U.S. (Drug Enforcement Agency) v. One 1987 Jeep Wrangler Auto. VIN No. 2BCCL8132HBS12835
| Citation | 972 F.2d 472 |
| Decision Date | 06 August 1992 |
| Docket Number | No. 1413,D,1413 |
| Parties | UNITED STATES of America (DRUG ENFORCEMENT AGENCY), Plaintiff-Appellee, v. In re ONE 1987 JEEP WRANGLER AUTOMOBILE VIN # 2BCCL8132HBS12835, Defendant, Izaak Draper, Claimant-Appellant. ocket 92-6025. |
| Court | United States Courts of Appeals. United States Court of Appeals (2nd Circuit) |
James J. Gelber, Asst. U.S. Atty., Burlington, Vt. (Charles A. Caruso, U.S. Atty., D.Vt., Helen M. Toor, Asst. U.S. Atty., on the brief), for plaintiff-appellee.
Frederick L. Woeckener, Cooperating Counsel, American Civil Liberties Union, Hyde Park, Vt., for claimant-appellant.
Before: FEINBERG and McLAUGHLIN, Circuit Judges, and McAVOY, District Judge *.
Appellant Izaak Draper appeals from an Order of the United States District Court for the District of Vermont, Franklin S. Billings, Jr., Judge, dated December 3, 1991, denying appellant's Motion for Return of Property (as per Fed.R.Crim.P. 41(e)), and from a subsequent Order of the same court denying appellant's Motion for Reconsideration, dated January 2, 1992. The subject property of the Rule 41(e) motion before the district court was One 1987 Jeep Wrangler Automobile, VIN # 2BCCL8132HBS12835 (hereinafter "Jeep") which had been seized by the Drug Enforcement Agency ("DEA" or "Government") for purposes of forfeiture pursuant to 21 U.S.C. § 881(a)(4) and 21 C.F.R. §§ 1316.71 et seq. The appellant claimed below that the Jeep had been wrongfully seized in violation of an Order of Return of Property issued by the Honorable Joseph Wolchik, Judge of the District Court, State of Vermont, on June 16, 1991.
Judge Billings determined that the commencement of the administrative forfeiture proceeding divested the federal court of jurisdiction and therefore denied the motion. This conclusion was reiterated in response to appellant's subsequent Motion for Reconsideration which challenged the previous Order of dismissal.
On appeal, appellant asserts that the district court erred in refusing to address the merits of the Rule 41(e) motion, arguing that the state district court's decision to return the Jeep created a res judicata bar to further seizures. In addition, appellant contends that the procedure followed by the DEA in seizing the Jeep violated due process.
For the reasons discussed below, we affirm the district court yet remand the action back to the DEA for further administrative proceedings consistent with this decision.
The facts of this case, although seemingly complex, bear directly on the outcome of this case and are therefore worthy of recitation.
On April 17, 1991, appellant Izaak Draper and a companion were arrested by the Lamoille County Sheriff's Department (hereinafter "Sheriff's Department") for the possession of a small amount of marijuana (under 25 grams). The Jeep was impounded ancillary to that arrest. The following day, a Stowe Vermont Police Officer, representing that he was on assignment to the DEA, contacted the Sheriff's Department by telephone and indicated that the DEA would take "custody" of the vehicle. Although legal custody was purportedly transferred from the Sheriff's Department to the United States Marshall's service (who in turn "nominated" the Sheriff's Department as "custodian" of the Jeep on behalf of the DEA), physical custody remained at all times with the Sheriff's Department.
On April 26, 1991, Draper filed a Motion for Return of Property with the Vermont State District Court pursuant to Vermont Rule of Criminal Procedure 41(e). 1 The state action was brought under the Vermont Criminal Procedure law and named only the state and Draper as parties.
On May 20, 1991, after Draper filed his state 41(e) motion but before it was decided, the Government commenced an administrative forfeiture proceeding pursuant to 21 U.S.C. § 881(a)(4) and 21 C.F.R. §§ 1316.71 et seq. against the Jeep. The DEA claims to have served a Notice of Seizure upon the appellant on this date and to have advertised the seizure on May 29, 1991 in a national daily newspaper. 2 Appellant contests the existence of these notices and the record contains no actual proof of either.
On June 16, 1991, the state district court decided the appellant's motion in his favor, ordering the return of the Jeep. In doing so, the state court determined that there was "insufficient evidence before it to conclude that the seizure was unlawful" but rather returned the Jeep under a substantial justice provision contained in the Vermont Criminal Code at Rule 57. State of Vermont v. Izaak Draper, Doc. No. 319-5-9Lcr (Dist.Ct.Vt., June 16, 1991). 3 In so ordering, the state court concluded that neither the state nor the federal government had an interest in the vehicle. Id. The Jeep was physically returned to Draper on June 27, 1991.
On July 1, 1991, Draper pleaded guilty to the offense of possession of marijuana and was fined $500.00. Eight days later, DEA agents physically seized the Jeep without notice. Draper claims that "an agent who participated in the seizure advised counsel for appellant over the telephone that a Notice of Seizure would issue within thirty days." Appellant's Brief, p. 8. The facts then diverge at this point.
Appellant contends that he waited thirty days and then, no Notice of Seizure forthcoming, filed a Notice of Claim on August 27, 1991. Appellant's Brief p. 8. The Government acknowledges that appellant filed a Notice of Claim but asserts that it was filed on August 8, 1991, not August 27. Further, the Government claims that this Notice of Claim was filed in response to the first seizure notice served on May 20, 1991. Because the claim was received well after the twenty day allotment in which to respond, as indicated in the Notice of Seizure, the Government deemed the claim untimely. Appellee's Brief pp. 3-4. It is unclear why the two sides differ so substantially as to the filing date of this Notice of Claim and the record is of no help because a copy of the claim is not included. In any event, both sides agree that the Notice of Claim was rejected by the DEA and returned to Draper on September 3, 1991.
On September 24, 1991, Draper filed a Motion for Return of Property pursuant to Fed.R.Crim.P. 41(e) in the United States District Court for the District of Vermont. During the pendency of this motion, a new Notice of Seizure was served upon Draper's attorney by certified mail on or about October 17, 1991. 4 This notified Draper that he had the option of requesting remission or mitigation of the forfeiture within the DEA administrative process or of filing a claim and cost bond thereby commencing a civil judicial proceeding. No Notice of Seizure was published in relation thereto.
In the federal district court, appellant argued that the state court's return of property worked a res judicata effect upon the government, preventing subsequent DEA seizure. Appellant relied upon a denomination of the state and federal actions as quasi in rem, arguing that the state district court's determination that neither the state nor federal government had a sufficient interest in the action barred future seizure and forfeiture by either.
Judge Billings ruled that the October 17, 1991 Notice of Seizure effectively divested the federal district court of jurisdiction and declined to address the merits. A motion for reconsideration was likewise denied on January 2, 1992, and the instant appeal ensued.
At the outset, we note that civil forfeiture is a creature unto itself. It is an area of the law which is founded upon the many inherent fictions of our jurisprudence. See Pratt and Petersen, Civil Forfeiture in the Second Circuit, 65 St. John's L.Rev. 653 (1991) (). As perhaps the most obvious use of legal fiction, the civil forfeiture action is brought directly against the property as defendant. The conceptual basis of the forfeiture is, quite basically, that the property has perpetrated some wrong. United States v. One Mercedes-Benz 380 SEL, 604 F.Supp. 1307, 1312 (S.D.N.Y.1984), aff'd, 762 F.2d 991 (2d Cir.1985). Thus, as the action is against the property and not the owner, the action is in rem in nature. One Mercedes-Benz 380 SEL, 604 F.Supp. at 1312; United States v. Four Parcels of Real Property, 941 F.2d 1428, 1435 (11th Cir.1991).
For the Government to obtain a judgment of forfeiture, it must demonstrate probable cause establishing a nexus between the seized property and illegal drug activity. See United States v. 228 Acres of Land, 916 F.2d 808, 811-12 (2d Cir.1990), cert. denied, --- U.S. ----, 111 S.Ct. 972, 112 L.Ed.2d 1058 (1991). The probable cause standard requires the Government to have United States v. Banco Cafetero Panama, 797 F.2d 1154, 1160 (2d Cir.1986) (citations omitted); United States v. Premises & Real Property at 4492 South Livonia Rd., 889 F.2d 1258, 1267 (2d Cir.1989). The probable cause showing need only link the defendant property with illegal drug activity generally, not to a particular transaction. 5 228 Acres, supra, 916 F.2d at 812.
The Government need not prove, within the criminal justice system, that the owner committed a crime. United States v. One Assortment of 89 Firearms, 465 U.S. 354, 361, 104 S.Ct. 1099, 1104, 79 L.Ed.2d 361 (1984) (); see also One Lot Emerald Cut Stones & One Ring v. United States, 409 U.S. 232, 235, 93 S.Ct. 489, 492, 34 L.Ed.2d 438 (1972); United States v. One 1977 Lincoln Mark V, 453 F.Supp. 1388, 1391 (S.D.N.Y.1978) (...
To continue reading
Request your trial
- City of Concord v. Robinson, No. 1:11–CV–734.
-
Medina-Rodríguez v. $3,072,266.59 in U.S. Currency
...1109 (1994). Because of this sprawling statutory landscape, "civil forfeiture is a creature unto itself." United States v. One 1987 Jeep Wrangler Auto, 972 F.2d 472, 476 (2d Cir. 1992).Congress enacted the Civil Asset Forfeiture Reform Act in 2000 to "provide a more just and uniform procedu......
-
US v. TWO PARCELS OF PROP. AT 2730 HIGHWAY 31
... ... XX-XXXX-XXXX in the Name of "Gene Martin Auto Sales", Located at the First Alabama Bank, ... properties were not connected to illegal drug activity ... The United States ... the CI was under the control of law enforcement officials ... On or about May ... One 1987 Jeep Wrangler, 972 F.2d 472, 476 (2d Cir.1992)) ... ...
-
Lopes v. US
... ... One 1987 Jeep Wrangler Auto., 972 F.2d 472, 480 (2d ... forfeiture is the domain of the forfeiting agency, and once the agency has made a determination on ... Drug Enforcement Admin. 672 F.Supp. 76, 79 ... ...