Kent v. United States , 157 F.2d 1 ( 1946 )

PER CURIAM.

A truck carrying fifty-two cases (about 113 gallons) of distilled spirits was seized, with the liquors, by federal officers in Louisiana, and libelled for forfeiture because intended to be used in violating the revenue laws, especially those about selling at wholesale, without registering and paying tax, and without keeping the required records. Kent, who was in possession, claimed the liquors and truck. The case was tried by the judge, without a jury, who rendered a decree of forfeiture, on an opinion and on findings of fact and conclusions of law. Kent had a federal permit to sell distilled liquors at retail at East Jackson, Mississippi, on premises known as “The Spot”, but had not operated the place for this purpose for several weeks before the date of seizure, and it was opened up the day following by two other persons who rented from Kent. Kent had made several liquor transactions in wholesale lots not at “The Spot” before and after the date of seizure, which appeared to be sales and not merely, transportations for others. The transaction in progress when stopped by the seizure was claimed by the United States to be similar. Kent contended that it did not appear but that he was taking the seized liquors to “The Spot” for lawful sale by himself at retail, and that he had not rented the entire premises. It was shown, however, and the Court found as a fact, that at the time of seizure Kent first denied that the truck and liquors were his; then admitted ownership, and said he would already have been in Jackson and “have sold llie stuff” if he had not stopped at his father’s house overnight, and that he intended to sell it to anyone in Jackson, “wholesale or retail, whichever he could get the most money for it”. Later he said he intended to take the liquor to “The Spot”. The crucial fact question was whether the liquors were intended to be used by Kent in making lawful sales at “The Spot” under his permit, or in making sales elsewhere, or at wholesale, or without keeping records. The Court found the latter to be true, laying some stress on the failure of Kent, who knew his own purposes in this transaction as well as in the others contended to be similar, to testify as a witness about them.

It was not error to consider Kent’s failure to testify as a circumstance indicative of the truth. He had made conflicting statements about his intentions. He had furnished no very convincing proof that he was intending to reopen “The Spot” for retailing. He himself did not reopen it. The provision of the Fifth Amendment: “nor shall be compelled in any Criminal Case to be a witness against himself” has no application. This is not a criminal case but a civil case, and no one seeks to compel Kent to testify. He has voluntarily appeared in the case as claimant. He voluntarily does not tell what he knows. His silence may well count against him, as against any other civil litigant. So also the Statute, 28 U.S.C.A. § 632, providing that the “person so charged” shall be a competent witness at his own request but not otherwise; “and his failure to make such request shall not create any presumption against him”, is without application, for it is limited to “the trial of all indictments, in-formations, complaints, and other proceedings against persons charged with the commission of crimes, offenses, and misdemeanors.” This is not such a trial. Kent is not here charged with any crime or offense. This property is alleged to be forfeited tender 26 U.S.C.A. Int.Rev.Code, § 3116, because “intended for use in violating the provisions * * * of the internal-revenue laws.”

The evidence as to intent is left by Kent’s not testifying, to consist of Kent’s admissions, and the circumstances. The inference of the Court that there was an intent to use the truck and liquors in violating the revenue laws as alleged is not unreasonable or plainly erroneous.

The judgment of forfeiture is Affirmed.