Bramble v. Kleindienst, C-4549.

CourtUnited States District Courts. 10th Circuit. United States District Court of Colorado
Citation357 F. Supp. 1028
Docket NumberNo. C-4549.,C-4549.
PartiesArthur 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.
Decision Date02 April 1973

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

James L. Treece, U. S. Atty., Paul D. Cooper, Asst. U. S. Atty., Pepe J. Mendez, Special Asst. U. S. Atty., Denver, Colo., for defendants.


WINNER, District Judge.

This is an action for temporary injunction, declaratory judgment, permanent injunction and damages. Plaintiff has alleged jurisdiction pursuant to the provisions of 28 U.S.C. § 1343(4); 28 U.S.C. § 1346(a)(2); United States Constitution, Article I, Sec. 9, Cl. 3; United States Constitution, Amendments Five and Eight; 28 U.S.C. § 2201; Rules 57 and 65, F.R.Civ.P. The Court notes jurisdiction under 28 U.S.C. § 1346(a)(2). A three-judge court was convened, a hearing held and the panel dissolved for want of a substantial federal question, 357 F.Supp. 1025. The case is now ready for the disposition of the various pending motions.

Considering this case in the light most favorable to the plaintiff, we accept the facts stated in his Second Amended Complaint as supplemented by his Memorandum in Response. On or about the 6th day of April, 1972, the plaintiff, Bramble was arrested by law enforcement officials of the State of Colorado and the City of Boulder, and charged pursuant to the narcotics laws of the State of Colorado with possessing for sale a certain narcotic drug, namely marijuana. On the date of his arrest, agents of the defendant Attorney General, and of the defendant, Director of the Bureau of Narcotics and Dangerous Drugs, seized a certain 1969 Volkswagen automobile, Motor Number 45760000, Serial Number XXXXXXXXX, said 1969 Volkswagen automobile belonging to the plaintiff herein, on the grounds that said Volkswagen automobile had been used in violation of 21 U.S.C. § 881. On or about July 1, 1972, approximately three months after the state arrest, the plaintiff was arrested pursuant to a federal indictment charging him with illegal importation of marijuana and possession with intent to distribute marijuana. At that time, the plaintiff's car had been in federal custody approximately three months. Subsequently the charge of illegal importation was dismissed by the United States Attorney in consideration for the plaintiff's pleading guilty to possession of marijuana. The federal charges were not connected with the state charges which led to the forfeiture of the plaintiff's automobile.

The District Attorney in and for 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. If the plaintiff successfully completes the one year probationary period, the state's charges will be dismissed.

Subsequent to the seizure of the above described 1969 Volkswagen, the plaintiff petitioned the defendant, 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), but that petition was denied as was a subsequent petition for reconsideration. Therefore, the plaintiff alleges that he has exhausted all his administrative remedies as prescribed by 21 C.F.R. §§ 316.71 through 316.81, and 29 C.F.R. §§ 9.1 through 9.7. Plaintiff claims three constitutional infirmities: a taking without just compensation in violation of the Fifth Amendment; cruel and unusual punishment in violation of the Eighth Amendment; and a Bill of Attainder in violation of Article I, Sec. 9, Clause 3 of the United States Constitution.

The defendants have submitted several motions supported by a single combined memorandum. The pertinent motions are the motion to dismiss and the motion for summary judgment. Basically, the issues presented are whether the plaintiff has failed to exhaust his administrative remedies and whether the Court has jurisdiction. In addition, the motion raises the question concerning the plaintiff's right to avail himself of his constitutional privilege against self-incrimination while prosecuting this lawsuit.

The crux of this action is the forfeiture of the plaintiff's automobile, and all arguments alleging violations of his constitutional rights ground on this same rock. The operation of this law may be harsh. For this reason forfeitures are not favored; they should be enforced only when within both the letter and the spirit of the law. Farmer's & M. National Bank v. Dearing, 91 U.S. 29, 33-35, 23 L.Ed. 196; United States v. One Ford Coach, 307 U.S. 219, 226, 59 S.Ct. 861, 83 L.Ed. 1249 (1938). To say that forfeitures are not favored is not to say that they are not valid. On the contrary, forfeitures have quite an historical background. "It is well established in American jurisprudence,2 however, that absent a contrary legislative expression3 personal property may be seized and statutorily forfeited without payment of any compensation even though its owner may not have engaged in any conduct which may be characterized criminal or wilfully negligent. Various Items of Personal Property v. United States, 282 U.S. 577, 581, 51 S.Ct. 282, 75 L.Ed. 558 (1931); United States v. One Ford Coupe Automobile, 272 U.S. 321, 47 S.Ct. 154, 71 L.Ed. 279 (1926); Goldsmith Jr.-Grant Co. v. United States, 254 U.S. 505, 41 S.Ct. 189, 65 L.Ed. 376 (1921); Dobbins' Distillery v. United States, 96 U.S. 395, 24 L.Ed. 637 (1877); Henderson's Distilled Spirits, 14 Wallace (81 U.S.) 44, 20 L.Ed. 815 (1871); Palmyra, 12 Wheat. (25 U.S.) 1, 6 L.Ed. 531 (1827);" McKeehan v. United States, 438 F.2d 739, 742 (6th Cir. 1971).

2. "For a summary of civil forfeiture under the laws of the Germanic tribes, Rome, Greece and England, see Oliver W. Holmes, The Common Law ed. Mark DeWolfe Howe (Cambridge, Mass. 1963) at 2-12.

"In England, common law forfeiture resulted from a conviction and judgment for treason, misprison of treason, praemunire, drawing a weapon on a judge, papish recusancy and in many cases a felony. Lands were forfeited at attainder but transfer of the title related back to the time of the offense thereby defeating intermediate purchasers. Chattels and goods were forfeited at the time of conviction and there was no relation back to the time of the offense. Sir William Blackstone, Commentaries on the Laws of England, ed. Thomas M. Cooley, 4th Ed. James DeWitt Andrews (Chicago, 1899), b. ii at 267, 421; b. iv at 381, 387. See Thomas Mitchell, The Development of the Law of Forfeiture in the United States (New Haven, 1969). This common law doctrine, however, was not cognizable "on the revenue side of the exchequer." The Palmyra, 12 Wheaton (& US) 1 6 L.Ed. 531 (1827).

In Japan, under some circumstances an innocent owner or purchaser of forfeitable goods is given a judicial remedy, Japanese Customs Law (Law #61 of 4/2/54), Article 118(1), rather than the nonjudicially reviewable administrative remedy given to an innocent owner or purchaser in the United States, 19 U.S.C. § 1618 (1964), United States v. One 1961 Cadillac, 337 F.2d 730 (6th Cir. 1964). See Mitchell, supra, at 13-14."

3. "For example, in order to work a forfeiture under certain statutes relating to the preservation of game, the owner of the seized goods must be criminally convicted of violating certain provisions of the Conservation Code, 16 U.S.C. § 171 (1964). Also see 49 U.S.C. § 782 (1964) which protects certain innocent owners from statutory forfeitures of their motor vehicles. A similar section, § 204(b), of the Liquor Law Repeal and Enforcement Act of 1935 provides for judicially supervised remission of forfeitures where the claimant acted in good faith and there is no showing of wilful negligence. Also as noted above, Congress created a discretionary administrative power to remit forfeitures, 26 U.S.C. § 7327, 19 U.S.C. § 1618 (1964). The exercise of the administrator's discretion, however, is not subject to judicial review. United States v. One 1961 Cadillac, 337 F.2d 730 (6th Cir. 1964)."

The Sixth Circuit Court of Appeals cited the above rule then went on to note four features in the McKeehan case which distinguished it from the above cited precedents. The grounds included inadequacy of notice, lawfulness of purpose of possession, the lack of any declared legislative policy that forfeiture would aid in enforcing the criminal laws or make the instrumentalities of crime more difficult or costly to obtain, and the lack of any sound administrative or revenue purpose. The Court specifically premised its conclusion on the above stated features saying: "Based on these facts, we find the imposition of forfeiture on the Appellant is penal and causes an unconstitutional deprivation of personal property `without just compensation.' Fifth Amendment, United States Constitution." The McKeehan decision was closely followed chronologically by a United States Supreme Court decision entitled United States v. U. S. Coin & Currency, 401 U.S. 715, 91 S.Ct. 1041, 28 L.Ed.2d 434 (1971). Mr. Justice Harlan writing for the majority said:

". . . we would first have to be satisfied that a forfeiture statute, with such a broad sweep, did not raise serious constitutional questions under that portion of the Fifth Amendment which commands that no person shall be `deprived of . . . property, without due process of law; nor shall private property be taken for public use, without just compensation.' Even Blackstone, who is not known as a biting critic of the English legal tradition condemned the seizure of the property of the innocent as based upon a `superstition' inherited from the `blind days' of feudalism.
And this Court in the past has recognized the

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