United States v. ONE 1972 DATSUN, VEHICLE ID. NO. LB1100355950
Decision Date | 18 July 1974 |
Docket Number | Civ. A. No. 74-126. |
Citation | 378 F. Supp. 1200 |
Parties | UNITED STATES of America v. ONE 1972 DATSUN, VEHICLE IDENTIFICATION NO. LB1100355950. |
Court | U.S. District Court — District of New Hampshire |
Robert A. Schwartz, Asst. U. S. Atty., Dist. N. H., for plaintiff.
Edward A. Jordan, Leonard Professional Ass'n, Nashua, N. H., for defendant.
This case arises out of the seizure of claimant's Datsun in connection with his arrest for the sale of Lysergic Acid Diethylamide (hereinafter LSD), a narcotic drug. The Government has filed a Complaint for Forfeiture claiming that the car was used to facilitate the illegal sale of a controlled drug and that the car should, therefore, be forfeited to the United States. 21 U.S.C. § 881. Jurisdiction is based on 28 U.S.C. § 1355.
At a hearing on June 17, 1974, claimant1 challenged the forfeiture. Although claimant's counsel was not entirely clear about the nature of his challenge, I treat his oral motion as a motion for judgment on the pleadings. Fed.R.Civ.P. 12(c). In this way, claimant will not be prejudiced or bound by admission of the pleadings in this case in any subsequent criminal prosecution arising out of the events surrounding the claimed forfeiture.
Since the case is before me on what is essentially a motion to dismiss, I must take the facts as pleaded. In pertinent part, the Government's complaint reads as follows:
At the hearing, counsel agreed that the LSD was never transported by or concealed in the Datsun.
Although forfeiture statutes appear in a number of places in the United States Code and state statutory schemes, the statute involved here is 21 U.S.C. § 881:
At the outset, I point out that this case does not involve the oft-litigated innocent third-party problem. The innocent third-party problem arises where, unknown to its owner, and without his permission, a vehicle, lawfully in the possession of another,3 is used for purposes which subject the vehicle to forfeiture.4 In this case the question of law, as succinctly stated by the Assistant United States Attorney, is whether, on the facts alleged in the complaint, the Datsun was used to "facilitate the illegal sale of a controlled substance in violation of Title 21, U.S.C. § 881." Complaint, Par. II. The determination of this issue depends on the construction given to the statute.
A number of courts have had the opportunity to construe the scope of this forfeiture statute and others similar to it. It is clear that any intentional transportation or concealment of contraband in a conveyance, no matter how small the amount, will subject the conveyance to forfeiture. United States v. One 1971 Porsche Coupe Auto, 364 F. Supp. 745, 748-749 (E.D.Pa.1973); see Associates Investment Co. v. United States, 220 F.2d 885 (5th Cir. 1955); United States v. Oldsmobile Coupe Auto, 67 F.Supp. 686 (S.D.Cal.1946); cf. United States v. One 1965 Cadillac 2-Door Coupe, 260 F.Supp. 761 (W.D.Pa. 1966). In addition, use of a vehicle as a place for conducting negotiations for or transacting any portion of a sale is sufficient to subject the vehicle to forfeiture.5 United States v. One 1950 Buick Sedan, 231 F.2d 219 (3d Cir. 1956); United States v. One 1950 Chevrolet 4-Door Sedan, 215 F.2d 482 (10th Cir. 1954); United States v. One 1951 Oldsmobile Sedan, 129 F.Supp. 321 (E.D. Pa.1955); United States v. One 1951 Oldsmobile Sedan Model 98, 126 F.Supp. 515 (D.Conn.1954); United States v. Ford Coupe Automobile, 83 F.Supp. 866 (S.D.Cal.1949). Use as a look-out or decoy vehicle in a convoy will also render the vehicle subject to forfeiture. United States v. One 1952 Lincoln Sedan, 213 F.2d 786 (5th Cir. 1954); United States v. One Dodge Sedan, 28 F.2d 44 (D.Cal. 1928).
Apposite to this case is Simpson v. United States, 272 F.2d 229 (9th Cir. 1959). In Simpson, claimant allegedly operated several bookmaking establishments and had been seen in her car at one such place. In addition, a police officer testified that claimant had offered, and at a later date actually had made, a bribe to him. On both occasions, the vehicle in question was used. In denying the Government's petition for forfeiture, the Court held:
There was no proof that the vehicles had been used to transport or conceal contraband. In denying the petition for forfeiture, the Court held:
We think it clear that a vehicle used solely for commuting to an illegal distillery is not used in violating the revenue laws. 344 U.S. at 631, 73 S.Ct. at 460. Emphasis in original.
See also Platt v. United States, 163 F.2d 165 (10th Cir. 1947).
This requirement in vehicle forfeiture cases of what may be termed a "substantial and/or instrumental connection," although somewhat interstitially developed by the lower courts, is well supported by four independent considerations: (1) a recent Supreme Court case in the forfeiture field; (2) the legislative history surrounding the 1950 Amendments to 49 U.S.C. § 782 the general forfeiture provision of the United States Code Chapter on Transportation; (3) the penal nature of vehicle forfeiture statutes; and (4) common sense.
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