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NEW JERSEY v. MORIARITY

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY


March 31, 1967

STATE OF NEW JERSEY, Plaintiff,
v.
Joseph V. MORIARITY, Defendant. Frank J. FARLEY, Treasurer of the County of Hudson, and County of Hudson, Petitioners, v. $168,400.97, Respondent. STATE OF NEW JERSEY, by Arthur J. SILLS, Attorney General of New Jersey, Plaintiff, v. Frank J. FARLEY, Treasurer of the County of Hudson, and County of Hudson, Defendants

The opinion of the court was delivered by: COOLAHAN

COOLAHAN, District Judge:

 I.

 Petitioners Frank J. Farley and the County of Hudson bring this motion to remand the captioned actions, now consolidated, to the Superior Court, Law Division, of Hudson County, New Jersey. The matter has a history.

 On February 13, 1964, Farley and Hudson County obtained an order to show cause in the County Court, Criminal Division, pursuant to New Jersey statutes providing for forfeiture of contraband as an aid to enforcement of the State's anti-gambling laws. N.J.S.A. 2A:152-7 to 9. *fn1" The complaint and affidavit in support of the order alleged that:

 

(1) On July 6, 1962, as the result of a raid conducted by the then Prosecutor of Hudson County and members of the Jersey City Police Department pursuant to a search warrant, the sum of $168,400.79 in United States Currency was seized by these law enforcement officers;

 

(2) under the prosecutor's instruction, the moneys were deposited, and still were on deposit, in the Hudson County National Bank;

 

(3) One Joseph V. Moriarity was subsequently indicted for violation of the gambling laws of New Jersey, and on June 3, 1963, he pleaded guilty to such violations on divers dates from December 14, 1961, through July 6, 1962, inclusive;

 

(4) by reason of the foregoing, the moneys were contraband and forfeited to the County;

 

(5) various other claims had been asserted against the money, including a United States tax lien asserted by the District Director of Internal Revenue.

 The Order directed the persons named therein and all others interested in the subject currency to show cause why it should not be declared contraband and forfeited to Hudson County under the cited statute.

 On February 27, 1964, the State of New Jersey sued the petitioners in Hudson County Superior Court for a judgment that the funds should escheat to the State under its statutes on abandoned property. N.J.S.A. 2A:37-29 et seq. On March 9, New Jersey's action and the forfeiture proceeding instituted by Hudson County were consolidated in the Superior Court, Law Division.

 On March 18, 1964, copies of the complaint, affidavit and order to show cause in the forfeiture action were served on Frank S. Turbett, Jr., as District Director of Internal Revenue (Newark). On March 24, Turbett petitioned for removal on the ground that the matter fell within the provisions of 28 U.S.C. § 1442(a)(1). *fn2" The petition recited the several administrative steps taken by Turbett in connection with the aforementioned federal tax lien asserted against Moriarity. *fn3" It further averred that at all times mentioned in the complaint:

 

"* * * petitioner [Turbett] was acting solely under the color of his office, and all his actions in connection with the matters charged in said complaint were committed by him under color of his office, * * *."

 Upon removal, the Director filed an answer and a counterclaim which prayed for judgment awarding it the currency in partial payment of the tax lien. *fn4"

 II.

 Petitioners Farley and Hudson County contend that removal was improper and urge to remand on three grounds.

 First, they contend that the currency was reduced to the possession of State law enforcement officers, who then commenced an in rem action in the appropriate State court. As a result, they argue, the State court not only assumed control over the res, but also acquired exclusive jurisdiction to hear the matter free from interference by other fora.

 Second, they claim that since this is merely a forfeiture proceeding against a specific res, no relief in personam, no imposition of civil or criminal liability, is sought against the District Director. Hence, petitioners maintain that the action is not a removable civil or criminal proceeding brought "against" the Director within the meaning of Section 1442(a)(1).

 Finally, petitioners stress the penal aspect of the State forfeiture proceeding designed to aid enforcement of its criminal laws. This Court is urged, as a matter of deference to New Jersey's sovereign police power, not to preempt or interfere with the administration of its criminal law and the policies embodied therein.

 III.

 Petitioner's threshold point, while potentially diversionary, may be disposed of briefly. It is true that when two or more courts assert conflicting jurisdiction over property, the well-established rule is that the court first acquiring control of the res has exclusive jurisdiction to hear the matter; the other courts will abate, or at least defer, their proceedings pending the outcome of the first one. United States v. Bank of New York and Trust Co., 296 U.S. 463, 56 S. Ct. 343, 80 L. Ed. 331 (1936). Such exclusivity is especially important when problems of federalism are raised by conflict between a federal and a state jurisdiction. Ibid.

 The doctrine of prior exclusive jurisdiction is inapplicable here, since there is but a single suit, not two separate in rem actions. The rule's purpose is to avoid awkward confrontation between two courts, each trying to dispose of the res pursuant to its own judgment. Thus, where only the first suit is in rem, and the second court can hear personal claims to debts or rights to share in the property without disturbing the first court's jurisdiction over the res, both actions may proceed. Kline v. Burke Construction Co., 260 U.S. 226, 232, 43 S. Ct. 79, 67 L. Ed. 226 (1922).

  The reason for the rule is also absent in the case of removal. It is not a matter of competing suits; the question is simply whether the action begun in the State court may be removed here. Popovitch v. Kasperlik, 59 F. Supp. 993 (W.D.Pa., 1945). To the extent it may be conceptualized, while the case is here - until and unless it is remanded - there is no proceeding pending in the Superior Court with which my adjudication might conflict. In a word, it is not a matter of who should go first, but merely of who should go, period.

 IV.

 Petitioner's remaining points pertain to the main issue before me: whether this action is within the purview of the removal provision upon which the District Director has relied. The disruption of State jurisdiction caused by removal is a statutory privilege to be construed strictly. The burden is upon the party removing to establish his right to do so. Moreover, removal jurisdiction, when challenged by motion to remand, must be clearly demonstrated; and if there are significant doubts about its propriety, those doubts must be resolved against removal. Cameron v. Hodges, 127 U.S. 322, 8 S. Ct. 1154, 32 L. Ed. 132 (1888); John Hancock Mut. Life Insurance Co. v. United Office & Professional Workers of America, 93 F. Supp. 296 (D.N.J., 1950); Winsor v. United Air Lines, 159 F. Supp. 856 (D.Del.1958); Maurer v. International Typographical Union, 139 F. Supp. 337 (E.D.Pa., 1956); Walls v. City of New York, 156 F. Supp. 3 (D.C.1957); Breymann v. Pennsylvania, O. & D.R.Co., 38 F.2d 209 (6th Cir. 1930). *fn5"

 If the Director cannot clearly show that this proceeding is, in some real sense, an action against him within the meaning of Section 1442(a)(1), then all else is commentary; the many concepts debated at length by both counsel including in rem, in personam, "constructive seizure", and proper alignment of parties, are relevant for present purposes only insofar as they bear on the ultimate issue of that Section's applicability.

 For the reasons discussed below, I find that the Director has not met his burden of establishing removal jurisdiction under § 1442(a)(1), and, therefore, that the matter must be remanded to the Superior Court, Law Division, of Hudson County.

 V.

 Our starting point is the removal statute itself. Its general scheme is to insure that all civil or criminal actions brought against specified classes of Federal officers and agents for their official actions may be tried in a Federal court. Of the myriad cases construing Section 1442, however, the overwhelming majority assume, with little or no comment, that the suit has been brought "against" the officer for his acts, within the meaning of the provision; these cases consider whether the acts in question were performed "under color of office" (for purposes of § 1442(a)(1)); or in the performance of "official duties" (for purposes of § 1442(a)(3)); and whether the actor was "an officer of the United States or of an agency thereof, or a person acting under him" within the statute. *fn6"

  To determine whether the peculiar circumstances of this proceeding constitute an action "against" the District Director on account of his official actions within § 1442(a)(1) is a more difficult question, involving the perplexing intricacies of federalism frequent in removal problems. *fn7"

 The series of enactments culminating in Section 1442(a) were initially designed to protect Federal revenue officers from prosecution or civil suit in State Court for violation of State law. See State of Tennessee v. Davis, 100 U.S. 257, 25 L. Ed. 648 (1880); Gay v. Ruff, 292 U.S. 25, 54 S. Ct. 608, 78 L. Ed. 1099 (1934). *fn8" Removal was restricted to cases where the officers defense was that no personal liability, civil or criminal, could be attached to his action, since he was only performing his Federal duties.

 Subsequent amendments have, from time to time, enlarged the class of Federal officers and employees who might claim protection, *fn9" but these additions left unchanged the basic theory and purpose of this removal privilege: that the officer was entitled to - and the interest of national supremacy required - his protection in actions brought against him which attacked and threatened him with personal liabilities or penalties. Gay v. Ruff, supra, 292 U.S. at 32 note 8, 54 S. Ct. 608, 78 L. Ed. 1099; Goldfarb v. Muller, supra, 181 F. Supp. at 47; State of Oklahoma v. Willingham, 143 F. Supp. 445, 447 (D.Okla.1956); See Hart & Wechsler, The Federal Courts and the Federal System, pp. 1147-1150.

 The Courts have also noted that this class of removal jurisdiction is unusual, and, in the case of interference with State criminal proceedings, exceptional in nature. The balance must be kept true between construction giving full effect to its purpose, and, at the same time, the highest regard for the State's right to deal with matters properly within its domain. Goldfarb v. Muller, supra; State of Oklahoma v. Willingham, supra.

 Although the traditional emphasis has been on cases where a Federal officer was threatened with monetary judgment or criminal prosecution, § 1442(a) has been successfully invoked in a few instances where the only relief sought was an injunction against proposed actions. *fn10" Apparently the basic theory was that if the order issued and was disobeyed, he would face contempt sanctions.

  But a suit is not automatically removable, without regard to the nature of the relief sought, merely because a Federal officer is joined and the events involved occurred while he was acting under color of his office, Gay v. Ruff, supra; Goldfarb v. Muller, supra, or because property in which the Federal officer or agency has an interest may be affected, Crivello v. Board of Adjustment, 183 F. Supp. 826 (D.N.J., 1960.) *fn11" Specifically, in Ford Motor Co. v. Automobile Ins. Co., 13 F.2d 415, 417 (E.D.Mich., 1926) the court stated:

 

"It was evidently the intent of Congress * * * to protect the federal officers mentioned by permitting them to invoke the jurisdiction of this court over proceedings brought against them by reason of their official acts, as distinguished from their mere claims of title or other legal rights * * * The sole relation of the trustee in bankruptcy to this controversy is that of a claimant of title to such proceeds adversely to the plaintiff, and whatever title such trustee may have therein was acquired, by operation of [the Bankruptcy] law, and not by any of its own acts, from the bankrupt mortgagor. It is plain that the case is neither within the letter nor the spirit of section 33 of the Code [now § 1442] in question."

 VI.

 In light of this history, the petitioner's contend that the present matter cannot in any sense be viewed as an action "against" the District Director within § 1442(a)(1), since no in personam relief is sought against him. They stress that this action seeks only an adjudication that the funds are contraband and forfeit by reason of their use in gambling activity, and that the Director was joined not because of any acts, but merely because of his asserted claim to a tax lien.

 Whatever the outcome of the attempted forfeiture, they argue that it can result in no imposition of financial liability, let alone criminal penalty, upon Mr. Turbett. *fn12"

  As for injunctive relief the petitioners disavow that as well. They maintain that since the County officials retained physical custody of the fund, institution of the forfeiture action conferred jurisdiction over the res upon the State court. Therefore, the action is allegedly a simple in rem proceeding and no court order is needed directing Turbett to relinquish or produce the res. This picture is drawn in sharp contrast to the situation which I confronted in an earlier removal proceeding presenting closely related issues and involving the same parties. See Farley v. $2,438,100.00, Civ.No.819-63 (D.N.J., 1963) unreported. *fn13"

 Petitioner's complaint only invokes N.J.S.A. 2A:152-7 et seq., which describes an in rem proceeding. United States v. Bleasby, 257 F.2d 278, 280 (3rd Cir. 1962), reversing 153 F. Supp. 724 (D.N.J., 1957). *fn14" But this is not decisive. Unlike removal under Section 1441, the requisite jurisdictional facts for removal under Section 1442(a) need not be gleaned solely from the complaint in the State action; the removal petition and supporting affidavits may allege the basis for removal, though the complaint does not. Gay v. Ruff, supra, 292 U.S. at 34, 54 S. Ct. 608, 78 L. Ed. 1099. In general a State statute's characterization of a proceeding is not necessarily dispositive of whether a particular suit brought thereunder is in fact in rem,15 much less whether it is within the ambit of a specific removal statute. *fn16"

 Thus, the Director's position is that whatever its formal label in the complaint, this proceeding - like the $2,438,110.00 matter, but for somewhat different reasons - is essentially in personam. He concedes that if the County officials had conferred jurisdiction over the res upon the State court, and if this were merely a suit for forfeiture, properly instituted in compliance with N.J.S.A. 2A:152-7 et seq., then this would be a true in rem action. *fn17" But he challenges both premises, claiming that jurisdiction over the res was not acquired by the State court nor was the forfeiture statute complied with.

 Admittedly, there was no seizure or physical custody of the monies by Federal officers which could derogate from the County's attempt to assert control. Cf. Farley v. $2,438,110.00, supra. Rather, Turbett relies on the statutory effect of his levy, which he claims gave him constructive possession or legal custody of the fund. Hence he contends that, their denials notwithstanding, the petitioners can only gain their purpose by way of affirmative relief against him, either through a court order directing relinquishment of the fund or through the substitute of personal judgment. This theory runs as follows.

 The Director's power to collect delinquent taxes presents a sweeping, summary process of self help to protect the tax lien and to place the burden of resistance on those opposing his claim. United States v. Sullivan, 333 F.2d 100, (3rd Cir., 1964). The mainsprings of this procedure, Sections 6321, 6331 and 6332, provide for the lien, the levy and a duty to surrender property levied upon, respectively. *fn18" His theory is based on these sections plus an additional provision, Section 2463, which deems property "detained" under revenue law to be in the District Director's custody and subject to the exclusive jurisdiction of the Federal courts. *fn19"

 Several cases hold that simply by serving notice of levy upon a bankrupt's debtor, the Director acquires something tantamount to constructive possession of the bankrupt's claims and rights to property, at least for purposes of Section 67(c) of the Bankruptcy Act, under which the Director must have "possession" to defeat other priority claims. *fn20" Freeman v. Mayer, 253 F.2d 295 (3rd Cir., 1958) (accounts receivable); In re Cherry Valley Homes, 255 F.2d 706, (3rd Cir., 1957) (liquidated debt) cert. denied sub nom Dubois v. United States, 358 U.S. 864, 79 S. Ct. 96, 3 L. Ed. 2d 97 (1958); Rosenblum v. United States, 300 F.2d 843 (1st Cir., 1962) (liquidated debt).

 Moreover, this notion of "constructive seizure", in some sense analogous to physical distraint of tangible property, has been applied beyond the field of bankruptcy to the separate question of whether property has been "taken or detained" within the meaning of Section 2463 of 28 U.S.C., supra. New Hampshire Fire Insurance Co. v. Scanlon, 362 U.S. 404, 80 S. Ct. 843, 4 L. Ed. 2d 826 (1959); United States v. Cameron Construction Co., 246 F. Supp. 869 (1965, S.D.N.Y.) *fn21"

  Director Turbett's use of this doctrine is twofold. First, he argues directly that since he acquired constructive possession of the fund by virtue of his levy, and since he resists the petitioner's claim, they must controvert his action and oust his custody of the fund. The effect of his levy can be undone only by a court order directing him to relinquish control of the monies and transfer custody in accordance with the mandate of the forfeiture decree. But such relief would be, to that extent, in personam. Atlantic Seaboard Natural Gas Co. v. Whitten, 315 Pa. 529, 173 A. 305, 93 A.L.R. 615 (1934). *fn22" The alternative relief of a personal liability judgment against Turbett equal to the value of the fund, (for which he would presumably seek reimbursement from the Government, see note 13 supra) would be even more clearly in personam.

 Second, he argues indirectly that this proceeding must be in personam because it cannot be in rem. That is to say, if the Director's levy brought Section 2463 into play, then exclusive jurisdiction over the detained fund vested in this Court, and, as a corollary, the State court lacks the in rem jurisdiction necessary to hear the forfeiture suit. See note 17, supra. Turbett also denies the applicability of the New Jersey forfeiture statute on the grounds that certain conditions precedent, detailed below, were not met.

 For all these reasons, the Director construes the instant matter as an action against him on account of his official acts and removable under the cited statute. The question thereby presented is this: Can a District Director remove a State penal forfeiture action under Section 1442(a)(1), merely because he is a levying creditor of the criminal against whom forfeiture is sought?

 The fundamental confrontation underlying this question reflects the delicate balance of our federal system. *fn23" On the one hand, the Director's contentions are based on the panoply of powers with which he is clothed to ensure collection of the national revenue. On the other hand, Hudson County advances under the imposing aegis of New Jersey's sovereign power to seize and forfeit contraband in the pursuit of its criminal law and penal policies.

 At the juncture of these two sources of power sits the $168,400.97. In the final analysis the disposition of the fund, as well as the propriety of removal, turns on this relationship between State and Federal power. Both the Director's claim to the fund and his attempted removal assume that the levy validly attached to Moriarity's property. It is the petitioners' contention that by virtue of its being contraband, the subject currency no longer belonged to Moriarity at the time of the levy; and, therefore, that as against New Jersey's sovereign power to confiscate the money, Turbett's levy was null and void. *fn24"

 This position is obviously critical not only to the immediate issue of removal but also the parties' ultimate rights in the currency. In short, this motion to remand presents the unusual, but occasionally encountered, situation where this Court must preview the substantive issues on the merits in order to determine the threshold question of its jurisdiction. Cf. Bell v. Hood, 327 U.S. 678, 66 S. Ct. 773, 90 L. Ed. 939 (1945); American Hawaiian Ventures, Inc. v. Latuharhary, 257 F. Supp. 622 (D.N.J., 1966).

 VII.

 The status of seized gambling monies which are claimed both by a county under N.J.S.A. 2A:152-7 and by the Director under a tax levy has been considered in two prior decisions - with opposite results. Spagnuolo v. Bonnet, 16 N.J. 546, 109 A.2d 623 (1954); United States v. Bleasby, supra.

 In Spagnuolo, a final decree of forfeiture which had been obtained by the County was upheld on appeal as superior to the United States' claim under a tax levy filed after the seizure of the currency, but prior to the condemnation proceeding and decree. In accordance with accepted theories of forfeiture, the Court ruled that under N.J.S.A. 2A:152-7 et seq., the currency was confiscated by the State and ceased being the gambler's property from the very moment of seizure. 16 N.J. at 559, 560, 109 A.2d at 631. The Court concluded that at the time of levy, title to the seized currency was in the County of Essex. "At most the federal lien could only attach to Edward Spagnuolo's inchoate right to sue for the return of the funds in the event of his acquittal and not to the confiscated funds themselves." Ibid. Compare Farley v. Manning, 4 N.J. 571, 73 A.2d 551 (1950). *fn25"

 United States v. Bleasby was the suit started by the Government in the District Court for seized monies, after they had been decreed contraband and forfeited to Bergen County in an earlier State action, State v. Link. See note 14, supra. The Court viewed the controversy as essentially a problem of priority between competing lien creditors and applied the "inchoate lien" doctrine that Federal tax liens defeat liens arising under State law which are in any way unperfected or inchoate. Under this doctrine, which is merely a variant of the old common law lien rule "first in time, first in right", Federal courts closely scrutinize State-created claims to find any possible imperfection which would permit seniority of the Federal lien. *fn26"

 In Bleasby it was Bergen County's right to the monies which was found inchoate, not the Federal levy. Since proceedings for a formal decree of forfeiture can only be instituted six months after the gambler is found guilty by plea or trial, and since others can challenge forfeiture until the decree issues, the Court reasoned that the notice of levy was served prior to the "perfection" of the County's claim by the judgment of forfeiture. Hence, the Federal lien, perfected under the intervening levy, was held prior and senior to the County's interest in the fund. 153 F. Supp. at 727.

 Moreover, the statutory construction in Spagnuolo, that the perfection of forfeiture "related back" to the time of seizure and defeated intervening claims, was rejected as not binding a Federal court on questions of Federal lien priority. Ibid. The priority of Federal liens, insofar as it turns on whether a competing State lien is adequately perfected, is an independent question of Federal law. United States v. Security Trust and Savings Bank, 340 U.S. 47, 71 S. Ct. 111, 95 L. Ed. 53 (1950).

 Nor was the fact that forfeiture involved the State's governmental powers, rather than a private individual's claim, deemed sufficient to displace the inchoate lien rule; the United States Supreme Court had already applied the inchoate lien rule to find Federal tax liens prior to claims for State and municipal taxes. Commonwealth of Massachusetts v. United States, 333 U.S. 611, 68 S. Ct. 747, 92 L. Ed. 968 (1948); United States v. City of New Britain, supra.

 On review, the Court of Appeals expressed serious doubt about applying lien priority analysis to the exceptional situation of New Jersey's exercise of its sovereign power to confiscate contraband:

 

"True, after seizure, it still remained for the state to pursue the prescribed procedure for obtaining a formal decree of forfeiture. But this does not alter the fact that the United States has tried to impose a lien on property after it has passed into the actual possession of another government under sovereign claim of right to keep it in furtherance of the policy of its criminal laws. Thus, the United States is asserting an extraordinary power greater than and different from that involved in the cases above cited or any others upon which the United States relies." 257 F.2d at 279-280.

 However, the Court of Appeals expressly left the question unresolved, after noting its difficulty, and decided that on the specific facts of the case, the Government could not collaterally attack the final judgment of forfeiture in the Link proceeding from which it had withdrawn. See note 14, supra.

 Lengthy study of these three opinions and of the case law on forfeitures, has convinced me that I must follow the construction of the New Jersey statute given in Spagnuolo, both as a matter of forfeiture law and as a matter of "choice of laws" in regard to Federal tax claims.

 The main point is simply that as the confiscating sovereign, New Jersey's position is not that of a creditor competing for his debtor's property. The theory of forfeiture of contraband is not that the criminal becomes indebted to the State or Federal government by using the property illegally. Rather, such forfeiture is a divestiture of the property without compensation which passes to the sovereign in consequence of an offense or a default. See 23 Am.Jur. Forfeiture, 624. Since no one has an absolute right to use property in ways contrary to the penal laws of the sovereign, property so used may be summarily seized, confiscated, and, in most cases, destroyed. *fn27"

 The moment the property becomes forfeit contraband, all right, title and interest in the property held by the criminal, or subsequently gained by his creditors, assignees, or vendees, is transferred by operation of law to the sovereign. In re Henderson's Distilled Spirits, 81 U.S. (14 Wall.) 44, 20 L. Ed. 815 (1872); United States v. Stowell, 133 U.S. 1, 10 S. Ct. 244, 33 L. Ed. 555 (1890).

 If the property has been forfeited and the taxpayer's rights therein extinguished prior to the tax levy, then the notion of competing liens is inapposite, since the levy cannot attach to the property at all. Therefore, the critical question is at what moment the article becomes forfeit contraband, and, in this regard, the legislative intent controls. Congress or State legislatures may decide upon what event divestiture under a forfeiture statute shall take place: whether on the commission of the offense, the seizure, or the final condemnation and decree. United States v. Grundy, 7 U.S. (3 Cranch) 337, 2 L. Ed. 459 (1806); United States v. 1960 Bags of Coffee, 12 U.S. (8 Cranch) 398, 3 L. Ed. 602 (1814); Stout v. Green, 131 F.2d 995 (9th Cir. 1943).

 The District Court's characterization of the County's claim as an inchoate lien in Bleasby is understandable, inasmuch as the New Jersey statute follows the normal pattern of requiring a final hearing and formal decree of forfeiture to perfect the County's title to the monies. However, as the New Jersey Supreme Court interpreted the act, the county treasurer, pending the hearing, is made custodial officer not of money still belonging to an individual, but of money already seized and confiscated by the State. *fn28" Spagnuolo, supra, 16 N.J. at 558, 109 A.2d at 629.

 The Supreme Court of the United States has long since established that the need to formally "perfect" the sovereign's title to forfeited contraband, does not mean the legislature intended to leave the property interest in the offender until the decree issues. United States v. Stowell, supra; State of Texas v. Donoghue, 302 U.S. 284, 58 S. Ct. 192, 82 L. Ed. 264 (1937); and see Stout v. Green, supra; United States v. One 6.5 m.m. Mannlicher-Carcano Military Rifle, 250 F. Supp. 410 (N.D.Texas 1966). (Federal forfeiture of the assassination weapon used to kill President Kennedy). *fn29" The principle has also been applied in innumerable Federal forfeitures of automobiles used to transport contraband. See e.g. United States v. One 1957 Model Tudor, 167 F. Supp. 864 (E.D.S.C., 1958). *fn30"

 Director Turbett seeks to distinguish these Federal precedents on the reasonable ground that they involve Federal statutes totally distinct from the New Jersey act; but that argument only emphasizes the fact that I must look to a construction by the New Jersey courts in order to determine the legislative intent.

 Secondly, regardless of how I might construe the effect of the instant forfeiture statute or interpret the legislative intent, this is a question which State law controls. True, the priority of Federal liens over other claims to Moriarity's property is for this Court to determine unbound by New Jersey decisions, Bleasby, supra. But the extent of those property rights at the time of the levy, to which the tax lien could attach is clearly a question of New Jersey law. Since the Internal Revenue Code "* * * creates no property rights but merely attaches consequences, federally defined, to rights created under state law * * * we must look first to [the taxpayer's property rights] as defined by state law." United States v. Bess, 357 U.S. 51, 78 S. Ct. 1054, 2 L. Ed. 2d 1135 (1957); United States v. Brosnan, 363 U.S. 237, 80 S. Ct. 1108, 4 L. Ed. 2d 1192 (1959); Aquilino v. United States, 363 U.S. 509, 80 S. Ct. 1277, 4 L. Ed. 2d 1365 (1960).

 The dichotomy is clear: Under Bess the Government lien attaches only to property rights created under state law. Brosnan, supra, 363 U.S. at 240, 80 S. Ct. at 1108. "However, once the tax lien has attached to the taxpayer's statecreated interests, we enter the province of federal law, which we have consistently held determines the priority of competing liens asserted against the taxpayer's 'property' or 'rights of property'." Aquilino, supra, 363 U.S. at 514, 80 S. Ct. at 1280. *fn31"

 It might be argued that the particular state law which creates or, in this case, extinguishes the pertinent property rights was designed to promote policies inapplicable to determining property rights for purposes of a Federal tax lien. But Mr. Justice Harlan has wisely emphasized that "* * * the Court in Aquilino v. United States * * * chose to accept state property law as it found it, and not to evaluate its underlying rationale in light of the needs of federal revenue collection." United States v. First National City Bank, 379 U.S. 378, 407, 85 S. Ct. 528, 543, 13 L. Ed. 2d 365 (1964) (dissent on grounds not discussed by the majority). *fn32"

 In New Jersey, the levy made on seized funds at most attaches to the gambler's contingent right of action to sue for his claim to them if he is acquitted, a right quite distinct from a property interest in the monies themselves at the time of the levy. Spagnuolo, supra; cf. United States v. Hubbell, 323 F.2d 197 (5th Cir., 1963).

 Hence, if Moriarity had no property right in the fund, Federal lien law cannot create one. Yet the Director's argument for removal jurisdiction assumes the currency itself was still Moriarity's property. If the levy merely effected an assignment of Moriarity's contingent right of action, this would not defeat the State court's in rem jurisdiction over the fund, even under the doctrine of "constructive seizure" by levy. Nor would the County have to seek in personam relief against Turbett, to gain control of the money. That is to say, should the County's claim to the monies as forfeit contraband ultimately be upheld, then, in retrospect, they were not subject to attachment by the levy, and the levy cannot serve as the linchpin for removal jurisdiction. Cf. United States v. Pagan, 140 F. Supp. 711 (S.D.N.Y., 1955); United States v. Ortiz, 140 F. Supp. 355 (S.D.N.Y., 1956). *fn33"

  Admittedly, the attempted levy is a fait accompli. Hence, Turbett's final point is that even if the levy may prove void on the grounds that the currency was no longer Moriarity's property, the County must still seek in personam relief by way of attack upon the levy in order to consummate the forfeiture.

 I disagree. The final adjudication of the validity of the levy does turn on the applicability of the forfeiture statute to these facts, and that issue must be disposed of by the court taking full jurisdiction of the whole matter. But as I have emphasized, the burden is on the Government to clearly establish removal jurisdiction, not the mere possibility that removal jurisdiction might be demonstrable upon the final disposition on the merits. Doubts are to be resolved against removal, especially in the delicate area of interference with State penal proceedings not involving a Federal officer as a criminal defendant.

 To allow the Director to plead removal jurisdiction by virtue of a levy which, on the record before me, appears to have been void and ineffectual, would permit a bootstrap operation of ambitious proportions. Such removal would assume the very issue on the merits which the Director seems unlikely to win. Therefore, I can hardly conclude that the Director has met his burden.

 VIII.

 Turbett also challenges the applicability of N.J.S.A. 2A:152-7 et seq., on the ground that several requirements have not been met. The alleged defects are threefold: (1) that there was no "raid" or "seizure" of the monies, which were merely "found"; (2) that they were not taken "in connection with an arrest"; and (3) that the monies were not accounted for and deposited with the County Treasurer under the supervision of the County Prosecutor.

 These attacks are not convincing. In law, "seizure" is the act of taking possession by virtue of execution or legal authority. Bouvier's Law Dictionary, Vol. 2 at 3037. In every day jargon, police might not always use the terms raid or seizure, if they have a search warrant but the defendant is already incarcerated. However, the terms could logically be applied, as the Prosecutor of Hudson County did in his affidavit. A "raid" is not an uncommon designation for the search of a building pursuant to a warrant, even though it turns out that the building is then unoccupied. Money taken by law enforcement officers in the course of such a search is certainly "seized" as much as property "seized" under physical distraint by the Director for back taxes. In both cases, the property is taken into physical custody by irresistible force of law.

 As for the contention that the property was not seized in connection with an arrest, the Director is trying to substitute the term " simultaneous to " for the phrase " in connection with ". That was not the legislature's choice. Simultaneity is not required by the statute, merely an adequate relationship between the seizure and the arrest. State v. Link, supra. *fn34" The apparent purpose of this requirement is to bar precipitous seizure when there is no reasonable grounds for arrest.

 To be sure, forfeitures imposed as penalties are not favored in the law; they must be strictly construed. Lehigh Valley R.R. Co. v. Chapman, 35 N.J. 177, 171 A.2d 653 (1961); Rush v. United States, 256 F.2d 862 (10th Cir., 1958). Still, "[The] canon in favor of strict construction is not an inexorable command to override common sense and evident statutory purpose." United States v. Brown, 333 U.S. 18, 25, 68 S. Ct. 376, 380, 92 L. Ed. 442 (1947). *fn35" Thus, in rejecting the aforesaid contention that simultaneous arrest and seizure are required under the instant statute, the New Jersey Supreme Court refused overly technical construction as follows:

 

"The statute was enacted to discourage and prevent unlawful gambling, and the courts will not construe an enactment in such fashion as to charge the Legislature with deliberately rendering impotent the clear and unambiguously expressed intention of the whole act. * * * A statute will not be construed contrary to the over-all purpose * * * discerned from the context of the entire mandate, and restrictions or limitations not specifically contained therein will not be added by judicial interpretation, especially if they be prejudicial to the public good." State v. Link, supra, 14 N.J. at 453, 102 A.2d at 613.

 This approach also applies to the alleged defect in the disposition of the monies after seizure; the record indicates compliance with the general direction and purpose of the statute. After seizure, the monies were initially placed in a bank with the Police Director and the Police Chief of Jersey City designated as the depositors. Director Turbett emphasizes that they did not send written instruction to the bank changing the depositor designation to "Frank Farley, Treasurer of Hudson County" until almost a year later. *fn36" While the City officials delayed the changeover in the interim, that is understandable. In plain terms, each governmental entity involved in this matter has tried to grab the brass ring; the fund was sizeable and the City itself made initial claims to it in opposition to the County's announced attempt to seek forfeiture. Moreover the City officials apparently were unsure of their obligations under 26 U.S.C. § 6332, supra. However, the County asserted its supervision from the beginning when the monies were seized as contraband under the direction of the County prosecutor. The statutory direction of county control prior to forfeiture seems designed to defer appropriation of the monies to the general revenue pending judicial determination under the statute, and this was the apparent purpose of the deposit and the County's assertion of dominion. In any event, it is doubtful whether literal compliance with this portion of the subsection would be construed by the New Jersey courts as an intended condition precedent to forfeiture under the statute, rather than as a legislative declaration of the desirable procedure. Cf. United States v. Dotterweich, 320 U.S. 277, 278, 279, 64 S. Ct. 134, 88 L. Ed. 48 (1943), (Frankfurter, J.)

 Finally, of course, there would have to be a factual determination that the monies seized with the gambling paraphernalia were sufficiently earmarked and segregated as proceeds or otherwise integral parts of the admitted gambling operation to be contraband. State v. Link, supra, 14 N.J. at 454, 102 A.2d 609; see annot. 19 A.L.R.2d 22.

 In view of my decision to remand this matter, it is not necessary for me to finally adjudicate these contentions and issues, some of which may require a fuller factual hearing before final determination. Since the Director has the burden of establishing removal jurisdiction and the assumptions on which it is based, it suffices to note my very strong doubts that these attacks on the invocation of N.J.S.A. 2A:152-7 et seq. have any merit. If the Director fails to show substantial likelihood that non-compliance with the statute will be found, doubts about removal theories premised in part on such non-compliance must be resolved against him. If the statute is deemed applicable by the forfeiture tribunal, Moriarity having pleaded guilty, then the foregoing analysis of the effect of forfeiture indicates the money was contraband and that Moriarity had no property right in it to which the tax levy could attach.

 For all the above discussed reasons, I find that the respondent District Director has not established this Court's removal jurisdiction under 28 U.S.C. § 1442(a)(1) and, therefore, that this matter must be remanded.

 Let an appropriate order be submitted by the petitioners.


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