U.S. v. Dodge Caravan Grand Se/Sport Van

• Decision Date: 27 October 2004
• Docket Number: No. 03-1925.,03-1925.
• Citation: 387 F.3d 758
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. DODGE CARAVAN GRAND SE/SPORT VAN, VIN # 1B4GP44G2YB7884560; Defendant, Erin Clemons, Claimant-Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

387 F.3d 758

UNITED STATES of America, Plaintiff-Appellee, v. DODGE CARAVAN GRAND SE/SPORT VAN, VIN # 1B4GP44G2YB7884560; Defendant Erin Clemons, Claimant-Appellant.

No. 03-1925.

United States Court of Appeals, Eighth Circuit.

Submitted: February 11, 2004.

Filed: October 27, 2004.

Appeal from the United States District Court for the District of Nebraska, Laurie Smith Camp, J Duane C. Dougherty, argued, Omaha, NE (Matthew L. McBride, on the brief), for appellant.

Nancy A. Svoboda, argued, Asst. U.S. Atty., Omaha, NE, for appellee.

Before MELLOY, SMITH, and COLLOTON, Circuit Judges.

MELLOY, Circuit Judge.

The claimant-appellant, Erin Clemons, appeals the district court's order of forfeiture of her 2000 Dodge Caravan Sport SE, which followed her guilty plea in state court to "possession of a controlled substance by theft, misrepresentation, fraud, forgery, deception, or subterfuge." See Neb.Rev.Stat. § 28-418(1)(c). She argues that the forfeiture order is unconstitutionally excessive. For the reasons stated below, we reverse and remand.

I.

The district court ordered forfeiture of Ms. Clemons's minivan at the conclusion of a non-jury trial. The trial was based on the parties' stipulated facts, which the district court adopted in making its findings. Our recitation of the facts is, likewise, drawn from the stipulated facts submitted to the district court.

Ms. Clemons was addicted to the prescription pain killer, hydrocodone. To support her addiction, Ms. Clemons called in phony prescriptions to pharmacies, using the aliases "Katie Gibbs," "Sara Foster," "Kelly Clemons," "Thomas Gleason," and "James McGill." In January of 2001, a pharmacist contacted the police suspecting Ms. Clemons of fraud. The pharmacist gave police a physical description of Ms. Clemons and of the defendant property, which Ms. Clemons used to pick up the prescription. In April 2001, another pharmacist from a different pharmacy contacted police about suspected fraud. On that occasion, Ms. Clemons picked up the prescription using the pharmacy's drive-thru window, and the pharmacist identified the customer as Ms. Clemons using a police photograph. She also described the defendant property and its license plate number.

On April 4, 2001, police arrested Ms. Clemons for obtaining fraudulent prescriptions. She made a post-Miranda statement to police indicating that she had obtained at least four hydrocodone prescriptions by providing doctors with false information. Only one month after her arrest, another pharmacist contacted police about possible fraud in obtaining hydrocodone prescriptions. Police showed the pharmacist a photograph of Ms. Clemons, and the pharmacist positively identified her as the person who obtained hydrocodone without a valid prescription from her pharmacy on four occasions.

Yet another pharmacist contacted police in August about possible fraudulent prescriptions. Police staked out the pharmacy parking lot and witnessed Ms. Clemons driving the defendant property. The police officer on the scene observed her driving her vehicle up and down the parking lot aisles and believed she was conducting counter-surveillance. After several minutes, Ms. Clemons used the drive-thru window to obtain the fraudulent prescription of hydrocodone. While she was in the drive-thru lane, police arrested her. Police seized the defendant property at the time of the arrest.

The parties agree that all the prescriptions Ms. Clemons obtained were for personal use and that she reaped no monetary benefit from them. Nor did she give the tablets to anyone else. Ms. Clemons received three Class IV felony convictions in Nebraska state court for her activities described above. A Class IV felony under Nebraska law is punishable by a maximum $10,000.00 fine and a maximum five-year term of imprisonment. Ms. Clemons was sentenced to thirty-six months intensive supervised probation; thirty days electronic monitoring; "show cause" time of 180 days; and inpatient drug treatment. In addition, she was assessed court costs, the cost of electronic monitoring, and the cost of chemical testing, totaling $388.50. The total value of the hydrocodone tablets Ms. Clemons was charged with fraudulently obtaining was between $644.00 and $1,127.00. She also obtained liquid cough medication containing hydrocodone, which was valued at $900.00. At the time of its seizure, the defendant property was valued between $12,000.00 and $14,000.00. Ms. Clemons was its sole owner, and the minivan served as the family vehicle for Ms. Clemons and her three children.

In January of 2002, the United States of America brought a forfeiture action in federal district court seeking the forfeiture of Ms. Clemons's minivan, pursuant to 21 U.S.C. § 881. After finding that the defendant property "facilitated" Ms. Clemons's transportation, receipt, possession, or concealment of hydrocodone, a Schedule I controlled substance, the district court found that forfeiture of the defendant property was not unconstitutionally excessive and ordered forfeiture. Ms. Clemons appeals, maintaining that her vehicle did not facilitate her possession of hydrocodone and, alternatively, that forfeiture constitutes an unconstitutionally excessive fine under the facts of this case.

II.

A civil forfeiture action is an in rem proceeding brought by the government as plaintiff against defendant property asserting that "[a]ll right, title, and interest in [the defendant] property" has vested in "the United States upon commission of the act giving rise to forfeiture." 18 U.S.C. § 981(f). Section 881(a)(4) of the Controlled Substances Act authorizes the forfeiture of "[a]ll 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 narcotics. 21 U.S.C. § 881(a)(4). This forfeiture provision is subject to the standards set forth in the Civil Asset Forfeiture Reform Act of 2000 ("CAFRA"), 18 U.S.C. § 983. See United States v. $84,615 in U.S. Currency, 379 F.3d 496, 501 (8th Cir.2004) (applying CAFRA's standards to forfeiture action brought under 21 U.S.C. § 881(a)(6)). The Act places the initial burden on the government of proving by a preponderance of the evidence that the defendant property is subject to forfeiture. 18 U.S.C. § 983(c)(1). Here, the government contends that Ms. Clemons's vehicle facilitated the commission of her drug offense. Accordingly, CAFRA requires the government to "establish that there was a substantial connection between the property and the offense." Id. § 983(c)(3); cf. United States v. Premises Known as 3639-2nd St., N.E., Minneapolis, Minn., 869 F.2d 1093, 1098 (8th Cir.1989) (Arnold, Richard S., concurring) (stating in forfeiture action prior to CAFRA's enactment that "this Court [did] not depart from its past insistence that there must be a substantial connection between the property being forfeited and a drug-related crime."); United States v. Prop. Identified as 1813 15th St. N.W., Washington D.C., 956 F.Supp. 1029, 1033 (D.D.C.1997) (stating in pre-CAFRA case that "[f]acilitation can be proven by establishing a `substantial connection' between the illegal activity and the property being forfeited").

Our "review of a district court's decision on the excessive fines issue `must be based upon the analysis and record finally developed by the district court.'" United States v. One 1970 36.9' Columbia Sailing Boat, 91 F.3d 1053, 1057 (8th Cir. 1996) (quoting United States v. Alexander, 32 F.3d 1231, 1237 (8th Cir.1994)). Furthermore, in a forfeiture proceeding, we review the district court's factual findings for clear error but apply a de novo standard of review to our consideration of whether or not those facts render the defendant property subject to forfeiture. $84,615 in U.S. Currency, 379 F.3d at 501. "The burden of showing something by a `preponderance of the evidence,' the most common standard in the civil law, `simply requires the trier of fact "to believe that the existence of a fact is more probable than its nonexistence before [he] may find in favor of the party who has the burden to persuade the [judge] of the fact's existence.'"" Concrete Pipe & Prods. of Cal., Inc. v. Constr. Laborers Pension Trust for S. Cal., 508 U.S. 602, 622, 113 S.Ct. 2264, 124 L.Ed.2d 539 (1993) (alterations in original) (quoting In re Winship, 397 U.S. 358, 371-72, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970) (Harlan, J., concurring)). In determining whether Ms. Clemons's vehicle is substantially connected to her drug crime, "[c]ircumstantial evidence can be used by the United States to establish its burden of proof." $84,615 in U.S. Currency, 379 F.3d at 501.

Although this is a close case, we agree with the district court that Ms. Clemons's minivan is subject to forfeiture, because the government has proved by a preponderance of the evidence that the vehicle was substantially connected to her criminal activity. The stipulated facts show that Ms. Clemons used her vehicle to drive to pharmacies to pick up fraudulently obtained prescriptions of hydrocodone. It is reasonable to infer that she evaded detection by using the defendant property to procure the hydrocodone tablets using pharmacies' drive-thru window lanes. Moreover, the officer who arrested Ms. Clemons in August of 2001 when her vehicle was seized believed that she used her vehicle to conduct counter-surveillance. Specifically, the officer observed Ms. Clemons drive up and down the pharmacy parking lot, park for several minutes and then move her vehicle to a different parking spot.

In support of reversal, Ms. Clemons cites Platt v. United States, 163 F.2d 165 (10th Cir.1947). In that case, Blanche Cooper drove her mother's automobile to a pharmacy and obtained morphine tablets for personal use using "questionable doctor's prescriptions." Id. at 166. She parked the car outside the pharmacy and went inside to...