Appendix — Finley v. California

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, © APPENDIX A ,

Opinion. of United States Court of Appeals :

. UNITED STATES COURT OF APPEALS

For THE SECOND Circum

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No # 165—September Term, 1966.

(Argued September 30, 1966 _ Decided November 3, 1966. )

- Docket N Oo. 30601 er

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Unrrep States or AMERICA, BS a a

) > _ Appellee,

—_—Ve—

ANNE FRANCOLINO, : :

; Appellant.

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Before:

‘Lumpanp, Chief Judge,

FRIENDLY and Kaurmay, Circuit Judges. .

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Appeal from a judgment of the District Court for the

Eastern District. of New York, John R. Bartels, Judge,

convicting Anne Francolino, after a verdict, on three counts

‘of an indictnient which charged her with passing counter-

feit notes in violation of 18 U.S. C. 4472. Affirmed.

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_ Wiuiam Sonensuine (Evseroff, Newman & Son-

-enshine, Brooklyn, N. Y.), for Appellant. \

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Appendia A—Opinion of United States Court of Appeals

JEROME: C.. Drrore (Joseph P. Hoey, United

States Attorney, Eastern District of New

York), for Appellee. | :

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- Farenpuy, Circuit Judge: Teg ine

_A grand jury in the District Court for the, Eastern Dis-

_ trict.of New York returned a four count indictment against

Ane Francolino. : Phe first three counts charged her with

‘ passing various $10 counterfeit notes in violation of 18

‘Uv. S. C. $472; a fourth count charged possession of 1973

such notes i in violation of the same statute. The j jury found

her guilty qn the first three counts and not guilty on the

fourth’ °

Defendant passed the counterfeit notes at the Floyd

Bennett Store in Brooklyn during a half ‘hour in the early

-aftern6on ofeJuly 24, 1964. Mary Lou Patterson, a seven-

teen year old cashier in the housewares department, iden-

tified Anne Francolino as. having appreached her and hav-

ing asked for four $5 bills in exchange for two-$10’s. Nancy

’ Shenker, a sixteen and a half year old cashier in the record

| department, identified Anne as having come up while’ she

was giving change to a customer and having sought change

for a $10 bill, a request accompanied by’ a compliment, ap-

parently undeserved, over Nancy’s hair-do. Diane Ficocelli,

a fifteen year old cashier in, the millinery department, was

the third to be approached. On one occasion Mrs. Franco-

lino made a small purchase for which she paid with a $10

. bill; five minutes later she requested charge for another

$10 bill, admiring Diane’s hair-do and seeking advice how

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Appendia A—Opinion of United minten Court of Appeals

to emulate it; and shortly thereafter a iuinnt another

$10 bill, saying her husband was waiting in the car for her

and she had nothing smaller. While the defendant was oc-

cupied in these endeavors, Michael Brady, manager of the

housewares department, opened Miss Patterson’s cash reg-

_ ister and ‘discovered two counterfeit $10 bills on top of the

drawer. He and the cashier left the store in hot pursuit and

_ found Mrs.’Francolino walking down the block. Brady’s

statement to her that. the $10 bills were no good elicted an

expression of incredulity. She then went into a telephone |

booth and dialed numbers. An unidentified man, whom Mrs, -

Francolino claimed to be her husband but who Brady tes-

tified with some positiveness did not tally with the latter,

approached and asked what the trouble was. On hearing

Brady’s story and his threat to ‘‘call a cop,” he told Mrs.

Francolino to give back the four $5 bills and take the two

$10’s. She and the man entered a: parked 1961 black Cadil-

lac bearing license No. -KG@9154, which turned out. to Pass

registered in the name of Atlantic Freightways,. Inc. “of

which Mr. Francolino was treasurer, and drove off.

‘ A eall from Brady brought to the store Secret Service

Agent Sershen, who interviewed personnel and found vari- +

ous counterfeit $10 notes. Sershen then went to the Franco-

lino home and observed the Cadillac in the driveway. After

summoning two local policemen, he rang the ‘bell and was

admitted to the house‘ by defendant’s mother-in-law; he told

her he wanted to know who owned the car. According to

Sershen, who was substantiated by one of the policemen,

Joseph Francolino came half way down the stairs, said he

_ was the owner, and invited the agent upstairs into thé bed-

room where Sershen observed Anne Francolino. Finding ©

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Appendia A—Opinion of United States Court of Appeals

that she fitted the description given by the store personnel .

and seeing a leopard skin handbag they had mentioned, he

placed her under arrest. According to the agent and the ~ .

~ policeman, upon Sershen’ s asking for the car keys, Joseph |

gave them to his mother who gave them to Anne who held

them out in her open hand whence the agent removed them

and passed them on to a policeman.. The latter opened the

trunk of the car and found 1973 counterfeit $10: notes;

these bore serial numbers B21075986I, B81538826H, and

B88902043H, the same serial numbersas-notes passed to

two of the cashiers. .Judge Bartels denied a motion to sup-

press: the notes ‘as to Anne, holding. the search of the car

was reasonably incident to a lawful arrest, but granted it

- as to Joseph, whom Sershen had als arrested, unlawfully’

as the judge held. The notes were received in evidence at

Anne’s trial.! Testifying in her-own defense, she did not

dispute that she had passed the notes; her claim was that

she had done this at the behest of her husband without

knowing the notes were counterfeit.

Several points urged on appeal require little discussion. -

Our recital of the evidence of Anne’s peculiar behavior dur-

. ing and immediately after her visit to the store is alone

enough to demonstrate the lack of basis for objection on .

the score of insufficiency of proof. It was not error to admit

a $10 note found in the cash register of the snack bar on the

same day and during the same hours that. Mrs. Francolino

was in the store. United States v. Leitner, 202 F. Supp. 688

(S. D. N. ¥. 1962), aff'd, 312 F. 24 107 (2 Cir. 1963). There

was ame evacuate for the jury to conclude that the two. 7

. pon beatae of the suppression of the notes, the ie:

ment did not try Joseph who had also been indicted for illegal

- possession.

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Appendia A~—Opinion of United States Court of Appeals

$10 bills handed to Miss Patterson and later returned to. :

defendant and riever found thereafter were in fact counter-

feit; and 1 the Government’s inability to. produce them is in-

‘consequential. United States v. Gersh, 328 F. 2d 460 ( “ Cir.

1964).

A closer quaint’ is the relevancy of the 1973 counterfeit

bills found in the Cadillac to the three substantive counts

of passing. Although these.were clearly admissible on the

fourth count, it is argued that this should have been dis-

missed for lack of proof on the motion of defense counsel.

and the jury instructed to disregard the 1973 notes. While

the identity of serial numbers and other circumstances

sufficiently connected these bills. with the: ones passed by

the defendant, there was no direct proof of her knowing

that the bills she passed had come from the hoard in \the

car or indeed that she knew of the latter at all. On the

‘other hand, the evidence of her well planned technique for 7

note-passing, of her dash into the telephone booth upon _

_ being confronted with the counterfeit, and of her - :

‘escorted to and from the store by a man who was not h

husband though she claimed he was, afforded sufficient

~ basis for inferring she was a principal in the enterprise to

warrant admission of the 1973 notes on the passing counts.

Moreover, we are not convinced that this same evidence

plus the fact of her apparently having regained the car.

keys from the unidentified man was not enough to warrant

submission of the possession count at least insofar as this

claimed she was an aider and abettor, cf. United States v.

Lefkowitz, 284 F, 2d 310, 315-16 (2 Cir. 1960), and there

was no request for an instruction that if the jury did not

convict on that cor ut, it should disregard the evidence on

: the others. <

Lnetiveniieelibe.

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Appendix A—Opinion of United States Court of Appeals —

This leaves us with the claim of error in denying the ©

motion to suppress the notes with respect. to Mrs. Franco-

lino. Without considering other possible grounds for up- —

: holding the search of the car as to her, we think the ruling

was proper. both on the basis on which the judge placed it,

that the séarch was reasonably incident to her lawful ar-

rest, and on another, that the search was authorized be-

cause of probable cause to believe that the car was subject

to seizure and forfeiture under 49 U.S. C. $§781-83.

Challenging the first ground, defendant claims that ‘the

- agent lacked sufficient basis for believing her ‘to be the

person who had passed the notes, with consequent: inva-

lidity of the arrest, and that even if her arrest was lawful,

a search of the car was not feasonably incident to it. We

need not tarry over the first point; the description fur-

nished the agent by Brady and the three cashiers plus the

presence of the Cadillac and sight of the leopard skin bag

amply supported his conclusion that: Anne was the passer

of the counterfeit.? The question whether a search of the

2 No claim was made in the district court or- here that agent

Sershen was not entitled to arrest Mrs. Francolino where he

did on the basis that, as her mother-in-law testified at the sup-

pression hearing in contradictiom of the agent’s testimony, he

went upstairs without an invitation and despite a statement that - .

Mr.’ Francolino would come down. Cf. Nueslien v.. District of -

Columbia, 115 F. 2d 690 (D. C. Cir. 1940). There was no dis-

pute that the entry into the house was with the mother-in-law’s

consent and did not involve the use of force. Cf. Robbins. v.

. MacKenzie, 364 F. 2d 45, 48-49 (1 Cir. 1966) ; United States v.

- Cachoian, 364 F. 2d 291 (2 Cir. 1966); ALI, Model Code of.

Pre-Arraignment -Procedure §3.06 and commentary . (Tent.

Draft No. 1, 1966). On Sershen’s testimony, corroborated, by

that of policeman Moyles, the trip upstairs was by invitation.

If the defendant had raised. the issue below, the judge would

doubtless have resolved the factual controversy.

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Appendix A—Opinion of United States Court of Appeals

ear was reasonably inciden#to the lawful arrest is closer.

In.Agnello v. United States, 269 U. S. 20, 30 (1925), the -

Supreme Court stated, that the right of search incident to

a lawful arrest extended not only to the person but to ‘‘the

place where the arrest is made. in order to find and seize

things connected with the crime as its fruits or as the

means by which it was committed, as. well as weapons and

other things to effect ‘an escape from custody...” In

Harris v. United States, 331 U.S. 145 (1947), a five hour -

search of a four room apartment was held reasonably in-.

cident to an arrest pursuant to a warrant for mailing and

transporting a forged check.’. United States v. Rabinowite,

339 U. S. 56 (1950), decided that this principle sustaitied

the search of a desk, safe and file cabinets in the room

where the defendant was arrested 5 it overruled Trupiano

v. United States, 334 U. S. 699 (1948) insofar as Trupiano

had held that. a search without a warrant violates the

Fourth Amendement even though incident to a lawful arrest

if undertaken when a warrant could practicably have been

‘secured. Later decisions as to the scope of search incident |

to an arrest—Kremens v. United States, 353 U. S. 346

( 1957), invalidating a search as too extensive, and Abel v.

United States, 362 U. 8. 217 (1960), upholding one as not

—leave the matter about where Harris and Rabinowitz

placed it. See also Ker v. California, 374 U. S. 23 (1963).

We see no reason in principle why a car parked imme-

diately outside a house should stand better than a room

‘inside it which was not the place ‘where the defendant

‘ 3 The purpose of the search was tg find two cariteled checks used

as a model for the forgery; thé search turned up government

property which eneenees wholly different crimes. ,

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- Appendix A—Opinion of United States Court r Appeals

was arrested. iniaaimaaiil v. United States, 350 F. 2d 983,

987 (8 Cir. 1965), cert. denied sub nom. Castaldi v. Umted

States, 384 U. S. 944 (1966). It would violate common

sense to draw subtle distinctions between a car in a built-in

garage (which, -under appropriate circumstances, would — ,

appear to be covered by Harris), one in a detached garage,

and one on the driveway. The question rather is whether

there was fair basis for belief that the place searched—

whether inside the house or immediatély outside it—would

‘ contain instruments or fruits.of the crime for which the

arrest was made. Harris v. United States, supra, 331 U. 8S.

at 152-53. Here the agent could well have believed there

was additional counterfeit to which the unidentified man

might seek to gain access and the Cadillac was a likely

spot to locate it. |

We likewise find no basis for considering Harris and’

Rabinowitz to have been undermined by later decisions.

Chapman v. United States, 365 U. S. 610 (1961), did not

' present the issue of a search incident to a lawful arrest.

Preston.y. United States, 376 U. S. 364 (1964), which did,

held that the particular search—of an automobile at a

garage to which it had been towed after the arrested man

had been booked at the police station—was too ‘‘remote in

time or place from the arrest.’”’ 376 U. S. at 367. The

' Court’s citation of Rabinowitz, which had also been cited

with approval in Mr. Justice Clark’s opinion in Ker v.

California, 374 U. 8..23, 41-42, (1963), is hardly consistent

with the notion that Preiten intended to reintroduce the

qualification Rabinowitz had repudiated, that an othétwise

‘valid search incident to a lawful arrest would be invalid.

if circumstances. permitted a search warrant to be obtained.

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Appendia A—Opinion of United States Court of Appeals

Stoner v. California, 376 U. S. 483 (1964), and James v.

Louisiana, 382 U. 8. 36 (1965), add nothing to Preston on

this score.* Both the Court of Appeals for the District of

Columbia and this court have held that Preston did not

‘‘require officers lawfully arresting occupants of ap auto- :

mobile to make a considered and correct on-the-spot de-

termination whether the circumstances of the arrest might

render it feasible to secure a warrant-before searching the

.”’ United States y.. Gorman, 355 F. 2d 151, 155 (2 Cir.

aes cert. denied, 384. U. S. 1024 (1966); accord, Adams

‘v. United 1 States, 336 F. 2d 752, 753 (D.C. Cir. 1964), cert. .

denied, 379 U. S..977 (1965). We perceive no reason for a

different rule because the person arrested was eet

‘the car‘or, as here, in a house close by. sii ;

We hold alternatively that the forfeiture statute, 49

U. S. C. §§781-84, authorized the search. This makes it

_ unlawful, inter alia,.to transport or possess in any vehicle,

or to use any vehicle for the transportation dr possession

of, contraband articles, specifically including counterfeit,

§781(b)(3). Subject to qualifications not here material,

_ any vehicle ‘‘which has been or is being used’? in violation

of this. prohibition ‘‘or in, upon, or by means of which any

violation of said section has taken or is taking place, shall

be seized and forfeited.’’ 49 U. S, C. §782. - \

* Here the search: was made immediately after the arrest on the

driveway outside the house in which the .arrest took place. It

was not too remote either in time or place under the formula

in Stoner: “A search can be incident to an arrest only if it is

substantially contemporaneous with the arrest and is confined

to the immediate vicinity of the arrest.” 376 U. S. at 486. James

is not to. the contrary ; there a search of the arrestee’s apartment

two blocks from the place of arrest was held to be. too remote to

. be “incident” to the arrest.

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Appendiz A—Opinion - U mited States Court of Appeals

The leading case dealing with the effect of such a statute

is Carroll v. United States, 267 U. S. 132 (1925), also fre-

quently cited as the fountainhead for a general digpensa-

tion from the need of a search warrant where there. is

reasonable cause to believe that a moving car contains

instruments or fruits of crime. The Carroll case arose

under a provision of the National Prohibition Act, 41 Stat.

305, 315 (1919), which authorized officers who. discovered

“any person in the act of transporting in violation of the

law, intoxicating liquors in any wagon, buggy, automobile,

water or air craft, or other vehicle,’’ to seize such liquors,

take possession of the vehicle and arrest any person in

charge-this in contrast with another provision expressly.

requiring a warrant to authorize a search for liquor in —

all other places. Ina lengthy opinion by Chief Justice Taft,

the Court held ‘the distinction to be consistent with the

Fourth imi

The critical portiqn. of the opinion begins with the de-

cisiye statement that ‘‘On reason and authority the true

rule is that if. the search and seizure without a warrant.

are made upon probable cause . ... [to believe]. that an

" automobile or other vehicle aie that: which by law is

_ subject to seizure and destruction, the search and seizure

are valid.’? 267.U. S. at 149. The Court pointed to a pas--.

sage in the famous case of Boyd v. United States, 116

U. 8. 616, 623- 24 wherein Mr. Justice Bradley

stated: ;

The search for int seizure of stolen or tenhicned anode,

or goods liable to duties and concealed to avoid the

_ payment thereof, are totally different things from a

search for and seizure of a man’s private ‘books and —

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Appendiz: A—Opinion of Vnited States Court of Appeals

- seizure of goods forfeited for a breach of the revenue —

‘papers for the purpose of ebtaining information

therein contained, or of using them as evidence against

-him. The two things differ toto ¢oelo. In the one case,

the government ° is entitled to. the possession of the

property ; in the other it is not. The seizure of stolen

goods is authorized ‘by the common law; and the

laws, or concealed to avoid the duties payable on them,

has been authorized by English statutes for at. least

two centuries past; and the like seizures have been

authorized by- our own revenue acts from the. com-

mencement of the government. The first statute

passed -by Congress to regulate the collection of du-

‘ties, the act of July-31,-1789, 1 Stat. 29, 43, contains’

provisions to this.effect. As this act: was passed by

the same Congress which proposed for adoption the

original amendments to the Constitution, it is clear

that the members of that body did not regard searches.

and seizures of this kind as ‘unreasonable,’ and they

are not embraced within the prohibition of the amend- |

~ ment. So, also, the supervision authorized to. be exer-

cised by officers of the revenue over the manufacture

or cystody of excisable articles, and ps hapetead thereof

in books required by law to be kept for. their inspéc-

| tion, are necessarily excepted out of the category of -

unreasonable searches and seizures. So, also, the laws

which provide. for the search and seizure\of articles

and things which it is unlawful for a person to have.

in his possession for the purpose of issue or ‘disposi-

tion, such as counterfeit coin, lottery tickets, imple-

ments of gambling, &., are not within- this category.

Commonwealth v. Dana; 2 Met. (Mass.) 329.- Many

other things of this character might be enumerated.”

Also citing ‘legislation of 1790, 1793, and. 1799, the Carroll

opinion went on to say, 267 U. S. at 151: | :

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f “Thus contemporanedusly with the adoption of the

Fourth Amendment we find in the first Congress, and

the following Second and Fourth Congresses, a dif-

ference made as to the necessity for a search warrant

between goods subject to forfeiture, when concealed

in a dwelling house or similar place, and like goods in

course of transportation and concealed in a moyable

vessel where they readily could be put out of reach of |

a search warrant. ”

Summarizing later stahiahen which provided not merely for |

‘the search of vehicles suspected of containing dutiable or |

prohibited articles but for their forfeiture, the Court said,

267 U. S. at 153: p

‘We have made a somewhat extended refetence to

these statutes to show that the guaranty‘of freedom

from unreasonable searches and seizures by the Fourth « ©.

Amendment has been construed, practically since the

beginning of the Governnient, as recognizing a neces-

sary differ€nce between a search of a store, dwelling

house or other structure in respect of which a proper

- official warrant readily may be obtained, and a search

of a ship, motor boat, wagon or automobile, for con-

traband goods, where it is not practicable to secure a

warrant because the vehicle can be-quickly moved out |

of the locality.or jurisdiction in which the warrant ,

must be sought.’’

The Court then considered the circumstances under which

a warrantless search of a vehicle for contraband goods pur-

suant to such statutes could be made. It concluded that,

except for border-crossifigs, this could be done only when

‘there i is known toa iis oh official authorized to search,

- probable cause:for believing that. their yehicles are carry-

ing contraband or ill gal merchandise. »? 267 U. S. at 154. .

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Appendia A—Opinion of United States Court of Appeals |

The question that’ has puzzled lower courts is how far

these and other broad statements in the Carroll opinion .

with respect to searches and seizures of vehicles that are

expressly authorized by statute which do not require a war-

rant were qualified by a later paragraph, 267 U.S. at 156:

‘‘Such a rule fulfills the guaranty of the Fourth

Amendment. In cases where the securing of a war-—

rant is reasonably practicable, it must be used, and

when properly supported by affidavit and issued after

_judicial approval protects the seizing officer against

a suit for damages. In cases where seizure is impos-

sible except without warrant, the seizing officer acts ©

unlawfully and at his peril unless he can Bates the

court probable cause.”’

Although it is arguable that this modified all that had been -

said before, we doubt the validity of that construction as

regards the legality of searching vehicles under statutes

providing for the seizure of goods they are carrying or of

the vehicles themselves as contraband as distinguished from

searches of vehicles generally. The statement forms part -

of a discussion of Rev. Stat. §970, which provided that in

.. any ‘‘prosecution commenced on account of the seizure of

any vessel, goods, wares, or merchandise, made by any col-

~ lector or other officer, under any Act of Congress authoriz-

ing such seizure, judgment is rendered for the claimant, —

but it appears to the court that there was reasonable cause

of seizure,’’ the officer shall go free even if his judgment

proved to be wrong, but the property shall be returned. We’

read the passage as saying that an officer can be sure of

immunity even when acting under a statute only if he ob-.

tains a warrant, whereas if he acts without one he will be

on

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~ “Appendix A—Opinion of United States Court of Appeals

_ liable unless he succeeds: in establishing ‘probable cause,

father than as invalidating searches of vehicles for contra-

band made under authority of a statute and on probable

cause if a court should later decide that a warrant could

practicably have been obtained. This narrower reading is

supported by the immediately preceding paragraph where

the Chief Justice said that the owner is assured of regaining

his property and of not having it used in evidence ‘‘in ab-

‘sence of probable , cause’’. but ‘‘in a case showing probable

e cause, the government ‘and its officials are given the op-

“portunity which they should have, to make the investigation

necessary to trace reasonably suspected contraband goods

and to seize them.’’ 267 U.S. at 156. . This is:the rule which,

the Court anfeynced i in the very passage under discussion,

‘<fulfills the guarafity, of the Fourth Amerdment.’’ If the

~ Court had intended such*a. serious qualification as. to con-

dition. the validity of the search of a vehicle pursuant to a

forfeiture statute on a considered and correct determina-

tion of the impracticability of getting a warrant, it would ©

hardly have begun its opinion with the ringing declara-

tion; previously quoted, that ‘‘the true rule’’ is that if a

search and seizure without a warrant are-made ‘‘upon a

- belief, reasonably arising out of circumstances known to

the seizing officer, that an automobile. or other. vehicle con-

tains that which by aw: is. subject to: ‘seizure and destruc-

_ tion, the search and seizure are valid.’? 267 U.S. at 149. -

‘The right to search vehicles on reasonable cause without

a warrant under statutes forfeiting the: goods or vehicles

transporting them ‘has not received much subsequent at-

_ tention from the Supreme Court. Husty v. United States;

982 U.S. 694, 700-01 (1931), which followed Carroll, is .

cata ee . d ailsibbin bhi in St be Coola te

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Appendix A—Opinion of United States Court of Appeals

subject to the same dubieties. In United States v. Di Re,

332 U. S. 581, 586 (1948), where contraband was ‘involved

but there was no statutory authorization to search the car,

the Court avoided considering the application of Carroll

on the basis that ‘‘Assuming, however, without deciding, .

that there was reasonable cause for searching the car,’’ this _

afforded no ground for searching the occupants. Brinegar -

v. United States, 338 U.S. 160 (1949), found Carroll to be

- undistinguishable, even though as pointed out in Mr. Jus-

- tice Jackson’s dissent there was no statute such as that in

Carroll, 338 U. S. at 183-84.and ni. 1; the’ issue discussed

- was whether the officer had probable cause for the search,

and the case was clearly one where obtaining a search war-

rant would have been impracticable, although the point was

not mentioned. The searches of automobiles invalidated in

the recent Supreme Court cases of Preston and J ames,

supra, as being too remote to be incident to an atrest, were

‘not made under the’ authority of forfeiture statutes. Henry

v. United States, 361 U.S. 98 (1959), did’not involve contra-

band within the forfeiture statute; Rios v. United States,

364 U. S. 253 (1960), did, but the vehicle was not subject to

seizure since there was no indication t that the taxi-driver

_ knew that heroin was being transported, 49 U. 8. C. 1,

§782, and the search was by state officers without authority ..

under the federal act. See 31 C..F. R. §401.1. Hence ”

neither case called for or received discussion of the point.

On the other hand, courts of appeals that have considered *

the statute here invoked have held that a vehicle reasonably

beljeved to be stjbject to seizure for having carried or for

carrying contraband may be searched without a warrant,

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Appendix A—Opinion-of United States Court of Appeals

even though it was at least as feasible to secure one as was

the case here. See, e.g., United States v. Haith, 297 F. 2d 65

(4 Cir.), cert, denied, 369 U. S. 804 (1962) fagents had

keys]; Sirimarco v. United States, 315 F. 2d 699 (10 Cir.), .

cert. denied, 374 U. S. 807 (1963) [car parked adjacent to

sheriff’s office and accused driver in jail] ; Burge v. United

States,,342 F. 2d 408, 414 (9 Cir.), cert. denied, 382 U. S.-

829 (1965) [accused under arrest and car impounded];

Drummond v. United States, supra, 350 F.-2d at 988 [al-

ternative assumption that car had been removed to’ Federal

Building]; United States v. Troiano, 365 F. 2d 416 (3 Cir.

1966). We see no sufficient basis for taking a different |

view. oer ar

‘In urging that we do this our brother Kaufman would

distinguish Carroll on the. basis that the statute here in-

voked deals with seizures rather than searches. But so did

the section of the National Prbhibition Act on which the

Government relied in Carroll, see 267 U. S. at 144; indeed, ©

our case could be argued to be a fortiori since 49 U. S.C. —

§782 proyides for seizure and forfeiture of the vehicle

whereas the provision of the ‘National Prohibition Act be-

- fore the Court in Carroll dealt merely with ‘the goods.® As.

_ 5 This point could serve to distinguish so much of the recent deci-

sion in Corngold v. United States, F. 2d , oo. oy ks

Week 2197 (9 Cir. 1966), as concerns .19 U. S. C. §482 relating

to illegally imported merchandise. In fact Judge Browning’s

opinion, which treats the issue rather cursorily, proceeds on the

_ basis of a construction that “the outer limits of authority dele-

gated by the statute” are available-only in border searches, a

conclusion whose applicability is challenged in Judge Barnes’

dissent. The opinion does not reflect on the 9th Circuit’s ruling

_ in Burge v. United States, supra, under the statute here at issue.

| A-17

| Appendia A—Opinion of United States Court of Appeals

the Fourth Circuit said in United States v. Haith, supra, —

297 F. 2d at 68: ;

‘‘Moreover, if the seizure be lawful, as it concededly eo

was here, and the officers have obtained exclusive pos- °

session of the vehicle, forfeited to the United States

because of its use in violation of the revenue laws, and.

of its contraband contents, the former possessor has

no remainiing rights for which the Fourth Amendment

lends protection. There appears no good reason why

officers may not inventory the contents of an automo-

bile when they are lawfully in possession of the vehi-

cle and of its contents without having to obtain a war- |

rant to search what they already lawfully possess.’’ ®

The Carroll opinion drew tio distinction between statutes:

that provided specifically for search and others there dis- :

‘cussed, such as 30 Stat. 1253, 1280 (1899) and 39 Stat. 969

(1917), which did not; in fact, the very basis of the Carroll

rule is the distinction, taken in the Boyd opinion itself, as

to the permissibility of the legislature’s dispensing with —

a warrant where ‘‘the government is entitled to the posses-

sion of the property.”’ 116 U. S. at 623. When Congress |

enacted what is now 49 U. S. C. §§781-84 in 1939, it thus

had every right to suppose the statute would be given the

same effect as that in Carroll. :

We realize that upholding the validity of the statute as

so construed amounts to recognizing that Congress, in aid

of its decree of forfeiture, may in effect create a further

exception to the requirement of a search warrant, limited

6 We wholly fail to see what Miuvee it can make that the search

_ was made after the agent took possession of the car on the drive- -

_ way rather than after driving it to a police garage.’

SS agian dd

A gS Ra FT comet tS eh ae ae! initiation os Lit di tibssaih ch

2

A-18

Appendia A—Opinion of U nited. States Court of Appeals

to. vehicles that have carried or are carrying contraband

‘and subject to the existence of reasonable cause, but: with-

. out a requirement of incidence to prior lawful arrestor a

showing of impracticability of obtaining a warrant due to

the motion of the vehicle.” But we cannot recall too often

that the Fourth Amendment. bans only unreasonable

searches and seizures. We would hesitate to decide, par-

ticularly in the light of the dictum in Boyd and what we ~

deem*the holding in Carroll, that’Congress here exceeded

- its-constitutional powers in dispensing with a search war-

rant in the case of vehicles which are reasonably believed

and in fact are transporting or have transported forbidden

goods over public. highways, although a citizen’s person,’

7 The problem of determining the feasibility of obtaining a war-

.. fant to search a motor car when the owner or occupant has been

alerted is illustrated by the facts here. Sershen’s possession of

a set of keys to the Cadillac by no means insured that there were.

no duplicates or that the counterfeit could not be removed from

the car, or the car itself moved, by other methods.. By the time

'. he found the car, about eight o’clock on a Friday evening, the

Secret Service and other government offices were closed for the

week-end. While this would not have precluded getting a search

warrant, substantial time would have been needed, and either

the policemen would have had to stand guard in the meanwhile

or the Cadillac would have had-to be driven off to a place of

safe keeping—assuming that such a seizure would be lawful

even though, under a view contrary to that here taken, a search

would not have been. Husty v. United States, supra, 282 U.S.

694, indicates that if. there is any. requirement for showing im-

practicability of obtaining a warrant in cases of contraband car-

ried in motor vehicles, this is rather easily met, see Landyski,

Search and Seizure and the Supreme Court. 91 (1966) ; indeed,

it may have been here. However, we rest this alternative ground

of decision on the basis that Congress has validly exercised a

foreclosing judgment against the need for demonstrating im-

practicability in the case of’a car reasonably believed*to be and

in fact forfeit to the Government for the carriage of counterfeit.

. * the search-was justified by 49 U. S. C. §§781-9. |

wa f

A-19 |

Appendix A—Opinion of United States Court of Appeals

his home or his office could not be searched without a war-

rant and a more stringent rule applies even to vehicles ~

not carrying or having carried contraband: See Barrett,

Personal Rights, Property Rights, and the Fourth Amend-

ment, 1960 Supreme Court Review 46, 65. Despite the age

of the principles as.to forfeiture of an offending object,

' see Holmes, The Common Law 20-31 (Howe ed. 1963), the

due process clause of the Fifth Amendment or the Fourth

Amendment may place limits on the power of Congress to

brand goods ag contraband and declare them. or vehicles

carrying them to be subject to seizure as government prop-

erty. But if Congress had power to do this with respect

to alcohol as held in Carroll, counterfeit—a gross offense

to the dignity of the nation and a peril to the security of -F.

“all transactions—is an a fortiori case. | . |

The remaining question whether the agent had probable

cause to believe the Cadillac had been used in violation of

. the statute; is easily answered. He had ample reason to

betieve it had been used to. transport Mrs. Francolino to.

the store with the counterfeit notes she passed ‘there and:

to bring her home with at least the two that Brady had

‘made her take back. This was enough.

The judgment of conviction is affirmed.

Kavrman, Circuit Judge (concurring) :

I agree with the majority that the search of the car was

justified as ‘‘incidental to a lawful arrest.’ But, have dif-

ficulty agreeing with. the alternative ground for affirmance |

in Judge Friendly’s well reasoned opinion. I do not think =

v4

¥

.

Pe ee ee ee ee eS eS ee

Appendix A—Opinion of United States Court of Appeals

The statute, when read im toto, contains no indication

that Congress intended to enlarge the number of instances

Mid Galanin.

in which searches without warrants would be justified.

‘The purpose of the statute, as I see it, was. to create an

additional penalty for possessing contraband—forfeiture

of the vehicle used to transport it—and nothing more.’ I

do not agree with the majority that the section being con--

strued here is similar to the statute which was before the .

_ Supreme Court in Carroll. That statute, it should be noted,

. was specifically addressed to searches. It was: obligatory.

under the Act, that a search warrant be obtained before a

search of a private dwelling; but it was completely silent as

to the necessity for warrants before searching a vehicle:

The Supreme Court’ quite properly held—following the.

very clear legislative history—that a vehicle being driven

along the highway could be searched for illegal liquor with-

‘out a warrant, if probable cause existed, because of the ap-

‘parent likelihood that the automobile would be promptly |

driven out of the jurisdiction; requiring a warrant in ad-

vance-in such.an instance would be. sheer folly. But here,

no such Congressional purpose is apparent; from all that

appears the statute is designed to create only an additional

penalty for transporting or having transported any kind of

contraband. Moreover, contrary to the facts in Carroll,

the car in the case before us was not moving. And, I realize

that anyone with keys to this car could have driven it away

1 The word “seizure” in the statute describés a method for com-

mencing the forfeiture proceedings. Although it is often found

together with the word “searches,” there is no reference to

searches in this statute, and I think it ufwarranted to read/this

word into the statute. ;

A-21

Appendix A—Opinion of United States Court of Appeals .

if ‘the police left the scene to obtain a warrant; dut, this

reasoning applies with equal force to any counterfeit money

which may have been hidden in the house. There, too, some-

_ one could have removed the money while the police were

engaged in obtaining a search warrant. I see ‘no reason,

therefore, to make any distinction in this case between the

search of the car and the house. In short, I believe the

majority places too much reliance on Carroll. | |

It is true, courts have held that once an automobile’ is

seized and forfeited the police can search it without a war-

rant. But, this is not our case. Here the search of the

car preceded its seizure. The search was not ancillary to a

seizure as it would have been had the car been seized,

driven to a police garage pending forfeiture, and then

searched. Instead, (the seizure of the car was incidental—

almost an afterthought—to the search of the car. To hold

the search to be justified because the seizure was justified

is to permit the tail to wag the dog.

In any event, as I have stated, I am confident that the

search was ‘‘incidental. to the lawful arrest” of Anne Fran-

colino, and therefore I see no need to rely on the statute

-as an alternative ground for upholding the conviction.

\

eee

A-22 iis gee

APPENDIXB _.

Opinion of Hon. John R. Bartels, D.J.

UNITED STATES DISTRICT COURT.

| Eastern: District or NEw York *

64-CR-390

dy.

sd

_Unrrep States or AMERICA

—against— «

_Joserx D. Francoutno and ANNE FRANCOLINO,’ _

Defendants.

+

a?

March 14, 1966.

APPEARANCES : . >

JosEPH P. Hoey, Esq.

United States Attorney

Eastern District of New York

Attorney for United States of America °

LEONARD J. THEBERGE,, Esq.

Assistant U. S. Attorney

2

J acos P. LerKow1Tz, Esq

- Attorney for_Defendants

. : q ; en —

Barrets, D. J. as,

In this case the detindants bar been indicted on three

counts for passing counterfeit $10 bills and on one count

i : = ie a i

: 2 ‘i : ’ + reg

of .

A-23

‘

Appendix B—Opinion of ‘Hon. John R. Bartels, DJ.

for possession of counterfeit $10 bills, in violation of 18

' U.S.C.A.-$§ 2 and 472, predicated upon transactions which

allegedly occurred on. or about July 24, 1964.

This is a motion, pursuant to Rule 41(e), Fed. Rules.

Crim. Proc., 18 U.S.C.A., to suppress certain evidentiary

items on the ground of unlawful search and seizure allegedly

in violation of the Fourth Amendment of the Constitution.

In addition, defendants claim: that they were questioned in

violation of the Sixth Amendment of the Constitution

affording them a right to counsel, and in violation of the

Fifth Amendment of the Constitution ones them privi-

lege against self-incrimination. a ; Ca

According to the testimony of George J. Sershen; Special

Secret Service Agent, he received a radio call in his auto-

mobile that several. counterfeit $10 bills were being passed

at the Floyd Bennett Stores (sometimes referred to as FB.

Stores) in Flatbush, Brooklyn, New York, and that while

he was on the way to these premises he received further

radio information that one Michael Brady had written down

the license number of a Cadillac car in which the woman

who passed the counterfeit bills had entered and therekfter

had driven away; that the number was KG 9154 and that

he thereafter received information over the radio that this

car was registered in the name of Atlantic Freightways,

Inc. with a business address at 114 Avenue U, ‘Brooklyn,

and another address: at 1664 West 3rd Street, Brooklyn,

“and that J oseph D: Francolino was treasurer of the com-—

‘pany. 3 f

Agent | Sershen testified that he received further informa.

tion over the radio that one of the counterfeit bills was

A-24

a B—Opinion of H on. John R. Bartels, DJ.

- “passed at a snack bar at the F. B. Stores and had been

e

turned over to one Philip Krieger at 2543 Flatbush ‘Avenue

or Utica Avenue, and ‘that on his way to the Floyd Bennett

- Stores he had stopped off at Krieger’s, place and picked up

the bill; that Krieger told him that he received this bill

that afternoon from one of his employees, Joseph Palillo,

at the Floyd — market where it had been passed that

afternoon. |

. He then proceeded to the F.B. Stores where he arrived

~ at 5 or 5:30 P.M. and interviewed Bernard Singer, the.

_ manager of the F.B. Stores, who stated that certain counter-

_° feit $10 bills had been. passed in the store. Thereafter he-

interviewed Michael Brady of the Housewares Department

and also two cashiers at the F.B. Stores, Mary Lou Patter-

son’ and Gloria Utsler, and also Joseph Palillo, and was told

that Mary Lou Patterson received two counterfeit $10 bills

and that Gloria Utsler found three counterfeit bills in, her

register which were received by one Diane Ficocelli, whom

Gloria Utsler relieved, and fhat Gloria Utsler did not see

the young lady who passed the bill but that Mary Lou

Patterson saw that young lady and that after talking to the

\ various persons at the F.B. Stores the agent obtained a -

description of the passer of the counterfeit bills as a young

girl with teased hair, wearing a leopard kerchief and a

~ leopard-skin pocket book. The agent also learned that Mary

Lou Patterson had stated that she had given this girl four

good $5 bills for two counterfeit $10 bills. The agent said

that Michael Brady described the girl who had passed the

two counterfeit $10 bills as a young, slender woman, 5’4”

_ tall, with teased hair, wearing a leopard kerchief and slacks

al

A-25

| Appendix B—Opinion' of Hon. John R. Bartels, DJ. —

' and carrying a leopard-skin bag, and took the agent to the

window and showed him where the get-away Cadillac car

had been parked and told him that he went out into the

street in front of the store and approached the young lady ©

and showed her the two counterfeit bills which he accused

her of passing, and that she ‘grabbed these bills but ¢ gave

them back to him after he threatened to call the police.

' Thereafter a baldish man, about 40 years old, 5’8” (whom

- I designate as ‘‘Mr. X’’) approached him and inquired what

was the matter and aftér some conversation, in which Brady

again threatened to call the police, Mr. X instructed the

girl to ‘give back the four $5 bills, and whereupon Mr. X

took the two counterfeit $10 bills and placed them in his

wallet; that’ Brady saw both of these people enter the © |

Cadillac ear. The agent obtained from Singer five counter-

feit $10 bills which had been passed at‘the Floyd Bennett.

' Stores on the afternoon of Friday, July 24, 1964.

Thereafter the agent went to 1664 West 3rd Street and

arrived ‘there about 8 P.M. and saw.a black Cadillac.car in

Atte driveway with the same license number, KG 9154.. He

Ps _ thereupon telephoned the local police and two policemen

arrived about ten minutes later. He made no attempt to

obtain an arrest or search warrant because his office was

closed. He told the policemen about the Cadillac car and’

. gave them ‘a description of the young lady accused of pass-

ing counterfeit bills, and said that he was about to make an”

»arrest; that all three. then approached the house, the agent

rang the bell and the elder Mrs. Francolino opened: the

door, . whereupon the agent stated that he wanted’to know

who owned the car in the driveway and they were invited

i

A-26

Appendic B—Opinion of H on. Sate R. Bartels, D J.

inside. _At this point the defendant J oseph Francolino came

half way down the stairs and ‘the agent repeated that he |

warited to know who owned the car in the driveway and the

defendant Joseph Francolino replied that he owned the car

and invited the agent upstairs into the bedroom. The ag agent ie

. then showed the defendant Joseph Frarieolino his credentials

‘and as he entered the bedroom he saw the defendant Anne

‘*. Franeolino, who .was wearing slacks and who: fitted the

description previously given him: he also saw a leopard-skin

handbag on the dresser. He thereupon placed the defendant

Anne Francolino under arrest for passing counterfeit bills.

The defendant J oseph Francolino demanded an arrest war-

: rant from the agent and stated that Anne Francoling could

* P

Cit ce: ie a el lO le Lon a cae gm a

" not possibly have been in the car at the time because he was

driving the car all that afterhoon: Whereupon the. agent

- placed the defendant Joseph Francolino under arrest for

being involved with counterfeit money, although Joseph |

' Francolino did not fit the description of Mr. X who took

~ back the two counterfeit $10 bills from Brady.

The agent asked for the keys to the car’ and the de-

fendant Joseph Francolino then gave them.to his mother

and the mother then gave the keys to the defendant, Anne ©

Francolino. Upon demand by the agent, Anne Francol{no

_ just held her hand open with the keys in it and the agent

- took the keys from hér and gave them:to the policeman who

opened the trunk of the car and found therein. $20,000 in

counterfeit $10 bills: Thereafter the policemen took both .

defendants, Joseph Francolino and Anne Francolino, i in the

"patrol car’fo the Police Precinct arid booked them, and the. |

—_— drove the Cadillac car to the ‘tation.

sate Loreen drvitlar iain

with the iat s testimony.

Llane ant ccc tlie h a etait 4 tee Sal TAG AA Ste | hehe be Beg habem A tw eh antl se tab inai ah -

| A-27

Appendia B—Opinion of Hon. John R. Bartels, DJ.

Mrs. Katherine Fraicolino, the mother of the defendant

Joseph Francolino, testified somewhat differently. She said —

' that after the officers entered her home, her son asked the

agent for a search warrant; that the agent walked upstairs

before her son came downstairs, and that the agent:

threatened her with policeman’s handcuffs unless she dis-

-gorged the keys to the car which she and not her. daughter-

in-law held and that she subseqpently gave them to the

agent out of fear.

- Policeman Gerald Moyles,: who accompanied the agent,

in effect substantiated the agent’s testimony as to entering

the Francolino home by invitation and also.the delivery of

the car keys by means of the open hand of the daughter-in-..

law and not from the resistant hand of the senior Mrs.’

Francolino. He denied that any statement was made that

“ handeuffs. would be placed upon the senior Mrs. Francolino

or anyone else.

Michael ‘Brady testified and in ‘ai ‘substantiated the

agent’s testimony with respect to the conversations which

took place between him and the agent at the-F.B. Stores on

July 24,1964, except that he stated that he did not describe ¢

the passer of tle counterfeit bills as a young lady with

‘‘teased’’ hair; otherwise his description was in h snqoreamee

Mary Lon Patterson, one of the cashiers at the FB.

Stores, was then called to tlie stand and could not remember _

whether she spoke to the agent on the day of J uly 24, 1964,

'. but she specifically remembered pointing out to Michael

*’ Brady on that day the passer- of the counterfeit bills and

that this person was a young lady with teased black hair.

“a

_e

.

A928

' Appendia B—Opinion of Hon. John R. Bartels, D.J.

From all. the testimony. the Court finds that the agent

had sufficient information from witnesses who. were not

only identified but whose credibility was also reliable and

’ who conveyed to him an adequate description of fhe passer

‘of the counterfeit bills. In addition, he ‘had independent

evidence in the form of (1) counterfeit $10 bills which he

received from the F'.B. Stores, (2) license plate number KG

9154 which he saw on the Cadillac car in | the. driveway, and

(3) leopard-skin pocket book which he saw on the dresser

in the bedroom. It concludes, therefore, that the agent had

probable cause to-make the arrest of the defendant Anne

Francolino. See, Draper v. United States, 1959, 358 U.S. ~

307, 79 S.Ct. 329; Brinegar v. United States, 1949, 338 U.S.

160, 69 S.Ct. 1302; Bates v. United States, 9 Cir. 1965, 352

F.2d .399, cert. denied, 34 U.68.L. Week 3245 (January 17,

1966) ; Hollins v. United States, 9 Cir. 1964, 338 F.2d 227;

Caldwell v. United States, 8 Cir. 1964, 338 F.2d 385, cert.

denied, 1965, 380 U.S. 984, 85 S.Ct. 1027; United States

v. Sorenson, 2 Cir. 1964, 330 F.2d 1018, cert. denied, 1965,

380 U.S. 945, 85 S.Ct. 1027; Cuozzo v. United States, 5

Cir. 1963, 325 F.2a 274; Rodgers v. United States, 9 Cir.

"1959, 267 F.2d 79; United States ex rel. Eidenmuller v. Fay,

§.D.N.Y. 1965, 240 F.Supp. 591; Stevens v. Warden, Mary-

“land Penitentiary, D.C. Maryland 1965, 238 F.Supp. 334;

compare, Beck v. State of Ohio, 1964, 379 U.S. 80, 85 S.Ct.

223; Wong Sun v. United States, 1963, 371 U.S. 471, 83

$.Ct. 407; Katz v.- Peyton, 4 Cir. 1964, 334 F.2d 77, cert.

denied, 379 U.S. 915, 85 S.Ct. 261; Contee v. United States,

D.C. Cir. 1954, 215 F.2d 324. | 7

" The. Cadillac car was parked in the driveway of the

premises occupied by the defendants and was, in fact, at

IR ate et eer ce «bide etn Tne pi Aten mn ae le oA ei tate tome AE ate

A-29 |

Appendia B—Opinion of Hon. John R. Bartels, D.J.

‘that time an integral part of the premises. The search took

place promptly after the arrest and was a reasonable one.

Consequently, the search of the Cadillac car was a proper oA

search incidental to the arrest of the defendant Anne

Francolino. Drummond v. United States, 8 Cir. 1965, 350

F.2d 383; see, United States v. Rabinowitz, 1950, 339 U.S.

56, 70 S.Ct. 430; Agnello v. United States, 1925, 269 U.S.

20, 46 S.Ct. 4; Carroll v. United A States) 1925, 267 U.S. 132,

45 S.Ct. 280; Arwine v. Bannan, 6 Cir. 1965, 346 F.2d 458.

Compare, James v. State of Louisiana, 1965, — US. my

- 86 S.Ct. 151; Preston v. United States,. 1964, 376 U.S. 364,

84 S.Ct. 881.

‘There was no possible cause for the arrest of the de-

fendant Joseph.Francolino, nor can the evidence obtained:

from the search of the.car be used against him. __

_ Therefore, the motion to suppress will be denied with

respect to the defendant Anne Frantolino and will be

granted with respect to the defendant Joseph Francolino.

- «Joun R. BakTELs,

United States District Judge.

A-30

APPENDIX C |

-Fourth Amendment to the United States Constitution

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

houses, papers, and effécts, against unreasonable searches

and seizures, shall not be violated; and no Warrants shall

issue, but upon probable cause,. supported by Oath or

affirmation, and particularly describing the place to be

searched, and the persons or things to be seized.’” -

Rel

+

A-31

APPENDIX D:

Title 49 U.S. Code, Sections 781-784

‘Section 781. Unlawful -use of vessels, hile: and dir:

crafts; contraband article defined

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

any contraband article in, upon, or by. means of any vessel,

vehicle, or aircraft; (2) to conceal or possess any contra-

band article in or upon any vessel, vehicle, or aircraft, or

upon the person of anyone in or upon any vessel, vehicle,

' or aircraft; or (3) to use any vessel, vehicle, or aircraft. to

facilitate the transportation, carriage, conveyance, conceal-

ment, receipt, possession, purchase, sale, barter, exchange,

or giving away of any contraband axpicle.

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

means—’? |

**(3) Any. falsely ete forged, altered, or counterfeit

coin or obligation or other security of -the United States

or of any foreign government ; or any material or apparatus,

or _paraphernalia’ fitted or intended to be used, or which i :

’ shall have been used, in the making of any such falsely made,

forged, altered, or counterfeit coin or, obligation or other :

security. sinh

‘Section 782. Seizure and Forfeiture

Any vessel, vehicle, or aircraft which has hein 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

- ee e# er

° . A-32 ’

Appendix D—Title 49 U.S. Cade, Sections 781-784

“Section 783. Designation of officers by Secretary of Trea-

sury; duties of officers |

- The Secretary of the Treasury is inipaiwens’ to authorize,

or designate, officers, agents, or other persons to carry out :

the provisions of this chapter. It shall ‘be the duty of any

officer, agent; or other person so authorized or designated,

or authorized by law, whenever he shall discover any vessel,

vehicle, or aircraft which has been or is béing used in vio-

- lation of any of the provisions of this chapter, or in, upon, .

or by means of: which any violation of this chapter has

_ taken-or is taking place, to seize such vessel, ‘vehicle, or

aircraft and to: place it in the custody of such person as

may be authorized or designated for that purpose by the

- Secretary of the Treasury, to await disposition pursuant

to, the eau of this chapter and any regulations 1 issued

hereunder.”’

“Section 784. Application of related laws .

All provisions of law relating to the seizure, summary

and judicial forfeiture, and condemnation of vessels and

vehicles for violation of the customs: laws; the disposition \

of such vessels and vehicles or the proceeds from the sale

thereof; the remission or mitigation of such forfeitures;

and the compromise of claims and the award of compensa-

tion to informers in respect of such forfeitures shall apply

to seizures and forfeitures incurred, or alleged to have

, been incurred, under the provisions of this chapter, insofar

as applicable and not inconsistent with the provisions here-

- of: Provided, That such duties as are imposed upon the

collector of customs or any other person with vengers to the

a

bs .

a ene enantio ith

aS

-A-33

Appendiz D—Title 49 U.S. Code, Sections 781-784 .

~ seizure and forfeiture of vessels and vehicles under. the

customs laws shall be perforrked with respect to seizures

: and forfeiture of vessels, vehicles, and aircraft under this _

i chapter by such officers, agents, or other persons as may

be authorized or designated for that purpose by os oer:

tary of the Treasury.”’