U.S. v. One (1) 1980 Cessna 441 Conquest II Aircraft
| Decision Date | 16 December 1997 |
| Docket Number | No. 97-2539-CIV.,97-2539-CIV. |
| Citation | 989 F.Supp. 1465 |
| Parties | UNITED STATES of America, Plaintiff, v. ONE (1) 1980 CESSNA 441 CONQUEST II AIRCRAFT, Serial No. 441-01111, Venezuelan Registration No. YV-977CP, Defendant. |
| Court | U.S. District Court — Southern District of Florida |
Scott Ray, Assistant U.S. Attorney, Miami, FL, for Plaintiff.
Scott Sakin, Miami, FL, for Defendant.
ORDER DISMISSING COMPLAINT
THIS CAUSE comes before this Court upon Claimant Louis Dona's Motion to Dismiss, filed October 30, 1997. The Government filed a response on November 14, 1997.
The Government alleges in its Complaint that the defendant vehicle, a Cessna aircraft, is subject to forfeiture pursuant to (1) 21 U.S.C. § 881(a)(4) for being used or intended for use in a manner facilitating the sale, receipt, or possession of a controlled substance; (2) 21 U.S.C. § 881(a)(6) for constituting something of value furnished or intended to be furnished by a person in exchange for a controlled substance; and (3) 49 U.S.C. § 46306(d) for displaying a mark that is false or misleading as to the nationality or registration of the aircraft, in violation of 49 U.S.C. § 46306(b)(3). The Government alleges that during a drug investigation, the Drug Enforcement Administration ("DEA") learned that the defendant aircraft had been flown into Ft. Lauderdale Airport carrying a pilot, Freddy Magno ("Magno"), and two passengers, Manuel Ledezma and Luis Dona ("Dona"). The DEA discovered that the aircraft displayed the Venezuelan registration number YV-977CP but should have been registered as a Colombian aircraft with the number HK-2413P. The aircraft had been seized and impounded six years before in Colombia for its use in narcotics trafficking, and the Colombian government had no records authorizing the release of the aircraft. Nonetheless, the aircraft was acquired by several corporations in Venezuela and finally purchased by Aerocons Importaciones, S.A. ("Aerocons"), a corporation headed by Dona. The DEA discovered that Dona had an interest in all the corporations that had acquired the aircraft. When Aerocons acquired the aircraft, Dona changed the registration from YV-25CP to YV-977CP, which, according to Venezuelan officials, is illegal. The bill of sale identifies the purchaser of the aircraft as Luis Torriente-Garcia, which Venezuelan officials identified as an alias for Dona.
The Government also alleges that Antonio Korol-Hull, a former pilot of the aircraft, had been arrested for drug trafficking and aircraft theft, and that the other pilot, Magno, is known to have worked for William Antonio Fajardo-Rodriguez, a convicted drug trafficker. The government alleges that Dona is also suspected of having drug ties. In August 1996, Venezuelan police intercepted a phone call in which Louis Torriente, Dona's alleged alias, was mentioned as a possible transporter for drugs because he had his own plane and had successfully smuggled drugs in the past.
The Government seized the aircraft on December 20, 1996, and sent a notice of seizure to Claimant several months later. On May 9, 1997, Claimant sent a claim of ownership and a $5000.00 cashier's check to the Department of Justice. The Government filed this Complaint for Forfeiture on August 6, 1997.
Dismissal is justified only when "`it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'" Hartford Fire Ins. Co. v. California, 509 U.S. 764, 810, 113 S.Ct. 2891, 125 L.Ed.2d 612 (1993) (quoting McLain v. Real Estate Bd. of New Orleans, Inc., 444 U.S. 232, 246, 100 S.Ct. 502, 62 L.Ed.2d 441 (1980)). For the purpose of the motion to dismiss, the complaint is construed in the light most favorable to the plaintiff, and all facts alleged by the plaintiff are accepted as true. Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984). Regardless of the alleged facts, however, a court may dismiss a complaint on a dispositive issue of law. Marshall County Bd. of Educ. v. Marshall County Gas Dist., 992 F.2d 1171, 1174 (11th Cir.1993).
In civil forfeiture proceedings, a complaint for forfeiture in rem must "state the circumstances from which the claim arises with such particularity that the defendant or claimant will be able, without moving for a more particular statement, to commence an investigation of the facts and to frame a responsive pleading." Rule E(2)(a), Supp.R. Certain Adm. & Mar. Cls.; see also United States v. Real Property & Residence, 921 F.2d 1551, 1554 (11th Cir.1991); United States v. $38,000.00 in U.S. Currency, 816 F.2d 1538, 1548 (11th Cir.1987). The Government must allege facts sufficient to show that it had probable cause to believe that the defendant property is subject to forfeiture. $38,000.00 in U.S. Currency, 816 F.2d at 1548; United States v. $705,270.00 is U.S. Currency, 820 F.Supp. 1398, 1400 (S.D.Fla. 1993). The Government establishes probable cause by showing a "reasonable ground for belief of guilt, supported by less than prima facie proof, but more than reasonable suspicion." United States v. One Parcel of Real Estate, 963 F.2d 1496, 1501 (11th Cir.1992) (quoting United States v. A Single Family Residence, 803 F.2d 625, 628 (11th Cir.1986)). The burden then shifts to the claimant to prove by a preponderance of the evidence that the defendant property is not subject to forfeiture. Id.
Claimant's first argument is that the Complaint is time barred under 21 U.S.C. § 888. This statute provides for expedited forfeiture procedures for any conveyance "seized for a drug-related offense." 21 U.S.C. § 888(a)(1). Section 888(c) requires the Government to file a complaint for forfeiture within 60 days of the posting of a bond. Claimant contends that section § 888(c) bars this suit because the defendant aircraft was seized for drug-related offenses and the Government did not file within 60 days of Claimant's posting of the bond. Both parties agree that the expedited procedures apply to conveyances seized under 21 U.S.C. § 881(a)(4) for their use or intended use to facilitate drug transactions. Consequently, the Government's claim for forfeiture pursuant to 21 U.S.C. § 881(a)(4) is time-barred.
The parties differ, however, on whether the expedited procedures in section 888(c) apply to conveyances seized under 21 U.S.C. § 881(a)(6) as proceeds traceable to drug trafficking. The few courts addressing this issue have come to differing conclusions on the applicability of section 888(c) to section 881(a)(6). See, e.g., United States v. Indoor Cultivation Equip., 55 F.3d 1311, 1314-16 (7th Cir.1995) (); United States v. A 1966 Ford Mustang, 945 F.Supp. 149, 151-52 (S.D.Ohio 1996) (). The Eleventh Circuit has yet to address this issue.
This Court declines to adopt the broad application given to section 888(c) by the Seventh Circuit in Indoor Cultivation Equip., 55 F.3d at 1314-16. Rather, the Court is persuaded by the reasoning in A 1966 Ford Mustang, 945 F.Supp. at 151-52. In Indoor Cultivation Equip., the Seventh Circuit broadly defined the term "drug-related offense" as it appears in section 881(a)(1) to include the laundering of drug proceeds, reasoning that the plain meaning of drug-related offense includes laundering drug proceeds. 55 F.3d at 1315. The court went on to say that exempting vehicles purchased with drug proceeds from the reach of section 888(c) would require the court to read additional terms into the statute. Id.
First, this Court disagrees that the "plain language" of drug-related offense necessarily includes laundering drug money. The act of laundering illegally obtained funds, itself, does not involve drugs. While one could characterize laundering drug money as a "drug-related offense," one could also reasonably characterized it as a laundering offense or an illegal funds-related offense. Thus, the term drug-related offense could reasonably include or exclude purchasing conveyances with the proceeds of drug transactions, rendering the term ambiguous on its face. See Houghton v. Payne, 194 U.S. 88, 99, 24 S.Ct. 590, 48 L.Ed. 888 (1904) ().
When construing an ambiguous term in a statute, the interpreting court should endeavor to ascertain the intent of Congress. See Merritt v. Welsh, 104 U.S. 694, 702, 26 L.Ed. 896 (1881). In this case, Congressional intent is easy to ascertain because Congress has defined the term drug-related offense in the regulations to the statute. The regulations define drug-related offense as "any proscribed offense which involves the possession, distribution, manufacture, cultivation, sale, transfer, or the attempt or conspiracy to possess, distribute, manufacture, cultivate, sell or transfer any substance the possession of which is prohibited by Title 21, U.S.C." 21 C.F.R. § 1316.91(d). As the court observed in A 1966 Ford Mustang, "This definition is confined to manufacturing and distribution offenses, and makes no reference to the money laundering aspects of drug dealing." 945 F.Supp. at 151. To adopt the broad definition urged by the Seventh Circuit, one would have to cut out much of the language of the definition ascribed to drug-related offense by the regulations and read them instead to define the term as "any proscribed offense which involves any substance the possession of which is prohibited by Title 21, U.S.C." This reading would comport with neither the plain meaning of the term, nor the meaning intended by Congress.
Moreover, the Court does not agree with the Seventh Circuit's conclusion that construing section 888 to exclude conveyances purchased with drug proceeds entails rewriting the statute. The...
To continue reading
Request your trial