Doherty v. United States

• Decision Date: 19 July 1974
• Docket Number: No. 416-70.,416-70.
• Parties: Edwin James DOHERTY v. The UNITED STATES.
• Court: U.S. Claims Court

500 F.2d 540

Edwin James DOHERTY v. The UNITED STATES.

No. 416-70.

United States Court of Claims.

July 19, 1974.

Gary G. Quintiere, Washington, D.C., attorney of record for plaintiff. Miller & Chevalier, Washington, D.C., of counsel.

Leslie H. Wiesenfelder, Washington, D. C., with whom was Acting Asst. Atty. Gen. Irving Jaffe, for defendant.

Before DAVIS, KASHIWA, and KUNZIG, Judges.

ON PLAINTIFF'S MOTION AND DEFENDANT'S CROSS-MOTION FOR SUMMARY JUDGMENT

DAVIS, Judge:

Plaintiff sues for just compensation for the alleged taking by federal law enforcement officers of his camper-bodied pick-up truck and personal belongings. The vehicle, with its contents, was declared forfeited to the United States because of its use in smuggling marijuana into this country from Mexico. The forfeiture is attacked as a deprivation of property invalid under the Fifth Amendment unless compensated, and the seizure of the vehicle and contents is also said to be illegal under the Fourth Amendment. There are cross-motions for summary judgment; the facts are undisputed and indisputable.

During the early morning hours of November 14, 1969, Immigration Inspector Hudson was keeping "still watch" over a border area suspected of being an entry point for illegal Mexican immigrants. His position was about one hundred to one hundred fifty yards from the border, one mile west of Jacumba, California, and adjacent to U.S. Highway 80. After several hours wait he observed a red Datsun camper approach from the east, pull onto a dirt road, and make a sharp U-turn. The engine was turned off, and the lights extinguished. Although his vision of the camper, about thirty yards distant, was obscured, he heard the sounds of doors opening and closing, the crackling of dry brush, and again the opening and closing of doors. He reported these events via radio to three other immigration inspectors stationed nearby.

The vehicle departed, heading east. It was very shortly intercepted and stopped by the other officers. A search of the inside of the camper, testified to be for illegal aliens, turned up two burlap sacks containing thirty kilograms of marijuana in brick form. Plaintiff Doherty, the truck's owner, and Willard Hansma were in the camper; they were arrested and turned over to a special agent of the Bureau of Customs, along with the seized vehicle and contraband. The same day or very soon thereafter the Customs Bureau effected a forfeiture of the camper and its contents under 19 U.S.C. § 1595a(a):

* * * every vessel, vehicle, animal, aircraft, or other thing used in, to aid in, or to facilitate, by obtaining information or in any other way, the importation, bringing in, unlading, landing, removal, concealing, harboring, or subsequent transportation of any article which is being or has been introduced, or attempted to be introduced, into the United States contrary to law, whether upon such vessel, vehicle, animal, aircraft, or other thing or otherwise, shall be seized and forfeited together with its tackle, apparel, furniture, harness, or equipment.

Doherty and Hansma were indicted on November 19th for violations of 21 U.S.C. § 176a and 18 U.S.C. § 545.¹ By a Customs Bureau letter of November 21st, the former received notice of the forfeiture and of his right to petition for remission from or mitigation of this penalty under 19 U.S.C. § 1618:

Whenever any person interested in any vessel, vehicle, merchandise, or baggage seized under the provisions of this chapter, or who has incurred, or is alleged to have incurred, any fine or penalty thereunder, files with the Secretary of the Treasury under the customs laws or under the navigation laws, before the sale of such vessel, vehicle, merchandise, or baggage a petition for the remission or mitigation of such fine, penalty, or forfeiture, the Secretary of the Treasury, if he finds that such fine, penalty, or forfeiture was incurred without willful negligence or without any intention on the part of the petitioner to defraud the revenue or to violate the law, or finds the existence of such mitigating circumstances as to justify the remission or mitigation of such fine, penalty, or forfeiture, may remit or mitigate the same upon such terms and conditions as he deems reasonable and just, or order discontinuance of any prosecution relating thereto. * * *

The letter informed Doherty that he could get immediate possession of the truck and its contents, without prejudice to his right to petition, by posting its appraised value, $1245.00.² He did so and the property was returned in January 1970. Although plaintiff claims that he made oral inquiries of various Government officials about return of the $1245.00, it is conceded that no mitigation or remission petition was filed within the sixty-day time limit (established by regulation, 19 C.F.R. § 171.12(b)) or thereafter.

Both Doherty and Hansma were tried and convicted in the Southern District of California on all counts of the indictment. Plaintiff's conviction was upheld on appeal, 441 F.2d 1168 (C.A. 9, 1971) cert. denied, 409 U.S. 888, 93 S.Ct. 194, 34 L.Ed.2d 145 (1972). He received a seven-and-one-half-year prison sentence which he is apparently serving.

The theory of this suit is that the forfeiture statute, 19 U.S.C. § 1595a(a), supra, is unconstitutional, both on its face and as applied to plaintiff, and therefore that the defendant must pay just compensation for taking the truck. We have jurisdiction because 28 U.S.C. § 1491 covers such monetary claims against the United States founded on the Constitution.

I

The Government's initial defense is that plaintiff's action is wholly barred by the failure to exhaust his administrative remedy. By his own admission, he never submitted, within the applicable time limit, a petition for remission or mitigation under 19 U.S.C. § 1618, supra. In the Government's view, the omission of that step precludes his attack on the forfeiture statute.

We hold, however, that the administrative procedure prescribed in 19 U.S.C. § 1618 is irrelevant here. The scope of the Secretary's discretion is explicitly described; he can reduce or set aside the forfeiture only if it was incurred "without willful negligence or without any intention on the part of the petitioner to defraud the revenue or to violate the law" or if there are "mitigating circumstances." But plaintiff's demand skirts around these conditions. In view of his criminal conviction, he does not, and cannot, contend that he was without willful negligence or fraudulent intent, nor does he point to circumstances in mitigation of his guilt. He says, rather, that the forfeiture provision is invalid even as to one who cannot properly obtain remission or mitigation under 19 U.S.C. § 1618. For that precise claim a petition to the Secretary would be useless since, as defendant concedes, the Secretary cannot consider challenges of this constitutional dimension under 19 U.S.C. § 1618.³ If follows that pursuit of the administrative remedy was unnecessary for the only claim plaintiff makes, and that that claim can now be maintained in court. Cf. Lichter v. United States, 334 U.S. 742, 68 S.Ct. 1294, 92 L.Ed. 1694 (1948).

Though plaintiff has this right he must also shoulder, as he does, the consequences of his election to forego administrative relief. Just as the Court in Lichter canvassed the validity of the Renegotiation Act by positing against those contractors the non-constitutional issues they could have, but did not, present to the Tax Court, so shall we have to assume that plaintiff cannot meet the conditions for remission or mitigation—that he did not act without willful negligence or intent to defraud the revenue or to violate the law, and that there were no mitigating circumstances.⁴ His constitutional attack on the forfeiture provision must be launched from that point of disadvantage.

II

On the constitutional question, the most recent forfeiture decision by the Supreme Court is the dispositive guide. Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 94 S.Ct. 2080, 40 L.Ed.2d 452 (1974). That opinion puts into focus the earlier ruling in United States v. United States Coin and Currency, 401 U.S. 715, 91 S.Ct. 1041, 28 L.Ed.2d 434 (1971), which plaintiff characterizes as radically transforming the law of forfeiture and on which he builds his argument.

Coin and Currency involved the forfeiture of money found in the possession of a man who was arrested for failing to register as a gambler and pay the gambling tax imposed by 26 U.S.C. §§ 4411, 4412 and 4901. Because the money was found to have been used in violation of those laws it was sought to be forfeited to the United States under 26 U.S.C. § 7302. The Court had previously held that, since gambling violated a great number of state and federal criminal statutes, the privilege against self-incrimination was a complete defense to a criminal prosecution for failure to observe the registration-payment scheme.⁵ The Coin and Currency decision expanded that defense to a forfeiture action based on transgression of the same criminal statutes.

The present plaintiff sees in Coin and Currency the broad holding that forfeitures tied to conduct which can violate the criminal law are always to be treated as criminal penalties, subject to all the constitutional limitations affecting such sanctions. He notes that the opinion stated (401 U.S. at 718, 91 S.Ct. at 1043):

From the relevant constitutional standpoint there is no difference between a man who "forfeits" $8,674 because he has used the money in illegal gambling activities and a man who pays a "criminal fine" of $8,674 as a result of the same course of conduct. In both instances, money liability is predicated upon a finding of the owner's wrongful conduct; in both cases, the Fifth Amendment applies with equal force.

The Government attempted in Coin and Currency to counter with the point that a forfeiture under 26 U.S.C. § 7302 can be effected without regard to...