U.S. v. One 1975 Mercedes 280S, Vehicle Identification No. 110922 12 017823, 1975 Michigan License No. VFF 254
| Decision Date | 19 December 1978 |
| Docket Number | VFF-254,D,No. 77-1078,77-1078 |
| Citation | 590 F.2d 196 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. ONE 1975 MERCEDES 280S, VEHICLE IDENTIFICATION NO. 110922-12-017823, 1975 MICHIGAN LICENSE #efendant-Appellant. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Raymond L. Miller, Detroit, Mich., for defendant-appellant.
James K. Robinson, U. S. Atty., L. Michael Wicks, Detroit, Mich., for plaintiff-appellee.
Before CELEBREZZE and ENGEL, Circuit Judges, and LAWRENCE, Senior District Judge. *
Edna Salas appeals from a summary judgment of the district court forfeiting to the United States all monies resulting from the sale of a 1975 Mercedes 280S automobile, of which Mrs. Salas claims to be the registered owner. The Mercedes was seized in the course of a raid, with search warrant, upon the residence of Mrs. Salas and her husband in Romulus, Michigan. As a result of the raid and the execution of the search warrant, appellant's husband was arrested and charged with the possession of heroin.
According to the affidavit of Special Agent Arthur J. Goldenbaum of the Drug Enforcement Administration, he searched the Mercedes when it was parked in the garage of the premises at Romulus, Michigan, in the course of his execution of the federal warrant for the search of the house. His affidavit in support of the motion for summary judgment alleged in part:
I personally searched said vehicle at said location on said date and in the ashtray, located in the area of a vehicle commonly referred to as the "dashboard", I found the partial remains of four (4) cigarette butts, which appeared, in my experience, to be Marihuana. I have been a Special Agent for the Drug Enforcement Administration for approximately eight (8) years (including its predecessor agencies) and I have spent one (1) year as a Criminal Investigator for the United States Bureau of Customs prior to that. I have seen and smelled Marihuana on hundreds of occasions and I am very familiar with its appearance and aroma.
The government's motion, with Agent Goldenbaum's affidavit attached, was brought on for hearing before the district court. No counter-affidavit was filed and no appearance was made on behalf of Mrs. Salas or any other claimant to the automobile. No claim is urged that Mrs. Salas or her attorney did not receive notice of the hearing or have an opportunity either to appear or to file counter-affidavits if desired. The sole issue upon appeal, therefore, is whether the special agent's brief but unopposed affidavit was sufficient to justify the grant of a summary judgment of forfeiture.
Under the admittedly harsh but nonetheless valid forfeiture laws of the United States applicable to this case, we conclude that summary judgment was warranted and accordingly affirm.
The instant action was brought under 49 U.S.C. § 782, which authorizes the forfeiture of vehicles used in violation of 49 U.S.C. § 781. The latter statute provides in part as follows:
(a) It shall be unlawful (1) to transport, carry, or convey any contraband article in, upon, or by means of any vessel, vehicle, or aircraft; (2) to conceal or possess any contraband article in or upon any vessel, vehicle, or aircraft, or upon the person of anyone in or upon any vessel, vehicle, or aircraft; or (3) to use any vessel, vehicle, or aircraft to facilitate the transportation, carriage, conveyance, concealment, receipt, possession, purchase, sale, barter, exchange, or giving away of any contraband article.
(b) As used in this section, the term "contraband article" means
(1) Any narcotic drug which has been or is possessed with intent to sell or offer for sale in violation of any laws or regulations of the United States dealing therewith; or which has been acquired or is possessed, sold, transferred, or offered for sale, in violation of any laws of the United States dealing therewith . . . .
While appellant urges that the presence in her automobile of four cigarette butts containing marihuana does not come within Section 781, case law construing that section does not support such a claim. Clearly it was not incumbent upon the government to show that the marihuana was both transported and concealed or possessed, the terms being in the disjunctive. Likewise, it was not necessary for the government to have shown that the narcotic was possessed with an intent to sell or offer it for sale in violation of the laws. It is sufficient if marihuana was found in measurable quantity and was possessed in the vehicle in violation of the laws of the United States. A "narcotic drug" for purposes of 49 U.S.C. § 781(b)(1) is defined to include marihuana. 49 U.S.C. § 787(d); 21 U.S.C. § 802(15). 1
Although the law in this respect appears harsh, it is well settled that it is immaterial whether the amount of marihuana contained in the car is relatively small. Thus, in Associates Investment Co. v. United States, 220 F.2d 885 (5th Cir. 1955), a judgment of forfeiture was sustained based upon one partially burned and one intact marihuana cigarette. See also United States v. One 1957 Oldsmobile Automobile, 256 F.2d 931 (5th Cir. 1958), a forfeiture involving thirteen grains of marihuana, and United States v. Nelson, 499 F.2d 965 (8th Cir. 1974), holding that a conviction for violation of the drug laws will be upheld "where any measurable amount of a prohibited narcotic drug is found." Id. at 966 and cases cited therein. If, therefore, the possession of any measurable amount by a given person will support a conviction of a criminal violation, surely it will be sufficient here to support a civil forfeiture under the less onerous burden of proof.
Mrs. Salas' denial of any intent to distribute the marihuana and, in fact, her claim that she was not shown to have been possessed of any knowledge of its presence in the car are irrelevant, and the forfeiture under such circumstances is not an unconstitutional taking under the Fifth Amendment. Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 680-90, 94 S.Ct. 2080, 40 L.Ed.2d 452 (1974); United States v. One 1961 Cadillac,337 F.2d 730 (6th Cir. 1964).
Likewise, Mrs. Salas' argument that the affidavit was...
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