United States v. One 1960 Ford Pickup Truck, Serial No. F10c0a17418, General Acceptance Corporation

DeVANE, District Judge.

This is another case where an able District Judge failed to require complete compliance with the requirements of Title 18 U.S.C. § 3617(b) (3) before granting relief under the forfeiture provisions of the internal revenue laws. The writer of this opinion undertook to do the same thing in United States v. One 1950 Dodge Sedan, 5 Cir., 211 F.2d 738, but he too failed to get away with it.

The facts in this case are not in material controversy. The record shows that under date of June 30, 1960, one Walter Lawrence, Jr., purchased from Jim Skinner Ford Company of Birmingham, Alabama, the Ford pickup truck involved in this case under a conditional sales contract. The Skinner Company sold this contract to the General Acceptance Corporation for a valuable consideration.

At the time of the purchase Lawrence actually resided in Littleville, Colbert County, Alabama, although he gave in this contract as his post office address R.F.D. 7, Russellville, Franklin County, Alabama. The distance from Littleville to Russellville is approximately eight miles, but the two communities are in different counties.

On November 17, 1960, Lawrence was arrested by the Sheriff of Franklin County, Alabama, while transporting in this truck a quantity of sugar and yeast intended for use in violation of the liquor laws of Alabama and of the United States, and the truck was at that time seized and turned over to the A. T. T. U. for forfeiture under the provisions of Title 26 U.S.C. §§ 7301 and 7302. In due course the truck was forfeited to the United States.

The General Acceptance Corporation filed a petition for remittitur in its behalf under the provisions of Title 18 U.S.C. § 3617. The Court, after a lengthy hearing on the matter, granted remittitur to the petitioner. The question before the Court is whether petitioner fully complied with the provisions of Section 3617(b) (3). Appellant contends that it did not and that the Court was without authority to issue said re-mittitur.

The record discloses that Lawrence-had no criminal record at the time he-purchased the truck under the conditional sales contract, or at the time the-truck was seized by the Sheriff of Franklin County, but appellant contends and offered proof to establish the fact that he had a reputation as being a dealer in moonshine liquor. The record further shows that petitioner relied entirely upon the Credit Bureau of Franklin County to furnish it with the information required by Section 3617(b) (3).

Mrs. Morris, who was proprietor of the Credit Bureau of Franklin County, testified that she made no specific inquiry of the Sheriff or any other enforcement officer of Franklin County as to the reputation of Lawrence with reference to moonshine liquor. She testified that she kept a faithful record showing all persons arrested in Franklin County for violation of the liquor laws. Mrs. Morris further testified that her records showed that Lawrence lived in Littleville, a community located in Colbert County, Alabama, and not at the address given in the purchase contract for the automobile. This should have been sufficient to put Mrs. Morris on inquiry from enforcement officers in other adjoining counties, or at least in Colbert County. She testified further that she made no inquiry whatever of any enforcement officer of Colbert County or of Littleville, or of any enforcement officer connected with the A. B. C. Board or any member of the A. T. T. U., both having jurisdiction in Franklin County. While these agencies had no representatives stationed in-Franklin County, nevertheless they had' jurisdiction in that County and had officers located in adjoining counties.

The Sheriff of Franklin County testified that Mrs. Morris never made any inquiry of him as to the reputation of Lawrence as a moonshine operator. He testified further that ever since he had been Sheriff of Franklin County he had maintained a diary of suspected whiskey violators and that Lawrence’s name had been on this diary list ever since July or August, 1959. He testified further to receiving several tips as to the location of moonshine stills set up and being operated by Lawrence, that he investigated these reports and found the stills as reported, but when he went to raid the still, no one was there, so all he did was to destroy the still.

Petitioner made no serious effort to controvert this testimony. The officer of petitioner that handled this transaction at the beginning testified that he made no inquiry of any enforcement officer anywhere as to the reputation of Lawrence with reference to moonshine whiskey and that he and petitioner relied entirely upon the information furnished by the Credit Bureau of Franklin County. The report of the Credit Bureau to petitioner falls far short of meeting the requirements of the Section with reference to the reputation of Lawrence. Her report to petitioner also falls far short of fulfilling the requirements for remission under the statute.

On the basis of the testimony introduced by appellant on this point, the Court was without authority to grant the remittitur. Granting of relief under the forfeiture remission statute is not a matter of equity or discretion until the applicable conditions precedent to such relief have been fully met. Murdock Acceptance Corp. v. United States (5th Cir.), 218 F.2d 702. The early leading case on this question is Universal Credit Company v. United States (4th Cir.), 111 F.2d 764. The question has been before this Court on a sufficient number of times for the matter to be well settled here. See United States v. One 1950 Lincoln Sedan (5th Cir.), 196 F.2d 639; United States v. Dodd (5th Cir.), 205 F.2d 260; United States v. One 1955 Model Ford 2-Door Coach (5th Cir.), 261 F.2d 125.

This Court finds and holds that the District Judge was without authority to grant remittitur and the judgment of the District Court is reversed and the case is remanded to that Court for further proceedings in accordance with this opinion.

Reversed and remanded.