United States v. ONE 1972 DATSUN, VEHICLE ID. NO. LB1100355950

• Court: U.S. District Court — District of New Hampshire
• Writing for the Court: BOWNES
• Citation: United States v. ONE 1972 DATSUN, VEHICLE ID. NO. LB1100355950, 378 F.Supp. 1200 (D. N.H. 1974)
• Decision Date: 18 July 1974
• Docket Number: Civ. A. No. 74-126.
• Parties: UNITED STATES of America v. ONE 1972 DATSUN, VEHICLE IDENTIFICATION NO. LB1100355950.

378 F. Supp. 1200

UNITED STATES of America v. ONE 1972 DATSUN, VEHICLE IDENTIFICATION NO. LB1100355950.

Civ. A. No. 74-126.

United States District Court, D. New Hampshire.

July 18, 1974.

Robert A. Schwartz, Asst. U. S. Atty., Dist. N. H., for plaintiff.

Edward A. Jordan, Leonard Professional Ass'n, Nashua, N. H., for defendant.

OPINION

BOWNES, District Judge.

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.

A. THE FACTS

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:

III.

On January 23, 1974, in Manchester, New Hampshire, Rick Stoudt and Special Agent Daniel A. Staffieri of the Drug Enforcement Administration agreed that Staffieri would follow Stoudt to his apartment, where Stoudt would sell Staffieri approximately 950 dosage units of LSD (Lysergic Acid Diethylamide).

IV.

Rick Stoudt operated the Datsun so as to deliberately lead Special Agent Staffieri to Stoudt's apartment in Nashua, New Hampshire.

V.

At the apartment Staffieri purchased from Stoudt, 950 dosage units of LSD (Lysergic Acid Diethylamide) pursuant to the aforementioned agreement of January 23, 1974.

VI.

On March 13, 1974, Stoudt agreed to sell Staffieri 5000 dosage units of LSD (Lysergic Acid Diethylamide); Stoudt told Staffieri to meet him at the Berkshire Master's Motor Inn in Nashua, New Hampshire.

VII.

Staffieri met Stoudt as agreed at the Berkshire Master's Motor Inn, Nashua, New Hampshire and then followed Stoudt, who was driving the Datsun, to Stoudt's apartment in Nashua, New Hampshire, where Stoudt delivered on March 13, 1974, 5000 dosage units of LSD to Staffieri pursuant to the prior agreement.

VIII.

Stoudt was arrested and the Datsun seized following the delivery of the 5000 dosage units of LSD.

At the hearing, counsel agreed that the LSD was never transported by or concealed in the Datsun.

B. THE LAW

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:

The following² shall be subject to forfeiture to the United States and no property right shall exist in them:

* * * * * *

(4) All conveyances, including aircraft, vehicles, or vessels, which are used, or are intended for use, to transport, or in any manner to facilitate the transportation, sale, receipt, possession, or concealment of contraband . . . . 21 U.S.C. § 881 (a)(4).

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).

Courts have been reluctant to expand the notion of "facilitation" beyond the above cases, in which the Government has been able to establish a concrete, direct, and instrumental use of the vehicle in some aspect of the underlying criminal activity.⁶ Where drugs have not been present in the vehicle and the vehicle has not been used as a place of negotiating or consumating any portion of the deal, many courts have not allowed forfeiture. Although these cases have most often involved the omnipresent judicial distaste for innocent third-party forfeiture,⁷ the cases make it clear that

the mere fact that a car is used by a law violator does not establish the requirement for "facilitation." United States v. One 1952 Ford Victoria, 114 F.Supp. 458, 460 (N.D.Cal.1953).

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:

It is established by United States v. Lane Motor Co., 344 U.S. 630, 73 S.Ct. 459, 97 L.Ed. 622, affirming 10 Cir., 199 F.2d 495, and United States v. Plymouth Coupe, 3 Cir., 182 F.2d 180, that an automobile used only for the personal convenience of the owner as transportation to the site of the illicit operation is not subject to seizure. 272 F.2d at 231.

United States v. Lane, relied on by the Simpson court, involved a petition for the forfeiture of vehicles that

. . . had each been used by the operator of an illegal distillery to drive a number of miles from his home and then parked at a point one-half mile or more from the distillery, the operator walking the rest of the way. 344 U.S. at 630, 73 S.Ct. at 460.

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).

A reading of these forfeiture cases highlights the difficulty courts have had in establishing guidelines which clearly or helpfully demarcate the contours of vehicular "facilitation." In part, this difficulty stems from the traditional breadth and long grasp historically afforded to the forfeiture doctrine. Juxtaposed against an expanding notion of due process and our multifaceted and pervasive use of and dependence on the automobile, the follies of the fictional forfeiture doctrine have become apparent. Until recently, the judicial response to this anachronism has been the case-by-case analysis outlined above. In "harsh" circumstances, courts have balked at ordering forfeiture, United States v. One 1950 Buick Sedan, supra, 231 F.2d at 223; United States v. One 1971 Porsche Coupe Auto, supra, 364 F. Supp. at 749, or simply held that factual circumstances, admittedly coming within the technical scope of a forfeiture statute, did not "rise to the dignity" of a violation, United States v. One 1965 Cadillac 2-Door Coupe, supra, 260 F.Supp. at 763; see Platt v. United States, supra. Although this manner of stewardship does not easily lend itself to synthesis, one major principle seems to emerge from all the cases: to be forfeited, a vehicle must have some substantial connection to, or be instrumental in, the commission of the underlying criminal activity which the statute seeks to prevent. In other words, it is appropriate in every forfeiture case to ask

whether the use of the car as established by the record is so connected with the allegedly illicit activity as to subject the car to forfeiture. Simpson, supra, 272 F.2d at 230.

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.

First, until recently courts have not seriously questioned the constitutionality of the forfeiture...