U.S. v. One 1986 Ford Pickup, CA License No. 2W03753, VIN 2FTJW36L6GCA99688

Decision Date08 June 1995
Docket NumberNo. 93-55367,93-55367
Citation56 F.3d 1181
PartiesUNITED STATES of America, Plaintiff-Appellee, v. ONE 1986 FORD PICKUP, CA LICENSE NO. 2W03753, VIN 2FTJW36L6GCA99688, Its Tools and Appurtenances, Defendant. Ernie R. Sanders, Claimant-Appellant.
CourtU.S. Court of Appeals — Ninth Circuit

Richard A. Derevan and Gerda M. Roy, Snell & Wilmer, Irvine, CA, for claimant-appellant.

Donald D. Clausen, on brief, and John A. Houston, Asst. U.S. Attys., San Diego, CA, for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of California.

Before: BROWNING, D.W. NELSON and HAWKINS, Circuit Judges.

PER CURIAM:

I

A confidential informant told federal law enforcement officials that Claimant-Appellant Ernie Sanders was a large-scale marijuana trafficker who had a Mexican source in Phoenix, Arizona. The informant stated that he and several others had assisted Sanders in distributing two 1000-pound loads of marijuana in New York and New Jersey. The informant also stated that he met with Sanders a few weeks later in Vista, California, and delivered $30,000 to Sanders, which represented profits from the marijuana distribution on the East Coast.

The informant reported Sanders drove to and from the Vista meeting in a 1986 blue two-tone Ford pickup. The government seized the truck and filed a forfeiture complaint. Sanders moved to dismiss the complaint and require return of his truck. The government acquiesced in the dismissal, but asked the district court to certify "that there was reasonable cause for the seizure." 28 U.S.C. Sec. 2465. 1

The court dismissed the complaint, ordered the pickup returned to Sanders, and issued a certificate of reasonable cause. The court also ordered Sanders to pay the costs incurred by the government in seizing and storing the truck. Sanders appeals.

II

Sanders contends the court erred in taxing costs against him, because he was the prevailing party. The government agrees, and so do we. By the terms of section 2465, each party must bear its own costs, but the statute does not authorize taxing a prevailing claimant with the cost of seizure and storage. Accordingly, we reverse that portion of the district court's order taxing costs against Sanders.

III

A.

Sanders challenges the order issuing a certificate of reasonable cause. The government contends we lack appellate jurisdiction because such an order is not a "final decision" within the meaning of 28 U.S.C. Sec. 1291. The government relies on United States v. Abatoir Place, 106 U.S. 160, 1 S.Ct. 169, 27 L.Ed. 128 (1882), which held that an order denying a certificate of reasonable cause was not appealable. 2

When Abatoir Place was decided, the federal courts had long held that many post-judgment orders were not appealable, often on the formalistic ground cited in Abatoir Place--that since the order was not a part of the original final judgment it could not be appealed unless entered in a proceeding framed as a separate action. See 15B Charles A. Wright, et al., Federal Practice and Procedure Sec. 3916, at 360-61 (1992). However, subsequent Supreme Court cases have emphasized that the finality requirement is to be given "a practical rather than a technical construction." Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 375, 101 S.Ct. 669, 674, 66 L.Ed.2d 571 (1981) (quoting Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 1225-26, 93 L.Ed. 1528 (1949)). Under modern doctrine,

[a] "final decision" generally is one which ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.... The foundation of this policy is not in merely technical conceptions of "finality." It is one against piecemeal litigation.

Catlin v. United States, 324 U.S. 229, 233-34, 65 S.Ct. 631, 633-34, 89 L.Ed. 911 (1945), quoted in United States v. Washington, 761 F.2d 1404, 1406 (9th Cir.1985).

As we have said: "The policy against and the probability of piecemeal review is not as decisive a consideration after judgment as before judgment since the underlying dispute is already settled.... [U]nless such [post-judgment] orders are found final, there is often little prospect that further proceedings will occur to make them final." Washington, 761 F.2d at 1406 (a remedial order issued pursuant to a district court's continuing jurisdiction was appealable; a contrary result "would eliminate any opportunity for review"); see also In re Farmers' Loan & Trust Co., 129 U.S. 206, 213, 9 S.Ct. 265, 265-66, 32 L.Ed. 656 (1889) (order issued subsequent to final decree in foreclosure suit appealable); 15B Wright et al., supra, Sec. 3916 at 351.

In light of fundamental changes in final judgment doctrine in the 113 years since Abatoir Place was decided, we conclude the case does not control our decision. 3 To hold that we lack jurisdiction to review an order granting a certificate of reasonable cause would do nothing to advance the policy against piecemeal appeals, but would merely render the district court's decision on these issues permanently unreviewable on the basis of a "technical conception[ ] of 'finality.' " Washington, 761 F.2d at 1406; see also United States v. One 1985 Chevrolet Corvette, 914 F.2d 804, 807 (6th Cir.1990).

B.

We have held that a post-judgment order may be appealable (1) as an "integral part" of the final judgment on the merits even though not entered concurrently with that judgment; (2) as an independent final order in a single case involving two "final" decisions; or (3) as a collateral interlocutory order subject to immediate review under Cohen, if it is viewed as preliminary to a later proceeding. See United States v. Shaibu, 957 F.2d 662, 663-64 (9th Cir.1992) (citations omitted). The order issuing a certificate of reasonable cause in this case is appealable on at least two of these bases.

1.

We held in Shaibu that a sentencing judge's denial of a criminal defendant's motion for a judicial recommendation against deportation was appealable as an "integral part" of the underlying sentencing decision, because (1) only the sentencing judge could make the recommendation, (2) the recommendation was binding on the Attorney General, and (3) the recommendation must be made within 30 days of sentencing. Id. at 664. The same factors support the conclusion that an order issuing a certificate of reasonable cause is appealable as an "integral part" of the judgment in the forfeiture action: (1) only the judge presiding over the forfeiture action may grant the certificate; (2) the certificate is binding upon the parties, barring any future action for damages; and (3) the certificate must be issued soon after entry of judgment, before costs are taxed. Moreover, the inquiry involved in the decision to grant or deny the certificate--i.e., whether the government had probable cause to seize the property and institute forfeiture proceedings--is tied to the merits of the forfeiture action.

2.

To be appealable as a collateral order under Cohen, "the order must conclusively determine the disputed question, resolve an important issue completely separate from the merits of the action, and be effectively unreviewable on appeal from a final judgment." Risjord, 449 U.S. at 375, 101 S.Ct. at 674 (quoting Coopers & Lybrand v. Livesay, 437 U.S. 463, 468, 98 S.Ct. 2454, 2457-58, 57 L.Ed.2d 351 (1978)). If an order granting a certificate of reasonable cause is viewed as "antecedent and ancillary to another suit," Abatoir Place, 106 U.S. at 162, 1 S.Ct. at 170, it easily meets the Cohen test. The order conclusively resolves the issues of costs and immunity from liability to a future action--issues separate from the merits of any such action. Moreover, the decision to grant a certificate would be effectively unreviewable in a future action, since the certificate itself would bar such an action.

IV

On the merits, the record supported the issuance of the certificate of reasonable cause. 4 "Reasonable cause" within the meaning of section 2465 is essentially synonymous with probable cause. Stacey v. Emery, 97 U.S. 642, 646, 24 L.Ed. 1035 (1878); United States v. 255 Broadway, 9 F.3d 1000, 1006 n. 9 (1st Cir.1993). Thus, whether the certificate of reasonable cause was properly issued depends on whether the government had probable cause to believe the pickup was subject to forfeiture. See United States v. $191,910.00 in U.S. Currency, 16 F.3d 1051, 1071 (9th Cir.1994). We determine de novo whether probable cause existed. Id. at 1071 n. 43.

A

"Probable cause to believe that the property is involved in some illegal activity is not enough--the government must have probable cause to believe that the property is involved in the activity subject to the specific forfeiture statute it invokes." Id. at 1071. In this case, the government must have had probable cause to believe Sanders's pickup was "used, or ... intended for use, ... to facilitate the ... sale ... of [controlled substances]." 21 U.S.C. Sec. 881(a)(4).

Sanders contends his use of the truck to drive to the meeting in California could not have "facilitated" a "sale" of drugs within the meaning of the statute, because the "sale" was complete when the drugs were delivered on the East Coast several weeks earlier. Sanders principally relies on United States v. One 1972 Chevrolet Corvette, 625 F.2d 1026, 1030 (1st Cir.1980), in which the First Circuit held that a vehicle is subject to forfeiture only if it has some "antecedent relationship" to the drug transaction; the use of a vehicle to transport the proceeds after the transaction does not facilitate the prior sale.

With all due respect, "[w]e do not understand the temporal distinction." United States v. 1990 Toyota 4Runner, 9 F.3d 651, 654 (7th Cir.1993). Nothing in the language or purpose of section 881(a)(4) suggests a vehicle used to transport a participant to a meeting to receive and carry away the proceeds of...

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