The opinion of the court was delivered by: John E. Miller, District Judge.
The libel of information was filed on March 28, 1955, against
the above-described automobile and alleged that the automobile
was seized on land by investigators, Julian S. Majors and Robert
Finley, of the Internal Revenue Service of the United States and
that the same was being held by the Internal Revenue Service of
the United States at a certain storage place in the City of Hot
Springs, Arkansas, the appraised value of the motor vehicle being
"That for cause of said seizure, said motor vehicle
on or about March 15, 1955, was used by James T.
Barker in violating the provisions of the Internal
Revenue laws of the United States in that said motor
vehicle was employed by James T. Barker to aid him in
engaging in the business of wagering without having
paid the Special Tax imposed under Section 4411 of
the 1954 Internal Revenue Code [26 U.S.C.A.] contrary
to Section 7302 of the 1954 Internal Revenue Code of
the United States."
On April 7, 1955, the alleged owner of the automobile filed his
answer in which he admitted that his automobile had been seized
by "agents of the Internal Revenue Service of the United States."
However, the owner denied that the investigators named in the
libel of information were the officers who seized the automobile.
All other allegations in the libel of information were denied.
On the same date that the libel of information was filed, the
United States Attorney filed an information against the said
James T. Barker in Criminal Action No. 555, in which information
the said defendant, James T. Barker, was charged in Count I with
engaging, on March 15, 1955, in the business of wagering without
having paid a Special Tax as required by law, in violation of
Section 4411 of the 1954 Internal Revenue Code.
To this information the defendant entered a plea of not guilty
to both counts and, on the 26th day of April, 1955, the charges
contained in the information were tried to a jury. The government
introduced five witnesses in support of the allegations contained
in the information and the defendant introduced only himself and
wife, Mrs. James T. Barker. The jury returned a verdict of not
guilty, and the defendant was discharged.
At the conclusion of the trial of the criminal action, the
instant case was called for trial. Whereupon, the United States
Attorney, representing the libelant, and Mr. Richard W. Hobbs,
representing the claimant of the automobile, agreed that the case
should be submitted to the court "upon the evidence presented in
Criminal Action No. 555." At the time, the United States Attorney
suggested that certain evidence taken from the person of the said
James T. Barker at the time of his arrest, but which evidence was
suppressed at the trial of the criminal case, should be
considered by the court. Apparently the suggestion was acceptable
to the attorney for the claimant and the court included in the
order of submission that such evidence would be considered, along
with a statement, to be filed, of the witness who obtained the
documentary evidence from the claimant at the time of his arrest.
It was suggested by the court that counsel should file briefs
with the court on the question of jurisdiction "or any other
question which they might desire to discuss."
The briefs have been filed and considered by the court, along
with the testimony that was heard at the trial of the criminal
case as aforesaid, and the court, having considered said
testimony, together with the arguments and contentions of the
attorneys for the respective parties, now makes and files herein
its Findings of Fact and Conclusions of Law, separately stated:
On March 15, 1955, the claimant of the automobile, James T.
Barker, had not paid the tax levied upon persons engaged in
receiving wagers for or in behalf of any person. Neither had he
registered with the official in charge of the Internal Revenue
District in which Hot Springs, Arkansas, is located.
William Aronson is the brother-in-law of the claimant, James T.
Barker, and lives at 230 Park Terrace in Hot Springs, Arkansas,
His telephone number is 7169J. The claimant, Mr. Barker, lives at
210 Park Terrace and his telephone number is 1352. Aronson was
engaged in the business of receiving wagers for and on behalf of
persons who desired to place wagers with him, and he had paid the
Special Tax and registered with the Director of Internal Revenue
for the District of Arkansas at Little Rock.
The telephone in the home of the claimant, Mr. Barker, is
private. Apparently, every day Mr. Aronson would go to the home
of the claimant Barker, and it was generally known by prospective
bettors that, if they desired to place a bet with Aronson, they
should call telephone number 1352 which, as above stated, was in
the home of Mr. Barker, the claimant. In fact, all of the
witnesses who testified to having placed wagers with Aronson
testified that they would reach him by calling that telephone
number. Mr. Aronson stated that he used the claimant's telephone
for convenience and that he spent the latter part of the morning
and early afternoon of each day at the home of the claimant for
the purpose of receiving wagers.