181 F. Supp. 903 | W.D. Pa. | 1960
On January 22, 1960, pursuant to Rule 41(e), Fed.R.Crim.P., 18 U.S.C.A., Roland Willis, owner of the above captioned motor vehicle, moved for a return of his property, alleging that it had been illegally seized on November 20, 1959, in violation of his constitutional rights. Service of the motion was accepted by the United States Attorney. At the hearing it appeared that the motor vehicle on that date was seized from John Pittman for alleged violation of § 7301, Title 26 U.S. C.A. (I.R.C.1954), by agents of the Alcohol and Tobacco Tax Division of the Internal Revenue Service. Subsequently, the vehicle was appraised at $500 and forfeiture proceedings were initiated by the Division pursuant to § 7325, Title 26 U.S.C.A. After the prescribed advertising beginning on November 30, 1959, the vehicle was declared forfeited on December 31, 1959. The movant had received timely notice of the proposed forfeiture proceedings by letter dated November 24, 1959, but did not file a claim and post a cost bond within the thirty-day period prescribed by the statute.
At the hearing a copy of the forfeiture proceedings was admitted into evidence
The government contends that Rule 41 (e) is inappropriate to forfeiture proceedings, and that the court does not have jurisdiction to order a return of the vehicle to movant. We agree with the government.
Section 7325, Title 26 U.S. C. A., provided movant with an adequate remedy at law to contest the legality of the seizure and forfeiture of his automobile.
Moreover, Rule 54(b) (5), Fed. R.Crim.P., specifically provides that the Rules of Criminal Procedure “are not applicable to * * * forfeiture of property for violation of a statute of the United States. * * * ” Rule 41(e) insofar as it provides for the return of property expressly excepts property “otherwise subject to lawful detention”. Possession of property by agents of the Alcohol and Tobacco Tax Division pending and following forfeiture proceedings would be, at least prima facie, lawful detention.
The authorities cited by movant clearly show that Rule 41(e) was used in situations where the United States Attorney had possession or control of property allegedly obtained by illegal search and seizure and which was intended for use in a pending or contemplated criminal proceedings. Such is not the case here. The movant does not allege that his motor vehicle was seized as a result, of an illegal search, and that it is in the custody or control of the United States Attorney for the purpose of using it as evidence in any pending or contemplated criminal prosecution. It does appear that the property is in the custody of agents of the Alcohol and Tobacco Tax. Division who have not been made parties to this motion and are not under the control of this court. See: United States v. Caccamo, supra; In re Behrens, supra.
The motion for return of property pursuant to Rule 41(e) will be denied.
. Had movant so proceeded lie might have recovered possession of his automobile. United States v. Plymouth Coupe, 3 Cir., 1950, 182 F.2d 180. For another possible remedy, see § 7327, Title 26 U.S.C.A., whereby movant might obtain remission or mitigation by the Secretary of the Treasury; and perhaps he also has a remedy at law against the agents for damages resulting from the alleged illegal and unwarranted seizure. In re Behrens, 2 Cir., 1930, 39 F.2d 561.