United States v. 160 Cartons of Glass Water Pipes
| Decision Date | 10 March 2014 |
| Docket Number | Case No. CV 12-8965- BRO (VBKx) |
| Court | U.S. District Court — Central District of California |
| Parties | UNITED STATES OF AMERICA, Plaintiff, v. 160 CARTONS OF GLASS WATER PIPES, et al., Defendants. |
On October 17, 2012, Plaintiff United States of America ( the "Government") filed a complaint for forfeiture, claiming that 160 cartons of glassware constituted drug paraphernalia, within the meaning of 21 U.S.C. § 863. (Dkt. No. 1.) The court has federal question jurisdiction pursuant to 18 US.C. §§ 1345, 1355. There is no right to a jury trial in a civil in rem forfeiture action. United States v. LeVengeance, 3 U.S. 297, (1796).
On February 11, 2014, the Court tried this matter. After consideration of the parties' trial briefs, the witnesses and evidence presented by both sides at trial in thecase, the Court makes the following Findings of Fact and Conclusions of Law.1
Agents of United States Customs and Border Protection ("CBP") at the Port of Los Angeles, Los Angeles/Long Beach Seaport, seized the defendant merchandise and it remains in CBP custody. Claimant attempted to import the defendant merchandise into the United States from China.
On October 26, 2007, Claimant attempted to enter merchandise described inaccurately in entry documents as 755 cartons of "glass hookahs and parts" into the Los Angeles/Long Beach Seaport under entry number DV8-00214020, with an entered value of $82, 933.64. 160 cartons from that shipment are atissue in this case. On November 6, 2007, the shipment was examined and, on November 8, 2007, detained for possible violations of 21 U.S.C. § 863 (). On December 3, 2007, CBP seized the 160 cartons of merchandise (and the uncontested 200 cartons of crack pipes) pursuant to 19 U.S.C. § 1595a(c) for violation of 21 U.S.C. § 863, having concluded that the merchandise was drug paraphernalia within the meaning of § 863. The remainder of the shipment was released.
On December 10, 2007, Claimant attempted to enter merchandise described inaccurately as 394 cartons of "glass hookahs" into the Los Angeles/Long Beach Seaport under entry number DV8-00216462, with an entered value of $61,488. OnDecember 17, 2007, the shipment was examined and detained for possible violations of § 863. On January 14, 2008, CBP seized the merchandise pursuant to 19 U.S.C. § 1595a(c) for violation of 21 U.S.C. § 863, having concluded that the merchandise was drug paraphernalia within the meaning of § 863.
On December 24, 2007, Claimant attempted to enter merchandise described inaccurately as 726 cartons of "glass hookahs" into the Los Angeles/Long Beach Seaport under entry number DV8-00217163, with an entered value of $69,617.34. On January 8, 2008, the shipment was examined and detained for possible violations of § 863 (). On March 5, 2008, CBP seized the merchandise pursuant to 19 U.S.C. § 1595a(c) for violation of 21 U.S.C. § 863, having concluded that the merchandise was drug paraphernalia within the meaning of § 863.
CBP Supervisory Import Specialist Srikanth Ryali testified at trial that the defendant merchandise was not properly characterized as hookahs or hookah parts or accessories, as it had been described in the entry documents submitted to CBP by Claimant and his Customs broker. Instead, the items are bongs and bong parts, which are prohibited from import into the United States, and are not found in the Harmonized Tariff Schedule. After reviewing photographs and examining the actual glassware itself, Specialist Ryali testified that the glassware consisted of bongs or bong parts.
With respect to the air shipment, Mr. Ryali (who had no knowledge of the factssurrounding that shipment, or the detention and release of the merchandise) testified that there was a significant difference between the air shipment and the October 2007 shipment containing the allegedly identical bowls because the latter included other items that were clearly bong accessories, and the context of the later shipment made it easier to identify the bowls as drug paraphernalia. Mr. Ryali testified that CBP would not intentionally allow the importation of drug paraphernalia under any circumstances.
Los Angeles Sheriff's Department Detective Regan Fitzgerald (Narcotics Bureau) testified as an expert witness in the areas of drug interdiction and identification of drug paraphernalia. Detective Fitzgerald testified that the defendant merchandise consisted of bongs and bong parts, and distinguished bongs from hookah pipes. Specifically, Detective Fitzgerald testified that bongs are designed specifically to be used to smoke marijuana and other controlled substances, and are in fact used for that purpose. Hookahs, to the contrary, are designed to be used with flavored tobacco and similar products and, while capable of being used to smoke marijuana, are not commonly used for that purpose. Deputy Fitzgerald opined that the merchandise was drug paraphernalia within the meaning of 21 U.S.C. § 863. Specifically, Deputy Fitzgerald found the placement of the bowls at the bottom of the glassware, and lack of hoses identified the items as bongs, not hookah pipes. Deputy Fitgerald testified that such a design was consistent with the purpose of a bong, that is, to provide the user with an immediate and potent rush of marijuana.
According to Deputy Fitzgerald, the defendant merchandise consists of complete bong (or water pipe) assemblies, or parts of bong assemblies, including:
Claimant testified that prior to his attempts to import the defendant merchandise, he had imported in an air shipment approximately 10 boxes of bowls that were identical to some of the bowls included in the October 2007 shipment from which some of the defendant merchandise was seized. Those boxes were initially detained by CBP, but were later released after Claimant advised the agency that the bowls were hookah accessories. Claimant also testified that the portion of the October 2007 shipment that was released to him consisted of merchandise that was identical to some of the defendant merchandise. He believed that the release of those items (both the air shipment and the portion of the October 2007 shipment) meant that the merchandise was legal to import. With respect to the released portion of the October2007 shipment, the only evidence of what was released was Claimant's testimony, but it appears likely that if the released portion did in fact consist of merchandise similar or identical to the defendant merchandise, the release of that merchandise was a mistake. Claimant also acknowledged that he could have provided a same to CBP to determine whether the glassware could be imported, but did not do so. He further stated the people at a trade show assured him that the glassware consisted of hookah pipes.
Because this case is exempt from the Civil Asset Forfeiture Reform Act of 2000 ("CAFRA"), the government was required only to establish probable cause to believe that the defendant merchandise is subject to forfeiture in order to prevail here. The law relating to the seizure, summary and judicial forfeiture, and condemnation of property for violation of the customs laws is to be followed in forfeitures under 19 U.S.C. § 1595a. See 18 U.S.C. § 983(i) (2)(A) ().
shown for the institution of such suit or action . . . 19 U.S.C. § 1615; See also United States v. One TRW Model M14 7.62 Caliber Rifle, 441 F.3d 416, 418 (6th Cir. 2006) ().
In other words, "[u]nlike most civil and criminal proceedings, the burden of proof is on the 'accused' owner or possessor, provided that the government first make a preliminary showing of probable cause to believe that the [defendant] was used [as alleged]. "United States v. One Twin Engine Beech Aircraft, 533 F.2d 1106, 1107 (9th Cir. 1976). Probable cause is defined as "reasonable grounds for belief of guilt, supported by less than prima facie proof, but more than mere suspicion" -- which is judged not with clinical detachment but with a common-sense view to the realities of normal life. United States v. One 56-Foot Motor Yacht Named The Tahuna, 702 F.2d 1276, 1282 (9th Cir. 1983); United States v. Single Family Residence, 803 F.2d 625, 628 (11th Cir. 1986).
"To meet its burden, the government must show that it had reasonable grounds to believe that the [defendant] was used [as alleged], supported by less than prima facie proof but more than mere suspicion." Id. at 1282, citing United States v. $4,255,625.39, 762 F.2d 895, 904 (11th Cir. 1985). Circumstantial evidence may support the government's establishment of probable cause, United States v. $93,685.61 U.S. Currency, 730 F.2d 571, 572 (9th Cir. 1984), as is "otherwise inadmissible hearsay." United States v. 3814 Thurman Street, 164 F.3d 1191 (9th Cir.1999). See also, U.S. v. $5,644,540.00 U.S....
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