” that such existing purpose continued with him up to the time of the seizure of the liquor in question, justifying its forfeiture under Section 3116. Neff v. United States, supra. Were the inferences drawn from Taran’s activities in these various transactions and previous illegal sales unwarranted, one man and One man alone is in the best position to make the necessary denials. That man is Taran himself, tie better than anyone knows what his financial interest and connections with these various transactions were. He more than any other person knows what plans for the disposition of the liquor he was harboring on October 6 and 8, 1943, when the liquor was detained. Yet Taran has seen fit to absent himself from the jurisdiction of this court throughout these proceedings, and the court is not willing to ignore this significant silence. United States v. Fifty-Tvvo Cases, More or Less, of Distilled Spirits et al., D.C., 62 F.Supp. 749, 751, citing One Buick Automobile v. United States, 8 Cir., 275 F. 809, 810, 811.
3. Claimants contend that the searches for and seizures of the liquor in question at the Mayflower Company premises and the Kedney Warehouse were in violation of their Constitutional right's and therefore unlawful, and that their renewed motions to dismiss the libel for want of lawful seizure and to suppress all of the evidence obtained by means of such unlawful seizures should be granted.
This question has already been determined adversely to claimants by this court in this case (United States v. 673 Cases of Distilled Spirits and Wines, D.C., 65 F.Supp. 896) wherein it was held, at page 900: “The reasoning in the Strong case (Strong v. United States, 1 Cir., 46 F. 2d 257, 79 A.L.R. 150) is clear that as the
The court adheres to the views expressed in the above decision. As noted in that decision and cases therein cited, the United States must return property taken from claimants thereof under an illegal search and seizure only in those instances where it has no evidence except that obtained by the illegal search and seizure that the property was contraband or unlawfully owned or possessed by claimants. See also Turner v. Camp, U. S. Atty., et al., 5 Cir., 123 F.2d 840, 842. The fact that the res of this action, namely the liquor, was obtained by means of the alleged unlawful seizure does not prevent any further proceedings against such res. There is, of course, a well recognized distinction between using .illegally acquired property as evidence and its status to support jurisdiction in a libel proceeding. In Dodge v. United States, 272 U.S. 530, at page 532, 47 S.Ct. 191, 71 L.Ed. 392, the court held: “The Circuit Court of Appeals relied on the often quoted language of Mr. Justice Story in The Caledonian, 4 Wheat. 100, 4 L.Ed. 523, to the effect that anyone may seize any property for a forfeiture to the Government, and that if the Government adopts the act and proceeds to enforce the forfeiture by legal process, this is of no less validity than when the seizure is by authority originally given. The statement is repeated by the same judge in Wood v. United States, 16 Pet. 342, 359, 10 L.Ed. 987, and Taylor v. United States, 3 How. 197, 11 L.Ed. 559. See also Gelston v. Hoyt, 3 Wheat. 246, 310, 4 L.Ed. 381. The owner of the property suffers nothing that he would not’ have suffered if the seizure had been authorized. However effected it brings the object within the power of the Court, which is an end that the law seeks to attain, and justice to the owner is as safe in the one case as in the other. The jurisdiction of the Court was secured by the fact that the res was in possession of the prohibition director when the libel was filed. The Richmond, 9 Cranch 102, 3 L.Ed. 670; The Merino, 9 Wheat. 391, 403, 6 L.Ed. 118. The Underwriter, 2 Cir., 13 F.2d 433, 434.”
See also Boyd v. United States, 116 U.S. 616 at page 623, 6 S.Ct. 524, 29 L.Ed. 746; Rothman v. Campbell, D.C., 54 F.2d 103, 106; Burkis et al. v. United States, 3 Cir., 60 F.2d 452, 453; McShann v. United States, 10 Cir., 67 F.2d 655, 656, and cases cited therein.
In the instant case, the liquor was in possession of the federal government at the time the libel was filed. Therefore this court obtained jurisdiction under the rule of Dodge v. United States, supra. Moreover, counsel for claimants have conceded jurisdiction of this court, and it has been amply proved by evidence other than that obtained in the alleged illegal search and seizure that the liquor in question was contraband or unlawfully owned or possessed, thereby causing it to be forfeit under the provisions of the Internal Revenue laws.
4. It is the claim of Jerry Londer that he was the owner of the 149 cases of liquor seized from room 420 at the Kedney Warehouse and 60 of the 142 cases seized at the Mayflower Novelty Company premises. He testified that he bought a tavern in St. Paul on July 12, 1943-together with a considerable stock of liquor which was stored in the basement of the tavern; that due to water seepage in the basement the cases in which this liquor was-contained were disintegrating and for this-reason plus that of security he wished to-move them elsewhere; that he made arrangements at the Kedney Warehouse-through Taran whom he had known for 12 to 15 years, and Mr. Anderson, the Kedney Warehouse superintendent, whereby he-
The government witnesses Anderson and Miller, superintendent and manager respectively of the Kedney Warehouse, specifically denied that Londer had made any arrangements for rental of storage space .at the Kedney Warehouse. Londer himself was very vague as to the date this liquor was brought to the warehouse for storage, placing the date as some time in July, August or September of 1943. He introduced no evidence that he had ever been billed for rental of space at this warehouse. He claims that there was a note executed between him and Taran as evidence of the debt he owed the latter, yet this note was not produced in evidence at the trial. In fact, his entire claim of ownership is sought to be proved wholly on his uncorroborated testimony on the witness stand. His testimony with respect to the purchase and operation of the tavern is supported by documentary proof and there is a pencilled inventory of liquor in evidence which is claimed by him to have been made at the time he was negotiating to buy this tavern and its stock of liquor stored in the basement. However, such inventory is not definitely earmarked as coming from such a source nor does it contain the serial numbers or other positive identification of the cases of liquor it represents.
“It is a fundamental rule that the burden of proof in its primary sense rests upon the party who, as determined by the pleadings, asserts the affirmative of an issue and it remains there until the termination of the action. It is generally upon the party who will be defeated if no evidence relating to the issue is given on either side. Lilienthal’s Tobacco v. United States, 97 U.S. 237, 24 L.Ed. 901; Omaha Hotel Co. v. Wade, 97 U.S. 13, 24 L.Ed. 917; Davis v. O’Hara, 266 U.S. 314, 45 S.Ct. 104, 69 L. Ed. 303.” Reliance Life Ins. Co. v. Burgess, 8 Cir., 112 F.2d 234, 238, certiorari denied 311 U.S. 699, 61 S.Ct. 137, 85 L.Ed. 453.
Rule 8(c) of the Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c, provides: “In pleading to a preceding pleading, a party shall set forth affirmatively * * * any other matter constituting an avoidance or affirmative defense. * * * ” (Emphasis supplied.)
See also 20 Am.Jur., Evidence, Sec. 137, pp. 142-143. Londer’s claim of ownership constitutes an affirmative defense to the libel action and therefore by reason of the above rules the burden of proof rests on him to establish his claim of ownership. Upon viewing the evidence as to ownership by him it appears to give equal support to each of two inconsistent inferences, namely that Londer did or did not own the liquor in question. Therefore judgment must go against Londer upon whom rests the burden of sustaining the inference that he did own the liquor. When “ * * * proven facts give equal support to each of two inconsistent inferences, judgment must go against the party upon whom rests the burden of sustaining one of these inferences as against the other. * * * ” Liggett & Myers Tobacco Co. v. De Parcq, 8 Cir., 66 F.2d 678, at page 684 (citing cases); Plenry H. Cross Co. v. Simmons, 8 Cir., 96 F.2d 482, 486. See also Kehoe v. Commissioner of Internal Revenue, 3 Cir., 105 F.2d 552, 555.
After a careful consideration of all the evidence in this case the court is convinced that Taran sold and was ready to sell the liquor he possessed to the highest bidder in wholesale quantities and was not concerned with the Federal requirement that wholesale liquor dealers possess permits and special tax stamps in order to ply their trade.
The renewed motion for dismissal of the Libel and the motion to suppress all the evidence obtained by the alleged unlawful search and seizure are denied and a Decree will be entered condemning the distilled spirits and wines as forfeit to the United States. Findings of Fact, Conclusions of Law and Order for Judgment in accordance with the foregoing will be filed and will be considered in conjunction therewith.
No opinion for publication.