U.S. v. Farrell, 78-1279

Decision Date27 August 1979
Docket NumberNo. 78-1279,78-1279
Citation606 F.2d 1341,196 U.S.App.D.C. 434
PartiesUNITED STATES of America v. William C. FARRELL, Appellant.
CourtU.S. Court of Appeals — District of Columbia Circuit

James C. Brooks * with whom Michael E. Geltner, Washington, D. C. (appointed by the Court) and Larry J. Ritchie, Washington, D. C., were on brief, for appellant.

Constantine J. Gekas, Asst. U. S. Atty., Washington, D. C., with whom Earl J. Silbert, U. S. Atty., John A. Terry and Peter E. George, Asst. U. S. Attys., Washington, D. C., were on brief, for appellee.

Before MacKINNON, ROBB and WILKEY, Circuit Judges.

Opinion for the Court filed by MacKINNON, Circuit Judge.

MacKINNON, Circuit Judge:

Farrell was convicted in United States District Court of an Attempt to distribute heroin in violation of 21 U.S.C. § 841(a)(1). During the trial $5,000 in currency, which Farrell had voluntarily paid to an undercover police officer in the mistaken belief that the officer would deliver him some very pure heroin for the money, was introduced as evidence in the case. After his conviction Farrell filed a motion for return of the money that evidence indicated he had placed on a counter before the undercover police officer in his attempt to purchase the heroin. The district court denied the motion because "the $5,000 was used by defendant as an instrumentality of the crime for which he was convicted. . . . " 1 Farrell appeals.

The Government maintains that the result reached by the district court should be affirmed for four reasons. First, the district court allegedly lacks jurisdiction to order the money returned. Second, Farrell has not proved that he is entitled to the money. Third, the district court properly refused to return the money because it was an instrumentality of crime. And fourth, appellant is no more entitled to the $5,000 than a convicted briber is entitled to the money he allegedly paid as bribes.

We affirm the judgment of the district court, but only for a corollary of the last reason offered by the Government. We are not persuaded by the Government's first three arguments, but except for the third argument, which was relied upon by the district court, it is unnecessary to discuss them because the fourth reason affords an adequate basis for disposing of the case.

I

The Government's third argument, which was the basis for the district court's decision, is that the court need not return the money because it was an instrumentality of Farrell's crime. 2 Acceptance of this contention would lead to a palatable result in this case, for it would preclude return of money to a drug trafficker. Nevertheless, we decline to adopt the precise formulation of the rule advocated by the Government, and rely instead on a narrower rule.

A

"The general rule is that seized property, other than contraband, should be returned to its rightful owner once the criminal proceedings have terminated." United States v. LaFatch, 565 F.2d 81, 83 (6th Cir. 1977). 3 The question to be resolved here, therefore, is whether the money claimed by Farrell, which the video tape record clearly shows was paid by him voluntarily and not seized from him, is forfeitable "contraband," or otherwise to be denied him, because of its use as an instrumentality of his crime, and because of his participation in the crime.

Decisional law recognizes two kinds of contraband. Traditional or Per se contraband is defined as "objects the possession of which, without more, constitutes a crime." One 1958 Plymouth Sedan v. Pennsylvania, 380 U.S. 693, 699, 85 S.Ct. 1246, 1250, 14 L.Ed.2d 170 (1965). It is well established that a claimant has no right "to have (Per se contraband) returned to him." United States v. Jeffers, 342 U.S. 48, 54, 72 S.Ct. 93, 96, 96 L.Ed. 59 (1951); Trupiano v. United States, 334 U.S. 699, 710, 68 S.Ct. 1229, 92 L.Ed. 1663 (1948). The Court explained the reason for this rule in One 1958 Plymouth Sedan, supra :

The repossession of such Per se contraband by Jeffers and Trupiano would have subjected them to criminal penalties. The return of the contraband would clearly have frustrated the express public policy against the possession of such objects.

380 U.S. at 699, 85 S.Ct. at 1250. Since it is not a crime for Farrell to possess the money that he paid in an attempt to purchase narcotics, the rule mandating forfeiture of Per se contraband is plainly inapplicable here. 4

There is a second kind of contraband, however derivative contraband. "Derivative contraband are articles which are not inherently illegal, but are used in an unlawful manner." People v. Steskal, 55 Ill.2d 157, 302 N.E.2d 321, 323 (1973). 5 The money claimed by Farrell, which was used in an "unlawful manner" as an instrumentality of crime falls within this second category.

The reasons that Per se contraband is forfeit to the government are almost wholly inapplicable to derivative contraband. One 1958 Plymouth Sedan, supra, 380 U.S. at 699, 85 S.Ct. 1246. 6 Nevertheless, in some circumstances derivative contraband instrumentalities of crime "may also be subject to forfeiture." Steskal, supra, 302 N.E.2d at 323. The Government argues that this is such a case. We find, however, that there is no precedent for confiscation without statutory authority (which is lacking here) of derivative contraband merely because it is derivative contraband.

There are a number of state and federal statutes mandating the forfeiture of the instrumentalities of certain crimes (derivative contraband). 7 All of the cases in which a court refused to return seized property Because it was an instrumentality of crime involved these express forfeiture statutes. 8 Generally, therefore, derivative contraband has not been forfeited except in cases in which forfeiture was authorized by statute. 9

It is obvious that those decisions in which forfeiture statutes were applied afford no support for the Government's argument that it may confiscate derivative contraband without statutory authorization. More important, the analysis in such cases suggests an approach that is at odds with the Government's position. The issue in cases involving statutory forfeiture is whether the money or property in question was used in a way that made it subject to forfeiture under the terms of the statute. If it was, then the property is forfeited to the government. If it was not, then the claimant, if his standing to sue is recognized, may be entitled to recover the property or its value. There is not the slightest suggestion in these cases that the Government has an inherent right to confiscate property that is not covered by a forfeiture statute merely because it was an instrumentality of crime. 10

In addition to lacking any precedential support, the Government's contention that it may, even in the absence of statutory authority, confiscate all instrumentalities of crime is very broad. Some crimes are far more serious than others. But if such a broad rule as advocated by the Government were adopted in this case, there may be no logical way to avoid applying it in cases involving less serious offenses cases in which the rule should obviously not be applied. Since forfeiture or refusal to countenance Farrell's claim here can be justified by a narrow and well established rule, we see no reason to adopt the unsupported, broad and potentially unmanageable rule advocated by the Government.

Congress is free, of course, to decide that money involved in drug transactions should be forfeited. It has already provided that the drug itself (contraband), the raw materials from which the drug is made (an instrumentality of crime), and "all conveyances, including aircraft, vehicles, or vessels, which are used to transport, or in any manner to facilitate the transportation, sale, receipt, possession or concealment of (illegal controlled substances)" (also instrumentalities of the crime) "shall be subject to forfeiture to the United States." 21 U.S.C. § 881(a) (1977). Congress has also recently enacted the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. §§ 1961-1968 (1977), 84 Stat. 981, et seq., and amended 92 Stat. 2465, which provides that "any person who has received any income derived, directly or indirectly, from a pattern of racketeering activity . . . (etc.)," 18 U.S.C. § 1962, "shall forfeit to the United States . . . any (such) interest he has acquired or maintained . . . ." 18 U.S.C. § 1963. This statute covers "racketeering" in drugs. United States v. Elliott, 571 F.2d 880 (5th Cir. 1978). So Congress is not unmindful of the necessity of enacting forfeiture statutes. It would be a relatively easy matter for Congress to add to the narcotics list another instrumentality of the crime the money used to purchase the narcotics though the difficulty of identifying and tracing money could prove to be obstacles to enforcement. Under the circumstances, we decline to create a new rule to do what Congress has not done.

B

The Government and the district court cite two cases in support of the argument that courts need not return money that was an instrumentality of crime: In re Wiltron Associates, 49 F.R.D. 170, 173 (S.D.N.Y.1970), and United States v. Pardo-Bolland, 229 F.Supp. 473, 478 (S.D.N.Y.1964). In both cases, the court denied pretrial Rule 41(e) motions for the return of seized property in part because the property was an instrumentality of crime. Since the $5,000 claimed by Farrell was an instrument of his crime, the Government contends that those cases establish that he is not entitled to have the money returned.

While Wiltron and Pardo-Bolland bear a superficial similarity to the instant case, they are distinguishable. First, unlike this case, they involved Rule 41(e) motions. Rule 41(e) of the Federal Rules of Criminal Procedure permits a "person aggrieved by an unlawful search and seizure" to "move the district court . . . for the return of the property . . . which was illegally...

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