U.S. v. One 1957 Rockwell Aero Commander 680 Aircraft, VIN. No. 680-515-186, FAA No. N6247D

• Decision Date: 22 February 1982
• Docket Number: No. 81-1254,81-1254
• Citation: 671 F.2d 414
• Parties: UNITED STATES of America, Libellant-Appellee, v. ONE 1957 ROCKWELL AERO COMMANDER 680 AIRCRAFT, VIN. NO. 680-515-186, FAA NO. N6247D, Libellee, Frank Parker, Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 414

671 F.2d 414

UNITED STATES of America, Libellant-Appellee, v. ONE 1957 ROCKWELL AERO COMMANDER 680 AIRCRAFT, VIN. NO.

680-515-186, FAA NO. N6247D, Libellee,

Frank Parker, Appellant.

No. 81-1254.

United States Court of Appeals, Tenth Circuit.

Submitted Feb. 2, 1982.

Decided Feb. 22, 1982.

R. E. Thompson, U. S. Atty., and Larry Gomez, Asst. U. S. Atty., Albuquerque, N. M., for libellant-appellee.

Leo C. Kelly of Lill, Kelly & Barr, and Roderick T. Kennedy, Albuquerque, N. M., for appellant.

Before BARRETT, DOYLE and LOGAN, Circuit Judges.

BARRETT, Circuit Judge.

Frank R. Parker (Parker) appeals from a final judgment of condemnation and forfeiture. The United States initiated this action seeking forfeiture of an aircraft owned by Parker under 49 U.S.C.A. §§ 1474 and 1509 for non-compliance with United States Customs Service regulations regarding entry and notice of entry into the United States from foreign countries. The relevant facts are not in dispute.

Shortly before noon on January 7, 1980, the subject aircraft, a 1957 Rockwell Aerocommander 680, was observed by customs officers crossing the United States border into Mexico. Thereafter, during the late evening of the same day, the aircraft was observed returning from Mexico and entering the air space of the United States.

Upon its return into the United States, the aircraft proceeded to the vicinity of Hobbs, New Mexico, where a customs officer observed the aircraft extinguish its position lights, turn, and disappear. Several minutes later, air traffic control observed an unidentified aircraft flying from the general area of Hobbs toward Roswell, New Mexico. On January 8, 1980, at approximately 1:00 A.M., a New Mexico state police officer observed the aircraft parked at the Roswell airport. The Roswell airport is not a designated customs airport.

In traveling from the United States into Mexico and back, the aircraft did not give advance notice of its entry into the United States nor did it land at a designated United States customs airport upon its entry, as required by 19 C.F.R. §§ 6.2, 6.14, and 49 U.S.C.A. §§ 1474 and 1509.

Parker, a resident of Illinois, had acquired title to the aircraft on September 19 1979, when it was transferred to him in payment of a debt. At the time Parker acquired the plane, it was located at the Roswell airport.

During the course of the trial Parker testified, inter alia, that: after acquiring the aircraft he left it at the Roswell airport with the thought of reselling it; in late March or early April, 1980, he was informed that the aircraft had been seized; he did not make any effort to prevent someone from flying the aircraft after he acquired it; he was unaware that someone had flown the aircraft into Mexico and back on January 7-8, 1980; and, he had not authorized or consented to the operation of the aircraft on January 7-8, 1980.

Within its findings of fact the district court found, inter alia :

That the claimant Frank R. Parker had no defense to this action except that he claimed no knowledge of the flight and had no knowledge that the airplane was not complying with the laws of the United States. That such claim is no defense as set forth in U. S. v. Batre, (9th Cir.) 69 F.2d 673. Reference is made to that case and particularly to paragraphs 7 and 8. That the aircraft in question was permitted to remain in the possession of someone who violated the laws of the United States and the claimant cannot now complain. His claim of innocence does not except him from the law or provide a defense for him.

Claimant, Frank R. Parker, produced no evidence that he had used the aforesaid aircraft as a common carrier in the transaction of business.

Claimant, Frank R. Parker, has shown no sufficient reasons to this Court to deny forfeiture of aforesaid aircraft to the libellant, United States of America, or to turn over said aircraft to him (Frank R. Parker).

The aircraft should be forfeited to the libellant, United States of America, in accordance with 19 C.F.R. 6.11, and 49 U.S.C. 1474 and 1509.

(R., Vol. I, at pp. 19-20).

On appeal Parker contends: (1) the district court erred in not making any findings of fact or law under 19 C.F.R. §§ 171.11 and 13 and deciding the case under United States v. Batre, 69 F.2d 673 (9th Cir. 1934); (2) forfeiture statutes should be strictly construed and forfeiture of property belonging to totally innocent owners due to the actions of third persons committed without the knowledge, consent, or negligence of the owner should not be upheld; and (3) the forfeiture of the aircraft violates the Fifth Amendment protection against the taking of private property for public use without just compensation.

I.

The district court did not err in deciding this case in accordance with United States v. Batre, supra. In Batre the court, in construing 49 U.S.C. §§ 177 and 181, which were repealed in 1958 and replaced by 49 U.S.C. §§ 1509 and 1474, observed:

The Supreme Court of the United States, speaking through Mr. Justice Story, says in Harmony v. United States (U. S. v. Brig Malek Adhel, etc.), 2 How. (43 U.S.) 210, 233, 11 L.Ed. 239: "The next question is, whether the innocence of the owners can withdraw the ship from the penalty of confiscation under the Act of Congress. Here, again, it may be remarked that the act makes no exception whatsoever, whether the aggression be with or without the co-operation of the owners. The vessel which commits the aggression is treated as the offender, as the guilty instrument or thing to which the forfeiture attaches, without any reference whatsoever to the character or conduct of the owner. * * * It is not an uncommon course in the admiralty, acting under the law of nations, to treat the vessel in which or by which, * * * a wrong or offence has been done as the offender, without any regard whatsoever to the personal misconduct or responsibility of the owner thereof. And this is done from the necessity of the case, as the only adequate means of suppressing the offence or wrong. * * * The doctrine also is familiarly applied to cases of smuggling and other misconduct under our revenue laws; and has been applied to other kindred cases, such as cases arising on embargo and non-intercourse acts."

Had the Congress desired an exemption from penalty under this act to apply to innocent third parties, it would have been so stated, as has been done in other enactments.

69 F.2d at pp. 675-676.

It is uncontested that Parker's aircraft flew from the United States into Mexico and back in violation of §§ 1474 and 1509 and their related regulations. Under such circumstances, Parker's professed lack of knowledge is of no moment.

Equally without merit is Parker's assertion that the district court erred in not making any findings of fact or law under 19 C.F.R. 171.11 and 171.13. These regulations relate exclusively to administrative petitions addressed to the Commissioner of Customs for the "remission or mitigation of a fine, penalty, or forfeiture under any law administered by Customs ..." and, as such, were not properly before the district court.

II.

Parker contends that forfeiture statutes must be strictly construed and that forfeiture is improper when upheld against totally innocent owners due to the actions of third parties committed without the knowledge, consent, or negligence of the owner.

Forfeitures are clearly not favored and are to be enforced only when within both the spirit and letter of the law. United States v. One Ford Coach, 307 U.S. 219, 59 S.Ct. 861, 83 L.Ed. 1249 (1939); Rush v. United States, 256 F.2d 862 (10th Cir. 1958). We have heretofore recognized the harshness of forfeiture as a remedy. United States v. One (1) 1975 Thunderbird, Etc., 576 F.2d 834 (10th Cir. 1978). Accordingly the proof of the use of property in violation of a statute must be clear before forfeiture is ordered. Id.

However, although admittedly harsh, forfeiture is recognized as a useful governmental tool to assure compliance with recognized standards of conduct. United States v. 1978 Cadillac El Dorado 2-Door Coupe, Etc., 489 F.Supp. 532 (D.Utah C.D.1980). Once the Government, as here, meets its initial burden of showing probable cause for the institution of a forfeiture action, it is the claimant's burden to prove that the requested forfeiture does not fall within the four corners of the statute. United States v. One 1977 Pickup, Etc., 503 F.Supp. 1027 (D.Colo.1980).

Courts have little discretion in forfeiture actions. In United States v. One 1976 Buick Skylark, Etc., 453 F.Supp. 639 (D.Colo.1978), the court observed:

The courts have little, if any, discretion in forfeiture cases. (U. S. v. One 1973 Jaguar Coupe, 431 F.Supp. 128 (D.C.N.Y.1977)). It is the government's burden to prove that there was probable cause for the institution of a forfeiture action. (U. S. v. One 1973 Dodge Van, 416 F.Supp. 43 (D.C.Mich.1976)). Once established it is the claimant's burden to prove that the forfeiture does not fall properly within the act. (U. S. v. One 1972 Toyota...