The opinion of the court was delivered by: LEIBELL
The above actions to forfeit two automobiles, alleged to have been used by John G. Ardito in facilitating the sale of contraband (narcotic drugs) were by agreement consolidated for trial. The main facts in relation to each action have been set forth separately in findings of fact which are being filed together with this memorandum. Ardito was a seller of narcotics and he was convicted in this Court, on a plea of guilty of having made an illegal sale of narcotics consummated April 30, 1946.
On November 29, 1946 the government filed the libels against the two automobiles seeking their forfeiture under 49 U.S.C.A. § 782. Michael Cestaro filed a claim to the Pontiac sedan on December 2, 1946, alleging that he is the owner thereof. Carmine Criscuolo on the same day filed a claim to the Dodge sedan, as the alleged owner thereof. The Pontiac is registered in the name of Anna Ardito, but the Government does not dispute Cestaro's contention that he is the actual owner. Ardito's use of the Pontiac, as hereinafter described, was with the consent of Cestaro, and his use of the Dodge was with the consent of Criscuolo.
The pertinent provisions of Chapter 11 of Title 49 of the United States Code Annotated are the following:
'Sec. 781. Unlawful use of vessels, vehicles, and aircrafts; 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 contraband 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, concealment, receipt, possession, purchase, sale, barter, exchange, or giving away of any contraband article.
'(b) As used in this section, the term 'contraband article' means --
'(1) Any narcotic drug which has been or is possessed with intent to sell or offer for sale in violation of any laws or regulations of the United States dealing therewith, or which is sold or offered for sale in violation thereof, or which does not bear appropriate tax-paid internal-revenue stamps as required by law or regulations;
'Sec. 782. Seizure and forfeiture
'Any vessel, vehicle, or aircraft which has been or is being used in violation of any provision of section 781, or in, upon, or by means of which any violation of section 781 has taken or is taking place, shall be seized and forfeited:
'Sec. 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 compensation 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 hereof: * * * '
The word 'facilitate', as used in Sec. 781(a)(3) and applied to the facts as found in this case, means that the automobile was used to make easy, to promote, to help forward the purchase and sale of the heroin. See Webster's Universal Dictionary (1913) and the Concise Oxford Dictionary (1944). Facilitation has also been defined in several decided cases. Pon Wing Quong v. United States, 9 Cir., 111 F.2d 751; United States of America v. One Dodge Coupe, D.C., 43 F.Supp. 60; Platt v. United States, 10 Cir., 163 F.2d 165. An automobile used as an armed convoy for other vehicles loaded with smuggled liquors was held to violate a section of the internal revenue statutes, 26 U.S.C.A. § 3321, relating to the forfeiture of vehicles used in the removal or for the deposit or concealment of intoxicating liquors with intent to defraud the government of the tax. The automobile was forfeited because it 'was the armed convoy, or pilot and guard, of the others, but itself contained none of said liquors.' United States v. One Dodge Sedan, D.C., 28 F.2d 44, 45.
Statutes relating to frauds on the revenue, although they impose a penalty or forfeiture 'are to be fairly and reasonably construed, so as to carry out the intention of the legislature.' They 'are construed less narrowly' than penal statutes and others involving forfeitures. United States v. Stowell, 133 U.S. 1, at page 12, 10 S. Ct. 244, at page 246, 33 L. Ed. 555; United States v. Ryan, 284 U.S. 167, at page 172, 52 S. Ct. 65, 67, 76 L. Ed. 224.
The statute, 49 U.S.C.A. § 781 et seq., which became a law August 9, 1939, was intended to have an expanded meaning. United States v. Pacific Finance Corp., 2 Cir., 110 F.2d 732. A comparison of clause (3) of subdivision (a) of Sec. 781 with clause (1) thereof makes it clear that clause (3) was intended to embrace situations other than the actual transportation of the contraband in a vehicle. Clause (3) includes the use of a vehicle to facilitate the transportation of the contraband -- something other than the actual transportation of the ...