Bramble v. Kleindienst

• Decision Date: 30 March 1973
• Docket Number: Civ. A. No. C-4549.
• Citation: 357 F. Supp. 1025
• Parties: Arthur T. BRAMBLE, Plaintiff, v. Richard KLEINDIENST, Attorney General of the United States of America, and John E. Ingersoll, Director of the Bureau of Narcotics and Dangerous Drugs, an Agency of the Department of Justice of the United States of America, Defendants.
• Court: U.S. District Court — District of Colorado

357 F. Supp. 1025

Arthur T. BRAMBLE, Plaintiff, v. Richard KLEINDIENST, Attorney General of the United States of America, and John E. Ingersoll, Director of the Bureau of Narcotics and Dangerous Drugs, an Agency of the Department of Justice of the United States of America, Defendants.

Civ. A. No. C-4549.

United States District Court, D. Colorado.

March 30, 1973.

Blewitt, Bisbee & Geil by John H. Bisbee, Boulder, Colo., for plaintiff.

James L. Treece, U. S. Atty., and Pepe J. Mendez, Sp. Asst. U. S. Atty., Denver, Colo., for defendants.

Before DOYLE, Circuit Judge, and WINNER and FINESILVER, District Judges.

PER CURIAM.

In his complaint plaintiff seeks a declaratory judgment that the statutory scheme here involved¹, which authorizes summary seizure of property used in violation of the law and under which his automobile was seized, is unconstitutional on its face. He further seeks injunctive relief. The sole issue which the plaintiff argued at the trial was the constitutionality of the statute on its face.

On the motion of plaintiff, a three-judge court was convened pursuant to 28 U.S.C. § 2284. A hearing has been held, and the three-judge panel is of the opinion that the federal question here posed as a basis for the three-judge court is insubstantial; that the case is not properly cognizable by a three-judge court; and that the three-judge panel should be dissolved and the matter referred to Judge Winner, the District Judge to whom the case was first assigned for disposition.

On April 6, 1972, the plaintiff was arrested by officers of the State of Colorado and the City of Boulder on a charge of possessing for sale a narcotic drug, marijuana. On the date of his arrest, federal agents of the Bureau of Narcotics and Dangerous Drugs seized plaintiff's 1969 Volkswagen automobile, Motor Number 45760000, Serial Number XXXXXXXXX, on the grounds that the automobile had been used in violation of 21 U.S.C. § 881.² However, plaintiff was not prosecuted. The District Attorney of the Twentieth Judicial District of the State of Colorado deferred the plaintiff's prosecution for a period of one year running to August 17, 1973. The condition is that if the plaintiff successfully completes the one year probationary period, the state's charges will be dismissed.

Under 19 U.S.C. § 1618, the plaintiff pursued a statutory remedy in an attempt to regain possession of his automobile. He petitioned the Attorney General of the United States through his appointed agent, the Director of the Bureau of Narcotics and Dangerous Drugs, for remission and mitigation of the forfeiture perfected pursuant to 21 U.S.C. § 881(b)(4). This petition was denied as was a subsequent petition for reconsideration.

The plaintiff was relegated to his petition for remission and mitigation as a result of his bypass of other statutory remedies. 19 U.S.C. § 1607 authorizes the customs officer to initiate an administrative procedure to summarily forfeit a vehicle the value of which is less than $2,500. Plaintiff's statutory remedy (which he waived) allowing him to contest the forfeiture is set forth in 19 U.S.C. § 1608:

Any person claiming such . . . vehicle . . . may at any time within twenty days from the date of the first publication of the notice of seizure file with the appropriate customs officer a claim stating his interest therein. Upon the filing of such claim, and the giving of a bond to the United States in the penal sum of $250, with sureties to be approved by such customs officer, conditioned that in case of condemnation of the articles so claimed the obligor shall pay all the costs and expenses of the proceedings to obtain such condemnation, such customs officer shall transmit such claim and bond, with a duplicate list and description of the articles seized, to the United States attorney for the district in which seizure was made, who shall proceed to a condemnation of the merchandise or other property in the manner prescribed by law.

If the bond is posted, the summary forfeiture proceeding is halted. The case is then reported to the United States Attorney who is required to institute a judicial forfeiture proceeding.³ As noted, plaintiff did not pursue this remedy which would have given him a judicial hearing. The reason that he eschewed it, according to his argument in open court, is that he did not dispute that the officers had probable cause to believe the property had been used in violation of the federal narcotics laws. Thus, he argues that the only avenue open to him was the present broadside attack on the constitutionality of the statute itself. We disagree with this analysis because the general rule is that an acquittal in the criminal case that is the basis for the forfeiture bars the forfeiture, and

it has been held that the same effect

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