Taylor v. U.S., 76-1235

• Citation: 550 F.2d 983
• Decision Date: 03 March 1977
• Docket Number: No. 76-1235,76-1235
• Parties: Thomas TAYLOR, Appellant, v. UNITED STATES of America, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

Page 983

550 F.2d 983

Thomas TAYLOR, Appellant, v. UNITED STATES of America, Appellee.

No. 76-1235.

United States Court of Appeals, Fourth Circuit.

Argued Oct. 8, 1976.

Decided March 3, 1977.

Calvin W. Breit, Norfolk, Va. (Breit, Rutter & Montagna, Norfolk, Va., on brief), for appellant.

Michael Anton Lubin, Atty., U. S. Customs Service, Dept. of the Treasury, Washington, D. C. (Ronald A. Margolis, Atty., U. S. Customs Service, Dept. of the Treasury, Washington, D. C., on brief), for appellee.

Before HAYNSWORTH, Chief Judge, and WINTER and WIDENER, Circuit Judges.

WINTER, Circuit Judge:

Thomas Taylor appeals from the district court's judgment which denied him an informer's fee of twenty-five percent of the street value of hashish seized by federal officers pursuant to a tip provided by Taylor. Taylor claims such a fee pursuant to 19 U.S.C. § 1619 (1970), as made applicable by 21 U.S.C. §§ 881(d) and (f) and 965 (1970). We affirm, but remand for further proceedings since, as we view the law, Taylor may be entitled to an informer's fee computed on a different basis.

I.

Taylor, a merchant seaman aboard a vessel bound for the United States from Amsterdam, discovered thirty-three pounds of hashish in the back of a stereo speaker that he had agreed to list on his customs declaration for Brown, a fellow seaman. Brown had in turn agreed to transport the speaker and certain other articles for a man he had met in Amsterdam. Taylor reported the discovery to the ship's master, who took custody of the hashish and the speaker, as well as three switchblades, another speaker, and a radio receiver, and reported the find to customs officials. When the ship docked at New Orleans, a customs officer and special agents of the Drug Enforcement Administration (DEA) boarded the vessel and seized the hashish and equipment. Under the authority of 21 U.S.C. § 886, Taylor and his fellow seaman were paid $150 for their services by DEA, but further demands for payment made to the United States Attorney, the Secretary of the Treasury and the United States Customs Office were rejected. Taylor, acting on his own behalf, filed suit seeking further recovery. The district court awarded an informer's fee for the speakers and other goods transported equal to twenty-five percent of their value as established by a customs official, but allowed no informer's fee for the hashish on the ground that it could not legally be valued at its street value and plaintiff offered no other evidence of value. Taylor appeals, alleging that there should have been an award of twenty-five percent of the street value of the hashish.

II.

Resolution of this case ultimately turns on the meaning of 19 U.S.C. § 1619, ¹ to the extent that it is applicable. Our inquiry into the application of that provision to this case must begin with the Controlled Substances Act. Hashish, a marihuana derivative, is a schedule I controlled substance. 21 U.S.C. § 802(15) (1970); 21 U.S.C. § 812(c) Sched. I(c)(10) (1970); and 21 C.F.R. § 1308.11(d) (1975). A schedule I substance is defined to be a drug or other substance that has a high potential for abuse, has no currently accepted medical use in treatment in the United States, and for which there is a lack of accepted safety for use under medical supervision. 21 U.S.C. § 812(b)(1). Unless the Attorney General finds the importation of such a substance to be necessary for medical, scientific, or other legitimate needs of the United States at a time when domestic sources or domestic competition are inadequate and the Administrator of the Drug Enforcement Administration issues a permit, such a substance may not be legally imported. 21 U.S.C. § 952(a) (1970); 21 C.F.R. § 1312.13 (1975).

All controlled substances are subject to forfeiture if acquired or manufactured in violation of the Act, and forfeiture will extend to other conveyances and equipment used to make or transport the substances. 21 U.S.C. § 881(a)(2), (3) and (4) (1970). If a schedule I substance is transferred, possessed, or offered for sale in violation of the Act, it is subject to summary seizure and forfeiture. 21 U.S.C. § 881(f) (1970). Section 881(d) states the law applicable to property seized under § 881:

All provisions of law relating to the seizure, summary and judicial forfeiture, and condemnation of property for violation of the customs laws; the disposition of such property or the proceeds from the sale thereof; the remission or mitigation of such forfeitures; and the compromise of claims and the award of compensation to informers in respect of such forfeitures shall apply to seizures and forfeitures incurred, or alleged to have been incurred, under the provisions of this subchapter, insofar as applicable and not inconsistent with the provisions hereof; except that such duties as are imposed upon the customs officer or any other person with respect to the seizure and forfeiture of property under the customs laws shall be performed with respect to seizures and forfeitures of property under this subchapter by such officers, agents, or other persons as may be authorized or designated for that purpose by the Attorney General, except to the extent that such duties arise from seizures and forfeitures effected by any customs officer.

The effect of § 881(d) was described in United States v. One Motor Yacht Named Mercury, 527 F.2d 1112, 1114 (1 Cir. 1975): "(f)orfeiture proceedings arising out of drug offenses are governed by the same statutory provisions as apply to customs forfeitures."

Section 881(e) of Title 21 deals with property forfeited pursuant to the Act and provides that the Attorney General may retain the property for official use, may sell the property if it is not required to be destroyed by law and is not harmful to the public, may require General Services Administration to take custody of the property, or may forward it to DEA (previously the Bureau of Narcotics and Dangerous Drugs) for disposition, including delivery for medical or scientific use. Since by definition a schedule I substance is harmful, it cannot be sold nor could it be retained for use, but presumably it will be forwarded to GSA or DEA for destruction or will be turned over to agencies for research. See Newsweek, Nov. 8, 1976, at p. 53 (approval of application by University for research in medical use of marihuana for treatment of glaucoma; drugs to be supplied by National Institute on Drug Abuse).

III.

Plaintiff asserted his cause of action was pursuant to 19 U.S.C. § 1619 (1970) and the trial judge, over objections by the government which claimed § 1619 did not apply, decided the case on that basis. Somewhat inarticulately, the government continues to assert that position before us. We agree with the government that § 1619 as such does not apply to the instant case. Instead, the case must be decided under Title 21, although, as we shall show, important provisions of § 1619 are incorporated into Title 21 and made applicable to proceedings under Title 21.

Sections 881(d) and 965 of Title 21 make customs procedures applicable to the Controlled Substances Act and the Import and Export Controlled Substances Act by incorporating portions of Title 19, such as §§ 1602 through 1621, into Title 21 insofar as applicable and to the extent not inconsistent. ² The text of the Title 21 analogue then delimits one clear amendment to the Title 19 text by stating that DEA officers shall perform the duties for seizures and forfeitures under Title 21 except when customs officers make the seizure. Yet, even in those instances where customs officers still make the seizure, they act, not under Title 19 but under Title 21. ³ The statutory scheme clearly suggests then that seizures and forfeiture proceedings involving drugs are governed by Title 21 even though the basic authority to proceed is supplied by Title 19 and the seizure is carried out by customs officers.

Since Title 21 provides a remedy and a procedure dealing with this case, we think that the informer's fee provision of that Title must be used to determine whether a fee should be paid in this case for the drugs seized. In concluding so, we do not intimate that all seizure cases involving drugs must be determined under Title 21, but we think the wiser course will usually be to do so. By doing so, dangers of duplicitous claims under Title 19 and Title 21 will be avoided, and the courts will have the advantage of the expertise of the agency most concerned with controlled substances (DEA), and most able to present information concerning the appropriate value to be placed on such substances.

Pursuant to Reorganization Plan No. 2 of 1973, 38 Fed.Reg. 15,932, 87 Stat. 1091 (1973), as amended, Pub.L. 93-253, § 1, 88 Stat. 50 (1974), reprinted in 5 U.S.C. app., at 79 (1970), DEA was created with the express purpose of creating a central organization within the Department of Justice to deal with law enforcement in illicit drug activities. ⁴ The Department of the Treasury retained its function of seizing illicit narcotics at the border provided "that any illicit narcotics, dangerous drugs, marihuana, or related evidence seized . . . by the Secretary . . . shall be turned over forthwith to the jurisdiction of the Attorney General." Thus, Treasury retained its powers of inspection of goods at the border, but those powers were to be exercised to insure the proper operation of DEA, the organization that after the reorganization is to dispose of the drugs. 21 U.S.C. § 881(f) (1970). In combination with the text of 21 U.S.C. § 881(d), these two concerns indicate that as a general matter Title 21 should control judicial action involving drug seizures at the border.

While the two concerns expressed heretofore apply to any seizure or forfeiture involving drugs, the facts and circumstances of this case, involving as it does a claim for an informer's fee arising out of a seizure for drugs, even more clearly indicate that Title 21 and not Title 19 must...