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UNITED STATES v. ONE 1965 CADILLAC 2-DOOR COUPE

December 1, 1966

UNITED STATES of America, Libelant,
v.
ONE 1965 CADILLAC 2-DOOR COUPE, Serial No. G51-11096, Respondent



The opinion of the court was delivered by: DUMBAULD

 At 10:00 P.M. on May 1, 1965, at a tavern in Lawrence County, one Frank Draper got into a fight with one Pete Shusman. Draper was ejected, and apparently could not get his jeep started and went home on foot. Later he returned in his Cadillic, the subject of the instant condemnation proceedings.

 When Draper got out of his car he was struck three blows on the head by an assailant whom he did not see but thought to be one Frank Carna, who had threatened Draper because Draper's family favored Carna's wife in a domestic dispute. After the incidents of the night in question Carna told Mrs. Draper "next time you will both get it". Carna had in his firearms collections a German Lueger and other war souvenirs.

 Someone terrorized the tavern that night by firing about thirteen times from a German semiautomatic rifle. Spent shells were later recovered by State Trooper August V. LeClair twelve feet from the rear of the building. One was found in Draper's car.

 Trooper LeClair had come to the tavern earlier following the Draper-Shusman fight. When he returned after the shooting, Draper, dazed from his wounds, pulled his Cadillac up a short distance in the parking lot to the trooper's car, seeking help. The cars were so close the trooper could not open the door of his car, and at his request Draper moved the Cadillac away. After helping Draper out of the Cadillac, trooper LeClair found in the car the German semiautomatic rifle. This weapon was not registered as required by federal legislation, 26 U.S.C. § 5801 et seq.

 Upon these facts the Government seeks forfeiture of the Cadillac in accordance with 49 U.S.C. §§ 781 and 782.

 It is there provided:

 
"(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 -
 
* * *
 
(2) Any firearm, with respect to which there has been committed any violation of any provision of the National Firearms Act or any regulation issued pursuant thereto * * *"
 
§ 782.
 
"Any vessel, vehicle, or aircraft which has been 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 and forfeited * * *"

 By virtue of 49 U.S.C. § 784, the burden of proof is upon the claimant provided that probable cause be shown by the government for instituting the forfeiture ...


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