United States v. ONE 1976 BUICK SKYLARK, ETC., Civ. A. No. 77-K-1129.

• Decision Date: 27 July 1978
• Docket Number: Civ. A. No. 77-K-1129.
• Citation: 453 F. Supp. 639
• Parties: UNITED STATES of America, Plaintiff, v. ONE 1976 BUICK SKYLARK, 2-DOOR COUPE, VEHICLE IDENTIFICATION NO. 4W27C6K148647, its tools and appurtenances, Defendant, and Judi Klein, Intervenor.
• Court: U.S. District Court — District of Colorado

453 F. Supp. 639

UNITED STATES of America, Plaintiff, v. ONE 1976 BUICK SKYLARK, 2-DOOR COUPE, VEHICLE IDENTIFICATION NO. 4W27C6K148647, its tools and appurtenances, Defendant and Judi Klein, Intervenor.

Civ. A. No. 77-K-1129.

United States District Court, D. Colorado.

July 27, 1978.

Joseph F. Dolan, U. S. Atty., Denver, Colo., for plaintiff.

Marshall Quiat, Denver, Colo., for Intervenor.

MEMORANDUM OPINION, ORDER and JUDGMENT

KANE, District Judge.

This is an action for forfeiture of a vehicle allegedly used "to facilitate the transportation, sale, receipt, possession, concealment, purchase, barter, exchange or giving away of a quantity of cocaine, a controlled substance within the meaning of 21 U.S.C. § 812 and 21 U.S.C. § 881(a)(1)." The case was tried to the court upon written stipulations of facts submitted by the plaintiff and the intervenor on July 13, 1978.

The facts stipulated are as follows:

1. The appraised value of the subject vehicle is in excess of $2,500.

2. On October 17, 1977 between the hours of 6:30 p. m. and 10:00 p. m., one Reynauld Huseby used the defendant vehicle for sale of a quantity of cocaine to agents of the Drug Enforcement Administration. During the course of said transaction, Huseby used the subject vehicle to transport and to facilitate the transportation, sale, receipt, possession, concealment, purchase and exchange of a quantity of cocaine, which is a controlled substance within the meaning of 21 U.S.C. § 812 and 21 U.S.C. § 881(a)(1).

3. The intervenor, Judi Klein, is the registered owner of the defendant vehicle, having received the vehicle as a gift from her father.

4. In August 1977 Judi Klein began living with Reynauld Huseby at 4305 Martin Drive, Boulder, Colorado and was living with Huseby on October 17, 1977, the date of seizure. Subsequent to that date Judi Klein and Reynauld Huseby were married. At the time the two resided at 4305 Martin Drive, Boulder, Colorado the defendant vehicle was the predominant means of transportation for both Huseby and Klein and was readily accessible to Huseby, subject to Klein's permission. Further, Huseby had used the vehicle on numerous occasions prior to October 17, 1977.

5. Between 1971 and 1976 Judi Klein was acquainted with Reynauld Huseby and had heard rumors that he was or had been involved in drug trafficking. At some time between August 1977 and October 17, 1977 Judi Klein observed Huseby use what Klein believed to be cocaine at their residence at 4305 Martin Drive, Boulder, Colorado.

6. At the time of the alleged drug transaction, Huseby's possession of the defendant vehicle was a lawful possession and his prior acquisition of the defendant vehicle was not in violation of the laws of the United States or the State of Colorado in that Klein had given Huseby permission to use said vehicle. Judi Klein asserts, however, that Huseby told her that he intended to use the vehicle to take one Jay Michael Hensen from the Huseby-Klein home in Boulder to Hensen's home in Golden, Colorado and that she did not know Reynauld Huseby intended to use the vehicle in a drug transaction and that had she known she would not have permitted him to take it. Darold Wisdom, Investigator, Drug Enforcement Administration, asserts that during his interview with Judi Klein conducted on March 28, 1978 Judi Klein told him that she did not ask or feel the need to ask Huseby why he wanted to use the subject vehicle on October 17, 1977 and that she did not know the purpose for which he intended to use the vehicle.

7. Shortly after the defendant vehicle was seized, agents of the Drug Enforcement Administration found a blue suede ladies jacket which belonged to Judi Klein and in one of the pockets of the jacket the agents found a small plastic bag which contained a small quantity of cocaine. Judi Klein asserts that she was the owner of the coat but that she had no knowledge of the plastic bag of cocaine.

8. The investigation, arrest and case action involving the purchase of drugs from Huseby on October 17, 1977 from the subject vehicle were directed by Darold M. Wisdom, a detective of the City and County of Denver who is paid by the City and assigned to the Drug Enforcement Administration task force dealing with narcotics in the Denver, Colorado area.

9. The case was filed in the Colorado District Court in and for the City and County of Denver and prosecuted by the Denver District Attorney. No action was brought under the laws of the United States.

In addition to the foregoing stipulations of the parties, the record in the case reveals the following: Complaint was filed with the court on December 12, 1977. On December 13, 1977 the court issued an order for the warrant of the vehicle's arrest. On December 23, 1977 the Administrator of General Services filed an application for delivery of the seized vehicle to the Regional Director of the Drug Enforcement Administration. The application is a printed form which says in pertinent part:

Therefore, pursuant to Section 304 of the Liquor Law Repeal and Enforcement Act (49 Stat. 880; 40 U.S.C. 304(i) 304i, as amended by Section 102(a) of the Federal Property Administrative Services Act of 1949, as amended (63 Stat. 380; 40 U.S.C. § 752(a)), application is made to the Court to order delivery of the above-described property to said agency, viz., the Regional Director, Drug Enforcement Administration, P.O. Box 1860, 316 U. S. Custom House, Denver, Colorado 80201.

The application is devoid of any findings of fact or grounds to show the basis upon which the Administrator of General Services makes the request.

21 U.S.C. § 881 provides for the forfeiture of vehicles which are used, or intended for use to transport or in any manner to facilitate the transportation, sale, receipt, possession or concealment of contraband, including cocaine. The exceptions to the section provide that no conveyance used by any person as a common carrier in the transaction or business is subject to forfeiture unless it appears that the owner or other person in charge of the conveyance was a consenting party or privy to a violation of the subchapter. Further, no conveyance is subject to forfeiture under the instant provisions where the owner can establish that any act or omission in violation of the subchapter was committed or omitted by any person other than such owner when such conveyance was unlawfully in the possession of that person in violation of the criminal laws of the United States or of any state.

The courts have little, if any, discretion in forfeiture cases. (U. S. v. One 1973 Jaguar Coupe, 431 F.Supp. 128 (D.C.N. Y.1977)) It is the government's burden to prove that there was probable cause for the institution of a forfeiture action. (U. S. v. One 1973 Dodge Van, 416 F.Supp. 43 (D.C. Mich.1976)) Once established it is the claimant's burden to prove that the forfeiture does not fall properly within the act. (U. S. v. One 1972 Toyota Mark II, 505 F.2d 1162 (C.A.Mo.1974))

There is no evidence to suggest even the possibility of an absence of probable cause in the instant case. The owner, however, asserts that the circumstances fall within the second exception previously described. In other words the owner states that Huseby was using the vehicle with the consent of the owner; that since the two of them were living together in a family unit the use falls within a domestic purpose and hence an agency is established. Continuing with this analysis Klein asserts that the scope of the agency was to transport a guest from the family home in Boulder to the guest's home in Golden and that the departure from the route and the purpose went beyond the scope of the agency relationship. Hence the agent Huseby was on a frolic of his own and, therefore, unlawfully in possession of the automobile at the time it was used to facilitate the transportation, sale, receipt, possession or concealment of the contraband. This analysis has a certain degree of persuasiveness since under Colorado law an agent who is on a frolic of his own can indeed be found to be in...