U.S. v. 1966 Beechcraft Aircraft Model King Air A90 Cream with Burg & Gold Stripes SN:LJ-129, FAA REG:-333GG, Equipt

• Decision Date: 27 November 1985
• Docket Number: FAA,LJ-129,Nos. 84-1944,D,N-7436,EQUIP,s. 84-1944
• Citation: 777 F.2d 947
• Parties: UNITED STATES of America, Appellee, v. 1966 BEECHCRAFT AIRCRAFT MODEL KING AIR A90 CREAM WITH BURG & GOLD STRIPES SN:REG:-333GG, EQUIPT, Defendant, and Total Time Aircraft, Inc., Appellant. UNITED STATES of America, Appellee, v. 1969 AEROSTAR AIRCRAFT MODEL 601, WHITE WITH RED STRIPES, SN:61-0021, FAA REG:efendant, and Sundance Air, Inc., a Florida Corporation, Appellant, and John Gerald Gerant, President of said Corporation, Defendant. (L), 84-1945.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 947

777 F.2d 947

3 Fed.R.Serv.3d 596

UNITED STATES of America, Appellee, v. 1966 BEECHCRAFT AIRCRAFT MODEL KING AIR A90 CREAM WITH BURG

& GOLD STRIPES SN:LJ-129, FAA REG:-333GG, EQUIPT, Defendant,

and

Total Time Aircraft, Inc., Appellant.

UNITED STATES of America, Appellee, v. 1969 AEROSTAR AIRCRAFT MODEL 601, WHITE WITH RED STRIPES, SN:61-0021, FAA REG:N-7436S, EQUIPT, Defendant, and Sundance Air, Inc., a Florida Corporation, Appellant,

and

John Gerald Gerant, President of said Corporation, Defendant.

Nos. 84-1944(L), 84-1945.

United States Court of Appeals Fourth Circuit.

Argued April 4, 1985.

Decided Nov. 27, 1985.

Thomas F. Luken, Fort Lauderdale, Fla., for appellants.

John B. Grimball, Asst. U.S. Atty. (Henry Dargan McMaster, U.S. Atty., Columbia, S.C., on brief), for appellee.

Before MURNAGHAN, ERVIN and WILKINSON, Circuit Judges.

ERVIN, Circuit Judge:

Total Time Aircraft, Inc. ("Total Time") and Sundance Air, Inc. ("Sundance") seek the reversal of a district court's order of forfeiture of two of their aircraft under 21 U.S.C. Sec. 881 (1982). Total Time, the operator of an airplane repair facility at the Fort Lauderdale-Hollywood International Airport in South Florida, is the owner of a 1966 Beechcraft airplane. Sundance, also a Florida corporation, is the owner of a 1969 Aerostar airplane. Because the district court found that these two airplanes were used to facilitate the transportation and sale of ten kilograms of cocaine in South Carolina in March, 1983, it ordered the forfeiture of the appellants' aircraft. Total Time and Sundance now appeal, asserting that (1) their right to a jury trial was improperly denied, (2) their property was not properly forfeitable under 21 U.S.C. Sec. 881, and (3) insufficient evidence was adduced at trial upon which to base the forfeiture of their aircraft. We affirm the judgments of the district court.

I.

Sometime shortly prior to February 25, 1983, a Drug Enforcement Administration ("DEA") informant in Greenville, South Carolina contacted DEA Special Agent Anthony Duarte concerning the possibility of a large cocaine sale in the area. The informant advised Duarte that he could arrange for a buy of ten kilograms of cocaine. Duarte instructed the informant to negotiate the buy and launched a large-scale DEA surveillance operation. The informant then arranged a deal with Joe Brown and Boyd Montgomery in Greenville to buy ten kilograms of cocaine, not less than 70% pure, for $500,000.00. However, before Brown and Montgomery would agree to the sale, they demanded that the informant prove he had sufficient funds with which to purchase the cocaine. Therefore, on February 25, 1983, undercover DEA Special Agents Dewey Gregory and Charles Schaming met Brown in a Columbia, South Carolina airport parking lot and showed him a duffle bag containing $500,000.00 in $20.00 bills.

Now convinced that the informant had enough money to buy the cocaine, Brown and Montgomery agreed to carry out the sale. On February 27, 1983, Montgomery left for Fort Lauderdale, Florida from Greenville to arrange for the cocaine purchase. He arrived on February 28. Later that same day, Montgomery met with Charles William Coddington, John Gerald Gerant and David Hampton Butler at Coddington's house in Fort Lauderdale. At that meeting, Coddington told Montgomery that Gerant and Butler were the actual cocaine suppliers in this deal while he was merely a middleman. Despite reservations about having to fly to South Carolina, Butler, Gerant and Coddington agreed to take part in the transaction.

The following day, March 1, 1983, Gerant delivered ten kilograms of cocaine to Coddington's house. At that time, Montgomery weighed the cocaine, checked its purity and placed it in a brown Samsonite suitcase. He then left the suitcase and the cocaine with Butler, Gerant and Coddington and departed.

The next day, March 2, 1983, Montgomery flew on a commercial airplane back to Greenville. Upon his arrival, Montgomery met with Brown and the informant to prepare for the actual exchange scheduled for later that day in Greenville. Meanwhile, during this same time, Gerant piloted a 1966 Beechcraft airplane from Fort Lauderdale to the Greenville-Spartanburg airport. Coddington flew with him in the plane. Circumstantial evidence also indicated that the Beechcraft carried the Samsonite suitcase containing the ten kilograms of cocaine. On the same afternoon, Butler flew a 1969 Aerostar airplane from Fort Lauderdale to the Greenville downtown airport. Irving Hanna flew with him as his passenger.

Upon their arrival at the Greenville airports, Gerant, Coddington, Butler and Hanna rented two cars and rendezvoused as agreed at a Howard Johnson's Motor Inn in Greenville. At 7:00 p.m., Montgomery and the informant joined the four others at the Howard Johnson's. About an hour later, law enforcement officers arrested Gerant and Hanna as they drove away from the Motor Inn in a blue Cadillac. The officers searched the Cadillac pursuant to a search warrant, discovering the brown Samsonite suitcase containing ten kilograms of cocaine in the trunk.

Following these arrests and the seizure of the cocaine, officers moved to arrest Montgomery, Butler and Coddington at the Howard Johnson's. They entered the two rooms rented by the men and arrested Butler and Montgomery. Coddington escaped out a back door and remains a fugitive. A search of the two motel rooms uncovered a high speed electric money counter, a microscope, a .38 caliber revolver, a semi-automatic pistol owned by Butler, $4,960.00 in cash, and a marijuana cigarette found in one of Gerant's coats. In addition, a search of the Beechcraft airplane revealed documents indicating that Gerant and Butler were together aboard the plane in the Bahamas three months before, on December 16, 1982. After concluding that the Beechcraft and the Aerostar were both used to facilitate this drug transaction, law enforcement officers seized the two airplanes under the authority granted by 21 U.S.C. Sec. 881(b)(4). ¹

Subsequently, the government initiated forfeiture proceedings against Total Time Aircraft, the owner of the Beechcraft, and Sundance Air, the owner of the Aerostar, in federal district court pursuant to 21 U.S.C. Sec. 881(d). The consolidated cases were tried by the district court without a jury on February 16, 1984. On June 13, 1984, the district court ruled that both aircraft were subject to forfeiture under 21 U.S.C. Sec. 881(a)(4). ²

Sundance Air is a Florida corporation wholly owned by its president and vice-president, John G. Gerant. Gerant's wife is the corporation's secretary-treasurer. The corporation's charter states that its corporate purpose is to lease aircraft and fly charters. However, the district court concluded that by transporting two of the drug conspirators Gerant "was utilizing the corporation's airplane as a part of an illegal scheme to facilitate the sale of cocaine." (JA 7-10). It found that "the Aerostar was used or was intended to be used to facilitate the sale, transportation, possession or concealment of cocaine and that the corporation ... had knowledge of this, by and through its president and owner." (JA 7-10, 11). As a result, the district court ordered the forfeiture of the Aerostar pursuant to subsection 881(a)(4).

Total Time Aircraft, Inc. is also a Florida corporation. It operates an airplane repair facility at the Fort Lauderdale-Hollywood International Airport. Total Time is owned 50% by David Seeright and 50% by his father, Virgil Seeright. David Seeright is the corporate president, Virgil Seeright the secretary-treasurer. David Seeright is a mechanic and is entrusted with the day-to-day operations of the corporation. Virgil Seeright is primarily an investor in the corporation and has no day-to-day responsibilities.

Total Time received title to the Beechcraft airplane involved in this case on September 28, 1982 from Mile High, Inc., a corporation owned and operated by Gerant, in exchange for the cancellation of a bill of $25,503.38 for work done by Total Time on the airplane. On several occasions thereafter, David Seeright permitted Gerant to use the Beechcraft. In particular, Seeright permitted Gerant to use the Beechcraft to fly Coddington to Greenville on March 2, 1983. The district court found that the Beechcraft also transported the ten kilograms of cocaine on this trip. Consequently, the district court concluded that because the Beechcraft had been used to transport two cocaine conspirators as well as the load of cocaine, it had been used to "facilitate the sale, transportation, possession or concealment of cocaine" in violation of 21 U.S.C. Sec. 881(a)(4).

In addition, the district court found that, with respect to the Greenville trip,

[David] Seeright did not ask about the purpose of the trip, or what cargo would be carried, required no signed contract, had no clear understanding as to when the plane would be returned, and received no money for its use. (Gerant was supposedly to pay $300.00 per hour but never has.) There was no flight plan filed and there was no insurance on the plane. In sum, the use of the plane by Gerant was handled in a most casual unbusinesslike manner by Total Time.

(JA 7-11, 12). Because the district court concluded that "Total Time did nothing to insure against the illegal use of its plane," (JA 7-12), it found that Total Time was not an "innocent owner" under the Supreme Court's decision in Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 94 S.Ct. 2080, 40 L.Ed.2d 452 (1974). As a result, the district court ordered the forfeiture of the Beechcraft to the United States.

Total Time and Sundance appeal these orders of forfeiture, asserting that (1) they were improperly denied a jury trial, (2) the airplanes do not constitute forfeitable property, and (3) insufficient evidence was introduced to support the order of forfeiture. We will address each of the appellants' arguments in turn.

II.

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