702 F.2d 1276 (9th Cir. 1983), 81-4630, United States v. One 56-Foot Yacht Named Tahuna

Docket Nº:81-4630.
Citation:702 F.2d 1276
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. ONE 56-FOOT MOTOR YACHT NAMED the TAHUNA, Defendant-Appellant, and New Approach, Inc., Claimant-Appellant.
Case Date:March 02, 1983
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 1276

702 F.2d 1276 (9th Cir. 1983)

UNITED STATES of America, Plaintiff-Appellee,

v.

ONE 56-FOOT MOTOR YACHT NAMED the TAHUNA, Defendant-Appellant,

and

New Approach, Inc., Claimant-Appellant.

No. 81-4630.

United States Court of Appeals, Ninth Circuit

March 2, 1983

Argued and Submitted Aug. 13, 1982.

As Amended June 16, 1983.

Page 1277

[Copyrighted Material Omitted]

Page 1278

Bernard L. Segal, San Francisco, Cal., for claimant-appellant.

Joseph Burton, Dennis M. Nerney, Asst. U.S. Attys., San Francisco, Cal., for plaintiff-appellee.

Page 1279

Appeal from the United States District Court for the Northern District of California.

Before KASHIWA, [*] WALLACE, and ANDERSON, Circuit Judges.

WALLACE, Circuit Judge:

New Approach, Inc. (New Approach) purchased a fifty-six-foot pleasure yacht, the Tahuna. It was seized by the government due to alleged clandestine activity occurring prior to the purchase by New Approach. New Approach appeals from a summary judgment of forfeiture entered pursuant to 21 U.S.C. Secs. 841(a), 881, and 952. We affirm.

I

We first dispose of the government's contention that New Approach lacks standing as a claimant to contest the forfeiture of the vessel. The government has conceded, for purposes of its motion for summary judgment, that New Approach was a bona fide purchaser. 1 The government asserts, however, that New Approach lacks standing because under the forfeiture laws of the United States, the government's right to forfeiture of the vessel vested at the moment the yacht was used to transport contraband. New Approach, therefore, acquired no legal interest in the yacht when it attempted to purchase it several months later and thus cannot contest its forfeiture to the United States.

The government's argument, while superficially appealing, is based on the very conclusion the forfeiture proceeding is designed to reach. Assuming that the forfeiture of a vessel relates back to the moment of commission of the illegal act "and avoids all intermediate sales and alienations, even as to purchasers in good faith," Simons v. United States, 541 F.2d 1351, 1352 (9th Cir.1976), citing United States v. Stowell, 133 U.S. 1, 10 S.Ct. 244, 33 L.Ed. 555 (1890), it does not follow that a subsequent purchaser lacks standing to challenge the forfeiture. The government's legal title is not established until after it has complied with the forfeiture procedures mandated by statute. United States v. Stowell, supra, 133 U.S. at 16-17, 10 S.Ct. at 247; Ivers v. United States, 581 F.2d 1362, 1367 (9th Cir.1978). Therefore, we hold that the owner of a vehicle allegedly used to transport contraband has standing to contest the forfeiture. See United States v. Fifteen Thousand Five Hundred Dollars United States Currency, 558 F.2d 1359, 1360 (9th Cir.1977) ("[O]ne who contests a forfeiture must be a claimant. A 'claimant' is one who claims to own the article or merchandise or to have an interest therein."); see also United States v. One 1945 Douglas C-54 (DC 4) Aircraft, 604 F.2d 27 (8th Cir.1979), cert. denied, 454 U.S. 1143, 102 S.Ct. 1002, 71 L.Ed.2d 294 (1982).

II

We take the facts of this case from documents filed by the government in support of its request that the Tahuna be seized. On November 16, 1978, the Royal Canadian Mounted Police (R.C.M.P.) searched the vessel Euphoric upon its arrival in Victoria, British Columbia. The police discovered twelve marijuana Thai sticks and took into custody the vessel's crew. Russell, the mate aboard the Euphoric, stated that he had been hired to transport approximately 7,000 pounds of marijuana from Thailand to a point about 250 miles west of San Francisco, where he transferred the marijuana to the vessel Tahuna in early November, 1978. Russell further stated that there were four people aboard the Tahuna, two of whom he knew by the names of Danny and John. After this transfer of marijuana at sea, Russell observed the Tahuna sail towards San Francisco.

Page 1280

The Euphoric cook, Suan Kui Tan, presented a diary in response to a request that he bring his personal possessions to the police station. The diary stated on a page preprinted "October 23, 1978" that the Euphoric met the Tahuna 250 miles west of San Francisco and that the Tahuna was crewed by "Gordon, Ray, John, and Capt. Danny." The diary also stated on two pages preprinted "November 2 and 3, 1978" that the Tahuna returned to the rendezvous point and that the "cargo" was transferred to it.

On December 4, 1978, Drug Enforcement Administration (DEA) agent Petrotta interviewed Sergeant Parrick of the Richmond, California police department. Parrick stated that he observed the vessel Tahuna at the Blue Bahia Marina in Richmond on or about November 1, 1978, observed it missing from the dock on November 2 and 3, and next observed it at that location on or about November 4, 5, or 6.

On June 21, 1979, Petrotta interviewed Pell, president of the Blue Bahia Boatworks, where the Tahuna was docked between October, 1978, and March, 1979. Based on a review of his business records and the amount of rent paid for the month of October, Pell estimated that the Tahuna first arrived at his boatworks on or near October 20, 1978. Pell further stated that during the first three weeks of the vessel's presence there, it left once for a period of five to six days.

On June 11, 1979, Petrotta observed the Tahuna docked at Edgewater Yacht Sales in Sausalito, California. Identifying himself as a potential purchaser, Petrotta was taken aboard by a salesman, who showed him the vessel. While in the cargo hold, Petrotta found ten to fifteen seeds on the floor. Suspecting they were marijuana seeds, he seized six of them. Petrotta took the seeds to Chan, a DEA chemist, who stated that they resembled marijuana but that he could not give a certain identification. An attempt to obtain positive identification by germinating one of the seeds failed when the sprouted seedling died.

Petrotta prepared an affidavit of probable cause and presented it to a United States magistrate, requesting that a seizure warrant be issued. The affidavit relied on the following information: (1) the statements of Russell relating the transfer of marijuana between the Euphoric and the Tahuna in early November, 1978; (2) the entries from Tan's diary relating to the preliminary meeting at sea and the second meeting and transfer of cargo from the Euphoric to the Tahuna on November 2 and 3, 1978; (3) the statements of Pell and Parrick corroborating the movement of the Tahuna in early November; and (4) Petrotta's seizure of the six suspected marijuana seeds from the floor of the Tahuna's cargo hold and the subsequent statement of DEA chemist Chan that they resembled marijuana. Based on Petrotta's affidavit, the magistrate issued a warrant of seizure. The yacht was seized on June 29, 1979.

The government initiated forfeiture proceedings against the Tahuna on July 2, 1979 by filing a complaint in the United States District Court. New Approach eventually came forward as a claimant and alleged ownership of the vessel. After lengthy pretrial proceedings, the United States moved for summary judgment, filing in support thereof the same affidavit upon which the magistrate had relied in issuing the seizure warrant. Four months later, after both parties had filed numerous memoranda and declarations, the district court granted the government's motion for summary judgment and entered judgment of forfeiture against the Tahuna. New Approach filed a timely notice of appeal. We have jurisdiction to hear the appeal pursuant to 28 U.S.C. Sec. 1291.

III

The entry of a summary judgment raises a freely reviewable question of law. La Riviere v. EEOC, 682 F.2d 1275, 1277-78 (9th Cir.1982). A summary judgment is proper only when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Gaines v. Haughton, 645 F.2d 761, 769 (9th Cir.1981), cert. denied, 454 U.S. 1145,

Page 1281

102 S.Ct. 1006, 71 L.Ed.2d 297 (1982). Although we evaluate every summary judgment by viewing the evidence and the inferences therefrom in the light most favorable to the party opposing the motion, 645 F.2d at 769, the "[s]ummary judgment procedures under Rule 56, Fed.R.Civ.P., must necessarily be construed in the light of the statutory law of forfeitures, and particularly the procedural requirements set forth therein. Those procedures themselves are quite summary, especially when compared to normal civil actions." United States v. One 1975 Mercedes 280S, 590 F.2d 196, 199 (6th Cir.1978) (per curiam).

The forfeiture proceeding was instituted pursuant to 21 U.S.C. Sec. 881 and 49 U.S.C. Secs. 781 and 782, which empower the government to forfeit vehicles used to import controlled substances such as marijuana. By virtue of 21 U.S.C. Sec. 881(d) and 49 U.S.C. Sec. 784, the burden of proof in this action is controlled by 19 U.S.C. Sec. 1615, which provides in part that "[i]n all suits or actions ... brought for the forfeiture of any vessel ... where the property is claimed by any person, the burden of proof shall lie upon such claimant; ... Provided, That probable cause shall be first shown for the institution of such suit or action ...." 2 We explained the plain meaning of section 1615, as applied to the statutory law of forfeitures, in United States v. One Twin Engine Beech Airplane, 533 F.2d 1106 (9th Cir.1976) (per curiam):

Unlike most civil and criminal proceedings, the burden of proof is on the "accused" owner or possessor, provided that the government first make a preliminary showing of probable cause to believe that the vehicle was used in the smuggling operation.

Id. at 1107.

It is apparent from section 1615 that a claimant in a forfeiture proceeding may defend against forfeiture of its property in either or both of two ways: first, it may refute the government's showing of probable...

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