The opinion of the court was delivered by: RAYFIEL
On October 24, 1960 the United States of America filed its libel herein under Section 1177 of Title 15, United States Code Annotated, seeking the condemnation and forfeiture of some 420 gambling devices contained in 42 crates, which were seized by agents of the Federal Bureau of Investigation in the Borough of Brooklyn, within the jurisdiction of this Court, by reason of the alleged violation of Section 1172, 1173 and 1174 of said Title.
The libel alleges that the said gambling devices are owned or claimed by M.C.S. Export Company, Inc., United Supply Automatic, Max Messenger and Sam Gold, and, when seized, had been shipped from the State of Kentucky to the State of New York; that neither said gambling devices nor the crates in which they were contained were labeled and marked so that the names and addresses of the consignor and consignee or the contents of said crates could be ascertained upon inspection of the outside thereof, nor were the said gambling devices listed in any inventory or record filed with the Attorney General of the United States; further, that after the aforementioned seizure the said gambling devices came into the custody of the Federal Bureau of Investigation, and were placed in storage at the Brooklyn Army Terminal, in Brooklyn, New York, and that the instant proceeding has been commenced at the direction and by authority of the said Attorney General. See Section 1177.
The testimony of Agent Kennedy, of the Federal Bureau of Investigation, clearly established that there was probable cause for the seizure of the gambling devices in question.
On or about October 25, 1960 the United States Marshal for this District caused to be served upon the claimant herein a notice of attachment, accompanied by a monition and libel, and thereafter the claimant, M.C.S. Export Co., Inc., filed its Notice of Claim of Ownership and Unlawful Seizure, an Undertaking for Costs, and its answer to the libel, wherein it admitted that the devices in question were seized within the Eastern District of New York and the jurisdiction of this Court, that M.C.S. Export Co., Inc., was the owner thereof, that it is not registered with the Attorney General, and that the said devices were not listed in any inventory or record filed with the Attorney General or his designee, but claimed that the crates in question were being shipped in an unbroken course in foreign commerce from the State of Kentucky to London, England, and were 'plainly and clearly marked so that the name and address of the shipper and of the consignee and the nature and content of the 42 crates were readily ascertainable upon inspection.'
On December 7, 1960 a stipulation was entered into wherein the parties agreed, inter alia,
(1) that the devices seized as aforesaid are gambling devices, as defined in Section 1171 of Title 15, United States Code Annotated;
(2) that at the date of such seizure the claimant was, and now is, the owner thereof;
(3) that the claimant purchased the said devices in the State of Kentucky, and caused them to be delivered to H. J. Hosea & Sons Company, packers, in Newport, Kentucky, for packaging and labeling, and instructed said Company to crate them, mark the crates, and deliver them to the Newport, Kentucky, office of National Carloading Company, to be there placed upon two trucks and trailers, and consigned to 'King Shipping Co., Pier at foot of 35th Street, Brooklyn, New York,' under a bill of lading, a memorandum of which was received in evidence as Government's Exhibit No. 3. The bill of lading which accompanied the shipment was expressly made a part of the said stipulation, which was received in evidence as Government's Exhibit No. 1;
(4) that the seizure of the said devices was effected in New York, during the course of their transportation from Newport, Kentucky, to the pier at 35th Street, Brooklyn;
(5) that the claimant has never registered with the Attorney General of the United States, or his designee, or filed with either of them monthly inventories and records of any sales or deliveries of gambling devices;
(6) that the said devices were marked as indicated on the schedules and exhibits annexed to and made a part of the libel and of the said stipulation, and as indicated on certain photographs, likewise made a part of said stipulation;
(7) that on October 7, 1960 the claimant contracted with King Shipping Company for the shipment and export of the 42 crates containing the said 420 gambling devices to United States Automatic, London, England, and on October 10, 1960 said King Shipping Company prepared in triplicate the United States Customs Declaration containing the necessary information, and delivered the same to the United States Customs Bureau, New York City, where the same was authenticated by said Bureau, which assigned a number to the proposed shipment and caused it to be stamped thereon; that thereafter King Shipping Company arranged with United States Lines, New York City, for the shipment of said crates to London, England, filed the necessary amendments to said Customs Declaration, and lodged dock receipts on the pier at the foot of 35th Street, Brooklyn.
Those facts, then, are undisputed, and the Government takes the position that they constitute a violation of Sections 1172, 1173 and 1174 of Title 15 of the United States Code Annotated.
Section 1172, in pertinent part, reads as follows: 'It shall be unlawful knowingly to transport any gambling device to any place in a State, the District of Columbia, or a possession of the United States from any place outside of such State, the District of Columbia, or possession: Provided, That this section shall not apply to transportation of any gambling device to a place in any State which has enacted a law providing for the exemption of such State from the provisions of this Section, or to a place in any subdivision of a State if the State in which such ...