U.S. v. One 1979 Porsche Coupe, VIN 9289200514
Citation | 709 F.2d 1424 |
Decision Date | 18 July 1983 |
Docket Number | No. 82-8558,82-8558 |
Parties | UNITED STATES of America, Plaintiff-Appellee, v. ONE 1979 PORSCHE COUPE, VIN 9289200514, Defendant, Clarence Lee McDowell, Claimant-Appellant. |
Court | U.S. Court of Appeals — Eleventh Circuit |
Douglas Edward Cobb, Norcross, Ga., for 1979 Porsche.
Kathie McClure, Myra H. Dixon, Asst. U.S. Attys., Atlanta, Ga., for plaintiff-appellee.
Appeal from the United States District Court for the Northern District of Georgia.
Before RONEY, VANCE, and ANDERSON, Circuit Judges.
This case involves the seizure of a 1979 Porsche automobile by virtue of its alleged use in facilitating a drug transaction. Claimant, Clarence Lee McDowell, was convicted in the United States District Court for the Northern District of Georgia of attempt to possess with intent to distribute cocaine hydrochloride in violation of 21 U.S.C.A. Sec. 846 (West 1981). The United States then instituted proceedings under 21 U.S.C.A. Sec. 881 (West 1981) for forfeiture of McDowell's vehicle, a 1979 Porsche Coupe. After a non-jury trial, the court entered judgment for the United States, finding that the government had demonstrated probable cause for the forfeiture. In this appeal from that judgment, McDowell contends that the government did not make the showing necessary to justify a forfeiture because (a) the government did not prove a sufficient nexus between the use of the vehicle and the attempted illegal transaction, and (b) McDowell's actions did not amount to an "attempt" to purchase a controlled substance. Additionally, McDowell asserts that illegally obtained evidence excluded from his criminal trial was improperly admitted during the forfeiture proceeding. We disagree, and affirm the forfeiture order.
The record below demonstrates that McDowell was the owner of a 1979 Porsche, the subject matter of this forfeiture proceeding. On August 1, 1979, McDowell drove the Porsche from his home in Knoxville, Tennessee, to Atlanta, Georgia. Upon his arrival, he registered at the Marriott Hotel at Perimeter Mall in Atlanta, and then drove to a friend's house where he spent the night. The next day, after receiving a phone call, McDowell drove back to the Marriott, where he met in his hotel room with Charles Crane and Fernando Delmau to discuss the possible purchase by McDowell of one kilogram of cocaine. Unknown to McDowell, Crane was a DEA agent and Delmau was an informant for the DEA. Although the parties were unable to agree on all terms, it was established that McDowell would pay $58,000 for the cocaine; McDowell told the agents that the money was nearby and readily obtainable. Later in the day, McDowell again met with the two agents in his hotel room to attempt to arrive at a complete agreement. The two agents proffered the cocaine, wrapped in clear plastic, but upon examination McDowell declined to purchase the cocaine. According to Agent Crane, McDowell stated that "he did not like the quality of the cocaine, it was like nothing he had ever seen before." In fact, the substance was not cocaine. Shortly thereafter, the agents arrested McDowell.
According to McDowell, he and Delmau were old acquaintances. On an earlier occasion, Delmau had told McDowell that he had been forced to go under cover for the DEA because of various legal problems relating to narcotics. Apparently, Delmau needed to buy time with the government until he could resolve his problems. 1 McDowell asserts that he therefore agreed to work with Delmau in setting up a "sham" drug deal, in which no purchase would actually be consummated. In support of this story, McDowell points out that after his arrest agents were unable to find any of the money which McDowell had claimed to have nearby when negotiating the transaction.
After McDowell's conviction for attempting to purchase cocaine, the government instituted this proceeding for the forfeiture of the Porsche in which McDowell drove to Atlanta. 2 After a non-jury trial, the trial court concluded that the vehicle had been used to facilitate the attempted purchase and therefore ordered the vehicle forfeited.
To support a forfeiture under Sec. 881, the government must demonstrate probable cause for the belief that a substantial connection exists between the vehicle to be forfeited and the relevant criminal activity. Probable cause in this context is defined as a reasonable ground for a belief of guilt, supported by less than prima facie proof but more than mere suspicion. United States v. $364,960 in U.S. Currency, 661 F.2d 319, 323 (5th Cir.1981). 3 After the government has made the necessary showing, the burden of proof shifts to the claimant to demonstrate by a preponderance of the evidence that the vehicle was not used to facilitate a narcotics transaction. Id. at 325; see E.A. Shipping Co. v. Bazemore, 617 F.2d 136, 138 (5th Cir.1980). In our view, the government has made the necessary showing and the claimant has failed to rebut that showing.
McDowell used the automobile to drive from Knoxville to Atlanta the evening prior to negotiations. Once in Atlanta, he again used the vehicle to drive to the hotel where the negotiations took place. 4 Although McDowell had offered $58,000 for the cocaine, there was no evidence that the vehicle was used to transport any money, as no money was in fact found. Compare United States v. One 1978 Chevrolet Impala, 614 F.2d 983, 984-85 (5th Cir.1980) ( ); United States v. One 1979 Mercury Cougar XR-7, 666 F.2d 228, 230 (5th Cir.1982) ( ). Nonetheless, the cases establish that under Sec. 881 it is not necessary for the subject vehicle either to have transported the illegal substance (or the purchase money) or to have served as the location for the transaction. See United States v. One 1977 Cadillac Coupe DeVille, 644 F.2d 500, 503 (5th Cir.1981) (Unit B); United States v. One 1979 Mercury Cougar XR-7, 666 F.2d at 230; United States v. One 1974 Cadillac Eldorado Sedan, 548 F.2d 421, 427 (2d Cir.1977). The subject vehicle in this case was used to transport the "pivotal figure in the transaction" several hundred miles to the precise location at which the attempted purchase took place. See United States v. One 1974 Cadillac Eldorado Sedan, 548 F.2d at 427 ( ).
In particular, this case is governed by United States v. One 1977 Cadillac Coupe DeVille, supra. In that case, a panel of the former Fifth Circuit upheld the forfeiture of an automobile whose sole connection with the crime was its use in transporting a narcotics supplier "to the actual scene of the transaction." 644 F.2d at 503. As in this case, the subject automobile had transported neither contraband nor money. We thus hold that the Porsche had a sufficient nexus to the attempted drug purchase to support the forfeiture.
McDowell also argues that his...
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