U.S. v. 1990 Toyota 4Runner

• Decision Date: 16 November 1993
• Docket Number: No. 92-3709,92-3709
• Citation: 9 F.3d 651
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. 1990 TOYOTA 4RUNNER, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 651

9 F.3d 651

62 USLW 2344

UNITED STATES of America, Plaintiff-Appellant, v. 1990 TOYOTA 4RUNNER, Defendant-Appellee.

No. 92-3709.

United States Court of Appeals Seventh Circuit.

Argued Sept. 21, 1993.

Decided Nov. 16, 1993.

Jack Donatelli, Asst. Atty. Gen., Office of the U.S. Atty., Civ. Div., Appellate Section, Chicago, IL (argued), for plaintiff-appellant.

William T. Huyck (argued), Thomas J. Shanahan, Chicago, IL, for defendant-appellee.

Before POSNER, Chief Judge, and CUMMINGS and CUDAHY, Circuit Judges.

POSNER, Chief Judge.

This appeal by the United States requires us to interpret 21 U.S.C. Sec. 881, which subjects property used in federal drug offenses to forfeiture. The government filed a complaint to forfeit a 1990 Toyota 4Runner seized in the following circumstances. Abiodun Oloko wanted to import two kilograms of heroin from the Philippines. He needed someone to go to Manila to pick up the drugs. The person he approached was, unbeknownst to him, an undercover agent of the Drug Enforcement Administration. On September 9, 1991, Oloko met with the agent and other conspirators in a Chicago restaurant. At the meeting, which lasted from 4:10 to 4:40 p.m., Oloko instructed the agent to obtain a passport and agreed to pay him $10,000 for transporting the heroin from Manila to Chicago. Oloko drove to and from the meeting in the 1990 Toyota 4Runner. The agent flew to Manila and on November 1 1991, as arranged with Oloko, picked up a suitcase containing two kilograms of heroin. On the basis of the events we have narrated, Oloko pleaded guilty to conspiracy to import a controlled substance illegally. In response to the forfeiture complaint he and another person filed a claim of ownership and moved successfully to dismiss the complaint on the ground that the use of the automobile fell outside the scope of the forfeiture statute.

The statute provides for the forfeiture of controlled substances, raw materials used in their manufacture, cash, drug paraphernalia, firearms, real estate, records, equipment, and "conveyances" (including aircraft and boats), when these things are used in federal drug offenses, except to the extent that an innocent person has an interest in the property in question. Our concern is with the conveyances provision, 21 U.S.C. Sec. 881(a)(4), which covers all conveyances "which are used, or are intended for use, to transport, or in any manner to facilitate the transportation, sale, receipt, possession, or concealment of" controlled substances or the equipment or raw materials used to make controlled substances. A vehicle or other conveyance used to transport the drugs is forfeitable by virtue of the "to transport" clause, but Oloko's Toyota is forfeitable if at all only if it can be said to have been "used, or ... intended for use, ... in any manner to facilitate the transportation, sale, receipt, possession, or concealment of" the heroin that Oloko ordered from Manila.

In order to import the heroin into the United States and place it in Oloko's possession, someone had to go to Manila, get it, and bring it back. In order for someone to go to Manila for this purpose, arrangements for the trip had to be made, including arrangements for procuring a passport for the courier (if he didn't have one already) and for compensating him. In order to make these arrangements, the conspirators had to meet, and Oloko's presence at the meeting was "facilitated" by the Toyota, his mode of conveyance to and from the meeting. In facilitating the meeting, the Toyota facilitated a later transportation of the heroin to, and its receipt and possession by, Oloko. The charge of importation encompassed transportation. Cf. United States v. One Gates Learjet, 861 F.2d 868, 871 (5th Cir.1988).

It does not appear that the heroin was actually brought to the United States, let alone received by Oloko; but we do not think this matters. The words "intended for use" seem designed not merely for the unusual case of the aborted use (Oloko might have had a flat tire en route to the meeting and missed it), but also and more centrally for the aborted conspiracy. His intention (goal, purpose, desire, object) in using the Toyota to drive to the meeting was to facilitate the transportation of heroin to Chicago, but his intention was thwarted.

At argument his lawyer conceded that if a sale had taken place at the meeting, the automobile would be forfeitable. This was a damaging concession. The statute is not limited to conveyances used to facilitate a sale. It extends to conveyances used to facilitate transportation, receipt, or possession. No doubt what the lawyer meant was that the transportation, receipt, possession, or sale (or concealment) has to occur at the meeting or other encounter to which the conveyance conveys the drug offender. His position was that if all that goes on at the meeting or encounter is a discussion of future plans, the facilitative effect of the vehicle or other conveyance is too remote to come within the statute's reach.

The district judge's ground for thinking the statute inapplicable was broader. He thought the term "facilitate" connotes causation. To label one thing a "cause" of another is, in criminal as in tort law, ordinarily to imply not only that the second would not have occurred but for the first, but also that the first made the second more likely to occur. Suppose that through the negligence of a taxi company a person misses his plane and has to take a later one. The later plane crashes, and he is killed. The taxi company's negligence would not be deemed a cause of his death, even though he would not have died had the company gotten him to the earlier plane, because that negligence made it no more likely that the later plane would crash. Central of Georgia Ry. v. Price, 106 Ga. 176, 32 S.E. 77 (1898); Berry v. Sugar Notch Borough, 191 Pa. 345, 43 Atl. 240 (1899). Likewise, since Oloko could equally well have gotten to and from the restaurant by some alternative means, such as a taxi, his use of the Toyota could not be said to be a cause of the meeting or of anything that took place at it. This ground for the dismissal of the government's suit is inconsistent with Oloko's concession that the Toyota would be forfeitable if drugs had changed hands at the meeting. For it implies that the availability of equally good alternative means of conveyance to and from the meeting establishes that the Toyota had not been used to facilitate the meeting or anything that might have gone on there, including an actual sale of illegal drugs.

We do not see any warrant for these narrowing interpretations of the statute. The obvious purpose of the statute read as a whole is to deprive drug traffickers of the principal tools of their trade, which include the drugs themselves, the equipment and raw materials for their manufacture, the firearms used to enforce contracts in an illegal business, the premises used for making and selling drugs--and the vehicles, boats, and aircraft that the traffickers use in their business. No doubt they could use public transportation exclusively--public transportation is used extensively for the importation and other transportation of illegal drugs already. But taking away their cars, boats, and planes, like taking away their stash houses and guns, is bound to cramp their style. Yet this might be impossible to prove in a particular case. The main effect of depriving drug traffickers of the tools of their trade is to curtail their activities rather than to eliminate them altogether, and normally it would be unknowable whether a particular transaction would have occurred or been attempted had the traffickers been relegated to public transportation. Forget buses, trains, commercial airlines, and taxis: unless the drugs themselves were to be conveyed in a vehicle altered to facilitate concealment, it would be impossible to prove that the drug dealer could not have used a rental car instead of his own car.

So the causal test, the test implied by the district court's analysis, would make the statute impotent, by requiring proof of what is impossible to prove, that it was essential that the offender use his car (or boat or airplane) rather than a rental car or public transportation. While the only mention of the conveyances provision in the legislative history is of the transport clause, not the facilitate clause, H.R.Rep. No. 1444, 91st Cong., 2d Sess., pt. 1, at p. 55 (1970), a silent legislative history does not license us to read a clause out of a statute, which would be the practical consequence of the district judge's approach.

Oloko's suggested test is no better. It draws an arbitrary distinction between the meeting at which the plot is hatched and the meeting at which the drugs change hands. Either type of meeting is essential to the commission of the offense. Even the distinction between the two types is blurry. It appears that at the meeting Oloko and the courier made an executory contract for the transportation of the heroin from the Philippines to the United States. That is the transport equivalent of an executory contract for a sale, and it is common to refer to an executory contract of sale as the "sale" and the consummation of the sale as the "delivery."

All this is not to say that the statute requires the automatic forfeiture of every drug dealer's car. The car must be used in his business to come within the statute's scope. If he just uses it to haul groceries he is not using it to facilitate the transportation, sale, etc. of drugs. It is true that if he didn't eat he would be too weak to do drug deals, so that, by "facilitating" his eating, the car in which he buys groceries could be said to facilitate his drug dealing. It is equally true that if the government took away his...