U.S. v. One 1972 Chevrolet Corvette

• Decision Date: 18 July 1980
• Docket Number: No. 80-1074,80-1074
• Citation: 625 F.2d 1026
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. ONE 1972 CHEVROLET CORVETTE, Defendant-Appellant.
• Court: U.S. Court of Appeals — First Circuit

Page 1026

625 F.2d 1026

UNITED STATES of America, Plaintiff-Appellee, v. ONE 1972 CHEVROLET CORVETTE, Defendant-Appellant.

No. 80-1074.

United States Court of Appeals, First Circuit.

Argued May 5, 1980.

Decided July 18, 1980.

Gerald Alch, Boston, Mass., for defendant-appellant.

Bruce A. Singal, Asst. U. S. Atty., with whom Edward F. Harrington, U. S. Atty., Boston, Mass., was on brief, for plaintiff-appellee.

Before COFFIN, Chief Judge, CAMPBELL and BOWNES, Circuit Judges.

BOWNES, Circuit Judge.

This appeal from a summary judgment enforcing the forfeiture of a motor vehicle presents the question whether the use of an automobile to transport its owner to a prearranged meeting for the collection by him of monies due from a prior transaction involving the sale and purchase of drugs by other persons constitutes "facilitation" of a sale within the meaning of the forfeiture provisions of the Drug Abuse Prevention and Control Act of 1970, Pub.L. 91-513, Title II, § 511(a)(4), 84 Stat. 1276 (1970), 21 U.S.C. § 881(a)(4).

Edward Simard is the owner of the 1972 Chevrolet Corvette which is the subject of this forfeiture action. From February 22, 1979, to April 4, 1979, Simard engaged in a conspiracy with James DeLorenzo, Anthony Serrichio, and several other persons to sell and possess with intent to sell lysergic acid diethylamide (LSD). During the course of the conspiracy, William McDonald, a special agent of the Drug Enforcement Administration, negotiated several LSD purchases with Serrichio. From his conversations with Serrichio, McDonald believed that the LSD supply was located in San Francisco, DeLorenzo was the New York source, and Simard, the banker. On April 3, 1979, DeLorenzo flew from New York to San Francisco and returned the following day. He was arrested upon arrival at the JFK Airport with a large quantity of LSD. On April 5, he agreed to cooperate with the government. He placed a monitored phone call to Simard in Massachusetts. The conversation which ensued implicated Simard in the conspiracy. On April 9, DeLorenzo phoned Simard and arranged to meet him at Logan Airport on April 12, 1979. At the airport, DeLorenzo gave Simard an envelop containing cash. ¹ Federal agents arrested Simard before he returned to his car. Simard was indicted on two counts of conspiracy and possession with intent to distribute a controlled substance in violation of 21 U.S.C. §§ 841(a)(1), and 841(b)(1)(B), and 18 U.S.C. § 2. ² Tried in the United States District Court for the Southern District of New York, Simard was found guilty on both counts at a jury-waived trial. The United States Court of Appeals for the Second Circuit affirmed the conviction.

The United States Attorney for the District of Massachusetts then instituted a proceeding in rem to enforce the forfeiture of the defendant vehicle because Simard used it in going to Logan Airport on April 12. The government charged that the vehicle was used or intended to be used to facilitate the sale and possession of LSD and thus was subject to forfeiture under 21 U.S.C. § 881(a) (4). The United States District Court for the District of Massachusetts granted summary judgment for the government. This appeal ensued.

The government's theory of forfeiture is predicated on the proposition that, as part of the overall drug scheme, Simard intended to "relinquish or transfer his constructive possession (of the LSD shipment) upon being reimbursed the $28,000 by DeLorenzo." Although actual commission of any crime involving these narcotics was impossible since the drugs had already been seized by federal agents and the conspiracy to distribute them had ended, the government contends that Simard's intention in driving to the airport brings the automobile within the forfeiture provisions of the Comprehensive Drug Abuse Prevention and Control Act. We turn to the statute.

The act makes it a crime "to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance." 21 U.S.C. § 841(a)(1).

LSD is a controlled substance within the ambit of the statute, 21 U.S.C. § 802(9)(C). Forfeiture of vehicles is authorized by 21 U.S.C. § 881(a)(4) which provides in pertinent part:

(a) The following shall be subject to forfeiture to the United States and no property right shall exist in them:

(4) 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). . . .

Paragraphs (1) and (2) provide for forfeiture of "(a)ll controlled substances which have been manufactured, distributed, dispensed, or acquired in violation of this subchapter," 21 U.S.C. § 881(a)(1), and "(a)ll raw materials, products, and equipment" used or intended for illegal use. 21 U.S.C. § 881(a) (2). ³

In determining whether Simard's intent to use the Corvette to transport his share of the proceeds subjected the vehicle to forfeiture under the statute, we note that not every involvement of an automobile with a drug transaction triggers forfeiture. Subsection 881(a)(4), by its terms, lays down a per se forfeiture rule only for transportation of certain items of contraband. In adding subsection 881(a)(6) in 1978, which subjects monies substantially involved in illicit drug transactions to forfeiture, Congress neither included a provision for forfeiture of vehicles transporting such monies nor amended subsection 881(a)(4) to explicitly include such transportation within that provision. Since intent to use a vehicle to transport proceeds of an illicit sale does not, per se, subject the vehicle to forfeiture, the key question is whether Simard intended to use his car "to facilitate the transportation, sale, receipt, possession, or concealment" of the LSD.

On two occasions, the Second Circuit has dealt with the facilitation clause of section 881(a)(4). In United States v. One 1974 Cadillac Eldorado Sedan, 548 F.2d 421 (2d Cir. 1977) (hereinafter Cadillac I ), two persons drove in the forfeited auto to a meeting to discuss a drug transaction. In upholding the government's right to the car, the court stated:

(W)e are loathe to make forfeiture depend upon the accident of whether dope is physically present in the vehicle. Its use to transport the peddler or his confederates to the scene of the sale or to a meeting where the sale is proposed is sufficient.

Id. at 426. The court found that the meeting to which the car had transported one of the defendants was "an integral part" of the drug conspiracy. Id. at 423. Thus, the court concluded the district court had erred in finding that the vehicle "had no direct or indirect relationship to the subsequent sales." Id.

In the other Second Circuit case, United States v. One 1974 Cadillac Eldorado, 575 F.2d 344 (2d Cir. 1978) (per curiam) (hereinafter Cadillac II ), the court applied the test of Cadillac I and found an insufficient nexus between the vehicle and a heroin sale to justify forfeiture. In Cadillac II, the facts were as follows. DEA agents set up a purchase of heroin from the owner of the car, one Willie E. Farrow. Farrow drove to the place of sale in a Valiant. As he prepared to make the sale in an alley, two things occurred.

Farrow announced that he thought he had seen a police car, and a pink Cadillac pulled into the alley, tailed by an undercover DEA vehicle. Farrow walked over to the Cadillac, in which his wife and children were riding along with Lawrence Bailey, his brother-in-law; he leaned into the car to talk, and, according to one of the DEA agents making the buy (but not the other) and a DEA surveillance agent, was seen to reach into the car with his hand.

Immediately thereafter, Farrow handed the heroin to Agent Burns, and Farrow and Bailey were arrested. Farrow asserted that his conversation with Bailey concerned a basketball game for which he was dressed to which he was to drive with Bailey; he insisted that he had already been in possession of the heroin for the sale at the Ontario Avenue address, and that the Cadillac had had nothing to do with the transaction. At the end of the government's case, charges against Bailey were dismissed.

Id. at 345. Although only Bailey drove to the sale site in the car, Farrow admitted he intended to depart in it after receiving payment for...