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IN RE COLACICCO

October 18, 1943

Application of COLACICCO


The opinion of the court was delivered by: HULBERT

HULBERT, District Judge.

By petition and notice, Charles Colacicco brought on a motion for an order vacating the seizure and forfeiture of an automobile owned by him and directing the return thereof.

The court directed that a hearing for the presentation and determination of the questions of fact and law should be had.

 Upon such hearing it was conceded by the petitioner that he had been arrested on June 1, 1942 as a participant in an alleged conspiracy within the jurisdiction of this court, had waived examination and was admitted to bail.

 It is further conceded by the United States Attorney that no presentation has yet been made to the Grand Jury of this district.

 Petitioner was the owner of an automobile, 1941 Model Chevrolet Business Coupe, Motor #AC 164463, Manufacturer's #2AG 06-39687, bearing Registration or License #5D 5149,1942, N.Y., issued to petitioner by the State of New York.

 Immediately following petitioner's said arrest, the aforementioned automobile was seized by the Alcohol Tax Unit of the Treasury Department of the United States of America in the City of Middletown, New York, which is within the jurisdiction of this court.

 The aforementioned seizure was made by reason of the alleged use of said automobile for the transportation therein of fuel oil used in violation or violations of the Internal Revenue Law. 26 U.S.C.A. Internal Revenue Code, § 3720.

 Proceedings to enforce such forfeiture shall be in the nature of a proceeding in rem in the district court of the United States for the district where such seizure is made, Sec. 3723, except when in the opinion of the Collector making the seizure, the article seized is of the appraised value of $500 or less, the Collector shall proceed as follows:

 Sec. 3724 "(a) He shall cause a list containing a particular description of the goods, wares, or merchandise seized to be prepared in duplicate, and an appraisement thereof to be made by three sworn appraisers, to be selected by him, who shall be respectable and disinterested citizens of the United States residing within the collection district wherein the seizure was made."

 This course of procedure was followed and the appraisers determined the value of the automobile to be $475.

 "(b) * * * the said collector * * * shall publish a notice, for three weeks, in some newspaper of the district where the seizure was made, describing the articles, and stating the time, place, and cause of their seizure, and requiring any person claiming them to appear and make such claim within thirty days from the date of the first publication of such notice."

 This will be presumed to have been done.

 "(c) Any person claiming the goods, wares, or merchandise so seized, within the time specified in the notice, may file with the said collector * * * a claim, stating his interest in the articles seized, and may execute a bond to the United States in the penal sum of $250, with sureties to be approved by the said collector, * * *, conditioned that, in case of condemnation of the articles so seized, the obligors shall pay all the costs and expenses of the proceedings to obtain such condemnation; and upon the delivery of such bond to the collector * * * he shall transmit the same, with the duplicate list or description of ...


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