U.S. v. One 1974 Cadillac Eldorado Sedan, Serial No. 6L47S4Q407966
| Decision Date | 13 January 1977 |
| Docket Number | D,No. 6L47S4Q407966,No. 68,6L47S4Q407966,68 |
| Citation | 548 F.2d 421 |
| Parties | UNITED STATES of America, Plaintiff-Appellant, v. ONE 1974 CADILLAC ELDORADO SEDAN, SERIALefendant-Appellee. ocket 76-6063. |
| Court | U.S. Court of Appeals — Second Circuit |
Peter C. Salerno, Asst. U. S. Atty., New York City (Robert B. Fiske, Jr., U. S. Atty., S.D.N.Y., Samuel J. Wilson, Asst. U. S. Atty., New York City, of counsel), for plaintiff-appellant.
Michael P. Direnzo, New York City, for defendant-appellee.
Before WATERMAN, FRIENDLY and MULLIGAN, Circuit Judges.
On October 15, 1974, the United States brought an action pursuant to 21 U.S.C. § 881 for the forfeiture of a 1974 Cadillac Eldorado Sedan registered in the name of Ivan Santiago. The Government sought forfeiture of the vehicle on the ground that it had been used to facilitate the sale of cocaine within the meaning of 21 U.S.C. § 881(a)(4). After a one-day bench trial before the Honorable Edward Weinfeld, United States District Court for the Southern District of New York, the court dismissed the complaint and denied forfeiture by order and judgment entered March 4, 1976. Judge Weinfeld's opinion, filed on December 30, 1975, is reported at 407 F.Supp. 1115. The Government has appealed.
The only evidence given below for the Government was the testimony of Joseph P. Salvemini, an undercover agent of the Drug Enforcement Administration, and two exhibits. The claimant Santiago testified on his own behalf. The Government does not contend that any of the findings of fact below are erroneous.
At about 1:30 p.m. on June 6, 1974, Salvemini and an informant went to the apartment of Arlene Carlton at 305 East 24th Street in Manhattan. They were there introduced to one "Pete" Montanez and discussed the purchase of cocaine. Montanez stated that he and his cousin Ivan (Santiago) had brought 15 kilos of cocaine from South America and had 3 kilos left. Montanez told Salvemini that he could only sell him an eighth of a kilogram. Salvemini protested that this was not enough and after a heated exchange Montanez left. On the following day, June 7, Salvemini's informant advised him that another meeting had been scheduled at Carlton's apartment. Ivan Santiago, accompanied by Montanez, drove the Cadillac from his ladies' apparel shop on East 167th Street in the Bronx to Carlton's apartment in Manhattan where they met with Salvemini. Santiago stated that he was there to straighten out the prior disagreement and was willing to sell Salvemini one kilogram of cocaine for $26,000. They disagreed however as to the method of transferring the drugs. According to Salvemini, Santiago claimed to have been a dealer in cocaine for six years and preferred the exchange to be made indoors in Carlton's apartment, while Salvemini wished to use two rented cars. Salvemini testified that the price and the amount of cocaine to be sold were agreed upon at this meeting, and that their only difference at that point was the mechanics of the exchange. Santiago testified that at the end of the June 7 meeting, he told Salvemini to forget about it and that no agreement was reached.
Judge Weinfeld did not comment in his opinion on these separate versions of the June 7 meeting but did find that the meeting ended inconclusively and that the participants failed to agree on the mechanics of the transaction. Santiago and Montanez, after leaving the Carlton apartment, drove away in the Cadillac now sought to be forfeited. Three days later on June 10, 1974, Montanez met Salvemini at a New York restaurant where negotiations continued. Salvemini testified that Montanez stated that he and his cousin Ivan (Santiago) were adamant that the sale take place indoors. Salvemini then agreed to purchase an eighth of a kilogram of cocaine. The transaction took place that evening in the Carlton apartment, Salvemini paying Montanez $4,000 for the cocaine. By arrangement Salvemini and Montanez met the following day and agreed to the further sale of a kilogram of cocaine later that day. Before the transaction was consummated, however, Santiago and Montanez were both arrested.
The apartment of Santiago was searched on June 12 pursuant to a search warrant and quantities of cocaine and marihuana were seized, as well as narcotics equipment, plus some $26,629 in currency including $2,500 in $100 bills representing official advance funds. Later that day Santiago's Cadillac was seized. After Santiago's arrest, he was indicted and then pleaded guilty to conspiring with Montanez and Carlton to distribute cocaine in violation of 21 U.S.C. § 846. One of the overt acts charged in the indictment was the June 7 conversation in the Carlton apartment. Other overt acts charged were the purchase and sale of the one-eighth kilogram on June 10, 1974 by Montanez. Concededly the only use of the Cadillac Eldorado Sedan sought to be forfeited here was to transport Santiago and "Pete" Montanez to and from the Carlton apartment on June 7, 1974.
Section 881(a)(4) provides that the property subject to forfeiture includes "All 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 property described in paragraph (1) or (2)." Paragraph 1 identifies a controlled substance as such property and there is no dispute that cocaine is such a substance.
The Government specifically relies on that part of the statute which provides that if the vehicle is used "in any manner to facilitate the . . . sale" of the controlled substance, it is subject to forfeiture. It is urged that the use of the Cadillac to bring Santiago and Montanez to the June 7 prearranged "business" meeting was a significant event in furtherance of Santiago's illegal activities which culminated in the illicit sale, thus justifying the forfeiture of the vehicle. Judge Weinfeld's opinion held that since the contraband was not transported by the vehicle and the car was used as an ordinary means of transportation to convey Santiago to the site of the June 7 meeting, there was no sufficient basis for forfeiture. The court held that the vehicle must have a substantial connection to, or be instrumental in the commission of, the underlying crime. He found that the Cadillac here involved had no relationship, direct or indirect, to the subsequent narcotic transactions which transpired a few days later. He placed principal reliance on United States v. One 1972 Datsun, 378 F.Supp. 1200 (D.N.H.1974) which is the most recent case discussing the issue at length. There is no opinion of our circuit court in point. Although appellee has not favored us with a brief, the cases in point are not numerous and are discussed to a considerable extent in the Datsun opinion.
We cannot agree with the district court that the use of Santiago's Cadillac had no direct or indirect relationship to the subsequent sales. The June 7 meeting may have terminated inconclusively because of a disagreement as to the mechanics of the exchange, but it was an integral part of the drug selling conspiracy to which Santiago pleaded guilty and was pleaded in the indictment as an overt act. Salvemini did testify that the price and quantity of the drug were fixed at that meeting. It was the second meeting of Montanez and Salvemini and was prearranged as a result of the abortive meeting the day before. Santiago admittedly knew that the purpose of the meeting was to arrange for the sale of cocaine. That sale was consummated a few days later in the manner insisted upon by Santiago an exchange in the apartment of Carlton. Santiago further admitted in the proceeding below that he had given the cocaine to Montanez which was sold to Salvemini on June 10, again an overt act pleaded in the indictment.
The question is whether there was a sufficient nexus between the use of the Cadillac to bring Salvemini and Santiago to and from the June 7 meeting to amount to a facilitation in any manner of the later sale of the controlled substance within the meaning of section 881(a)(4).
United States v. One 1972 Datsun, supra, relied upon by the district court, involved the construction of the same subdivision of the statute on facts which appear to be stronger for the Government's case than those before us. That court nonetheless found them insufficient to justify the forfeiture of the vehicle. In that case Stoudt, the owner of the vehicle in question, on two occasions by prearrangement used his car to lead a special agent of the Drug Enforcement Administration (who followed in his own car) to Stoudt's apartment where sales of LSD were transacted. The court in its review of the case law found that this forfeiture statute and others similar to it had been limited to cases where a) the contraband, no matter how minute in quantity, was intentionally transported or concealed in the vehicle; b) where the vehicle was used as a place for conducting negotiations for or transacting any portion of a sale; or c) where the vehicle is used as a lookout or decoy vehicle in a convoy. The court noted that courts, with the exception of United States v. One 1941 Pontiac, 83 F.Supp. 999 (S.D.N.Y.1948), had been reluctant to expand the notion of "facilitation" beyond these categories. 378 F.Supp. at 1202-03 and n.6. From these cases, the court derived the rule followed below that "to be forfeited, a vehicle must have some substantial connection to, or be instrumental in the commission of, the underlying activity which the statute seeks to prevent." Id. at 1205. We cannot agree, in light of the language and intent of section 881(a)(4), that the statute should be so narrowly construed as to limit its application to the three categories set forth in Datsun.
The Datsun court, and Judge Weinfeld here, depend upon Simpson v. United States, 272 F.2d 229 (9th Cir. 1959), which in turn relied upon ...
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