Lee v. Thornton

• Decision Date: 25 July 1975
• Docket Number: 6762.,Civ. A. No. 6451
• Court: U.S. District Court — District of Vermont
• Parties: James P. LEE, Jr. v. William L. THORNTON, District Director of United States Customs for the District of Vermont, et al. Ronald RICH v. William L. THORNTON, District Director of the United States Customs for the District of Vermont, et al.

398 F. Supp. 970

James P. LEE, Jr. v. William L. THORNTON, District Director of United States Customs for the District of Vermont, et al.

Ronald RICH v. William L. THORNTON, District Director of the United States Customs for the District of Vermont, et al.

Civ. A. Nos. 6451, 6762.

United States District Court, D. Vermont.

July 25, 1975.

COPYRIGHT MATERIAL OMITTED

J. Morris Clark and James R. Flett, Vermont Legal Aid, Inc., Burlington, Vt., for plaintiffs.

William B. Gray, Asst. U. S. Atty., Rutland, Vt., and Rufus E. Stetson, Jr., Regional Counsel, Bureau of Customs, Boston, Mass., for defendants.

COFFRIN, District Judge.

This case involves certain seizure, penalty, and forfeiture provisions of the customs laws alleged to be unconstitutional for a variety of reasons. It was heard earlier by a court of three judges which decided the constitutional issues adversely to the plaintiff. See Lee v. Thornton, 370 F.Supp. 312 (D.Vt.1974). The plaintiffs appealed to the Supreme Court which held that it lacked jurisdiction to entertain the appeal because the three-judge court had been convened improperly since the Tucker Act, 28 U.S.C. § 1346(a)(2), the only jurisdictional ground relied upon, empowered the court below to give an award of damages and did not authorize injunctive or declaratory relief. Accordingly, the judgment of the three-judge court was vacated and the case remanded for consideration of plaintiffs' other asserted bases for jurisdiction. Lee v. Thornton, No. 73-7006, 420 U.S. 139, 95 S.Ct. 853, 43 L.Ed.2d 85 (1975). After consideration of other jurisdictional grounds and after inquiry into the continuing need for a three-judge court, the three-judge court was dissolved and we received the case for ultimate disposition.

I. FACTS

The facts were detailed in the earlier district court opinion, however, for ease of reference we summarize them again here.

Plaintiff Lee crossed the Canadian border into Vermont in his Volkswagen van carrying three other persons during the early morning hours of October 5, 1971. The entry station at Alburg Springs, Vermont, was closed during those hours, but signs directed travelers to the customs station in Swanton. When the van did not proceed to Swanton, Agent Peck of the Border Patrol who had observed the crossing followed the vehicle to East Alburg. When the van stopped, Peck came forward, identified himself, and interviewed the occupants. He then directed them to proceed to Swanton Immigration Headquarters where the van was searched. The search produced one gram of marijuana seed and some foreign merchandise for which there was no proof of purchase. Immigration authorities then told Lee and the others that they could go, but officials continued to hold the van and personal property.

The day he was released, Lee contacted defendant Thornton, District Director of the Bureau of Customs, concerning the van. He was told that he could secure its release by posting a cash deposit of $1,800.00 and that he could also file a petition for remission and mitigation of the fines and forfeitures imposed. Two weeks later on October 19, 1971, Thornton notified Lee by letter that he had violated 19 U.S.C. §§ 1459, 1595a and 21 U.S.C. § 881, and that by reason of these violations he had incurred a personal penalty of $1,845.00 and his vehicle and other merchandise had become subject to forfeiture. In the letter Thornton also informed Lee of his right to file a petition, pursuant to 19 U.S.C. § 1618, for remission or mitigation of the personal fine and the forfeiture. Lee filed a petition on October 27, 1971, and on November 1, 1971, Thornton wrote another letter to plaintiff informing him that the penalty had been remitted in full and the forfeiture was mitigated to $100.00. Lee decided to pay the $100.00 to secure the release of his van. He did not formally contest the penalty imposed by filing a claim to the van which would have forced the Government to institute proceedings to condemn the property. Lee claimed he was unable to post a surety bond in the amount of $250.00 which is a condition precedent to filing a claim where the property subject to forfeiture is appraised at less than $2,500.00.

Plaintiff Rich, his wife, and two minor children crossed the border near Alburg, Vermont, on October 27, 1971. Border Patrol agents stopped the car and accused Rich of failing to report his arrival in the United States. They told him to proceed to the station at Highgate Springs where Rich's car was subsequently seized. After being informed that he was liable to a penalty of $1,600.00 for the border violation of which he was accused, Rich immediately filed a petition for remission or mitigation. Inspector Clark told him that he could obtain the release of his automobile by paying $50.00 toward the eventual penalty, and Rich did so. In January, 1972, Thornton notified Rich by letter that the penalty had been mitigated to $25.00 and that he would receive the amount of his overpayment in due course.

II. STATUTORY SCHEME

This case involves three statutes under which the Bureau of Customs seeks forfeitures and penalties.

1. 19 U.S.C. § 1459 requires that the person in charge of a vehicle arriving in the United States report his arrival to the customs officer at the nearest point of entry immediately upon entering. Section 1460 provides two kinds of penalties for violation of § 1459: a penalty of up to $100.00 for the driver plus $500.00 for each passenger in the vehicle; and if the vehicle is found to have brought in merchandise, a penalty equal to the value of such goods may be imposed. Section 1460 does not itself implicate the vehicle, but § 1594 provides that a vehicle under the charge of a person who has become subject to a penalty shall be held for the payment of such penalty, and the vehicle may be proceeded against summarily by libel.

2. 19 U.S.C. § 1595a provides that any vehicle used to import any article into the United States contrary to law shall be seized and forfeited, and it also provides for a penalty equal to the value of articles so introduced. Thus an automobile which brings in a camera or radio illegally can be forfeited as can the camera or radio itself.

3. 21 U.S.C. § 881(a)(4) provides that all vehicles used to import controlled substances shall be subject to forfeiture. The practice in the St. Albans Customs District has been to bring all cases involving importation of a controlled substance under the broader provisions of § 1595a as well as under § 881.

Once a vehicle has been seized pursuant to any of the preceding statutes, the officer or agent making the seizure must report it to the appropriate customs officer for the district in which the violation occurred. 19 U.S.C. § 1602. In addition, written notice of any penalty or liability to forfeiture as well as the right to petition for mitigation or remission thereof must be given to each interested party. 19 C.F.R. § 162.31(a). Each interested party then has 60 days in which to petition for mitigation or remission of such fine, penalty, or forfeiture, including in such petition the facts and circumstances upon which he relies to justify the mitigation or remission. 19 C.F.R. §§ 171.12, 171.11(c)(3).

In the case at hand both Lee and Rich filed petitions for mitigation and remission. The Secretary of the Treasury is authorized to remit or mitigate on such terms as he deems reasonable, and just, or order the discontinuance of any prosecution, "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 . . .." 19 U.S.C. § 1618. The district director of customs is likewise authorized to mitigate and remit fines, penalties, and forfeitures when the total value thereof do not exceed $25,000, and he can cancel the claim when it is "definitely determined that the act or omission forming the basis of a penalty or forfeiture claim did not in fact occur . . .." 19 C.F.R. §§ 171.21, 171.31.

After seizure the property is appraised. 19 U.S.C. § 1606; 19 C.F.R. § 162.43. The appraised value is important because it determines the manner in which the Government must proceed in order to forfeit or condemn the property. If the appraised value is greater than $2,500.00, the appropriate customs officer must turn matters over to the United States attorney who will institute condemnation proceedings. 19 U.S.C. § 1610. In this case, however, officials appraised the property seized from both Lee and Rich at less than $2,500.00, which meant that the Government could proceed to a summary disposition of the property by publishing notice of the seizure and directing anyone interested in the property to file a claim with the appropriate customs officer stating his interest in the property within twenty days of the notice. 19 U.S.C. § 1607; 19 C.F.R. § 162.45. If no interested party files a claim, officials can declare the property forfeited. 19 U.S.C. § 1609; 19 C.F.R. § 162.46. On the other hand, if a claim is filed, the Government must institute condemnation proceedings in the same manner as though the property were worth more than $2,500.00. But in order to file a claim one must post a bond in the penal sum of $250.00 with sureties as security for the costs and expenses of obtaining condemnation of the property should the Government prevail. 19 U.S.C. § 1608; 19 C.F.R. § 162.47. Neither Lee nor Rich filed a claim. As stated customs officials mitigated the penalty or forfeiture to $25.00 in Rich's case and $100.00 in Lee's. Since both Lee and Rich paid the mitigated penalty, they did not have an opportunity to present their cause in condemnation proceedings.

Although forfeiture proceedings were not necessary in this instance because the goods were not worth more than...