306 F. 2d 106 - United States v. One Ford Pickup Truck F10coa17418

CAMERON, Circuit Judge (dissenting).

I think the able and conscientious author of the majority opinion here would have served the ends of justice more nearly if he had applied the qualities of mercy which animated the decision referred to by him which this Court reversed in United States v. One 1950 Dodge Sedan, 5 Cir., 211 F.2d 738. The fact is that, in fashioning a body of law to implement the provisions of 18 U.S.C.A. 3617(b)(3), the courts generally, including this one, have not achieved a full measure of consistency. Perhaps this is inevitable since every case must be decided on its own peculiar facts.

I think the finding of the able District Judge who heard this case below and who entered detailed findings of fact and conclusions of law that 'General Acceptance Corporation, the claimant herein, made a proper inquiry under the provisions of Title 18 U.S.C.A. 3617, when it made its inquiry by and through the credit bureau of Franklin County concerning the record and reputation of Walter Lawrence, Jr.', was a finding which lay in his discretion to make.1 Mrs. Morris testified that the records of her credit agency ran back to 1949. She further testified categorically that she went to the county courthouse once each week, checking with the office of the circuit court clerk, the ex-sheriff who is judge of the court, the city hall, and the sheriff himself to find what arrests had been made in connection with moonshine activities. Each of the officers knew the purpose of her inquiry, and none of them had ever mentioned to her that Lawrence had a reputation as a moonshiner, or that there had ever been any arrests or convictions of him prior to the time the Acceptance Corporation bought this commercial paper. The fact is that all of the testimony concerning Lawrence's reputation for moonshiner activities really related to or was based upon the episode of November 17, 1960, when he was arrested with sugar and yeast in the truck except that given by Mr. Trull who was supervisor of the A.B.C. Board of Alabama at Tuscumbia with a coverage of eight counties. He admitted that Lawrence had never been arrested, but stated that his men had reported to him that they had information that he was in the whiskey business. That testimony was somewhat discounted by the fact that his representative who worked Franklin and Lawrence Counties (where Lawrence lived or was active), when asked categorically whether he knew Walter Lawrence's reputation in his community, stated: 'I didn't know of it prior to this time. That wsa the first time I had seen him.' (The time referred to was November 17, 1960.)

The other witness offered by the government to establish Lawrence's bad reputation was a policeman in the same small town where Lawrence lived who stated that he had never arrested Lawrence, and that the latter's reputation for dealing liquor had not been 'started too long' before his arrest on November 17, 1960. When asked what his response concerning Lawrence's reputation on June 30, 1960 would have been, he stated definitely that he did not remember whether he had heard any reports of Lawrence's reputation covering that period.

I think it exceedingly doubtful if the equivocal and unsatisfactory evidence concerning reputation would have been adequate to warrant classifying Lawrence as a 'person having a record or reputation for violating laws of the United States or of any State relating to liquor', as provided in subsection (b)(3) of the statute involved. The sheriff merely testified that he classified Lawrence as a 'prospective' violator of these laws, which, to my mind, indicates that he merely looked upon him as a suspect. The proof in this record falls short in my opinion, of measuring up to the commonly accepted definition of reputation which was written by Judge Learned Hand in United States v. C.I.T. Corporation, 2 Cir., 1937, 93 F.2d 469, 470-471:

'The notion seems to be that because the officials had been investigating Goldberg for a year, that gave him a reputation as a violator of the liquor laws. That is an error. The statute is drawn so as to impose upon the seller the duty of inquiry only when there exists something which is likely to reach his ears, a public record or a general reputation. No doubt he always takes the chance in any sale that there may be one or both of these; but his duty does not arise if there is not. * * * Here there was no record; * * *. Nor was there any reputation. Some of the officials-- how many we do not know-- had for long suspected Goldberg of breaking the liquor law, but that did not give him the reputation of doing so. Such inquiries are kept secret lest they come to the knowledge of the suspect and he become wary. The statute means not that, but reputation in the general sense, a prevalent or common belief, a general name, the opinion of a number of persons, a more or less extended and public attribution of the crime, likely to be spread about so as to reach the seller. The knowledge of those charged with the duty of prosecuting Goldberg was not likely to do so.'

I think, therefore, that the court below could well have found that Lawrence, at the time of this commercial transaction, did not have such a reputation as was likely to be spread about so as to reach General Acceptance. There is a tendency to confuse the kind of reputation which will be the basis for the necessity of an investigation and the kind of investigation which will itself satisfy the statute.

The majority cite and doubtless rely considerably upon the case of United States of America v. One 1955 Model Ford Tudor Coach, etc., 1958, 5 Cir., 261 F.2d 125. It should be borne in mind that everything which was there said was predicated upon two facts; one, that no investigation at all was made concerning the purchaser of the automobile within seven months of the time of the purchase; and that if any inquiry had been made in Lowndes County, it would have disclosed that the purchaser had both a criminal record and a reputation as a violator of liquor laws there.

The situation before the court here bears little resemblance to the one concerning which the opinion was written in that case.

It is worthy of note, moreover, that the last decision of this Court on the subject indicates a more lenient attitude towards innocent parties who get themselves enmeshed in the harsh forfeiture provisions of 26 U.S.C.A. 7302. I quote some disconnected excerpts from Florida Dealers and Growers Bank et al. v. United States, 1960, 5 Cir., 279 F.2d 673, 676-677:

'The primary purpose of the forfeiture statute is to protect the revenue. The primary purpose of the remission statute is to relieve innocent (purchasers) whose property has been seized. * * *

'By its nature, the remission statute assumes the validity of the forfeiture but also assumes that outstanding interests in property and bona fide claims to property are not snuffed out by the car's guilt. They continue viable, at least to the extent of permitting innocent persons to ask that the sovereign temper the strictness of the rule of forfeiture when there are equitable grounds for relief. * * *

'Good conscience and equity are the controlling considerations with the judge in acting under it (citing several cases) * * *.'

I think this is a correct statement of the law and of the attitude which courts should take in cases where there is no doubt about the innocence of the claimant, as is the case here. I think, therefore, that the lower court had ample discretion to enter the judgment of remission, and I respectfully dissent from the majority opinion which reverses its judgment.