U.S. v. 1964 Beechcraft Baron Aircraft, TC-740, FAA Reg., No. N444CP, Actual No. N914C, TC-740
| Decision Date | 12 November 1982 |
| Docket Number | TC-740,No. 81-1569,FAA,81-1569 |
| Citation | 691 F.2d 725 |
| Parties | 11 Fed. R. Evid. Serv. 1522 UNITED STATES of America, Plaintiff-Appellee, v. 1964 BEECHCRAFT BARON AIRCRAFT,REG., NO. N444CP, ACTUAL NO. N914C, its tools, equipment and appurtenances, Defendant, Charles M. Preston, Appellant. Summary Calendar. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Michael P. Carnes, Dallas, Tex., for appellant.
Cheryl B. Wattley, Asst. U. S. Atty., Dallas, Tex., for plaintiff-appellee.
Appeal from the United States District Court for the Northern District of Texas.
Before CLARK, Chief Judge, RUBIN and JOHNSON, Circuit Judges.
Charles Preston appeals from the judgment of forfeiture against his 1964 Beechcraft Baron airplane. The district court found that probable cause existed to believe that the aircraft was used to transport a quantity of phenyl-2-propanone (P2P) for the intended purpose of manufacturing or producing amphetamines or methamphetamines. The aircraft was ordered forfeited pursuant to 21 U.S.C. § 881(a)(4). The appellant alleges that there was insufficient evidence to make a finding of probable cause and that certain investigative reports were entered in violation of Rule 803 of the Federal Rules of Evidence. We disagree and affirm the lower court.
Preston was the owner of a 1964 Beechcraft Baron aircraft. He was also apparently a friend of Richard Lee Sullivan. In January, 1978, Sullivan met with agents of the Drug Enforcement Agency who were investigating the manufacture of amphetamines and methamphetamines. During that meeting, Sullivan asked the agents for P2P, which is used to manufacture amphetamines and methamphetamines. Two weeks later, Sullivan met again with the agents in a bar in Clovis, New Mexico. It is here that Preston first entered the picture as Sullivan's consort. Preston drove Sullivan to this Clovis meeting in his jeep. Though Preston took no part in the negotiations between Sullivan and the agents, he also drove Sullivan back to Amarillo, Texas, after Sullivan had obtained 500 grams of P2P from the agents.
Preston reappeared with Sullivan in March when he flew Sullivan to Abilene in his Beechcraft Baron. There, Sullivan met two undercover agents who delivered to Sullivan a five-gallon can filled with P2P and an electronic device that emitted a signal that could be tracked. The agents testified at trial that they saw Sullivan take the five-gallon container to Preston's airplane. He walked behind the aircraft and then walked away from the plane empty-handed. The two men flew away from the airport shortly thereafter with Preston piloting the aircraft. Two agents waiting at the Amarillo airport testified that they saw Sullivan, container in hand, and Preston leave the aircraft.
Agents, using the signals from the device planted in the container, then traced it to Customized Services, a business in Amarillo owned by Preston. A later search of that facility failed to recover the container. Preston acknowledged that he destroyed the container and the P2P.
The United States government sought the forfeiture of Preston's aircraft under 21 U.S.C. § 881(a)(4). That section specifies that "all conveyances, including aircraft, vehicles, or vessels which are used, or are intended for use, to transport, or in any manner to facilitate the transportation, sale, receipt, possession or concealment" of all controlled substances or raw materials, products or equipment used or intended for use in the manufacture of any controlled substance may be forfeited to the government. The trial court found that probable cause existed to believe that the aircraft was used for the transportation of raw materials which were intended for use in the manufacture of a controlled substance.
Preston raises two issues on appeal: (1) that the trial court used an improper standard in determining whether probable cause existed and, when the proper standard is used, the evidence is insufficient to support the verdict; and (2) that several DEA reports were admitted into evidence in violation of the hearsay rule.
In bringing this forfeiture action, the government has the burden of establishing that probable cause exists to believe that the vehicle subject to forfeiture was used in the transportation of the raw materials intended for use in the manufacture of a controlled substance. Vance v. United States, 676 F.2d 183, 187 n.7 (5th Cir. 1982). The probable cause standard to be used in actions brought under § 881(a)(4) is whether there is "a reasonable ground for belief of guilt supported by less than prima facie proof but more than mere suspicion." United States v. One 1979 Mercury Cougar XR-7, 666 F.2d 228, 230 n.3 (5th Cir. 1982). A § 881 forfeiture is proper if the vehicle in question was used "in any manner" to facilitate the sale or transportation of a controlled substance or raw material used in the manufacture of a controlled substance. Id. at 230.
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