U.S. v. $2,500 in U.S. Currency

Citation689 F.2d 10
Decision Date08 September 1982
Docket NumberNo. 918,D,918
PartiesUNITED STATES of America, Plaintiff-Appellee, v. $2,500 IN UNITED STATES CURRENCY, Defendant in Rem-Appellant. ocket 81-6180.
CourtU.S. Court of Appeals — Second Circuit

J. D. Pope, Asst. U. S. Atty., New York City (John S. Martin, Jr., U. S. Atty., S.D.N.Y., Richard N. Papper, Asst. U. S. Atty., New York City, on the brief), for plaintiff-appellee.

John L. Pottenger, Jr., New Haven, Conn. (Renee D. Chotiner, Stephen Wizner, P. J. Pittman, Jerome M. Frank, Legal Services Organization, Deborah M. Reyher, Yale Law School 1983, Law Student Intern, New Haven, Conn., on the brief), for defendant in rem-appellant.

Before KEARSE and PIERCE, Circuit Judges, and LEVAL, District Judge. *

LEVAL, District Judge:

Claimant-Appellant Jimmy Aponte appeals from a judgment of forfeiture of $2,500 in United States currency, entered by Hon. John M. Cannella upon a jury verdict. Judge Cannella denied Aponte's motion for judgment notwithstanding the verdict or, alternatively, a new trial. Aponte appeals on a number of grounds, including the ground that the allocation of the burden of proof in the forfeiture proceedings violated due process. We affirm.

FACTS

The forfeited currency was seized in the course of the arrest of Aponte and his wife on heroin charges and the search of their apartment on December 6, 1979. Aponte The seized money was found in a small travel case in a closet in the Apontes' apartment. The case also contained a number of unpaid bills and a notepad full of names and numbers. A government agent testified at the trial to the effect that these notations recorded Aponte's drug transactions. The search also turned up sixty grams of cocaine and a scale accurate to a tenth of a gram.

eventually pleaded guilty to the charge of selling two ounces of heroin for approximately $16,000 to an undercover agent of the Drug Enforcement Administration on October 11, 1979. The sale had taken place at the Apontes' apartment. During the course of the transaction, Aponte had expressed a willingness to sell larger quantities of heroin whenever the undercover agent was ready to buy.

During the search of his apartment, Aponte stated that the seized money belonged to a friend whom he refused to identify. At trial, Aponte's wife and mother testified that the money represented wages earned by Aponte at a restaurant and as a gypsy cab driver and also included cash that Aponte's mother had given him for safekeeping. The police officer who surveilled Aponte during the weeks before his arrest testified that he saw no sign that Aponte was a taxi driver. Aponte did not testify at the trial.

DISCUSSION

Subsection 881(a)(6) of title 21 provides for the forfeiture of "moneys ... furnished or intended to be furnished ... in exchange for (an illicit) controlled substance." 21 U.S.C. § 881(a)(6) (Supp. IV 1978). Section 881(d) directs that the proceedings to forfeit such property shall be conducted in accordance with the "law relating to the seizure, summary and judicial forfeiture, and condemnation of property for violation of the customs laws." 21 U.S.C. § 881(d) (1976 & Supp. III 1979). The applicable customs statute states that "the burden of proof shall lie upon (the) ... claimant ... Provided, That probable cause shall be first shown for the institution of such suit or action, to be judged of by the court." 19 U.S.C. § 1615 (1976). Aponte contends that this allocation of the burden of proof violates due process because forfeiture under 21 U.S.C. § 881(a)(6) constitutes criminal punishment. See generally In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970) (requiring proof of guilt beyond a reasonable doubt in criminal proceedings). This argument has been rejected by the Tenth Circuit, Bramble v. Richardson, 498 F.2d 968 (10th Cir.), cert. denied, 419 U.S. 1069, 95 S.Ct. 656, 42 L.Ed.2d 665 (1974). We reject it as well.

It is clear that Congress may impose both a criminal and civil sanction for the same conduct. Helvering v. Mitchell, 303 U.S. 391, 399, 58 S.Ct. 630, 633, 82 L.Ed. 917, 922 (1938). The question whether subsection 881(a)(6) imposes a criminal or civil sanction is primarily a matter of statutory construction. Id.

Our inquiry in this regard has traditionally proceeded on two levels. First, we have set out to determine whether Congress, in establishing the penalizing mechanism, indicated either expressly or impliedly a preference for one label or the other ... Second, where Congress has indicated an intention to establish a civil penalty, we have inquired further whether the statutory scheme was so punitive either in purpose or effect as to negate that intention .... In regard to this latter inquiry, we have noted that "only the clearest proof could suffice to establish the unconstitutionality of a statute on such a ground."

United States v. Ward, 448 U.S. 242, 248-49, 100 S.Ct. 2636, 2641, 65 L.Ed.2d 742, 749 (1980) (citations omitted). As to whether the remedy is too "punitive" to tolerate civil litigation procedures, the Court has suggested a number of factors to be considered:

(w)hether the sanction involves an affirmative disability or restraint, whether it has historically been regarded as punishment, whether it comes into play only on a finding of scienter, whether its operation will promote the traditional aims of punishment-retribution and deterrence, whether the behavior to which it applies is already a crime, whether an alternative purpose to which it may rationally be connected is assignable for it, and whether it appears excessive in relation to the alternative purpose assigned.

Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69, 83 S.Ct. 554, 567-68, 9 L.Ed.2d 644, 661 (1963) (footnotes omitted).

As to the first level of inquiry, Congress indicated both "expressly (and) impliedly a preference for" the civil label. The Comprehensive Drug Abuse Prevention and Control Act of 1970 1, 21 U.S.C. §§ 801-966 (1976) (hereinafter "the Act"), makes a clear distinction between criminal "Offenses and Penalties," which are set forth in Part D of the Act, 21 U.S.C. §§ 841-852, and "Administrative and Enforcement Provisions," including forfeiture, which are set forth in Part E, 21 U.S.C. §§ 871-886. As to the latter, the Act expressly adopts the civil procedures of the Customs Laws for in rem proceedings. See generally 19 U.S.C. §§ 1602-1615 (1976).

Turning to the first aspect of the second level of inquiry, we do not find "the clearest proof" that the forfeiture involved here is so punitive in purpose as to override Congress' intention to enact a civil penalty. The Act itself is replete with legislative findings and unquestionably civil provisions designed to serve its broad remedial purposes. Some of these are reviewed in the margin. 2 Forfeiture of drugs, vehicles and money used in drug trafficking has many apparent remedial, non-punitive purposes. These include impeding the success of the criminal enterprise by eliminating its resources and instrumentalities, diminishing the efficiency and profitability of the business by increasing the costs and risks associated with it, and helping to finance the government's efforts to combat drug trafficking. The provisions at issue here serve these purposes. Section 511(a) provides for forfeiture of controlled substances, plants, raw materials used to fabricate them, articles used as containers, vessels and vehicles used for transportation, and books and records. 21 U.S.C. § 881(a) (1976). The provision was clearly aimed at the instrumentalities of the drug trade with the clear intent of preventing their continued use. In 1978, Congress added the particular subparagraph, 21 U.S.C. 881(a)(6) (Supp. IV 1978), covering moneys and securities utilized in drug traffic, under which this forfeiture was effected. Pub. L. No. 95-633, § 301(a), 92 Stat. 3777 (1978). The addition of moneys to the list of plants, raw materials, vehicles, and records used in drug traffic apparently reflects an indisputable legislative finding that money in the narcotics trade finances and assists future trade at least as much as vehicles and containers and a decision that they should likewise be seized in the effort to impede such traffic. The authorization to the Attorney General to retain forfeited property for official use or sell it and use the proceeds, 21 U.S.C. § 881(e), serves the remedial purpose of equipping and financing law enforcement activities. 3

Similarly, we do not find "the clearest proof" that the forfeiture involved here is so punitive in effect as to override congressional intent. The statute makes no attempt to tailor the amount of the loss suffered by forfeiture to the degree of culpability, a strong indication that any punitive effect is incidental. The seizure of money is excessive neither in the abstract nor on the facts of this case.

Historically, forfeitures have always been regarded as civil. See United States v. Regan, 232 U.S. 37, 34 S.Ct. 213, 58 L.Ed. 494 (1914) (tracing the civil nature of forfeitures back to the earliest days of this country). This historic civil designation accurately reflects society's view that criminal judgments are of a fundamentally different character. Applicants for employment are often asked if they have been convicted of crimes; rarely, if ever, are they required to disclose judgments of forfeiture. The same distinction is observed on innumerable other questionnaires and applications that people fill out in the course of everyday life. Similarly, while the term "convicted felon" is a commonplace in our vernacular, no such pejorative term has arisen to describe the victims of forfeiture judgments.

A number of cases decided by the Supreme Court over the years lend limited, but insufficient, support to appellant's position. The strongest support comes from Justice Bradley's opinion in 1886 in Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29...

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