Appeal from the District Court of the United States for the Southern District of New York.
Before MANTON, L. HAND, and CHASE, Circuit Judges.
This libel was filed for the forfeiture of gold held in custody by the appellant after seizure by a secret service operative in conjunction with an investigator of the Director of the Mint's office. Gold Reserve Act, §§ 2(a), 3, 4, title 31 U.S.C.A. §§ 441-443. The act provides that any gold withheld, acquired, transported, melted or treated, imported, exported or earmarked or held in custody in violation of the provisions of the act or regulations issued thereunder or license issued pursuant thereto, shall be forfeited to the United States.
By affidavits it was shown that on June 1, 1934, a license to deal in unmelted scrap gold to the extent of 200 Troy ounces was issued by the United States Assay Office to the Baraban Refining Company, Inc. and this was revoked September 24, 1934. On November 26, 1934, a license was granted to Minnie Sarch to acquire and hold, transport and import unmelted scrap gold not exceeding at any one time 25 Troy ounces. On April 1, 1935, a government employee, investigating transactions in gold, entered a store of the Baraban Refining Company, Inc., in the borough of Manhattan, New York City. The premises are on the ground floor and open to the public. Inside there are showcases, and a workshop is in the rear. While there the investigator witnessed a transaction in which a person agreed to pay $9 for an item of scrap gold. The purchaser was David Baraban, appellee, who admitted that he was dealing in gold without a license. Jacob Baraban was also present at the sale. Both were associated with the Baraban Refining Company, Inc. The investigator reported this occurrence to the Assay Office and an operative was assigned to the case. The operative and the investigator returned to the appellee's place of business and on entering saw in a showcase a quantity of scrap gold in a cigar box. Jacob Baraban was questioned but could not produce a gold dealer's license. Later he showed the cigar box of scrap gold, and admitted that he also had some gold-filled scrap jewelry. David Baraban entered and, when questioned, produced a license issued to Minnie Sarch, claiming, at first, that he was purchasing the gold on her license as agent. He later admitted that he had persuaded Miss Sarch to take out the license although she was not in the business and received no money from the transaction. Both the Barabans were then placed under arrest.A search of the workshop followed, and in this room, which was equipped with ladles, crucibles, blow torch, drilling machine, and cutting machine, there was found a pasteboard box containing United States and foreign gold coins. The gold was seized and taken to the United States Assay Office.
This libel was later filed against all the gold seized on the ground that it had been acquired, held, transported, and treated contrary to sections 3 and 4 of the Gold Reserve Act, 31 U.S.C.A. §§ 442, 443, and the regulations issued thereunder. Thereupon claims to the gold were filed by David Baraban and the Baraban Refining Company, Inc. On April 16, 1935, an order was issued to show cause why the gold should not be returned to the appellees and all evidence suppressed on the ground that the search and seizure was unlawful. The court below found the search and seizure was not an incident to an arrest; that the Gold ...