United States v. ONE (1) 1969 BUICK RIVIERA AUTOMOBILE, 73-2877.

• Decision Date: 01 May 1974
• Docket Number: No. 73-2877.,73-2877.
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. ONE (1) 1969 BUICK RIVIERA AUTOMOBILE SERIAL NO. 69-49487 EUC 187877, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

493 F.2d 553 (1974)

UNITED STATES of America, Plaintiff-Appellant, v. ONE (1) 1969 BUICK RIVIERA AUTOMOBILE SERIAL NO. 69-49487 EUC 187877, Defendant-Appellee.

No. 73-2877.

United States Court of Appeals, Fifth Circuit.

May 1, 1974.

Robert N. Reynolds, Asst. U. S. Atty., Robert Rust, U. S. Atty., Miami, Fla., for plaintiff-appellant.

Earl L. Denney, Jr., Edna L. Caruso, West Palm Beach, Fla., Wm. M. Howell, Jacksonville, Fla., for defendant-appellee.

Before BROWN, Chief Judge, and TUTTLE, and SIMPSON, Circuit Judges.

TUTTLE, Circuit Judge:

The issue on appeal is narrow and straight forward: Whether a dismissal with prejudice of a criminal indictment charging violations of 21 U.S.C.A. § 841(a) (1) and § 952(a), marijuana importation, bars a subsequent forfeiture action brought under 19 U.S.C.A. § 1595a(a) and 49 U.S.C.A. § 781, when the two actions arise out of the same transaction?

The case was submitted to the district court on stipulated facts on the basis of which both parties moved for summary judgment. Robert Gustin, intervening claimant and owner of the defendant-car, had used the car to drive to the post office in Delray Beach, Florida, where he picked up two packages of marijuana which had been sent to him from Jamaica, British West Indies. After procuring the two packages, he placed them in the trunk of the defendant which was in the parking lot adjacent to the post office. Gustin was arrested and charged with unlawful importation of marijuana and possession with intention to distribute. These charges were dismissed with prejudice by the same court which had the instant forfeiture case before it. When the present action was brought, the district court disallowed the forfeiture action. 358 F.Supp. 358 (S.D.Fla. 1973). We reverse.

The district court and the appellee rely on the punitive nature of the forfeiture, United States v. United States Coin and Currency, 401 U.S. 715, 718, 91 S.Ct. 1041, 28 L.Ed.2d 434 (1971), and the prior adjudication, the dismissal with prejudice of the criminal suit,¹ to defeat the forfeiture on collateral estoppel, Coffey v. United States, 116 U.S. 436, 6 S.Ct. 437, 29 L.Ed. 684 (1886); United States v. Rosenthal, 174 F. 652 (5th Cir. 1909), or double jeopardy grounds. We disagree and uphold the forfeiture on the basis of the Supreme Court's affirmance of our decision in United States v. One Lot Emerald Cut Stones and One Ring, 461 F.2d 1189 (5th Cir.), aff'd per curiam, 409 U.S. 232, 93 S.Ct. 489, 34 L.Ed.2d 438 (1972), and on the plain meaning and purpose of the statutes.

The Supreme Court decision in One Lot Emerald Cut Stones and One Ring distinguishes the earlier Coffey holding, on the collateral estoppel consequence of an acquittal on a prior criminal charge, on the grounds that it may have failed on an issue not present in the civil forfeiture proceeding, i. e. intent. 409 U.S. at 234-235, n. 5. Of course, in this case, there is no indication that any issue was actually litigated by the dismissal with prejudice of the prior criminal charge. Additionally, the Supreme Court pointed out that the doctrine of collateral estoppel does not take into account the different burdens of proof in criminal and civil suits. 409 U.S. at 235.

Concerning the double jeopardy claim, it is sufficient to cite further the Supreme Court language in One Lot Emerald Cut Stones and One Ring:

"If for no other reason, the forfeiture is not barred by the Double Jeopardy Clause of the Fifth Amendment because it involves neither two criminal trials nor two criminal punishments. `Congress may impose both a criminal and a civil sanction in respect to the same act or omission; for the Double Jeopardy Clause prohibits merely punishing twice, or attempting a second time to punish criminally, for the same offense.\' Helvering v. Mitchell, supra, 303 U.S. 391 at 399 58 S.Ct. 630, 82 L.Ed. 917. See also United States ex rel. Marcus v. Hess, 317 U.S. 537, 63 S.Ct. 379, 87 L.Ed. 443 (1943)." 409 U.S. at 235-236.

Forfeiture under these statutes, 19 U.S. C.A. § 1595a(a) and 49 U.S.C.A. § 781, is a civil sanction.²Cf. 409 U.S. at 236-237.

The statutes, 19 U.S.C.A. § 1595a(a)³ and 49 U.S.C.A. § 782,⁴ provide under the facts of this case for civil proceedings resulting in forfeiture on the showing of two elements. The first is that the substance has been illegally imported, not necessarily by the owner of the defendant-vehicle. One Lot Emerald Cut Stones and One Ring v. United States, supra, 409 U.S. at 234. The second is that the defendant-vehicle must have been used in the facilitation of transporting, concealing, possessing (or otherwise under the language of the statute) the prohibited substance.⁵ From the stipulated facts between the parties, both these elements of proof are present. Cf. 19 U.S.C.A. § 1615.

Reversed and remanded.

1 The district equated the dismissal with prejudice with an acquittal.

2 Reliance on United States v. United States Coin and Currency, supra, 401 U.S. at 718, for the proposition that a forfeiture, although called civil, is criminal in nature for purposes of invoking double jeopardy, is misplaced. Cf. One Lot Emerald Cut Stones v. United States, supra, 409 U.S. at 236 n. 6. This case was concerned only with the issue of whether a forfeiture...