United States v. (ONE)(1) 1971 CHEVROLET CORVETTE AUTO., 73-3373.
Decision Date | 26 June 1974 |
Docket Number | No. 73-3373.,73-3373. |
Citation | 496 F.2d 210 |
Parties | UNITED STATES of America, Plaintiff-Appellee, v. (ONE) (1) 1971 CHEVROLET CORVETTE AUTOMOBILE SERIAL NO. 194371S121113, Defendant, The First National Bank of Miami, Intervenor, Hilda Landeo de la Fe, Intervenor-Appellant. |
Court | U.S. Court of Appeals — Fifth Circuit |
Alfred Feinberg, Legal Services of Greater Miami, Miami, Fla., for intervenor-appellant.
Robert N. Reynolds, Asst. U. S. Atty., Robert W. Rust, U. S. Atty., C. Wesley Currier, Asst. U. S. Atty., Miami, Fla., for plaintiff-appellee.
J. T. Haley, Miami, Fla., for First Nat. Bank.
Before BELL, GOLDBERG and CLARK, Circuit Judges.
The court below ordered the automobile belonging to appellant-intervenor Hilda Landeo forfeited for violation of 49 U.S.C. § 781(a) (3), which makes unlawful the use of a vehicle "to facilitate the transportation, carriage, conveyance, concealment, receipt, possession, purchase, sale, barter, exchange, or giving away of any contraband article."1 Landeo admitted participating in the illegal importation of cocaine, but challenges the court's conclusion that her automobile was used to "facilitate" the transaction. The record, which is substantially uncontradicted, discloses that the government failed to discharge its initial burden of showing probable cause to believe that the auto's use facilitated the crime. We reverse.
Upon her arrival at the Miami International Airport after a flight from Peru, Landeo was met by her husband; together they drove in a borrowed Cadillac to her father-in-law's apartment. Following a short visit, Landeo and her husband drove the Cadillac to their own apartment a few blocks away. Forty-five minutes later they exited their apartment and got into the Chevrolet Corvette that is the subject of this libel. They returned to the father-in-law's apartment, parked the Corvette, and departed in a Ford automobile belonging to the father-in-law. They then drove to the McAllister Hotel, where Landeo expected to rendezvous with an accomplice who had entered the country the day before with a quantity of cocaine. Unknown to Landeo, the accomplice had been apprehended at the airport after a search by government agents and was now cooperating with those agents in their effort to capture the rest of the conspirators. Consequently Landeo was arrested at the hotel. The district court found that contraband was never present in the defendant automobile.
The testimony of one of the government agents provided the sole attempt to elucidate the car switches. The following colloquy occurred on direct examination by the government:
From this testimony the district court found that the car was switched deliberately either to avoid surveillance or to avoid forfeiture or both, and concluded that "in going from her apartment to the McAllister Hotel to get the cocaine or to get the individual with the cocaine, bringing the individual and the cocaine back to her apartment she used this automobile...
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