Petition — One 1974 Cadillac Eldorado v. United States

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In the Supreme Court of the United States

OCTOBER TERM, 1977

ONE 1974 CADILLAC ELDORADO

VIN 6L47540428834,

Petitioner,

VS.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

JAMES R. WyYRSCH and

RICHARD H. ANTON

1050 Home Savings Building

1006 Grand Avenue

Kansas City, Missouri 64106

Attorneys for Petitioner

E. L. Menvennatt, Inc., 926 Cherry Street, Kansas City, Mo. 64106, (816) 421-3030

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Constitutional and Statutory Provisions Involved ........ 2

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Reasons for Granting the Writ .......0..2..0........cccceseseseseeeeeeees 6

1. Certiorari should be granted to resolve conflicts

in principle among the courts of appeals and to

decide an important question of federal law

which should be settled by this Court ................ 6

2. The Eighth Circuit Court of Appeals has decided

a federal question in a way in conflict with ap-

plicable decisions of this Court ....00.00.0..00000000... 12

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Citations

CASES

Boyd v. United States, 116 U.S. 616 (1886) .........0.0000.... 13

Coolidge v. New Hampshire, 403 U.S. 443 (1971) ....6, 7,9, 11

Grosso v. United States, 390 U.S. 62 (1968) .......000000...... 13

Marchetti v. United States, 390 U.S. 39 (1968) ............... 13

Melendez v. Schultz, 356 F.Supp. 1205 (D.Mass. 1973) 9

United States v. Bozada, 473 F.2d 389 (8th Cir. 1973),

es Ge es UN erica icine eaticcesecercmeemninceni 10, 11

United States v. McCormick, 502 F.2d 281 (9th Cir.

SECRET ARE a eS eae 6, 8, 9, 10

United States v. Ungted States Coin & Currency, 401

EER. SIT, wisccitccrsinsichaplicee nessa diesectiveionciehichesieseindetinasidbiabdaiaasiai aici 13

CONSTITUTION AND STATUTES

Constitution of the United States—

SESS EAE Core e men Seo eee 2,6

LESTER eee ee TIE 2, 12, 13

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Oy PTI epetecrcsccettenetincinetsntttcntinciinbines 3, 9, 12, 13, 14

Ie I I oi, oo clensnceina pnaiidhceepancni 3,9, 12, 13, 14

In the Supreme Court of the United States

OCTOBER TERM, 1977

ONE 1974 CADILLAC ELDORADO

VIN 6L4754Q428834,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

Petitioner prays that a writ of certiorari issue to review

the judgment and opinion of the United States Court of

Appeals for the Eighth Vircuit entered in this matter on

August 5, 1977.

OPINIONS BELOW

The August 5, 1977 opinion of the Court of Appeals,

is not yet reported and is reprinted in the separate Ap-

pendix A to this Petition, pp. Al-A7. The prior opinion

of the United States District Court for the Western District

of Missouri is not yet reported and is reprinted in the

separate Appendix B to this Petition, pp. A8-A18.

JURISDICTION

The judgment of the Court of Appeals was filed on

August 5, 1977. The jurisdiction of this Court is invoked

under 28 U.S.C. 1254(1).

QUESTION PRESENTED

Whether the seizure and forfeiture of a Cadillac auto-

mobile were valid where the Cadillac was parked in an

alleyway with no possible exit, the driver was out of

the Cadillac and was in the custody of several government

agents, the authorities knew in advance where the Cadillac

would be, and the seizure and forfeiture were without

a search warrant.

CONSTI’ "'7i0ONAL AND STATUTORY

PROVISIONS INVOLVED

This case involves the following Amendments and

Statutes:

The Fourth Amendment to the Constitution of the United

States provides:

“The right of the people to be secure in their persons,

houses, papers, and effects, against unreasonable

searches and seizures, shall not be violated, and no

warrants shall issue, but upon probable cause, sup-

ported by oath or affirmation, and particularly describ-

ing the place to be searched, and the persons or things

to be seized.”

The Fifth Amendment to the Constitution of the United

States provides:

3

“No person shall be held to answer for a capital,

or otherwise infamous crime, unless on a presentment

or indictment of a Grand Jury, except in cases arising

in the land or naval forces, or in the Militia, when

in actual service in time of War or public danger;

nor shall any person be subject for the same offence

to be twice put in jeopardy of life or limb; nor shall

be compelled in any criminal case to be a witness

against himself, nor be deprived of life, liberty, or

property, without due process of law; nor shall private

property be taken for public use, without just com-

pensation.”

49 U.S.C. Section 781 provides in pertinent part:

“(a) It shall be unlavful (1) to transport, carry, or,

convey any contraband article in ...any...

vehicle. ...

s. ¢ *

)

“(b) As used in this section, the term ‘contraband

article’ means—

“(a) Any firearm, with respect to which there

has been committed any violation of any

provision of the National Firearms Act... .”

49 U.S.C. Section 782 provides in pertinent part:

“Any ... vehicle . . . which has been or is being

used in violation of any provision of section 781 of

this title . . . shall be seized and forfeited: ... Pro-

vided further, that no . . . vehicle shall be forfeited

under the provisions of this chapter by reason of any

act or omission established by the owner thereof to

have been committed or omitted by any person other

than such owner while such .. . vehicle ... was

4

unlawfully in the possession of a person who acquired

possession thereof in violation of the criminal laws

of the United States, or any State.” (Emphasis added.)

STATEMENT

The petitioner was seized concurrently with the arrest

of its owner Cleo Burgard (hereinafter “Burgard”) by

agents of the Bureau of Alcohol, Tobacco and Firearms

(hereinafter “BATF”) for violation of Federal Firearm

Laws, on May 6, 1975. On September 24, 1975, respondent

herein filed its Complaint for forfeiture of petitioner, under

26 U.S.C. Section 7302, charging that the petitioner had

been used to possess, conceal, and transport firearms, in

violation of 26 U.S.C. Sec. 5841, being contraband as de-

fined by 49 U.S.C. 781. In his Answer and Claim, Burgard

alleged that the seizure was invalid and in violation of

the Fourth and Fifth Amendments to the United States

Constitution, and that the forfeiture proceeding had not

been properly authorized or sanctioned by the Secretary

of the Treasury.

The United States District Court for the Western Dis-

trict of Missouri issued its Final Judgment Granting Decree

of Forfeiture on November 22, 1976. Appendix B at A17-

Al18. In said Final Judgment the Court made certain find-

ings of fact, summarized as follows: Agents of the BATF

had been conducting an investigation which included Bur-

gard. These agents were informed of an exchange of illegal

silencers between Burgard and Garry Johnson (hereinafter

“Johnson”) to occur on May 6, 1975. Another BATF agent

observed Burgard load a certain blue and white box into

the petitioner Cadillac. At approximately 11:10 A.M. on

May 6, 1975, at least seven BATF agents entered an alley-

way in the area of 64th and Troost in Kansas City, Mis-

B)

souri, and arrested Burgard and Johnson, after having

observed Burgard remove a light colored tube from the

petitioner and pass it to Johnson. The agents discovered

two Maxim silencers on the person of Johnson, and the

petitioner was seized without a warrant.

The agents of the BATF had information prior to

the date of the arrest that the exchange was to occur.

Moreover, Burgard had been subject to surveillance for

several weeks, and the agents were fully knowledgeable

as to the description of Burgard’s automobile, the peti-

tioner herein. They hac ample opportunity to obtain a

warrant prior to the arrest but failed to do so. In addition,

the petitioner was parked in an alleyway with only one

entrance or exit, and that was blocked by several vehicles

being operated by the BATF agents. In addition, Burgard

was in the custody of the BATF agents and had no access

to the petitioner after Burgard was arrested. The Cadillac

was searched without a warrant the day following the

arrests, and the agent searching it found a pistol in the

trunk.

On May 8, 1975, Burgard was indicted on one count

of conspiracy to violate the National Firearms Registration

Act, 26 U.S.C. Sec. 5801, et seq., in violation of 18 U.S.C.

Sec. 371, and one count of transfer of the two silencers

in violation of 26 U.S.C. Sec. 5861(e). On February 11,

1976, Burgard was convicted on both counts by a jury.

The opinions of both Courts below were based upon

their findings that the BATF agents had probable cause

to believe that the petitioner had been used to transport

contraband and that sufficient “exigent circumstances” ex-

isted to justify seizure without a warrant. Both Courts

upheld the seizure and forfeiture. Appendix Al-A7 and

A9-A17.

REASONS FOR GRANTING THE WRIT

1. Certiorari should be granted to resolve con-

flicts in principle among the courts of appeals and to

decide an important question of federal law which

should be settled by this Court.

The Fourth Amendment to the Constitution affords

protection against either search or seizure without a war-

rant:

The right of the people to be secure in their persons,

houses, papers, and effects, against unreasonable

searches and seizures, shall not be violated, and no

warrants shall issue, but upon probable cause, sup-

ported by oath or affirmation, and particularly describ-

ing the place to be searched, and the persons or things

to be seized.

The courts have recognized a rule that searches and sei-

zures accomplished without a warrant are per se unreason-

able, subject to a few specific and well-defined exceptions,

and that the burden is on the government to prove that

the circumstances of the seizure bring it within a recog-

nized exception. Coolidge v. New Hampshire, 403 U.S.

443, 454-55 (1971). If the government cannot show a

recognized exception, its agents must obtain a warrant

before either a search or a seizure; the determination that

the right to privacy must yield to the rights of search

and seizure is to be made by a judicial officer, not a

policeman or government agent. U.S. v. McCormick, 502

F.2d 281, 285 (9th Cir. 1974).

An exception for “exigent circumstances” has devel-

oped in response to the unique characteristic of the automo-

bile as evidence, namely its mobility, which not only pro-

Reet n> _

7

vides a means of escape for its occupants but also allows

them to carry away incriminating evidence stored therein.

Exigent circumstances justify a warrantless search of an

automobile stopped on the highway when probable cause

exists for such a search, because the automobile is movable,

its occupants are alerted, and the contents may never

be found if a warrant must be obtained. On the other

hand, when the objects being sought are not dangerous

per se, or when policemen prevent the suspects from having

access to the automobile, when they have prior knowledge

as to the identity of the automobile and as to the eviuence

for which they will be searching, they should obtain a

search warrant before undertaking a search and seizure.

Coolidge v. New Hampshire, supra at 460.

Cases at all levels in the federal courts support the

position of the defendant that insufficient exigencies were

present to justify the seizure of defendant without a war-

rant. In Coolidge v. New Hampshire, supra, the defendant

had been arrested on charges of murder. His automobile,

in which he allegedly carried the body of the murder

victim, was seized and searched under a warrant issued

by the state attorney general acting as a justice of the

peace. The Supreme Court first ruled that the warrant

was invalid because the attorney general, who was actively

in charge of the investigation and prosecution, was not

in reality a “neutral and detached magistrate” when he

issued the warrant. 403 U.S. at 449. The court then

proceeded to discuss various theories to support a warrant-

less search and seizure.

In its rejection of the exception for exigent circum-

stances, the one currently at issue, the court pointed to

several facts that precluded its application. The defendant

had made no indication that he would attempt to escape.

The possible use of the car had been known to the police

; 8

for some time, and the defendant already had ample oppor-

tunity to destroy any evidence. The defendant was not

using the car for illegal purposes at the time of his arrest,

and it was parked in his driveway. The defendant volun-

tarily admitted police officers at the front and rear of

his residence and was arrested inside the house without

resistance. He could not conceivably have reached the

car after the police arrived, and the police removed the

only other occupant of the house--the defendant’s wife—

prior to their towing the automobile to the police station.

Although the police clearly had probable cause to make

the arrest, they could not justify the subsequent seizure

without a warrant by claiming the existence of exigent

circumstances. “(N)o amount of probable cause can justify

a warrantless search or seizure absent ‘exigent circum-

stances’ . . . . (E)ven where the object is contraband,

this Court has repeatedly stated and enforced the basic

rule that the police may not enter and make a warrantless

seizure.” Id. at 468. (Emphasis added.)

The case of U. S. v. McCormick, 502 F.2d 281 (9th

Cir. 1974), presents a situation in which a court of appeals

in another circuit declined to find sufficient exigent circum-

stances to justify a warrantless search and seizure. The

defendant was charged with various activities involving

counterfeit money. The defendant was arrested inside

his home, and the federal agents had parked in his drive-

way and blocked egress for his automobile. Within an

hour the agents drove his automobile to the federal office

building, and upon searching the next day, without a war-

rant, agents found a photographic negative of a treasury

seal.

Although the agents had probable cause to believe

the automobile had been used in an illegal counterfeiting

operation, it was not being so used at the time of the

9 ‘

seizure. Moreover, since the defendant was in the com-

plete custody of the arresting agents and the defendant’s

automobile was blocked in the driveway by the agents’

automobiles, such exigent circumstances as to authorize

a warrantless seizure did not exist, and therefore the search

and seizure were invalid.

In Melendez v. Schultz, 356 F.Supp. 1205 (D.Mass.

1973), the BATF seized a vehicle which had originally

been impounded by the Boston police department due to

unpaid parking tickets. The BATF exercised jurisdiction

under 49 U.S.C. Secs. 781, 782 in that the defendant had

been observed in the automobile in the possession of a

Molotov cocktail. The BATF did not obtain a warrant

fur the seizure but instead relied upon a “probable cause”

to believe the defendant had used the automobile to trans-

port contraband. The District Court, relying on the nature

of the automobile as “derivative, contraband,” property

not illega’ in nature but used for criminal purposes, held

the seizure without a warrant to be illegal.

“We merely hold that before seizing vehicles and other

items of derivative contraband, the forfeitable nature

of which often depends on the making of delicate

judgments about previous facts and circumstances, the

agent must first procure a warrant except in those

estabiished circumstances where a warrant would not

be required to make a search.”

Id. at 1210. The courts in the Coolidge and McCormick

cases made similar references to the distinction between

derivative contraband and contraband per se.

The circumstances surrounding the arrest of the defen-

dants Burgard and Johnson and the seizure and subsequent

search of the petitioner Cadillac are so nearly identical

to those in McCormick as to lack the exigencies that justify

10

search and seizure without a warrant. The Cadillac could

not be driven out of the alleyway, as the only exit was

blocked by at least one automobile driven by a government

agent. Moreover, Burgard was in the custody of seven

armed agents and was several feet away from the automo-

bile; thus he had no opportunity to gain access to the

automobile and nowhere to go if he had somehow managed

to reach it. The Cadillac was immovable, and any contra-

band or other evidence therein could not be removed by

anyone other than government agents. The Cadillac itself

was derivative contraband rather than contraband per se,

as its mere ownership and use is not illegal. A pistol

was discovered in the trunk, but Burgard, being in the

custody of several agents, would have been unable to make

use of it at the moment of his arrest. The agents knew

prior to the arrest that Burgard would be driving his

Cadillac, and at least one agent was at the federal court-

house only shortly before the arresis; therefore, the govern-

ment had ample opportunity to obtain a search warrant

prior to the arrests. Moreover the Cadillac was in govern-

ment custody overnight before the search was made, and

the agents could certainly have obtained a warrant prior

to the search. Thus the requisite “exigent circumstances”

for a warrantless search and seizure are lacking, and the

seizure was thereby invalid.

A comparison with a case wherein the “exigent circum-

stances” did exist accentuates the deficiencies of that find-

ing in the case at bar. In U. S. v. Bozada, 473 F.2d

389 (8th Cir. 1973), cert. denied, 411 U.S. 969, the defendant

was convicted of unlawful possession of goods stolen from

a motor vehicle while moving in.interstate commerce. The

police had information that stolen shoes were stored in

a trailer and that the defendant was planning to move the

trailer soon. Police located the trailer, which was already

11

hooked to a tractor and was ready to be moved. After

observing the area for about an hour, the police broke into

the trailer, without a warrant, and discovered that it was

full of stolen shoes. The court cited several exigent cir-

cumstances that justified the warrantless search: the

trailer was being used at that time to transport stolen

shoes; the police had reliable information that a move was

imminent; the tractor-trailer was already prepared for

movement; the owner-driver of the unit was not in cus-

tody; and other parties who may have been able to move

the unit were still at large. Despite these facts two judges

dissented on the grounds that the police had time to obtain

a warrant prior to the seizure.

The situation involving Burgard contrasts starkly with

Bozada. Burgard’s Cadillac was not being used to trans-

port contraband at the time of his arrest. The Cadillac

was immovable at the mement of arrest and could not

have been moved out of the alleyway. The owner-driver

was already in custody, and apparently no other involved

parties were at large. In addition the government agents

had ample opportunity to obtain a warrant prior to the

seizure. The Supreme Court analyzed a similar situation

in Coolidge v. New Hampshire, 403 U.S. 443 (1971):

“(W)here the discovery is anticipated, where the police

know in advance the location of the evidence and

intend to seize it,... (t)he requirement of a warrant

to seize imposes no inconvenience whatever, or at least

none which is constitutionally cognizable in a legal

system that regards warrantless searches as ‘per se

unreasonable’ in the absence of ‘exigent circum-

stances.’ ”

Id. at 470-71.

12

Thus the case at bar presents a direct conflict with

at least one opinion from another circuit and should be

resolved by this court. Moreover, the question of whether

a forfeiture may be authorized absent proper seizure is

an important one that has not been settled but that should

be settled by this court.

2. The Eighth Circuit Court of Appeals has de-

cided a federal question in a way in conflict with ap-

plicable decisions of this Court.

The seizure of the automobile herein and the subse-

quent forfeiture proceedings were brought under 49 U.S.C.

Sections 781 and 782. The former section states that the

transportation or concealment of contraband firearms in

any vehicle is unlawful. The latter section reads in per-

tinent part:

“Any vessel, vehicle, or aircraft which has been or

is being used in violation of any provision of section

781 of this title, or in, upon, or by means of which

any violation of said section has taken or is taking

place, shall be seized and forfeited. . . .”

Thus the forfeiture can be authorized only in conjunction

with another criminal proceeding, for the violation of 49

U.S.C. Section 781. The forfeiture proceeding herein there-

fore invokes the privilege against self-incrimination as set

out in the Fifth Amendment to the Constitution.

“When the forfeiture statues are viewed in their en-

tirety, it is manifest that they are intended to impose

a penalty only upon those who are significantly in-

volved in a criminal enterprise. It follows from Boyd,

Marchetti, and Grosso that the Fifth Amendment’s

privilege may properly be invoked in these proceed-

ings.”

13

United States v. United States Coin & Currency, 401 U.S.

715, 721-722. See also, Grosso v. United States, 390 U.S.

62 (1968); Marchetti v. United States, 390 U.S. 39 —

Boyd v. United States, 116 U.S. 616 (1886).

The United States Coin and Currency case, supra,

involved a forfeiture proceeding against a sum of money

in the possession of one Angelini and which the trial court

found was to be used in a bookmaking operation in viola-

tion of internal revenue laws. This Court held in that

case that a person accused of violating certain registration

provisions for persons whose occupation consisted of gam-

bling could properly invoke the Fifth Amendment privilege

against self-incrimination and that such privilege provided

a complete defense in the forfeiture proceeding.

Petitioner contends that the forfeiture proceedings

brought pursuant to 49 U.S.C. 782 violate the Fifth Amend-

ment protections in two respects. First, since Burgard

could properly invoke his Fifth Amendment privilege

against self-incrimination when accused of violating the

firearm statues, such privilege should extend to the for-

feiture proceeding. United States Coin & Currency, supra.

The money forfeited in United States Coin & Currency,

as well as the petitioner herein, are derivative contraband,

as their ownership and use are not illegal per se. Their

owner should be abie to bar their use against him under

the protection of the Fifth Amendment.

Second, the Petitioner should be protected from for-

feiture under the due process provision of the Fifth Amend-

ment. Section 782 requires that a vehicle be used in

violation of some provision of Section 781 before it may

be seized and forfeited. Without proof that the owner

has violated Section 781, no forfeiture is authorized by

Section 782. Petitioner contends that the forfeiture herein

is therefore invalid for the reason that Burgard was not

14

charged or convicted by a jury of a violation of 49 U.S.C.

Section 781. Rather, he was charged with and convicted

of conspiracy to violate the National Firearms Registration

Act, 26 U.S.C. Section 5801, et seq., in violation of 18

U.S.C. Section 371, and transfer of two silencers in viola-

tion of 26 U.S.C. Section 5861(e). Absent a conviction

of Burgard for a violation of one of the various acts pro-

hibited by 49 U.S.C. Section 781, petitioner contends that

due process has not been followed so as to support a

forfeiture.

Petitioner further contends that the district court was

without jurisdiction to authorize the forfeiture. As of

the date of the filing of the Complaint, Appendix C, which

was September 24, 1975, Burgard had not as yet been

convicted of any violation. In particular he had not been

convicted of transporting contraband pursuant to 49 U.S.C.

Section 781. Without such a conviction, there is nothing

to indicate that any violation of that section had occurred,

so as to authorize forfeiture under 49 U.S.C. Section 782.

Even after Burgard’s conviction, he had not been shown

to have violated 49 U.S.C. Section 781; therefore, inasmuch

as the grounds for the forfeiture required a showing that

49 U.S.C. Section 781 had been violated, the district court

was without jurisdiction to authorize said forfeiture.

15

CONCLUSION

The explicit conflict among the circuits as to seizure

without a warrant, the conflict of the Eighth Circuit Court

of Appeals decision with prior decisions of this Court,

and the unsettled nature of these issues in general provide

ample justification for the granting of this petition for

a writ of certiorari. We therefore suggest that certiorari

should be granted in this case.

Respectfully submitted,

JAMES R. WyRScH and

RIcHARD H. ANTON

Attorneys for Petitioner

Al

APPENDIX A

UNITED STATES COURT OF APPEALS

For the Eighth Circuit

No. 76-2062

United States of America,

Appellee,

Vv.

One 1974 Cadillac Eldorado,

VIN 6L4A7S4Q428834,

Appellant.

Appeal from the United States District Court

for the Western District of Missouri

Submitted: August 1, 1977

Filed: August 5, 1977

Before HEANEY, ROSS and HENLEY, Circuit Judges.

PER CURIAM.

Cleo Burgard appeals from the district court’s' order

of forfeiture in this action, brought under 26 U.S.C. § 7302

and under 49 U.S.C. § 782, for forfeiture of a 1974 Cadillac

Eldorado used to transport illegal firearms in violation of

49 U.S.C. § 781. We affirm.

During an undercover investigation into possible vio-

lations of the National Firearms Registration Act, agents of

the Alcohol, Tobacco and Firearms Division of the Depart-

ment of Treasury received information that Cleo Burgard

1. The Honorable William H. Becker, Chief Judge, United

States District Court for the Western District of Missouri.

A2

was supplying a certain Gary Johnson with firearms. On

May 5, 1975 an agent met with Johnson for a prearranged

purchase of two silencers, but was told by Johnson that

Burgard had said that he could not deliver them that day

and that the agent could not be present when the silencers

were delivered. The following day a private citizen as-

sisting in the investigation told the agents that Burgard and

Johnson would meet in a particular location that day. That

morning Burgard was observed removing a blue and white

box from the trunk of his Eldorado, taking the box into his

garage, and thereafter replacing the box in the interior of

the vehicle. Burgard and Johnson were observed traveling

to the specified location. One agent observed Johnson

and Burgard in an alleyway and saw Burgard reach into

the Cadillac Eldorado, remove a light colored tube from

the rear seat area, and pass the tube to Johnson. After

Johnson was observed reaching into his jacket, Burgard

and Johnson were placed under arrest and searched. Two

.22 caliber maxim silencers were found on Johnson’s per-

son. The Cadillac was seized without a warrant.

Burgard was convicted on one count of violating 26

US.C. § 5812 and § 5861(c) by transferring two silencers

without a written application form, and one count of con-

spiracy to violate §§ 5812, 5861(d) and 5861(e) by possess-

ing unregistered firearms and transferring them without

an application form. The conviction was affirmed upon ap-

peal in United States v. Burgard, 551 F.2d 190 (8th Cir.

1977).

A civil action for forfeiture of the Cadillac Eldorado

was filed on September 24, 1975, and answered by Burgard.

The parties erftered into a stipulation agreeing that the

court could consider the testimony and evidence adduced

during Burgard’s trial on the criminal charges set forth

above, and that neither the United States nor Burgard

A3

desired to submit additional evidence or offer additional

testimony. In a series of pleadings Burgard alleged, inter

alia, that neither the Secretary of the Treasury nor his

delegate had authorized the proceeding, and that neither

the Attorney General nor his delegate had authorized the

proceeding to be commenced, in violation of 26 U.S.C.

§ 7401; that the parties’ stipulation prohibited the court

from considering a letter from a Regional Counsel of the

Department of the Treasury to the United States Attorney

authorizing the forfeiture proceeding; and that the for-

feiture statutes authorizing the action, 26 U.S.C. § 7302

and 49 U.S.C. § 782, were unconstitutional on their face

and as applied because the seizure of the Cadillac violated

the fourth, fifth and sixth amendments of the United States

Constitution.

The district court ordered that the Cadillac Eldorado

be forfeited to the United States on November 22, 1976. In

a lengthy memorandum opinion the court held that the

parties’ stipulation did not prevent introduction of the

Regional Counsel’s authorization letter, that the govern-

ment had shown that the Secretary of the Treasury or his

delegate had authorized the action, and that a delegate of

the Attorney General had authorized commencement of the

action. The court also held that the government had

established that probable cause existed to believe that the

vehicle was used to transport a contraband article, that the

forfeiture of a vehicle used by its owner to transport con-

traband goods does not violate the due process clause of

the fifth amendment, and that the seizure of the vehicle

without a warrant was justified in this instance because

of “exigent circumstances.”

On appeal Burgard urges three grounds of error: (1)

that no exigent citcumstances existed so as to justify the

warrantless seizure of the automobile; (2) that the district

A4

court’s finding of authorization to initiate the action was

erroneous because the government’s evidence of authoriza-

tion should not have been admitted following the parties’

stipulation and because 26 U.S.C. § 7401 allows for the

authorization and commencement of only a civil action,

whereas a forfeiture is an action criminal in nature; and

(3) that 49 U.S.C. § 782 is unconstitutional on its face as

repugnant to the fifth amendment privilege against self-

incrimination.

The overwhelming weight of authority supports the

traditional rule that when agents have probable cause to

believe that an automobile is or has been used to transport

or to facilitate the transportation or possession of contra-

band, they may seize it without a warrant pursuant to fed-

eral forfeiture statutes. See, e.g., Carroll v. United States,

267 U.S. 132, 155-56 (1925); United States v. La Vecchia,

513 F.2d 1210, 1216 (2d Cir. 1975); United States v. Dina-

poli, 519 F.2d 104 (6th Cir. 1975); United States v. Young,

456 F.2d 872, 875 (8th Cir. 1972); United States v. Stout, 434

F.2d 1264, 1267 (10th Cir. 1970); United States v. Troiano,

365 F.2d 416 (3d Cir.), cert. denied, 385 U.S. 958 (1966);

Drummond v. United States, 350 F.2d 983 (8th Cir. 1965),

cert. denied sub nom., Castaldi v. United States, 384 US.

944 (1966). Contra, United States v. McCormick, 502 F.2d

281 (9th Cir. 1974); Melendez v. Shultz, 356 F.Supp. 1205

(D. Mass. 1973) (three judge court); remanded on other

grounds, 486 F.2a 1032 (1st Cir. 1973). The officers here

had probable cause to believe that the Cadillac had been

used to transport contraband illegally. Johnson had in-

formed the agents that he was going to get the silencers

from Burgard, agents had observed Burgard loading the

Cadillac Eldorado, one agent had seen the transfer of a

silencer from the rear of Burgard’s automobile to Johnson,

and silencers were thereafter found on Johnson’s person.

—_— =,

—_—

A5.

Accordingly, the seizure of the Cadillac without a warrant

did not violate the fourth amendment.”

Even if the seizure were unlawful, that fact alone

would not necessarily preclude forfeiture. Since the evi-

dence showing that the Cadillac was used to transport

contraband was independent of the seizure, application of

the constitutional exclusionary rule need not prevent for-

feiture. See United States v. One (1) 1971 Harley David-

son Motorcycle, 508 F.2d 351 (9th Cir. 1974).

Burgard next contends that the court below erred in

admitting the government’s documentary evidence of au-

thorization to commence the forfeiture proceeding, a juris-

dictional requirement. He claims that the parties’ stipula-

tion that the court could consider the evidence adduced at

Burgard’s criminal trial as neither party wished to submit

further evidence or testimony precluded admission of the

documentary evidence.

We find it doubtful that the stipulation was intended

to preclude the introduction of documentary evidence, par-

ticularly as to a jurisdictional issue on which the facts ad-

duced at the earlier criminal trial could not possibly be

relevant. The stipulation was requested by the trial court

so that the record would show that neither party desired an

2. We are aware that the Ninth Circuit has held, in United

States v. McCormick, supra, that the exception to the warrant

requirement set forth in Carroll v. United States, supra, will

justify the warrantless seizure of an automobile pursuant to 49

U.S.C. § 782 only when the automobile is movable and it is not

practical to secure a warrant. The instant seizure meets this

stricter test as well since the automobile was movable and

' stopped in an alleyway from which it could easily have been

removed. Although Burgard argues that a warrant could have

been obtained because a police car blocked the exit, immobilizing

the automobile while a warrant was obtained would be, consti-

tutionally speaking, no less an intrusion than immediate seizure.

Cf. Chambers v. Maroney, 399 U.S. 42, 51 (1970) (immobilization

of automobile not different for constitutional purposes from im-

mediate search without a warrant).

A6

evidentiary hearing. Even if it does preclude submission

of the documentary evidence, the necessity to investigate

jurisdictional facts is an appropriate reason for a trial court

to exercise its discretion to relieve a party from a stipula-

tion. See Fenix v. Finch, 436 F.2d 831, 837 (8th Cir. 1971);

Osborne v. United States, 351 F.2d 111, 120 (8th Cir. 1965).

Since this particular stipulation was entered into merely

to expedite the proceeding and to clarify the record, rigid

adherence to it should not be required when one party

may suffer manifest injustice. United States v. Rexach,

482 F.2d 10, 26-27 (1st Cir.), cert. denied, 414 U.S. 1039

(1973); Central Distributors, Inc. v. M.E.T., Inc., 403 F.2d

943, 946 (Sth Cir. 1968).

Burgard argues finally that this forfeiture action was

not authorized because 26 U.S.C. § 7401 provides for au-

thorization of civil actions only, and a forfeiture action,

while civil in form, has been held to be quasi-criminal in

nature.* This argument borders on frivolity. While it is

true that forfeiture actions have been held to be quasi-

criminal in nature for purposes of fourth and fifth amend-

ment analysis, United States v. United States Coin and Cur-

rency, 401 U.S. 715, 718 (1971); One 1958 Plymouth Sedan

v. Pennsylvania, 380 U.S. 693, 700 (1965); Compton v.

United States, 377 F.2d 408, 411 (8th Cir. 1967), a forfeiture

is nevertheless a civil action formally, and the statute

specifically refers to commencement of a forfeiture pro-

ceeding.

Similarly we find no merit in the contention that 49

U.S.C. § 782 is unconstitutional on its face because it is

3. 26 U.S.C. § 7401 provides:

No civil action for the collection or recovery of taxes, or

of a = , penalty, or forfeiture, shall be commenced unless

the retary [of the Treasury] or his delegate authorizes

or sanctions the proceedings and the Attorney General or

his delegate directs that the action be commenced.

AZT

repugnant to the fifth amendment privilege against self-

incrimination. Burgard claims that the seizure and sub-

sequent search of an automobile pursuant to § 782 may

force disclosure of additional evidence concealed therein,

without the owner or operator being able to invoke the

privilege against self-incrimination. However, if the seiz-

ure and search of the automobile are constitutional, the

evidence found clearly may be introduced at trial. United

States v. Young, supra; Drummond v. United States, supra.

The statute, 49 U.S.C. § 781, which forms the basis for

forfeiture and makes transportation or concealment of

contraband firearms in any vehicle unlawful, does not

compel self-incrimination, and is therefore easily dis-

tinguishable from the gambling tax laws in the case upon

which Burgard relies, United States v. United States Coin

and Currency, supra.

The judgment is affirmed.

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH

CIRCUIT.

(UNPUBLISHED)

A8

APPENDIX B

IN THE

UNITED STATES DISTRICT COURT

For the Western District of Missouri

Western Division

Civil Action

No. 75CV638-W-1-3

UNITED STATES OF AMERICA,

Plaintiff,

Vv.

ONE 1974 CADILLAC ELDORADO,

VIN 6L47S4Q428834,

Defendant.

FINAL JUDGMENT GRANTING DECREE

OF FORFEITURE

(Filed November 22, 1976)

This is an action under Section 782, Title 49, United

States Code, for forfeiture of a 1974 Cadillac Eldorado,

VIN6L47S4Q428834 (hereinafter “Cadillac Eldorado”), al-

legedly used to transport illegal firearms in violation of

Section 781, Title 49, United States Code. An answer

and claim has been filed by Cleo Burgard as owner of

the Cadillac Eldorado.

The action has been submitted for determination on

the basis of the evidence presented during the pretrial

hearings and trial in United States v. Cleo Burgard, Crim-

inal Action No. 75CR139-W-3 (W.D.Mo. February 11, 1976).

The parties have stipulated that neither party desires to

introduce additional evidence or to offer additional testi-

AS

mony. The following findings of fact and conclusions of

law are made based upon the evidence in United States

v. Cleo Burgard, supra.

I. Findings of Fact.

For some time prior to May 5, 1975, Agent Robert

Manske of the Alcohol, Tobacco, and Firearms Division

of the Department of the Treasury (hereinafter “ATFD”)

had conducted an undercover investigation into possible

violations of the National Firearms Registration Act by

a nephew of claimant Burgard, Garry Johnson.’ Infor-

mants had advised Manske that machine guns had been

purchased from Johnson. Manske also had information

concerning statements by Johnson that claimant Burgard

was supplying Johnson with the firearms.

On May 4 and 5, 1975, Manske attempted to arrange

a purchase of two silencers which Johnson had stated

could be obtained from claimant Burgard. A meeting

was arranged on May 5, 1975, between Manske and John-

son in the parking lot of the Research Hospital Outpatient

Clinic at 64th and Prospect in Kansas City, Missouri.

When’ Manske arrived, Johnson told him he would have

to telephone claimant Burgard to obtain the silencers.

After making a telephone call, Johnson informed Manske

that claimant Burgard would not have the silencers that

day, and that Manske could not be present when claimant

Burgard delivered the silencers to Johnson.

On May 6, 1975, Manske received a telephone call

from Roger Kennedy, a private citizen cooperating in the

investigation. Kennedy informed Manske that the meeting

between claimant Burgard and Johnson would take place

1. Garry Johnson was a co-defendant in United States v.

Cleo Burgard, supra.

Al0

that morning near 64th and Troost in Kansas City, Mis-

souri.

Also on the morning of May 6, 1975, Agent Gary

R. Wurm of the ATFD was conducting surveillance of

claimant Burgard’s residence at Garden City, Missouri.

Agent. Wurm observed claimant Burgard remove a blue

and white box from the trunk of his 1974 Cadillac Eldo-

rado; ‘ake the box into his garage; and then place the

box back into the interior of the vehicle.

At least seven ATFD agents were then deployed in

the area of 64th and Troost to observe the transfer. Agents

Duane R. Nichols and Jonathon G. Knehaus had taken

a position on the upper level parking lot of The Landing

Shopping Center located ac 63rd and Troost. At approxi-

mately 11:10 am., Agent Nichols was advised by radio

that a Ford Ranchero automobile being driven by Johnson

was approaching. Nichols observed the Ranchero pass

his surveillance point going east on 63rd Street, and turn

right halfway down the block into an alley entrance. Nich-

ols then proceeded to the alleyway on foot. As he ap-

proached the alleyway, Nichols observed claimant Bur-

gard’s Cadillac Eldorado parked in the alleyway facing

north. The front door was open and the driver’s seat

was pushed forward to allow entry into the back seat.

The parties have stipulated that the Cadillac Eldorado

observed is the defendant in this action.

Agent Nichols then observed claimant Burgard reach

into the Cadillac Eldorado, remove a light colored tube

from the rear seat area, and pass the tube to Johnson.

Claimant Burgard and Johnson were placed under arrest,

and searched after Johnson was observed reaching into

his jacket. On Johnson were found two .22 caliber Maxim

silencers. The Cadillac Eldorado was seized without a

warrant.

All

On May 8, 1975, claimant Burgard was indicted on

one count of conspiracy to violate the National Firearms

Registration Act, Section 5801, et seq., Title 26, United

States Code, in violation of Section 371, Title 18, United

States Code; and one count of transfer of the two .22

caliber Maxim silencers in violation of Section 5861(e),

Title 26, United States Code. On February 11, 1976, claim-

ant Burgard was convicted by a jury on both counts.

II. Conclusions of Law.

A. Jurisdiction.

Section 1355, Title 28, United States Code, confers

original jurisdiction on the federal district courts over

any action for the enforcement of a forfeiture incurred

under any Act of Congress.

However, Section 7401, Title 26, United States Code,

provides in pertinent part:

“No civil action for the collection or recovery of...

any . . . forfeiture, shall be commenced unless the

Secretary [of the Treasury] or his delegate authorizes

or sanctions the proceedings and the Attorney General

or his delegate directs that the action be commenced.”

The requirements of Section 7401, supra, were held to

be “jurisdictional” in United States v. One 1972 Cadillac

Coupe Deville, Etc., 355 F.Supp. 513 (E.D.Ky. 1973).

The government alleged in the complaint that “[t]his

suit has been authorized, sanctioned, and directed in accor-

dance with the provisions of 26 U.S.C. § 7401.” Defendant

interposed a specific denial of this allegation. Cf: United

States v. One 1941 Cadillac Sedan, Etc., 145 F.2d 296 (7th

Cir. 1944).

Al2

On July 22, 1976, the government filed a copy of

a letter from David A. Pierce, Regional Counsel of the

Department of the Treasury to the United States Attorney,

dated September 2, 1975, authorizing the United States

Attorney to bring this action.2. The interested party was

directed to show cause why the letter did not satisfy the

requirement that the Secretary of the Treasury or his

delegate authorize this action.

2. The letter states:

“DEPARTMENT OF THE TREASURY

Bureau of Alcohol, Tobacco and Firearms

Office of Chief Counsel

15th Floor—230 South Dearborn Street

Chicago, Illinois 60604

SEP 2 1975

“Honorable Bert C. Hurn

United States Attorney

Federal Courts Building

811 Grand Avenue

Kansas City, Missouri 64106

Re: Case No. 3703 0275 0012 R

Cleo Burgard

RFD No. 2

Garden City, Missouri

One, 1974 Cadillac Eldorado

I.D. No. VIN 6L47S4Q428834

“Dear Sir:

“Enclosed are Form 63, Property Report, and a copy of

Case Report No. 3703 0275 0012R, relative to the Mee

seized vehicle.

“The subject vehicle was seized under the provisi

the Act of August 9, 1939, from Cleo Burgard, RFD No. ¢

Garden City, Cass County, Missouri, at 63rd and Troost

oem anaes City, J ee Missouri, on May 6

, and is csivicd ai Sam’s PickWick Gar '

City, & x age, 307 East 9th,

“The facts relevant to forfeiture as revealeci the Case

Report are that on May 6, 1975, at 63rd and Treeet Street,

in Kansas City, Jackson County, Missouri, Cleo Burgard used

the subject vehicle to possess, conceal, and transport two

Maxim Silencers, firearms coming within ihe purview of the

National Firearms Act as amended, which had not been reg-

istered with the National Firearms Registration and Transfer

(Continued on following page)

ee ee

Al3

In response to the show cause order, the interested

party made three contentions. First, he contended that

the Pierce letter should not be considered since the record

was closed by the stipulation of the parties filed June

25, 1976. Second, he contended that the letter does not

establish that the Secretary of the Treasury has delegated

to the Regional Counsel the power to authorize forfeiture

actions. Finally, he contended that no evidence has been

presented that this action was “commenced” by the Attor-

ney General or his delegate. None of these contentions

has merit.

First, the June 25, 1976 stipulation that “neither

[party] desires to introduce additional evidence or offer

additional testimony” was entered into by the parties at

the request of the Court so that the record would show

that neither party desired an evidentiary hearing since

the material facts had been developed in United States

Footnote continued—

Record as required by 26 U.S.C. §5841 and were contraband

as defined in 49 U.S.C. §781. The use of the subject vehicle

to possess, conceal, and transport the contraband firearms

subjected the vehicle to forfeiture under the provisions of

the Act of August 9, 1939, (49 U.S.C. §782).

“Pursuant to the provisions of 26 U.S.C. §7401, you are

hereby authorized and requested to proceed to file a Com-

plaint against the subject vehicle.

“All bills and vouchers concerning the expenses incurred

by seizure of the subject property will be sent to the United

States Marshal.

“We have enclosed a proposed Complaint for your use

in the event you find it appropriate.

“If we may be of further assistance to you in this mat-

ter, please advise.

Very truly yours,

/s/ David A. Pierce

David A. Pierce

Regional Counsel

Enclosures”

Al4

~ v. Burgard, Criminal Action No. 75CR139-W-3. The stipu-

lation thus does not bar the consideration of documentary

evidence which does not require an evidentiary hearing.

Second, the authority of the Regional Counsel of the

Bureau of Alcohol, Tobacco, and Firearms to authorize

commencement of this action does not appear in the Pierce

letter. However, the term “Secretary or his delegate”

is defined in Section 7701(a)(12)(A), Title 26, United

States Code, to mean:

. . . the Secretary of the Treasury, or any officer,

employee, or agency of the Treasury Department duly

authorized by the Secretary (directly, or indirectly

by one or more redelegations of authority) to perform

the function mentioned or described in the context,

and the term “or his delegate” when used in connec-

tion with any other official of the United States shall

be similarly construed.

The Secretary has delegated to the Chief Counsel for the

Bureau of Aicohol, Tobacco, and Firearms the authority

[t]o determine what civil action should be brought

in the courts under the laws affecting and administered

by the bureau and to prepare recommendations to

the Department of Justice for the commencement of

such action and to authorize or sanction commence-

ment of such actions. (emphasis supplied) 40 Federal

Register 3479 (January 22, 1975).

The Chief Counsel of the Bureau of Alcohol, Tobacco,

and Firearms has redelegated this authority to the regional

counsels. Chief Counsel Order No. 6, “Regional Counsel

Delegations of Authority”, July 22, 1975.3 Therefore, the

3. See Exifibits A and C attached to the interested party’s

“Response to Sh®w Cause Order”, filed August 13, 1976.

Al5

regional counsels have been properly delegated the author-

ity to authorize commencement of this action.

Finally, the United States Attorney can be considered

a “delegate” of the Attorney General within the meaning

of Section 7401, Title 26, United States Code. The term

“delegate” of the Attorney General is defined to mean

any officer or employee duly authorized by the Attorney

General to perform the particular function in question.

Section 7701 (a) (12) (A), Title 26, United States Code. The

United States Attorneys can properly be considered as

the “delegates” of the Attorney General under this defini-

tion. Because this action was commenced by a United

States Attorney, a “delegate” of the Attorney General

has directed that the action be commenced.

Because the action was “authorized” by a delegate

of the Secretary of the Treasury, and “commenced” by

a delegate of the Attorney General within the meaning

of the term “delegate” as defined by Section 7701, Title

26, United States Code, the requirements of Section 7401,

Title 26, United States Code, have been satisfied.

B. Merits.

Section 781, Title 49, United States Code, provides

in pertinent part:

“(a) It shall be unlawful (1) to transport, carry, or

convey any contraband article in... any...

vehicle. . ..

s ® s

“(b) As used in this section, the term ‘contraband

articie’ means—

= a »

“(a) Any firearm, with respect to which there

has been committed any violation of any

provision of the National Firearms Act... .”

Al6

Section 782, Title 49, United States Code, provides

in pertinent part:

“Any... vehicle . . . which has been or is being

used in violation of any provision of section 781 of

this title . . . shall be seized and forfeited: . . . Pro-

vided further, that no . . . vehicle shall be forfeited

under the provisions of this chapter by reason of any

act or omission established by the owner thereof to

have deen committed or omitted by any person other

than such owner while such .. . vehicle .. . was

unlawfully in the possession of a person who acquired

possession thereof in violation of the criminal laws

of the United States, or any State.” (emphasis added)

Once the government establishes probable cause that

a vehicle was used to transport a contraband article, “the

burden of absolving the vehicle from culpability rests on

the defendant.” United States v. One 1972 Toyota Mark

II, Etc., 505 F.2d 1162, 1164 (8th Cir. 1974); Ted’s Motors,

Inc. v. United States, 217 F.2d 777, 780 (8th Cir. 1954).

Probable cause

“ce

. . means less than prima facie legal proof and no

more than ‘ “a reasonable ground for belief in guilt” ’

Caroll v. United States, 267 U.S. 132, 161, 45 S.Ct.

280, 288, 69 L.Ed. 543.” (other citations omitted)

Ted’s Motors, Inc. v. United States, supra, 217 F.2d at

780.

The government has shown that probable cause exists

to believe that the defendant Cadillac Eldorado was used

to transport two .22 caliber Maxim silencers in violation

of the National Firearms Act by claimant Burgard who

is the owner of the vehicle. The only defenses .-hich

have been raised are coygclusionary allegations that this

action is not brought in accordance with “applicable stat-

a een «ecm tsa ETOP tn eae

Al7

utes” and denies defendant of his right to due process

,in violation of the Fifth Amendment to the United States

Constitution; and that the seizure of the automobile was

unreasonable and violated the Fourth, Fifth and Sixth

Amendments to the United States Constitution. However,

for the reasons stated above, this action has been authorized

by Congress. Further, forfeiture of a vehicle used by

its owner to transport contraband goods does not violate

the Due Process Clause of the Fifth Amendment. United

States v. One 1967 Porsche, Etc., 492 F.2d 893 (9th Cir.

1974); United States v. One 1969 Plymouth Fury Auto-

mobile, Etc., 476 F.2d 961 (5th Cir. 1973). Cf: United

States v. United States Coin and Currency, 401 U.S. 715,

91 S.Ct. 1041, 28 L.Ed.2d 434 (1971). Finally, warrantless

seizure of the vehicle did not violate the Fourth Amend-

ment prohibition against unreasonable searches and seiz-

ures. Probable cause existed to believe that the vehicle

had been used to transport illegal firearms. Because the

events constituting the offense occurred in the presence

of ATFD agents, and because of the mobility of the auto-

mobile, “exigent circumstances” existed which justified

the failure to procure a warrant jor seizure of the auto-

mobile prior to seizure.

Therefore, a decree of forfeiture will be entered.‘

For the foregoing reasons, it is therefore

ORDERED, ADJUDGED, and DECREED that defen-

dant One 1974 Cadillac Eldorado, VIN6LA7S4Q428834 be,

and it is hereby, forfeited and condemned to the use of the

United States of America. It is further

4. On May 5, 1976, the government moved for an order

directing delivery of the defendant vehicle to the Regional Di-

rector of the Bureau of Alcohol, Tobacco, and Firearms, Chicago,

Illinois. This “application” is rendered moot by this decree.

Al8

ORDERED, ADJUDGED, and DECREED that the de-

fendant 1974 Cadillac Eldorado, VIN6L47S4Q428834 be de-

livered to the Regional Director of the Bureau of Alcohol,

Tobacco, and Firearms, Chicago, Illinois, or his representa-

tive, conditioned upon payment of any costs of storage

currently due and owing.

/s/ William H. Becker

William H. Becker

Chief Judge

Kansas City, Missouri

Dated: 11-22-76

Al9

APPENDIX C

IN THE

UNITED STATES DISTRICT CCURT

For the Western District of Missouri

Western Division

No. 75CV638-W-1

UNITED STATES OF AMERICA,

Plaintiff,

v.

ONE 1974 CADILLAC ELDORADO

VIN 6L47S4Q428834,

Defendant.

COMPLAINT

(Filed September 24, 1975)

Comes now the United States of America, by Bert

C. Hurn, United States Attorney for the Western District

of Missouri, and by Robert G. Ulrich, Assistant United

States Attorney for the Western District of Missouri, and

through this complaint in a civil cause for forfeiture of

Section 7302 of the Internal Revenue Code of 1954 (26

U.S.C. § 7302) upon information and belief alleges as fol-

lows:

1. This court has jurisdiction under the provisions

of 28 U.S.C. § 1345.

2. This suit has been authorized, sanctioned, and di-

rected in accordance with the provisions of 26 U.S.C. §

7401. ,

A20

3. Pursuant to the facts alleged herein and the provi-

sions of the sections of the Internal Revenue Code enu-

merated herein and Title 49, United States Code, Sections

781 and 782, the property described in paragraph four

herein became and is forfeited to the United States.

4. On May 6, 1975, the Director of the Bureau of

Alcohol, Tobacco and Firearms, acting through his duly

authorized agents, did seize on land located at 63rd and

Troost Street, Kansas City, Jackson County, Missouri, in

the Western District of Missouri, as forfeited to the United

States of America, certain property, to-wit: one 1974 Cad-

illac Eldorado, Vehicle Identification Number 6L47S4Q42-

8834, the appraised value of said vehicle at the time of

seizure being $6,500.00.

5. Since the time of the seizure of said property

it has remained in the custody of the Bureau of Alcohol,

Tobacco and Firearms, and is now stored at Sam’s Pick-

Wick Garage, 307 East 9th Street, Kansas City, Missouri.

6. On or about May 6, 1975, Cleo Burgard used the

property described in paragraph four hereof to possess,

conceal, and transport two Maxim Silencers, firearms with-

in the purview of the National Firearms Act as amended,

which had not been registered in the National Firearms

Registration and Transfer Record as required by 26 U.S.C.

§ 5841, and being contraband as defined by 49 U/S.C.

§ 781, from a point unknown to 63rd and Troost Street,

Kansas City, Jackson County, Missouri.

WHEREFORE, plaintiff prays that due process issued

to bring said property within the custody of this court

by attachment, that warrant for arrest issue with notice

to all parties and interest to appear on the date of return

of such process and to intervene herein by claims and

A21.

plea in the premises; and due proceedings being had there-

on, that for the cause aforesaid, the said property be con-

demned as forfeited to the United States and a decree

for the proper disposal thereof be made.

Bert C. Hurn

United States Attorney

By Robert G. Ulrich

Assistant United States Attorney

State of Missouri )

) ss

County of Jackson )

Pursuant to Rule C(2), Supplemental Rules to the

Federal Rules of Civil Procedure, Robert G. Ulrich, As-

sistant United States Attorney, being duly sworn, states

that the facts set forth herein in the foregoing complaint

are true and correct according to his best knowledge and

belief.

Robert G. Ulrich

Assistant United States Attorney

Sworn to before me and in my presence this ........

day of September, 1975.

Robert F. Connor, Clerk

United States District Court

Western District of Missouri

A22

IN THE

UNITED STATES DISTRICT COURT

For the Western District of Missouri

Western Division

No. 75CV638-W-1

UNITED STATES OF AMERICA,

Plaintiff,

v.

ONE 1974 CADILLAC ELDORADO

VIN 6L47S4Q428834,

Defendant.

WARRANT FOR ARREST OF PROPERTY

THE PRESIDENT OF THE UNITED STATES

OF

AMERICA TO THE UNITED STATES MARSHAL FOR

THE WESTERN DISTRICT OF MISSOURI

GREETINGS:

Whereas, a verified complaint has been filed in the

District Court of the United States for the Western Dis-

trict of Missouri on the 24 day of September, 1975, on

behalf of the United States of America, against one 1974

Cadillac Eldorado automobile, Vehicle Identification N um-

ber 6L47S4Q428834, now in the possession of the Bureau

of Alcohol, Tobacco and Firearms, United States Treasury

Department, and being stored at Sam’s PickWick Garage

307 East 9th, Kansas City, Missouri:

You are, therefore, commanded to attach the said ve-

hicle and to detain the same in your custody until further

ordered by the court, and to give due notice pursuant

to Rule C of the Supplemental Rules to the Federal Rules

PRP tecmeetumsh anes ots

A23

of Civil Procedure, to all persons claiming the same or

owning or having any interest in said vehicle to snow

cause why the said vehicle should not be condemned and

forfeited pursuant to the prayer of the complaint. Any

claimants to the property shall and must file their claims

in writing with the clerk of this court within ten days

after the execution of this process, or within such additional

time as may be allowed by the court, and shall serve

their answers within 20 days after the filing of their claims.

All claims shall comply with the requirement of paragraph

(6) of Rule C of the Supplemental Rules to the Federal

Rules of Civil Procedure.

The Marshal, after execution of this process, shall

file the same in this court with his return thereon.

IN WITNESS WHEREOF, I, ROBERT F. CONNOR,

Clerk of the United States District Court for the Western

District of Missouri, have caused the foregoing Warrant

for Arrest of Property to be issued pursuant to the author-

ity of Rule C of the Supplemental Rules to the Federal

Rules of Civil Procedure and the applicable laws of the

United States and have hereunto fixed seal of said court

at Kansas City, Missouri this 24 day of September, 1975.

/s/ H. C. Lawhorn

Clerk, United States District

Court for the Western Dis-

trict of Missouri by Deputy

A24

IN THE

UNITED STATES DISTRICT COURT

For the Western District of Missouri

Western Division

a

UNITED STATES OF AMERICA,

Plaintiff,

Vv.

ONE 1974 CADILLAC ELDORADO

VIN 6L47S4Q428834,

Defendant.

PUBLIC NOTICE

Pursuant to a Warrant for Arrest of property seized

in the above-entitled cause, I did, on the __. day of

._, 1975, seize from Sam’s PickWick Garage,

307 ‘East 9th, eats City, Missouri, one 1974 Cadillac

Eldorado, Vehicle Identification Number 6L47S4Q428834.

Pursuant to Rule C of the Supplemental Rules to

the Federal Rules of Civil Procedure, I hereby give notice

generally unto all persons having or claiming to have

any right, title, or interest in said property, that they

must file their claims with the Clerk of this Court within

ten days after the date of this Notice, or within such

additional time as may be allowed by this Court, and

they must serve their answers to the Complaint within

twenty days after the filing of their claim. All claims

filed shall comply with the requirements of paragraph

(6) of Rule C of the Supplemental Rule to the Federal

Rules of Civil Procedure.

a tt A CLO

A235

Dated at Kansas City, Missouri, this day of

, 1975.

John T. Pierpont

United States Marshal

_s ae...

Deputy United States Marshal