264 F2d 773 United States v. Clanton

264 F.2d 773

UNITED STATES of America, Appellant,
v.
Eva Mae CLANTON, Appellee.

No. 5967.

United States Court of Appeals Tenth Circuit.

March 23, 1959.

Hubert A. Marlow, Asst. U.S. Atty., Northern District of Oklahoma, Tulsa, Okl. (Robert S. Rizley, U.S. Atty., Northern District of Oklahoma, Tulsa, Okl., was with him on the brief), for appellant.

No appearance for appellee.

Before BRATTON, Chief Judge, and PICKETT and LEWIS, Circuit Judges.

LEWIS, Circuit Judge.

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1

The United States appeals from a portion of the judgment of the District Court refusing forfeiture of a 1954 Mercury automobile owned by appellee. Forfeiture was claimed by libel alleging an unlawful use of the vehicle in violation of 18 U.S.C.A. 12621 by virtue of 18 U.S.C.A. 3615.2 The trial court concluded that the Mercury automobile had not been used in the transportation of liquor into Oklahoma within the prohibition of the applicable statutes, supra.

2

The findings of the court below reveal that 'on June 5, 1957, Investigators of the Alcohol Tobacco Tax Unit of the Interal Revenue Service pursued a 1954 Ford automobile on Kansas State Highway No. 26 and on U.S. Highway No. 66 in the State of Kansas in a southwesterly direction toward the State of Oklahoma and in the State of Kansas they lost sight of the Ford; that one and one-half hours later the Investigators found the Ford automobile at a residence in North Miami, oklahoma; that at that time Clyde Winton Jenkins and Norman Lee Akin were observed transferring a quantity of liquor from the 1954 Ford into the respondent 1954 green Mercury; that after the liquor was transferred into the respondent Mercury automobile it did not move from its location; and that at that time the Investigators of the Alcohol Tobacco Tax Unit seized the respondent Mercury automobile and 68.80 wine gallons of assorted taxpaid liquors.' Supplementing detail may be added to these basic facts by undisputed evidence contained in the record. The pursuit of the Ford over the highways of Kansas was a frantic chase, the cars obtaining speeds in excess of 100 miles per hour. A road block was set up and run through and eventually the vehicles of both pursued and pursuer were damaged by collision with each other and with various objects struck during the course of the chase. The occupants of the Ford, Jenkins and Akin, were known to the investigators as reputed liquor dealers at Afton, Oklahoma, who used both the Ford and Mercury automobile to haul liquors from neighboring states into Oklahoma. And finally it seems undisputed, at least by the posture of the case as presented on appeal, that the original intended destination of the liquor was Afton, Oklahoma, but the Mercury was not originally intended to be used in the transportation of the contraband to that town. The liquor was stopped at North Miami and was being transferred from the Ford to the Mercury because of the pursuit and the physical disablement of the Ford car.

3

Although the Mercury was not actually moved after it was loaded with liquor and was not intended to be used at all had the initial plan of importation been completed without incident, neither fact is, ipso facto, fatal to the government's case for forfeiture.

4

It is the transportation of the liquor, not the use of the vehicle, that is the forbidden conduct, which conduct incidentally renders every vehicle used in furtherance of the unlawful importation subject to forfeiture. The crime is a continuing one, encompassing all activities toward the accomplishment of the desires of its perpetrators. As we stated in Von Patzoll v. United States, 10 Cir., 163 F.2d 216, 220:

5

'The transportation of the intoxicating liquor from Dallas, Texas, to the point beyond Moore, Oklahoma, where the International Truck was seized, was a single transportation. Throughout the journey, the movement retained the character of interstate commerce. It continued to be a single transportation into Oklahoma. It, therefore, was a continuing offense. But where the transportation of intoxicating liquor into a state, in which all sales of intoxicating liquor are prohibited, reaches its intended destination in such state, * * * the offense is no longer a continuing one, and a subsequent transportation thereof within the state is not a transportation into such state.'

6

The cessation of interstate transportation is not necessarily brought about because the modus of accomplishment is delayed or changed by unexpected circumstances and it continues as long as a singleness of purpose persists. Champlain Realty Co. v. Town of Brattleboro, 260 U.S. 366, 43 S.Ct. 146, 67 L.Ed. 309; United States v. One Durant Touring Car, D.C.Tex., 2 F.2d 478; United States v. One Packard Truck, 2 Cir., 55 F.2d 882, 883. In the latter case it is stated:

7

'Should prohibition agents come upon two trucks upon the road where one had broken down and its contents was being transferred to the other, we should not doubt that the driver of the second would be discovered 'in the act of transporting,' although his truck was stationary at the moment.'

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8

But a vehicle may not be condemned for unlawful use merely because there is an intended future purpose to transport liquor in it in violation of section 1262; the statute contemplates a present violation. Cf. Denton v. Flinchum, Okl., 285 P.2d 395.

9

And so, under the circumstances of the instant case, we deem the determinative question to be the intent and purpose then present in the minds of Jenkins and Akin when the liquor was transferred from the Ford to the Mercury. If, because the Ford car was both 'hot' and disabled, the original intent to presently transport the liquor to Afton, Oklahoma, was abandoned in favor of storing or secreting the contraband in the Mercury at North Miami, Oklahoma, the liquor came to rest and the Mercury was not used in transportation. Just as the means of transporting liquor can be changed from the original plans so, too, can the destination. And when the destination is reached, the transportation ceases. Von Patzoll v. United States, supra. On the other hand, if the Mercury was loaded preparatory to moving it to another place and the transfer made as necessary for a continuation of the unlawful transportation to Afton or any other point of destination, then the Mercury became part of the importation scheme and was used in violation of the statutes.

10

The trial court at the conclusion of the case and in colloquy with counsel indicated a view as to what the fact was relating to the intent and purpose of the transfer of the liquor from the Ford to the Mercury. But no finding was entered and we believe such to be necessary for a proper application of governing law. The judgment of the district court denying forfeiture is therefore vacated and the cause remanded for such determination and with instructions to enter judgment in accord with such factual determination and the views herein expressed.

1

'Whoever imports, brings, or transports any intoxicating liquor into any State, Territory, District, or Possession in which all sales, except for scientific, sacramental, medicinal, or mechanical purposes, of intoxicating liquor containing more than 4 per centum of alcohol by volume or 3.2 per centum of alcohol by weight are prohibited, otherwise than in the course of continuous interstate transportation through such State, Territory, District, or Possession or attempts so to do, or assists in so doing,

'Shall (1) If such liquor is not accompained by such permits, or licenses therefor as may be required by the laws of such State, Territory, District or Possession or (2) if all importation, bringing, or transportation of intoxicating liquor into such State, Territory, District, or Possession is prohibited by the laws thereof, be fined not more than $1,000 or imprisoned not more than one year, or both.'

2

'All liquor involved in any violation of Sections 1261-1265 of this title, the containers of such liquor, and every vehicle or vessle used in the transportation thereof, shall be seized and forfeited and such property or its proceeds disposed of in accordance with the laws relating to seizures, forfeitures, and dispositions of property or proceeds, for violation of the internal-revenue laws.'