which the proceeding is brought so conditions it. Title 26
U.S.C.A. § 7302, does not contain such a condition. Thus, as a
Court need not question the manner through which a person is
brought before it in an in personam action, so also I need not
now question the means by which this res was initially seized.
Having found the presence of jurisdiction and having granted
the motion to suppress I now consider the general issue. The
question is, do we have sufficient evidence from a source
independent of the illegal search and seizure to warrant a
finding that the money in question was being used in violation
of Internal Revenue Law?
The following evidence, which was neither obtained during,
or resulted from the illegal search and seizure, is presently
before me. Two Chicago Police Officers assigned to the
gambling detail suspected the claimant of operating a wire
room. They decided to investigate their suspicions. Arriving
at the claimant's apartment the officers heard several phones
ringing and heard voices state: "Three ways at Washington
Park, $5; for $2 to win." In addition to this evidence,
claimant in his answer, admits occupancy of the apartment. He
admits to conducting a bookmaking business, and states he kept
and maintained records and documents of this business in his
apartment. Further, he admits that in the conduct of his
bookmaking business he failed to pay the tax required, and
that he failed to register with the Internal Revenue Service.
He acknowledges possession of the $4,171.00, but, alleges this
money was not used in the bookmaking business. He avers that
$3,000 of this sum had been given him by his sister to be held
in safe keeping for her use in the purchase of a residence.
The pleadings would appear to resolve the issue as to
whether or not, in the operation of his bookmaking business,
claimant made payments and, or, collected money at his
This being a civil action the burden of proof is not as it
would be in a criminal case. It is unnecessary that the
Government prove its claim beyond a reasonable doubt. It need
only preponderate on the evidence so as to establish the
material allegations of the libel. See: Coffey v. U.S.
116 U.S. 436, 6 S.Ct. 437, 29 L.Ed. 684. The evidence based on
information acquired during the illegal search and seizure is
inadmissible, but, having so excluded such evidence does not
mean that the facts occurring prior to the illegal entry are
thereafter sacred and inaccessible. Here all of the facts
necessary to prove the libel were overheard by the Police
Officers long before they forced entry to claimant's
apartment. Justice Holmes in Silverthorne Lumber Co. v. U.S.
(1919), 251 U.S. 385 stated at page 392, 40 S.Ct. 182 at page
183, 64 L.Ed. 319: "If knowledge of them is gained from an
independent source they may be proved like any others * * *".
I am of the opinion that having excluded the evidence
obtained in connection with the unlawful search and seizure,
there is still sufficient proof on which to predicate the
forfeiture in this action for libel.
I find it beyond the limits of reasonable credulity to
suppose that this bookmaking operation was any different from
others of its kind. A business of this nature must of
necessity operate with money; customers must deposit money
when placing their bets and those few who are fortunate enough
to win must be rewarded in kind. It is also significant that
claimant omitted to place his sister on the stand to give
evidence as to the allegations suggested in his answer. For
that matter, claimant did not proffer any witnesses at all.
Accordingly I find most adequate evidence to support the
allegations of the libel. I therefore adjudge and decree that
the said $4,171.00 in United States Currency be and the same
is hereby declared forfeit to the United States of America.
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