(concurring).
This is, for me, an exceedingly troublesome case. The conclusions of Judge HOFFMAN’S scholarly opinion are inescapable in the light of the prior decisions ■discussed therein. Moreover, as I found in my earlier opinion—Telephone News System, Inc. v. Illinois Bell Telephone Co., 210 F.Supp. 471, 476 (N.D.Ill.1962) —there is nothing in the record of this ■case indicating any lawful use of plaintiff’s facilities. I am satisfied that plaintiff’s facilities are, in fact, used almost ■entirely by people engaged in illegal offtrack gambling on horse races and that their elimination will serve a useful public purpose. Notwithstanding, I am disturbed.
What concerns me is that, while any action under Title 18 U.S.C. § 1084(d) is necessarily predicated on a violation of federal, state or local criminal law by the utility user, the proceedings permitted under the statute, because allegedly civil in nature, are far short of what would constitute due process and the sanctions, on the other hand, far more serious than were criminal action taken directly under the same federal, state or local laws against the same utility user.
The instant case illustrates clearly the circumvention of traditional constitutional guarantees by the civil versus criminal semantics which the earlier decisions have developed and which Judge HOFFMAN has quite accurately applied in his opinion.
Here, an Assistant Attorney General of the United States wrote a short letter, dated April 25, 1962, to Illinois Bell Telephone Co. advising it that the Department of Justice had reason to believe that plaintiff’s telephone facilities “are being and will be used for the transmission and receiving of gambling information in interstate commerce in violation of Federal law * * The letter notified the telephone company that it was required under Section 1084(d) to discontinue leasing telephone facilities to plaintiff and suggested that five days notice be given of the impending termination.
Thereafter, on April 27, 1962, the telephone company wrote an even more cryptic letter to the plaintiff as follows:
“Telephone News System, Incorporated
“81 West Van Burén Street
“Chicago, Illinois
“Gentlemen:
“We have received a letter from the United States Department of Justice, acting under Title 18 of the U. S. Code, Section 1084(d), requiring us to discontinue service on the telephone facilities furnished to you at 81 West Van Burén Street, Chicago, Illinois, after reasonable notice to you.
“It is our present intention to comply with this letter at 9 A.M., C.D.T., on May 5, 1962.”
*641Plaintiff was then faced with the alternatives of doing nothing and thus being put out of business or seeking an injunction. It, of course, chose the latter and this action was commenced.
It will be noted that the foregoing two letters were in lieu of the investigation, presentment to a grand jury of evidence of a law violation, and the return of an indictment alleging specific acts violative of a clearly identified statute or statutes which would be required to institute a criminal case. Yet the charge is, as the Assistant Attorney General’s letter to the telephone company indicates, that plaintiff is violating federal law, a charge incidentally which was not disclosed to plaintiff until after it commenced this suit.
So much for the pre-court phase of the matter. The second stage is equally sui generis. While the asserted law violator is nominally the plaintiff, the earlier cases hold, and I so held in my prior opinion, that the burden of proof is on the defendant. While the telephone company is nominally the defendant, the real party in interest, as it contended in its petition for leave to intervene, is the United States and so it, the intervenor, had the burden of proving that plaintiff’s telephone facilities were being used in violation of federal, state or local law and it did present the only evidence in the case. That evidence, incidentally, consisted primarily of the deposition of a professional gambler who admitted calling plaintiff’s telephone number in connection with his activities. The deposition was taken after the commencement of plaintiff’s action so the record gives no indication upon what evidence, if any, the government’s original letter to the telephone company was based.
The standard of proof, however, since this is nominally a civil action, a suit for an injunction, has been held in the earlier cases to be merely “a preponderance of the evidence” rather than “beyond a reasonable doubt.” There is, of course, no presumption of innocence, no right to a jury trial, no right of confrontation or any of the other criminal trial safeguards.
At the trial in the instant case, the government urged that the plaintiff had violated one or all of several federal and Illinois statutes. I found, a finding in which my brothers concur, that it had established by a preponderance of the evidence only that plaintiff had violated one of the statutes in question, Section 28-1 (a) (10) of the Illinois Criminal Code of 1961. It may be noted, in this connection, that the Department of Justice in its letter to the telephone company referred only to violations of federal law, and therefore the charge in the original letter from the Department of Justice to the telephone company stands unproved. I assume this to be immaterial, however, since Section 1084(d) makes violation of federal, state or local law a basis for termination of the utility service, and since, in any event, no indication of any grounds for termination were given, or apparently were required to be given, to plaintiff.
Probably the greatest incongruity in the civil versus criminal character of this ease is the ultimate judgment. If the plaintiff had' been convicted in an Illinois court of violating Section 28-1 (a) (10) of the Illinois Criminal Code of 1961, the maximum penalty which could have been imposed, since it is a corporation, would have been a fine of $500 for the first offense and $1,000 for each subsequent offense. However, under 1084 (d) and the civil-injunction proceedings which plaintiff was forced to institute, the ultimate judgment can be the death penalty for it is agreed by all concerned that termination of plaintiff’s telephone facilities means, as it would to most businesses, its demise. Yet, as Judge HOFFMAN’S opinion points out, the earlier decisions on the subject of forfeitures sanction such a result.
To summarize, Title 18 United States Code § 1084(d), as applied in the instant case, results in a federal court authorizing plaintiff’s demise at the conclusion of a civil action, which judgment *642is based on a finding that the intervenor-defendant, the United States, has proved by a preponderance of the evidence that the plaintiff violated a criminal statute of the State of Illinois.
This to me incongruous procedure and result is the logical extension of a line of decisions which seems to me to warrant re-examination. These are the decisions holding that a forfeiture is not a penalty and, accordingly, that proceedings involving forfeitures are civil, not criminal, in nature. The earliest important decision on this question is Dobbins’ Distillery v. United States, 96 U.S. 395, 24 L.Ed. 637 (1877), in which the distillery was seized and forfeited on the grounds that the lessee “made false entries in the books kept in the distillery, and * * * he omitted to enter in the same the facts required by law, with intent to defraud * * * ” Id. 96 U.S. at 396, 24 L.Ed. 637. The defendant, which was the owner of the property and not the lessee thereof, urged that it had no knowledge of the acts charged and that a criminal, not a civil, trial should have been required. In upholding the forfeiture, the Court said:
“Cases arise, undoubtedly, where the judgment of forfeiture necessarily carries with it, and as part of the sentence, a conviction and judgment against the person for the crime committed; and in that state of the pleadings it is clear that the proceeding is one of a criminal character: but where the information, as in this case, does not involve the personal conviction of the wrongdoer for the offence charged, the remedy of forfeiture claimed is plainly one of a civil nature; as the conviction of the wrong-doer must be obtained, if at all, in another and wholly independent proceeding * * *
“Forfeitures, in many cases of felony, did not attach at common law where the proceeding was in rem until the offender was convicted, as the crown, Judge Story says, had no right to the goods and chattels of the felon, without producing the record of his conviction; but that rule, as the same learned magistrate says, was never applied to seizures and forfeitures created by statute in reto, cognizable on the revenue side of the exchequer court, for the reason that the thing in such a case is primarily considered as the offender, or rather that the offence is attached primarily to the thing, whether the offence be malum prohibitum or malum in se * * *.” Id. 96 U.S. at 399-400, 24 L.Ed. 637.
Subsequent decisions, including United States v. Zucker, 161 U.S. 475, 16 S.Ct. 641, 40 L.Ed. 777 (1896); Various Items of Personal Property v. United States, 282 U.S. 577, 51 S.Ct. 282, 75 L.Ed. 558 (1931); and Helvering v. Mitchell, 303 U.S. 391, 58 S.Ct. 630, 82 L.Ed. 917 (1938), broadened the types of property which might be seized and forfeited without constituting a penalty or punishment and which seizures therefore were beyond the requirements and protection of due process.
Interestingly, a related line of cases has developed simultaneously holding that, if the person whose alleged violation of some criminal law is the basis for the forfeiture has previously been tried and acquitted, no civil seizure of the property may be made. Coffey v. United States, 116 U.S. 436, 6 S.Ct. 437, 29 L.Ed. 684 (1886) and Inman v. United States, 151 F.Supp. 784 (W.D.S.C.1957). As the decisions now stand, a forfeiture prior to criminal prosecution and establishment of guilt constitutes due process, but after prosecution and acquittal it does not.
The case apparently has not yet arisen in which the acquittal in the criminal proceedings follows the forfeiture. It undoubtedly will and, unless the basic concept changes, some court will be faced with the necessity of reconciling the irreconcilable.
The distinction between civil or criminal proceedings for the violation of a *643criminal law based as it now is on the distinction between punishment and penalty or so-called preventive regulation seems to me to be particularly incongruous where, as here, the maximum penalty, a fine of $500, which might have been imposed in a criminal proceeding with all the constitutional safeguards respected, is infinitely less than the sanction of being put out of business or having property forfeited, these being the result of the civil action devoid of constitutional safeguards. Yet the basis for both proceedings is' precisely the same, the violation of the .state criminal law.
In this connection, it should be noted that the recent Supreme Court decision of Kennedy v. Mendoza-Martinez, 372 U. S. 144, 83 S.Ct. 554, 9 L.Ed.2d 644 (1963), discussed in Judge HOFFMAN’S opinion, held invalid as punitive a section of the Immigration and Nationality Act of 1952 which automatically divested an American of his citizenship without the necessity of any prior criminal trial if he left or stayed outside the country to avoid the draft. The Court concluded that forfeiture of citizenship was clearly punishment. It seems to me that where the forfeiture of property will be fatal to the business life of the party involved and substantially greater and more severe than the maximum punishment which could have been imposed in a direct criminal proceeding, labelling it preventive and non-penal is a sophistry which hardly warrants the abrogation of the Constitutional protections which are the keystones of American criminal justice.
While not, of course, determinative, it should be noted that Congress saw fit to title sec. 1084, of which the subsection before us is a part, with the designation “Penalties”.
Although we are here called upon to pass only on the application of sec. 1084 (d) to the facts of the instant case, it is appropriate, at least in passing, to reflect upon the implications and possible application of the procedure to other situations, for it represents, I believe, a new technique in criminal law enforcement. If the withdrawal of a vital utility service may be accomplished constitutionally by the simple mechanics contemplated by sec. 1084(d) where the facility is allegedly being used to violate federal, state or local criminal laws relating to gambling, it presumaby will be equally valid for eliminating alleged violations of other federal, state and local criminal laws, such as federal and state anti-trust laws, those regulating the sale and distribution of securities, the possession and sale of narcotics, income, sales and other tax laws and so on.
In our inter-dependent economy, where rapid communication is vital to virtually every commercial enterprise, the withdrawal of telephone facilities on the ground that some federal, state or local law enforcement officer has reason to believe that they are being used in violation of a federal, state or local law, may prevent some law violations. But it will also eliminate all of the basic safeguards which we have so carefully developed to protect the accused even though he be ultimately found guilty.
And, of course, the technique need not be limited to telephone facilities, since the withdrawal of other utility services would presumably be equally proper.
Illegal gambling and the interstate rapid transmission of information which makes it possible are rightly matters of serious public concern as are violations of all criminal laws. Our law enforcement officials are entitled to all possible assistance consistent with those safeguards of due process which we deem indispensable to the protection of the individual citizen.
Substituting so-called preventive forfeitures of property for penal sanctions of fines or sentences of incarceration and thereby converting criminal into civil proceedings does not seem to me to be the proper answer to our law enforcement problems.
In the light of the decisions so carefully analyzed and applied in Judge HOFFMAN’S opinion, I concur in the judgment of the Court.