United States v. One (1) Douglas A-26B Aircraft, CV477-19.

• Decision Date: 06 September 1977
• Docket Number: No. CV477-19.,CV477-19.
• Citation: 436 F. Supp. 1292
• Parties: UNITED STATES of America, Plaintiff, v. ONE (1) DOUGLAS A-26B AIRCRAFT, SERIAL NO. 28034, FAA REGISTRATION NO. N3035 S, AND EQUIPMENT, Defendant, Rebel Aviation, Inc., Claimant.
• Court: U.S. District Court — Southern District of Georgia

436 F. Supp. 1292

UNITED STATES of America, Plaintiff, v. ONE (1) DOUGLAS A-26B AIRCRAFT, SERIAL NO. 28034, FAA REGISTRATION NO. N3035 S, AND EQUIPMENT, Defendant Rebel Aviation, Inc., Claimant.

No. CV477-19.

United States District Court, S. D. Georgia, Savannah Division.

September 6, 1977.

Kenneth C. Etheridge, Asst. U. S. Atty., Savannah, Ga., for plaintiff.

John L. Taylor, Jr., Ralph H. Greil, Troutman, Sanders, Lockerman & Ashmore, Atlanta, Ga., Lamar W. Davis, Jr., Miller, Beckmann & Simpson, Savannah, Ga., for claimant, Rebel Aviation, Inc.

ORDER ON MOTION OF REBEL AVIATION, INC. FOR SUMMARY JUDGMENT

I

LAWRENCE, District Judge.

This forfeiture proceeding grows out of the seizure by Customs on February 29, 1976, of the defendant aircraft for suspected use in the importation of marijuana. The claimant, Rebel Aviation, Inc., is a Georgia corporation. As owner of the aircraft it objected to the forfeiture of the aircraft and moves for summary judgment. Argument was heard on August 19, 1977. Copious briefs have been filed.

Two issues predominate: (1) whether Rebel Aviation has standing in the litigation and (2) whether the delay by the Government in instituting forfeiture proceedings constitutes a failure to comply with the statutory obligations of Customs in respect to promptness (19 U.S.C. §§ 1602-1604) and a denial of due process by depriving the owner of the enjoyment of his property for an unreasonable length of time.

In resolving each of these issues the time element plays an imperious role.

The aircraft was purchased by or on behalf of Rebel Aviation, Inc. on February 12, 1976. Customs seized the plane at the Crisp County Airport on February 29, 1976, for violation of the customs laws. On the following day, the aircraft was reported by Rebel Aviation as having been stolen from the Fulton County Airport. The first formal notice of the seizure was sent by Customs on March 31, 1976. Rebel Aviation filed a petition for remission or mitigation of forfeiture on April 23, 1976 and Customs acknowledged its receipt on April 28th. At the same time a penalty of $75 ($25 per ounce of marijuana found on the aircraft) was imposed. In support of the petition for remission, Rebel Aviation filed a supplemental memorandum on May 28, 1976. Customs responded on July 23, 1976, by increasing the penalty to $1,500—$500 each for failure to manifest cargo; to give notice to Customs of arrival, and to make entry of the aircraft with cargo.

On October 22, 1976, nearly eight months after the seizure, Rebel Aviation, Inc. filed an action in this Court against the District Director of Customs seeking the return of the aircraft or, in the alternative, requiring defendant to notify the United States Attorney to institute forfeiture proceedings. See Rebel Aviation, Inc. v. Marion F. Baker, District Director of the U. S. Customs Service, No. CV476-282. The investigation by Customs was completed on November 15, 1976. A month later the case was referred to the United States Attorney. This was 9½ months after the seizure. Forfeiture proceedings were instituted by the United States on January 19, 1977.

On February 14, 1977, the petitions for remission were denied by the Secretary.

II

The Government has presented a "Memorandum of Points and Authorities in Opposition to Rebel Aviation, Inc.'s Motion for Summary Judgment." Attached to it is an affidavit by Special Agent Norman T. Buselmeier of the United States Customs Service. He deposes that on or about May 4, 1976, he was assigned to investigate the petition for remission of forfeiture. The investigation was concluded on or about November 15, 1976. It disclosed that on February 19, 1976, the Customs Office of Investigation at Atlanta received information that a pilot had been offered $20,000 to fly the aircraft in question to Colombia, South America for a load of marijuana. On the same date the Georgia Bureau of Investigation informed the Federal Drug Enforcement Administration that during the previous week Dewey T. Nabors, Jr. had offered a pilot $20,000 to make a flight to South America and had stated that he, Nabors, had been to Colombia twice in the preceding three months setting up a "grass" deal.

On the basis of information that the airplane would be used to smuggle marijuana into the United States, Customs obtained a federal court order authorizing the placing thereon of a tracking transponder. The aircraft was kept under surveillance by the Georgia Bureau of Investigation until February 25, 1976. Two days later the transponder signal began to be intercepted at the Hampton Air Control Center in Georgia indicating that the plane was airborne and was heading south over Albany. Sometime between 8:45 A.M. and 11:45 A.M. on that date, FAA lost contact with it over Lakeland, Florida.

Nothing more was heard about the aircraft until sometime between 4:30 A.M. and 6:00 A.M. on Saturday, February 28th when the plane landed at the Crisp County Airport at Cordele. Because it is an unusual type (a World War II A-26 B) it attracted considerable attention at the Airport. An officer of the Cordele Police Department looked inside the plane through an open door and observed what appeared to be marijuana debris. Surveillance was established.

On February 28, 1976, word was received that Dewey T. Nabors, Jr., placed a telephone call to an Atlanta aircraft mechanic informing him that the plane was at the Cordele Airport and that the hydraulic door was jammed. He asked the mechanic to go to Cordele, sweep out the plane, and fix the door. This was not done. On the same day the Cordele Airport received a call from the President of Rebel Aviation, Mr. Powell. He inquired whether the police had shown interest in the plane. Powell said that it belonged to Rebel Aviation and stated, "We had to land the plane because the door wouldn't work."

A search warrant was obtained and Federal and State law enforcement officers of the United States Customs Service seized the aircraft on February 29, 1976 for violation of the customs law and delivered it to the District Director's custody.

On March 1st the plane was reported by someone on behalf of Rebel Aviation as having been stolen. The circumstances surrounding the reported theft leave a number of embarrassing questions as far as the Claimant is concerned.

On November 4, 1976, an analysis of gasoline samples taken from the aircraft at the time of seizure was completed. The laboratory report, dated November 8, 1976, indicated that the fuel was manufactured and sold outside the United States.

From the indisputable facts before this Court two conclusions are inescapable: (1) By March 1, 1976, Customs was aware of the major facts as to suspected violation of the laws of the United States by the subject aircraft; (2) Customs either learned nothing or did little to learn more about its case against the accused airplane up to the time the matter was referred to the United States Attorney on December 15, 1976—9½ months after its seizure.¹

III

The Government contends that since Rebel Aviation, Inc. was not incorporated until five days after the seizure, plaintiff lacks standing to object to the forfeiture or move for summary judgment. Throughout the proceedings the Government dealt with Rebel Aviation as the sole owner of the aircraft. No other party claims an interest in it. The record shows that Dewey T. Nabors, Jr. purchased the plane on February 12, 1976, from one Harrold "Bubba" Neal for $40,000. That amount was paid in cash. Rebel Aviation claims that the purchase price was $25,000. The bill of sale was in the name of Rebel Aviation, Inc., a Georgia corporation. However, the incorporation was not consummated until March 5, 1976. Mr. Nabors was the sole stockholder and the capital stock was $1,000. The plane was registered with Federal Aviation Administration in the name of Rebel Aviation, Inc. prior to the incorporation.²

This Court finds no genuine issue of fact as to claimant's standing to object to the forfeiture proceeding as owner of the seized property.

IV

The case was turned over to the United States Attorney on December 15, 1976. The proceeding for forfeiture was filed January 19, 1977, and served on Rebel Aviation, Inc. on January 25, 1977. Claimant filed its claim to the aircraft on February 2, 1977. On February 14th the Secretary of the Treasury denied the petition by Rebel Aviation for remission of fines and forfeiture which had been pending for some ten months.

Plaintiff contends that the delay of nearly eleven months from the time of seizure to the service of the complaint for forfeiture was a violation of the customs laws and amounts to a deprivation of its property without due process of law. It complains that it has lost the use of its aircraft which is a "wasting asset," subject to deterioration without careful maintenance.³

When goods are seized by Customs, the seizing officer must report same to the appropriate customs officer "immediately." 19 U.S.C. § 1602. If legal proceedings are required, the customs officer is required to report same to the United States Attorney. 19 U.S.C. § 1603. That officer must, in turn, "immediately" inquire into the facts and, if warranted, institute proper proceedings in the district court to be prosecuted "without delay" for recovery of the fine, penalty or forfeiture. 19 U.S.C. § 1604.

The Government contends that the lack of any "immediacy" requirement under § 1603 contemplates a reasonable delay for investigating the case and processing the petition for remission. See United States v. One Motor Yacht Named Mercury, 527 F.2d 1112 (1st Cir.). Obviously, a period must be allowed for inquiring into the facts surrounding the seizure. United States v. One Wood, 19 Ft. Custom Boat, 501 F.2d 1327 (5th Cir.). However, the Government cannot delay reporting the case to the United States Attorney indefinitely on the theory of reliance upon a continuing investigation.

The courts have read into...