Nnadi v. Richter, 92-8225

Decision Date04 November 1992
Docket NumberNo. 92-8225,92-8225
Citation976 F.2d 682
PartiesRuby NNADI, Plaintiff-Appellee, v. Robert RICHTER, District Director, United States Customs Service, Defendant-Appellant.
CourtU.S. Court of Appeals — Eleventh Circuit

Jane Wilcox Swift, Asst. U.S. Atty., Atlanta, Ga., for defendant-appellant.

Steven P. Berne, Atlanta, Ga., for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of Georgia.

Before KRAVITCH, Circuit Judge, CLARK, Senior Circuit Judge, and PITTMAN *, Senior District Judge.

KRAVITCH, Circuit Judge:

Appellant, Director of the United States Customs Service ("Customs Service"), appeals the district court's order compelling the Customs Service to return claimant/appellee's car, seized pursuant to 19 U.S.C. § 1595 as property used to aid the introduction of illegal drugs into the United States. Appellant contests the district court's findings that (1) the United States had insufficient cause to seize claimant's automobile, and (2) claimant's due process rights were violated when an unreasonable delay ensued between seizure and a post seizure hearing. We hold that the district court erred in ordering the government to return claimant's car because (1) the government did demonstrate sufficient probable cause to warrant seizure, and (2) there was no undue delay between seizure and hearing under the test defined in United States v. $8850, 461 U.S. 555, 103 S.Ct. 2005, 76 L.Ed.2d 143 (1983).

I. Statement of Facts and Course of Proceedings

On December 30, 1991, the Customs Service seized appellee Ruby Nnadi's ("Nnadi") black Nissan Pulsar ("Pulsar") from the parking lot of an apartment complex in Austell, Georgia. The vehicle was seized pursuant to 19 U.S.C. § 1595a, which provides for forfeiture of property used to aid in introducing any item into the United States contrary to law. 1 Nnadi was present during the seizure and aware that the Customs Service was confiscating her car.

The Customs Service based its seizure on information obtained from Jestine Joyner ("Joyner") who had been convicted of attempting to smuggle 5.5 pounds of heroin into the United States from the Philippines. Joyner told Special Agent James R. Wiggins that on June 23 or 24, 1991, Nnadi had used the Pulsar to drive Joyner to the Atlanta airport to catch a flight to the Philippines. Nnadi knew that Joyner's mission entailed obtaining heroin and smuggling it back into the United States. Indeed, Nnadi anticipated splitting the profits from this endeavor with Joyner. In addition to Joyner's testimony, the government found (1) information in Joyner's possession linking Nnadi to the heroin venture, and (2) independent information linking Nnadi to a broader smuggling conspiracy.

Following the seizure, the government initiated administrative forfeiture proceedings against the Pulsar pursuant to 19 U.S.C. § 1607 which requires that notice of forfeiture be sent to any party having an interest in a seized article. Such notice was mailed on January 16, 1992, but was addressed to the wrong apartment number. The notice included an explanation of administrative forfeiture proceedings and information on how to challenge the forfeiture by filing a claim and a cost bond. Nnadi claims she never received this notice.

On February 10, 1992, Nnadi filed a complaint in the U.S. District Court for the Northern District of Georgia for return of the Pulsar. Simultaneously, she filed a motion for "Temporary Restraining Order, Preliminary Injunction, and Consolidation of Hearing with Trial on the Merits." Following a hearing on February 19, 1992, the district court ruled that the Pulsar had been seized in violation of due process because (1) the vehicle was seized without probable cause, and (2) at the time of the district court's ruling there had not yet been a post-seizure hearing at which Nnadi could have challenged the seizure ("the Order"). Consequently, the district court ordered the defendant Customs Service to return the Pulsar and enjoined the defendant from re-seizing the vehicle "until and unless the plaintiff is given an opportunity to challenge the defendant's legal basis for forfeiture under 19 U.S.C. § 1595a and defendant has established probable cause for the seizure."

On March 4, the Customs Service filed a notice of appeal of the Order together with a motion for a stay pending disposition on appeal. The district court ordered a stay through April 10, 1992. On April 10, the government filed an emergency motion with this court for stay pending appeal. This court granted the stay.

On March 6, Nnadi finally addressed the administrative forfeiture proceeding by filing a Claim and Declaration in Support of Request for Waiver of Bond. In late April 1992, the Customs Service, pursuant to 19 U.S.C. § 1603, asked the United States attorney to institute a judicial action against the Pulsar. In response, the United States attorney filed a complaint for forfeiture with the U.S. District Court for the Northern District of Georgia claiming that the United States had sufficient probable cause to obtain forfeiture under 21 U.S.C. § 881(a)(4) and 19 U.S.C. § 1595a. 2 This action is still pending before the district court.

II. Discussion

The district court erred on several grounds when it ordered the defendant to return the Pulsar to Nnadi. First, the court erroneously determined that the government did not have probable cause to seize the Pulsar. Second, it incorrectly applied the Supreme Court's test for determining the reasonableness of a delay between seizure of a forfeitable vehicle and a final determination concerning whether the seized vehicle should be returned to the owner. Third, the court failed to apply the traditional four-prong test for determining when a preliminary injunction should be granted.

A. Probable Cause

The United States bears the same burden of proving probable cause in civil forfeiture actions brought under the customs laws as it does in civil forfeiture actions brought under the provisions of 21 U.S.C. § 881. 19 U.S.C. § 1615. Therefore, case law developed in cases under section 881, providing for forfeiture of property used to facilitate drug trafficking, applies to forfeitures under 19 U.S.C. § 1595a as well. In both circumstances, the United States must demonstrate that it had probable cause to seize the property. 19 U.S.C. § 1615. Section 1615, entitled "Burden of proof in forfeiture proceedings" provides that:

In all suits or actions [other than those involving fraud, gross negligence or negligence] brought for the forfeiture of any vessel, vehicle, aircraft, merchandise, or baggage seized under the provisions of any law relating to the collection of duties on imports or tonnage ... probable cause shall be first shown for the institution of such suit or action, to be judged by the court.

Id. (emphasis added). See also United States v. One 1975 Ford Pickup Truck, Etc., 558 F.2d 755 (5th Cir.1977) (discussing forfeiture under 19 U.S.C. § 1595a); United States v. One 1969 Buick, 493 F.2d 553 (5th Cir.1974); United States v. Four Million, Two Hundred Fifty-Five Thousand Dollars, 762 F.2d 895, 904 (11th Cir.1985), cert. denied, 474 U.S. 1056, 106 S.Ct. 795, 88 L.Ed.2d 772 (1986).

Probable cause exists when the United States has reasonable grounds to believe that there is a substantial connection between the property charged and specific transactions involving illicit drugs. United States v. $41,305 in Currency & Traveler's Checks, 802 F.2d 1339, 1343 (11th Cir.1986). Although this connection need only be indirect, United States v. Rivera, 884 F.2d 544, 546 (11th Cir.1989), cert. denied, 494 U.S. 1018, 110 S.Ct. 1322, 108 L.Ed.2d 497 (1990), a car is considered directly involved when it is used to transport an individual to the place where a drug transaction takes place even though it is not used to transport money or drugs. United States v. One 1979 Porsche Coupe, 709 F.2d 1424, 1427 (11th Cir.1983); United States v. One 1977 Cadillac Coupe DeVille, 644 F.2d 500, 503 (5th Cir.1981). In One 1979 Porsche, the court found that the vehicle was directly involved because it was used to transport an individual to and from a hotel where drug negotiations occurred, even though there was no evidence that the vehicle was used to transport any money. Id. In this case, there was not only evidence that the car was used to transport Joyner to the airport, but there was additional evidence that the Pulsar transported the money that was used to purchase drugs in the Philippines and the suitcase that was used to transport the drugs into the United States.

Hearsay statements are admissible to support the existence of probable cause. United States v. One Parcel of Real Estate, 963 F.2d 1496, 1501 (11th Cir.1992); United States v. Single Family Residence, 803 F.2d 625, 629 n. 2 (11th Cir.1986). In particular, a law-enforcement officer may rely upon information received second-hand from other law-enforcement officers to demonstrate the existence of probable cause. United States v. Kirk, 781 F.2d 1498, 1504-05 (11th Cir.1986). Here, the government recounted several such admissible statements made by Joyner to a United States attorney and a Customs Service special agent. Apparently, Joyner told these officials that Nnadi proposed the smuggling venture, gave Joyner $4,000 in cash, escorted her to buy an airline ticket, and gave her detailed instructions concerning what to do in the Philippines and on her return trip. Joyner also stated that Nnadi supplied Joyner with a black suitcase to be used for transporting the drugs back into the United States and drove Joyner to the airport in Nnadi's car. Later a different Customs Service special agent learned from Joyner that Nnadi's car was a little black Nissan.

These statements alone amounted to probable cause because they provided a "reasonable ground for a belief of guilt, supported by less than prima facie proof but more than mere suspicion"...

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