No. 76-2140, 576 F.2d 834 (10th Cir. 1978). · Go Syfert
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No. 76-2140, 576 F.2d 834 (10th Cir. 1978). Cases Citing This Book View Copy Cite
22 citation events (4 in the last 25 years) across 7 distinct courts.
Strongest positive: State Farm Fire & Casualty Co. v. Bell (ksd, 2014-07-08)
Treatment trajectory · 1978 → 2026 · click a year to view as-of
1978 2002 2026
Top citers, strongest first. 8 distinct citers. How cited ↗
discussed Cited as authority (rule) State Farm Fire & Casualty Co. v. Bell
D. Kan. · 2014 · confidence medium
United States v. One (1) 1975 Thunderbird 2-Door Hardtop White in Color with Burnt Orange Vinyl Landau Top, 576 F.2d 834, 836 (10th Cir.1978) (citing Owings v. Hull, 34 U.S. 607 , 9 Pet. 607 , 9 L.Ed. 246 (1835)). .
discussed Cited as authority (rule) Milligan-Hitt v. Board of Trustees of Sheridan County School District Number 2
10th Cir. · 2008 · confidence medium
Id. (city ordinance); United States v. One (1) 1975 Thunderbird, 576 F.2d 834, 836 (10th Cir.1978) (state statutes); United States v. Van Buren, 513 F.2d 1327, 1328 (10th Cir.1975) (federal statute); Jackson v. Denver Producing & Ref.
discussed Cited as authority (rule) Edward Lee Clemmons v. Dale Bohannon, Robert Tansy, Herb Maschner, and Robert Mills (2×)
10th Cir. · 1990 · confidence medium
We may take notice of declarations in federal statutes, see United States v. Van Buren, 513 F.2d 1327, 1328 (10th Cir.), cert. denied, 421 U.S. 1002 , 95 S.Ct. 2402 , 44 L.Ed.2d 670 (1975); state statutes, see United States v. One (1) 1975 Thunderbird, 576 F.2d 834, 836 (10th Cir.1978); municipal ordinances, see Melton, 879 F.2d at 724 n. 25; official government publications, see Clappier v. Flynn, 605 F.2d 519, 535 (10th Cir.1979); and agency rules and regulations, see Ray v. Aztec Well Serv.
discussed Cited as authority (rule) Rozner v. City of Bellevue (2×) also: Cited "see"
Wash. Ct. App. · 1990 · confidence medium
United States v. One 1975 Mercedes 280S, 590 F.2d 196, 199 (6th Cir.1978). [7] United States v. One Twin Engine Beech Airplane, 533 F.2d 1106 , 1107 (9th Cir.1976). [8] United States v. $250,000, 808 F.2d 895, 900 (1st Cir.1987); United States v. $2,500, 689 F.2d 10, 12 (2d Cir.1982); United States v. One 1970 Pontiac GTO, 2-Door Hardtop, 529 F.2d 65 (9th Cir.1976). [9] See United States v. One (1) 1975 Thunderbird, 576 F.2d 834, 836 (10th Cir.1978). [10] As the court in State v. Patterson, 83 Wn.2d 49, 57 , 515 P.2d 496 (1973), so aptly described: "Warrants may be and frequently are sought by…
discussed Cited "see" Messerli v. AW Distributing, Inc.
D. Kan. · 2023 · signal: see · confidence high
See United States v. One (1) 1975 Thunderbird 2–Door Hardtop White in Color with Burnt Orange Vinyl Landau Top, 576 F.2d 834, 836 (10th Cir. 1978) (holding “trial judge clearly had a right to take judicial notice of the state statutes” (citing Owings v. Hull, 34 U.S. 607 (1835))); see also United States v. Coffman, 638 F.2d 192, 194 (10th Cir. 1980) (“That the courts are allowed to take judicial notice of statutes is unquestionable.”); Good v. U.S. Dep’t of Educ., No. 21-CV-2539-JAR-ADM, 2022 WL 2191758 , at *2 (D.
discussed Cited "see" Gonzales v. City of Castle Rock
10th Cir. · 2002 · signal: see · confidence high
See United States v. One (1) 1975 Thunderbird 2-Door Hardtop, 576 F.2d 834, 836 (10th Cir.1978) (judicial notice of state statutes); Adarand Constr., Inc. v. Slater, 228 F.3d 1147 , 1168 n. 12 (10th Cir.2000) (judicial notice of content of hearings before legislative committees).
discussed Cited "see" United States v. On Leong Chinese Merchants Association Building (2×)
7th Cir. · 1990 · signal: see · confidence high
See United States v. One (1) 1975 Thunderbird, 576 F.2d 834, 836 (10th Cir.1978) 6 Claimant cites United States v. Forty Eight Thousand, Five Hundred Ninety-Five Dollars, 705 F.2d 909 (7th Cir.1983), for the proposition that a civil forfeiture statute with "may" language vests discretion in the district court.
discussed Cited "see, e.g." United States v. One 1978 Cadillac Sedan De Ville, New York License Plate No. 533 JPY
S.D.N.Y. · 1980 · signal: see also · confidence low
A review of cases in which courts have determined that the proof was sufficient to establish that the subject vehicle was used in violation of Section 7302, indicates that one or more of the following factors are usually present in those cases wherein forfeiture is upheld: (1) the automobile was used to distribute to bettors tickets or cards used to place wagers, see, e. g., One 1961 Lincoln Continental Sedan v. United States, 360 F.2d 467 (8th Cir. 1966); see also United States v. One 1975 Thunderbird, 576 F.2d 834 (10th Cir. 1978) (forfeiture action pursuant to 18 U.S.C. § 1955 (d); § 7302…
Retrieving the full opinion text from the archive…
No. 76-2140
834.
Court of Appeals for the Tenth Circuit.
May 8, 1978.
576 F.2d 834
Published

576 F.2d 834

UNITED STATES of America, Plaintiff-Appellee,
v.
ONE (1) 1975 THUNDERBIRD 2-DOOR HARDTOP WHITE IN COLOR WITH
BURNT ORANGE VINYL LANDAU TOP, SERIAL NUMBER
5J87A127636, UTAH LICENSE CBE 492,
Defendant-Appellant.

No. 76-2140.

United States Court of Appeals,
Tenth Circuit.

Argued April 17, 1978.
Decided May 8, 1978.

Phil L. Hansen, Salt Lake City, Utah, for defendant-appellant.

Steven W. Snarr, Asst. U. S. Atty., Ramon M. Child, U. S. Atty., for Utah, Salt Lake City, Utah, on brief, for plaintiff-appellee.

Before SETH, Chief Judge, and HOLLOWAY and McKAY, Circuit Judges.

HOLLOWAY, Circuit Judge.

[*~834]1

This is an appeal from a judgment ordering the forfeiture of a 1975 Thunderbird automobile belonging to claimant Williams Francis Quarry. The forfeiture was ordered under the provisions of 18 U.S.C. § 1955(d)[1] after the trial court concluded that the property had been used in violation of § 1955 which prohibits conducting, financing, managing, etc., of an illegal gambling business, as therein defined.[2]

2

This case is related to United States v. Quarry et al., No. 77-1175, et seq. 576 F.2d 830 (10th Cir. filed), in which we reverse judgments of acquittal and direct reinstatement of guilty verdicts against claimant Quarry and his three co-defendants in a criminal prosecution under § 1955. In this forfeiture proceeding, the government's evidence tended to show that Quarry and several others were engaged in the operation of a gambling scheme involving the distribution of football betting cards. Additional facts regarding the gambling operation are set out in our opinion in the criminal case and need not be repeated here.

3

In this case, claimant raises three issues: (1) whether the acquittal of the vehicle's owner in a subsequent criminal prosecution requires reversal of the order of forfeiture; (2) whether the order was supported by the evidence where the government failed to introduce into evidence the applicable Utah gambling statutes; and (3) whether the proof showed that the automobile was sufficiently "used" in an illegal gambling business so as to warrant the forfeiture.

4

In view of our disposition in the related criminal cases, the first issue is moot. The second proposition regarding the introduction of the state statute into evidence has no merit. The trial judge clearly had a right to take judicial notice of the state statutes. Owings v. Hull, 34 U.S. (9 Pet.) 607, 9 L.Ed. 246 (1835). The trial judge's order made specific reference to the Utah statutes, finding that the use of the football betting cards violated §§ 76-10-1101 and 76-10-1102 of the Utah Code Annotated (1953).

[*~835]5

The only proposition requiring some discussion is the sufficiency of the government's proof as to the use of the vehicle in violation of § 1955. In this regard, the record shows that on four occasions in 1975 FBI agents observed Quarry distributing packages which allegedly contained betting cards from the trunk of the Thunderbird to participants in the gambling operation and others. The packages were wrapped in brown paper and were about the size of football betting cards introduced into evidence. After obtaining a search warrant, federal agents searched the car on January 2, 1977 and found a package of football cards wrapped in brown paper.

6

One witness also testified that Quarry, while sitting in the Thunderbird, handed him football betting cards and $20.00 which the witness had won the previous weekend. Evidence at the forfeiture proceeding showed that more than five persons, including Quarry, were involved in the conduct of the gambling scheme.

7

From the evidence, direct and circumstantial, the trial court found that the Thunderbird was used to "assist the weekly distribution" of brown wrapped packages to runners and drop sites and that these packages were shown by circumstantial evidence to be football betting cards. The court concluded that the car was property "used in violation of Section 1955."

8

The forfeiture remedy is harsh and we agree that the proof of the element of use of the property in violation of the statute should be clear before a forfeiture is ordered. We feel that the government has met this burden in these proceedings, which are civil in nature insofar as the standard of proof on the element of use is concerned. See Bramble v. Richardson, 498 F.2d 968, 973 (10th Cir. 1974); cf. One Lot Emerald Cut Stones v. United States, 409 U.S. 232, 235, 93 S.Ct. 489, 34 L.Ed.2d 438 (1972).

9

Claimant relies on the decisions in Platt v. United States, 163 F.2d 165 (10th Cir. 1947); Simpson v. United States, 272 F.2d 229 (9th Cir. 1959); and United States v. One 1972 Datsun, 378 F.Supp. 1200 (D.N.H.1974). Those cases, however, did not involve the use of the seized vehicle to transport items used in the unlawful venture.[3] Here the evidence plainly showed a more substantial nexus between the vehicle and the operation and management of the illegal gambling business, including transportation of paraphernalia of the business. See United States v. One 1962 Cadillac, 397 F.2d 796 (3rd Cir. 1968); United States v. Bride, 308 F.2d 470, 473 (9th Cir. 1962); and Interbartolo v. United States, 303 F.2d 34 (1st Cir. 1962) (forfeitures of automobiles "used" in violation of the Internal Revenue Code under similar forfeiture provisions in 26 U.S.C. § 7302).

10

In sum, we conclude that forfeiture order was fully supported by evidence that the car was substantially used in violation of § 1955. Accordingly, the judgment of the trial court is

[*~836]11

AFFIRMED.

1

The forfeiture provisions appearing in § 1955(d), read in part as follows: "(d) Any property, including money, used in violation of the provisions of this section may be seized and forfeited to the United States."

2

§ 1955(b) provides:

"(b) As used in this section

(1) 'illegal gambling business' means a gambling business which

(i) is a violation of the law of a State or political subdivision in which it is conducted;

(ii) involves five or more persons who conduct, finance, manage, supervise, direct, or own all or part of such business; and

(iii) has been or remains in substantially continuous operation for a period in excess of thirty days or has a gross revenue of $2,000 in any single day.

(2) 'gambling' includes but is not limited to pool-selling, bookmaking, maintaining slot machines, roulette wheels or dice tables, and conducting lotteries, policy, bolita or numbers games, or selling chances therein.

(3) 'State' means any State of the United States, the District of Columbia, the Commonwealth of Puerto Rico, and any territory or possession of the United States."

3

The Government argues that this case is controlled by our decision in United States v. One 1950 Chevrolet, 215 F.2d 482 (10th Cir. 1954). In that case, we ordered a forfeiture, pursuant to 49 U.S.C. §§ 781 and 782, on evidence showing that the car was used to transport marihuana. However, §§ 781 and 782 specifically authorize forfeiture of a vehicle used to transport contraband