618 F.2d 453 (7th Cir. 1980), 79-1517, United States v. One 1976 Mercedes Benz 280S, Serial No. 11602012072193

Docket Nº:79-1517.
Citation:618 F.2d 453
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. ONE 1976 MERCEDES BENZ 280S, SERIAL NO. 11602012072193, Wisconsin License No. Q55-103, its tools and appurtenances, by its owner Larry R. Rogers, Defendant-Appellant.
Case Date:March 25, 1980
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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Page 453

618 F.2d 453 (7th Cir. 1980)

UNITED STATES of America, Plaintiff-Appellee,

v.

ONE 1976 MERCEDES BENZ 280S, SERIAL NO. 11602012072193,

Wisconsin License No. Q55-103, its tools and

appurtenances, by its owner Larry R.

Rogers, Defendant-Appellant.

No. 79-1517.

United States Court of Appeals, Seventh Circuit

March 25, 1980

Argued Nov. 9, 1979.

Page 454

Robert E. Sutton, Milwaukee, Wis., for defendant-appellant.

James M. Fergal, Asst. U. S. Atty., Milwaukee, Wis., for plaintiff-appellee.

Before SPRECHER and CUDAHY, Circuit Judges, and DUMBAULD, Senior District Judge. [*]

DUMBAULD, Senior District Judge.

This case involves the forfeiture of a motor vehicle, a 1976 Mercedes-Benz 280-S, allegedly used in connection with the transportation of narcotics. The pertinent statute under which the Government proceeded is 21 U.S.C. 881, which provides (with inapplicable exceptions for common carriers and stolen vehicles) that:

(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 intended for use, to transport, or in any manner to facilitate the transportation, sale, receipt, possession, or concealment of (unlawfully distributed narcotics). 1

In many cases forfeiture is a harsh and oppressive procedure, depriving innocent owners of their property because it was used by other persons for unlawful purposes; and courts have strained to avoid unjust results. U. S. v. One 1976 Lincoln Mark IV, 462 F.Supp. 1383, 1387, 1389, 1392 (W.D.Pa.1979). The seemingly harsh rule which permits condemnation of the vehicle without regard to the owner's culpability, is explained by the fact that historically forfeiture is a civil proceeding in rem. The vehicle or other inanimate object is treated as being itself guilty of wrongdoing, regardless of its owner's conduct. Gelston v. Hoyt, 3 Wheat. 246, 291, 312-20, 4 L.Ed. 381 (1818); The Palmyra, 12 Wheat. 1, 14-15, 6 L.Ed. 531 (1827); Goldsmith-Grant Co. v. U.S. 254 U.S. 505, 510-13, 41 S.Ct. 189, 190-191, 65 L.Ed. 376 (1921); U. S. v. One Ford Coupe, 272 U.S. 321, 332-33, 47 S.Ct. 154, 158, 71 L.Ed. 279 (1926); U. S. v. U. S. Coin & Currency, 401 U.S. 715, 719-21, 91 S.Ct. 1041, 1043-44, 28 L.Ed.2d 434 (1971); 2 Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 680-88, 94 S.Ct. 2080, 2090-94, 40 L.Ed.2d 452 (1974); U. S. v. One 1962 Ford Thunderbird, 232 F.Supp. 1019, 1021-22 (N.D.Ill.E.D.1964). See also Holmes, The Common Law (1881); Grotius, De Jure Belli ac Pacis, Bk. 1, c. 17, 21; Exodus 21:28. Distress for collection of taxes or other debts to the Government was another harsh proceeding sanctioned by history. In Murray's Lessee v. Hoboken Land & Improvement Co., 18 How. 272, 276-80, 15 L.Ed. 372 (1856), it was held that due process of the law of the land permitted that summary mode of collection. 3

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Under the statutes involved here automobiles have been forfeited because of use "to facilitate" narcotics sales even though the drugs were not physically transported in the car; use of the vehicle to transport a drug peddler to and from the place of advance payment has been held sufficient. 462 F.Supp. at 1388. Hence forfeiture in the case at bar could be sustained upon the ground of facilitation alone; but, as will be seen, the Government here makes out a stronger case.

As the District Court found, "It is reasonable to believe that the controlled substances Mr. Heflin sold to Agent Stacy were transported in the automobile." The owner, Larry Rogers, may have himself on May 2, 1977, driven the actual seller, Elliott Heflin, to the Marc Plaza hotel in Milwaukee in the car (at least he was a passenger in it, and with another man waited in the car outside the hotel until Heflin returned from making the narcotics sale) while Heflin got out of the vehicle, entered the hotel, completed a sale of cocaine to Agent Thomas Stacy in the hotel lounge, and then returned to the car, got in, and the three men drove off.

On a later occasion the same modus operandi was employed. On May 23, 1977, Agent Stacy bought $1700 worth of heroin from Heflin at the Gas-Lite Lounge in Milwaukee. Again agents staked out at the site saw the Mercedes approach, and Heflin get out of the car, enter the lounge, shortly return, and re-enter the vehicle, which drove away. In the course of the telephone conversation arranging the rendezvous on May 23, Heflin told Agent Stacy that his source was wealthy and drove a Mercedes-Benz.

Under the circumstances appearing in the present record, it is difficult to feel sympathy for the owner of the Mercedes-Benz as an innocent bystander, having no significant involvement in the criminal enterprise, and suffering unjustly as a victim of the severe consequences entailed by a traditional legal doctrine. This is particularly true when it is noted that Rogers was himself duly arrested pursuant to a warrant on August 30, 1978, and a routine inventory search incident to his arrest 4 disclosed the presence of cocaine and marihuana in the Mercedes-Benz. This constitutes a separate and independent ground for sustaining the forfeiture. Cooper v. California, 386 U.S. 58, 61-62, 87 S.Ct. 788, 790-791, 17 L.Ed.2d 730 (1967); Chimel v. California, 395 U.S. 752, 763, 89 S.Ct. 2034, 2040, 23 L.Ed.2d 685 (1969); South Dakota v. Opperman, 428 U.S. 364, 369-76, 96 S.Ct. 3092, 3097-3100, 49 L.Ed.2d 1000 (1976).

Hence Rogers cannot be regarded as an innocent victim of a harsh rule of law. He himself was substantially involved in drug traffic. It would be difficult to believe that on three occasions he had no knowledge of the use of his vehicle to facilitate narcotics transactions.

It is reasonable to conclude, as the District Court did, that on the occasions when Heflin traveled in the car (on the first occasion in company with Rogers) to effect sales to Agent Stacy, Heflin carried the drugs on his person while en route to the lounges where the sales took place. The time was short, on both occasions, between his leaving the car to enter the lounge, and

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his return after completion of the sale. It is true that the agents did not search him before he entered the lounge, or keep him constantly in sight while he was in transit from the car to the lounge, and back to the car. But it is highly improbable that he twice obtained drugs from anyone other than his acknowledged source during those brief interludes. Moreover, when the car was searched incident to the arrest of Rogers, drugs were found in the car, even if one accepts the hypothesis that no drugs were transported in the car during Heflin's trips to meet Stacy. In any event the Mercedes-Benz was used to "facilitate" drug dealings.

Thus there is sufficient evidence from which a jury might reasonably find that a forfeiture occurred, especially when it is remembered that in such a civil proceeding in rem the claimant has the burden of proof. 5 Unfortunately, however, the District Court did not impanel a jury to pass upon the facts in the case at bar, although timely demand for jury trial was made by the owner of the vehicle. And although this seems to be a case of first impression with respect to such a demand, and we have been able to find no cases precisely in point (perhaps because forfeiture is usually sought simultaneously with criminal prosecution and is not contested because the evidence of guilt is clear), we are constrained to conclude, after careful consideration of relevant authorities, that in a forfeiture proceeding such as this the owner of the vehicle is entitled to the right to trial by jury.

The Seventh Amendment, upon which any constitutional right to jury trial in civil cases depends, 6 provides:

In suits at common law, where the value in controversy shall exceed twenty dollars, 7 the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law. (Italics supplied)

It should be noted that the Seventh Amendment created no new right to jury trial but merely preserves the right to jury trial in cases where it was enjoyed under pre-existing law. 8

This proposition, self-evident from the wording of the Amendment, has been recognized from the beginning in Supreme Court decisions. Perhaps the earliest discussion of the constitutional language was that of the celebrated Justice Joseph Story, sitting in the old Circuit Court for the District of Massachusetts, in U. S. v. Wonson, Fed.Cas.No. 16,750, 1 Gall. 5 (1812): "Beyond all question, the common law here alluded to is not the common law of any individual state, (for it probably differs in all), but it is the common law of England, the grand reservoir of all our jurisprudence." (28 Fed.Cas. at 750, 1 Gall. 5) The same eminent jurist declared in Parsons v. Bedford, 3 Pet. 433, 446-47, 7 L.Ed. 732 (1830): "The trial by jury is justly dear to the American people. . . . The phrase 'common law', found in this clause, is used in contradistinction to equity, and admiralty and maritime jurisprudence." Suits "at common law" were "suits in which legal rights were to be ascertained and determined, in contradistinction to those where equitable rights alone were recognised, and

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equitable remedies were administered; or where, as in the admiralty, a mixture of public law, and of maritime law and equity, was often found in the same suit. . . . In a just sense, the amendment then may well be construed to embrace all suits, which are not of equity and admiralty jurisdiction, whatever may be the peculiar form which they may assume to settle legal rights."

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