U.S. v. One 1945 Douglas C-54 (Dc 4) Aircraft, Serial No. 22186

• Citation: 604 F.2d 27
• Decision Date: 17 August 1979
• Docket Number: DC-4,No. 79-1057,C-54,79-1057
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)
• Parties: UNITED STATES of America, Appellee, v. ONE 1945 DOUGLAS() AIRCRAFT, SERIAL NUMBER 22186. APPEAL OF J. Michael STUMPFF.

Page 27

604 F.2d 27

UNITED STATES of America, Appellee, v. ONE 1945 DOUGLAS C-54 (DC-4) AIRCRAFT, SERIAL NUMBER 22186.

APPEAL OF J. Michael STUMPFF.

No. 79-1057.

United States Court of Appeals,

Eighth Circuit.

Submitted May 14, 1979.

Decided Aug. 17, 1979.

Philip F. Cardarella, Kansas City, Mo., for appellant.

Kenneth Josephson, Asst. U. S. Atty. (on brief) and Ronald S. Reed, Jr., U. S. Atty., Kansas City, Mo., argued, for appellee.

Before BRIGHT, HENLEY and McMILLIAN, Circuit Judges.

HENLEY, Circuit Judge.

Intervenor J. Michael Stumpff appeals the judgment of the district court ¹ ordering that a DC-4 aircraft to which he holds legal title to be forfeited to the United States pursuant to 21 U.S.C. § 881(a)(4). Our review of the record indicates that Stumpff may lack standing to challenge the forfeiture. Thus, we remand the case to the district court for such proceedings as are necessary to address the questions and considerations raised herein.

This forfeiture action was filed against the subject aircraft as a result of a Drug Enforcement Administration investigation into the illicit drug dealings of one Albert Kammerer in the Kansas City, Missouri area. According to the government, Kammerer and Stumpff jointly searched for an aircraft to facilitate their drug trafficking activities and arranged to have the DC-4 flown to the Kansas City municipal airport where it was stored in a hangar pending the completion of certain repairs. Although Kammerer supplied all of the purchase money for the aircraft, title to it was placed in Stumpff's name. DEA officers first learned of the aircraft from conversations between Kammerer and Stumpff which had been recorded pursuant to a court authorized wiretap of Kammerer's residence telephone. These conversations, as later supplemented by the explanatory depositions of Kammerer and his wife Janice, establish that the two men intended to use the aircraft primarily as a means of transporting large shipments of marijuana into the United States from Mexico.

With the evidence gained from their wiretaps, DEA officers obtained a search warrant and seized several thousand pounds of hashish and marijuana from the Kammerer residence. Kammerer pleaded guilty to criminal charges stemming from his possession of the drugs. The DEA then initiated forfeiture proceedings against the DC-4 aircraft. Stumpff was granted leave to intervene by the district court because of his owner of record status.

The government freely admits that its investigation produced no evidence showing that either Kammerer or Stumpff actually used the aircraft to transport marijuana or other controlled substances. Nor was it able to link the aircraft to a specific future drug transaction planned by either man. The wiretap conversations and Kammerer depositions establish only that the men intended to use the aircraft to transport drugs. And, in furtherance of that general intended use, they undertook to have the aircraft repaired and to retain a qualified pilot. The repairs to the aircraft had not been completed at the time it was seized by DEA officers, nor had a pilot been employed.

The district court found, however, that this evidence of "intended use" was sufficient to satisfy the forfeiture requirements of 21 U.S.C. § 881(a)(4). That statute provides in pertinent part:

(a) The following shall be subject to forfeiture to the United States and no property right shall exist in them:

(4) All conveyances, including aircraft, vehicles, or vessels, which are used, Or are intended for use, to transport, or in any manner to facilitate the transportation, sale, receipt, possession, or concealment of (controlled substances). (Emphasis added.)

The court rejected Stumpff's arguments that it had misconstrued the statute or that the statute, so construed, was unconstitutional as applied to the aircraft because there was no Actus rea or overt act linking the aircraft to a specific illegal transaction. ² Further, the court refused to make a finding as to the ownership of the aircraft, reasoning that neither Kammerer nor Stumpff had a valid defense to the forfeiture because they jointly intended to use the aircraft to transport marijuana.

We have carefully reviewed the record, and in particular the transcripts of the wiretap conversations and the Kammerer depositions, and we agree with Stumpff that the district court's decision raises serious questions concerning the proper construction of § 881(a)(4) and the constitutionality of its application to the present situation. See generally United States v. U. S. Coin and Currency, 401 U.S. 715, 91 S.Ct. 1041, 28 L.Ed.2d 434 (1971); United States v. One 1974 Cadillac Eldorado Sedan, 548 F.2d 421 (2d Cir. 1977); United States v. One 1972 Datsun, 378 F.Supp. 1200 (D.N.H.1974); United States v. One 1970 Buick Riviera, 374 F.Supp. 277 (D.Minn.1973). We do not rule upon these questions, however, since it is doubtful that Stumpff has standing to raise them in opposition to the forfeiture. See Urban Contractors Alliance of St. Louis v. Bi-State Development Agency, 531 F.2d 877 (8th Cir. 1976).

It is the owner or owners of the res who have standing to challenge a forfeiture. United States v. One 1971 Lincoln...