U.S. v. 1866.75 Board Feet and 11 Doors

• Decision Date: 24 November 2008
• Docket Number: Case No. 1:07cv1100(GBL).
• Citation: 587 F.Supp.2d 740
• Parties: UNITED STATES of America, v. 1866.75 BOARD FEET AND 11 DOORS AND CASINGS, MORE OR LESS, OF DIPTERYX PANAMENSIS IMPORED FROM NICARAGUA, Defendant, Jill Thompson and Wilbur Thompson, Claimants.
• Court: U.S. District Court — Eastern District of Virginia

587 F.Supp.2d 740

UNITED STATES of America, v. 1866.75 BOARD FEET AND 11 DOORS AND CASINGS, MORE OR LESS, OF DIPTERYX PANAMENSIS IMPORED FROM NICARAGUA, Defendant Jill Thompson and Wilbur Thompson, Claimants.

Case No. 1:07cv1100(GBL).

United States District Court, E.D. Virginia, Alexandria Division.

November 24, 2008.

Stefan Dante Cassella, Natalie Voris, United States Attorney's Office, Alexandria, VA, for Plaintiff.

Jill J. Thompson, Washington, DC, pro se.

Wilbur L. Thompson, Washington, DC, pro se.

MEMORANDUM ORDER

GERALD BRUCE LEE, District Judge.

THIS MATTER is before the Court on the Government and Claimants Jill and Wilbur Thompsons' Cross Motions for Summary Judgment. This case concerns the importation of the defendant wood by the Thompsons at the termination of their foreign service with the United States Department of State in Nicaragua. Dipteryx Panamensis is as an endangered species and therefore cannot be imported to the United States without a Certificate of Origin (subject to certain limited exceptions). The Thompsons imported defendant wood without this Certificate and the Government subsequently seized the wood, which in turn commenced this judicial forfeiture action. There are several issues before the Court. The first issue is whether the defendant wood, several tons of parquet floor squares, doors and casings, is properly categorized as a household effect so as to be exempt from the Certificate of Origin requirement. The second issue is whether the Thompsons are entitled to an innocent owner defense. The third issue is whether there is a statute of limitations for the Government to institute this case. If so, the Court must determine whether the Government initiated this action within the applicable statute of limitations and if a failure to do so precludes judgment in favor of the Government. The fourth issue is whether the Thompsons were deprived of due process through the forfeiture of their property pursuant to a statute that failed to provide fair notice of prohibited conduct. The fifth issue is whether the Government properly valuated the property and whether an improper valuation would mandate judgment for Claimants. The sixth issue is whether the forfeiture of the defendant wood constitutes an excessive penalty under the Eighth Amendment.

The Court holds that the defendant wood does not constitute a household effect because several tons of parquet flooring, doors and casings are building or construction materials that cannot be deemed "household effects". The Court holds that the Thompsons are not entitled to an innocent owner defense to civil forfeiture because they were responsible for the conduct that constituted the violation. The Court also holds that the statutorily mandated time frames indicated by Claimants refer to administrative, not judicial forfeitures, and are therefore inapplicable to this action. Even if the time frames were applicable, a failure to bring the action within the time frame would not entitle Claimants to summary judgment. The Court also holds that the statutory provisions at issue in this matter are not unconstitutionally vague because a reading of the statute, would put a reasonable person on notice of the prohibited conduct. The Court also holds that the proper valuation of the defendant wood does not impact the ultimate procedural posture of this matter, and an incorrect valuation would not mandate summary judgment in favor of Claimants. Finally, the Court finds that the Claimants have failed to carry their burden as necessary to prevail on summary judgment with respect to the excessive fines clause claim because they have neglected to address any of the elements considered by the Court in declaring a forfeiture grossly disproportionate.

I. BACKGROUND¹

Jill and Wilbur Thompson were State Department employees stationed in Managua Nicaragua in the fall of 2006. Prior to their departure from Nicaragua, the Thompsons purchased the defendant wood² at a furniture and wood products exposition sponsored by the governments of Nicaragua and the United States.

Upon receipt of their transfer orders, the Thompsons arranged to have their belongings (including the defendant wood) shipped to the United States by the United States Embassy. Upon arrival in the United States (and after clearing customs) it came to the attention of the State Department that the shipment of the Thompsons' personal belongings contained a significant amount of wood, and the shipment raised a concern as to whether these materials were properly shipped to the United States. After an initial inspection, the State Department indicated to the Thompsons its concern that the defendant wood was more appropriately categorized as "building materials" and therefore not properly designated as household effects shipped by the government. Subsequent to this initial inspection, the Thompsons and various government officials, both international and domestic, exchanged a significant amount of correspondence seeking the release of the property. In the course of these exchanges, the Thompsons identified the wood as Dipteryx Panamensis. The State Department, during this time, also took many photographs and samples of the defendant wood, and submitted it for multiple appraisals.

Having identified the wood as Dipteryx Panamensis, the United States Department of Agriculture referred this matter to the United States Attorney's Office for the Eastern District of Virginia, who in turn commenced this judicial forfeiture action. After an extremely contentious and protracted period of motions practice and discovery, this matter is presently before the Court on the Government and the Thompsons' Cross Motions for Summary Judgment.

II. DISCUSSION

A. Standard of Review

Under Federal Rule of Civil Procedure 56, the Court must grant summary judgment if the moving party demonstrates that there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. FED.R.Civ.P. 56(c).

In reviewing a motion for summary judgment, the Court views the facts in a light most favorable to the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Once a motion for summary judgment is properly made and supported, the opposing party has the burden of showing that a genuine dispute exists. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). "[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson, 477 U.S. at 247-48, 106 S.Ct. 2505. A "material fact" is a fact that might affect the outcome of a party's case. Id. at 248, 106 S.Ct. 2505; JKC Holding Co. v. Wash. Sports Ventures, Inc., 264 F.3d 459, 465 (4th Cir.2001). Whether a fact is considered to be "material" is determined by the substantive law, and "[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson, 477 U.S. at 248, 106 S.Ct. 2505. Rule 56(e) requires the nonmoving party to go beyond the pleadings and by its own affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

B. Analysis

1. Forfeitability

The Court grants summary judgment in favor of the Government as to forfeitability because the Government has established by a preponderance of the evidence that: (1) the defendant wood is of a species listed in Appendix III of the Convention on International Trade in Endangered Species of Wild Fauna and Flora ("CITES"); (2) it was imported into the United States from Nicaragua without a valid Certificate of Origin as required; and (3) it is not subject to the statutory exception to the Certificate of Origin requirement for household effects. Pursuant to the provisions of the Endangered Species Act, "[a]ll ... plants ... imported contrary to the provisions of this chapter, any regulation made pursuant thereto, or any permit or certificate issued hereunder shall be subject to forfeiture to the United States." 16 U.S.C. § 1540(e)(4)(A).³ Under CITES it is therefore "unlawful for any person subject to the jurisdiction of the United States to engage in any trade in any specimens contrary to the provisions of the Convention, or to possess any specimens traded contrary to the provisions of the Convention, including the definitions of terms in article I thereof." 16 U.S.C. § 1538(c)(1).

Owing to an intervening change in the statutes regulating CITES forfeiture between the time shipment and seizure of the defendant wood and the initiation of this lawsuit, the Court takes a brief moment to further outline the timing of this matter as well as the intervening changes in case law and the impact of the changes on the disposition of this action⁴. The Thompsons' property was imported to the United States and subsequently seized in the fall of 2006. The Complaint in this matter was filed on October 31, 2007. The instant Motions for Summary Judgment were filed in the spring of 2008. In 2006, the regulations made pursuant to chapter 35 of title 15 were codified at 50 C.F.R. §§ 23.11, 23.12, and 23.13. Section 23.11 generally addressed prohibitions, while § 23.12(a)(3) codified the requirements for a Certificate of Origin for the importation of items listed on Appendix III, with § 23.13(d) indicating that, "[t]he prohibitions in § 23.11(b) through (d) concerning importation, exportation and re-exportation shall not apply to wildlife or plants that are accompanying personal baggage or part of a shipment of the household effects of persons moving their residences to or...