233 F. 2d 517 - No 15865

The Government appeals from a judgment denying forfeiture of an automobile seized and libeled because of its alleged use in violations of the provisions of the United States Code Annotated covering Wagering Taxes.¹ The case was tried before the Court without a jury and the Court, in its verdict and judgment, found that the automobile was not involved in any violation charged, and ordered it released.2 The only issue here is whether the Court's findings are clearly erroneous.

The Government relied upon the testimony of the chief of police of Waycross, Georgia, and a Special Agent of the Intelligence Division of the Treasury Department. The two had obtained a search warrant for Burkett and the automobile. Both had been under surveillance by the local police for some time. The police had also been keeping the fishmarket operated by Burkett under surveillance. They were suspicious of Burkett as being engaged in the sale of "Bolita tickets" and of his fishmarket as being a place where such business was carried on.

The Government agent and the chief of police arrested Burkett as soon as he drove in front of the fishmarket and stopped. The car was searched and nothing was found in it except extra automobile tags. It was the policeman's best recollection that, on the day of the search, the car bore a Florida tag and that a Georgia tag was found on the back seat. He had seen the car being operated sometimes bearing the tag of Georgia and sometimes the tag of Florida. Its owner, Roberson, had been a resident of Waycross, Georgia, but had recently moved to Florida.

As stated in the Court's findings, in Burkett's wallet was found certain adding machine tapes and a piece of wrapping paper on which there were notations which the special agent was called upon to decipher. Testifying as an expert, he deduced from those writings that they were made in connection with a gambling business.

The policeman had taken charge of and retained these papers and the Government agent admitted that one of them "is an old one, and has a crease in the back indicating that it has been held for some time". As to the others, it was his opinion that they "were relatively new". The Court found that all of them were worn and had been carried for some few days. The exhibits are not before us and we are not able to examine this phase of the Court's findings.

The two officers readily admitted that they had no tangible proof that Burkett was in the gambling business or that his fishmarket was devoted to such a business or that the car had been used in connection with the illegal business beyond the fact that, on this particular trip, it transported Burkett to the point where he was arrested. This evidence, plus that relating to the two license tags, is all that the Government was able to produce. The suspicions of the officers may or may not have been well founded, but it is clear that the Government was not able to make proof sufficient to satisfy the judicial mind. The witnesses proffered the information that Burkett had stated that he had borrowed the car to make the trip across town and that Roberson was the owner of the car. Whether Burkett had ever used the car before that one trip was not shown.

There was no evidence that he made the trip in order to transport the papers found in his wallet. What evidence there was tended to show, as found by the Court, that the papers were several days old, which fact tended to negative the assumption indulged in by the Government that the one trip the car had made was for the purpose of transporting these records or aiding the business in connection with which they were made. Nor is there any proof that Roberson was even under suspicion as being engaged in the gambling business. The Government simply did not put on any proof from which it could be found that the car was being used or had ever been used in connection with an illegal business. The findings of the Court below were amply sustained by the meager evidence placed before it.

It is suggested that the failure of the claimant, Roberson, to testify and thereby explain the purpose for which the automobile was being used when it was seized was a fact which should have been taken against him. Unquestionably the failure of a defendant in a civil case to testify or offer other evidence within his ability to produce and which would explain or rebut a case made by the other side, may, in a proper case, be considered as a circumstance against him and may raise a presumption that the evidence would not be favorable to his position. Local 167 International Brotherhood of Teamsters v. United States, 1934, 291 U.S. 293, 54 S.Ct. 396, 78 L.Ed. 804; Anderson v. United States, 5 Cir., 1950, 185 F.2d 343; Williams v. United States, 5 Cir., 1952, 199 F.2d 921, and Kent v. United States, 5 Cir., 1946, 157 F.2d 1.

It is equally well settled, however, that the failure of a party to testify and the permissible inference to be drawn therefrom will not convert evidence otherwise insufficient into a prima facie case. It will not excuse a failure of the Government to meet the burden of establishing facts sufficient to make out a case for forfeiture. Until the Government had sustained the burden of producing evidence establishing its right to forfeiture, the claimant had no call to bring forward any evidence at all, but was entitled to submit the case to the fact-finder, trusting solely to the weakness of the Government's evidence.

Corpus Juris Secundum³ classifies this principle of law as a Pseudo-Presumption and discusses its effect in some detail, stating4: "Necessity for prima facie case. Where the party on whom the burden of proof rests has failed to make out a prima facie case, the absence of the adverse party, or his failure to testify, raises no unfavorable inference against him." This Court⁵ recognized in a libel case the inference allowable against a party who fails to testify and supply information within his knowledge but called attention to the limitations on this rule: "This is not to say that [defendant's] silence could supply a complete failure of proof. It is to say, though, that with the proof as it was, having at the least a strong tendency to prove the case for forfeiture, claimant's failure to offer any explanation of the incriminating circumstances could be taken against him."

It is not necessary to discuss the effect of the permissible presumption in a proper case because it is clear here that the Government's proof did not establish even a prima facie case for forfeiture. It was necessary for the Government's evidence, of itself, to be sufficient to support the judgment sought. The Government's evidence, and all inferences which may be drawn therefrom, were entirely inadequate to support its demand for condemnation and forfeiture. We cannot say that, in the face of this weak showing, it was not natural and prudent for the claimant to introduce no evidence at all. He was in position to rest secure upon the failure of the Government to make proof which would justify forfeiture. Under these circumstances, the failure of the claimant to testify cannot work against him so as to supply a case where, before, none existed.

The judgment appealed from was proper and is

Affirmed.