United States v. ONE 1977 CHEVROLET PICKUP, ETC., Civ. A. No. 80-A-783.

• Decision Date: 18 November 1980
• Docket Number: Civ. A. No. 80-A-783.
• Citation: 503 F. Supp. 1027
• Parties: UNITED STATES of America, Plaintiff, v. ONE 1977 CHEVROLET PICKUP, VIN # CKL147J107642, ITS TOOLS AND APPURTENANCES, Respondent, Harry H. McMichael, Claimant.
• Court: U.S. District Court — District of Colorado

503 F. Supp. 1027

UNITED STATES of America, Plaintiff, v. ONE 1977 CHEVROLET PICKUP, VIN # CKL147J107642, ITS TOOLS AND APPURTENANCES, Respondent Harry H. McMichael, Claimant.

Civ. A. No. 80-A-783.

United States District Court, D. Colorado.

November 18, 1980.

Carole C. Dominguin, Asst. U.S. Atty., Denver, Colo., for plaintiff.

Harry H. McMichael, pro se.

MEMORANDUM OPINION AND ORDER

ARRAJ, District Judge.

This is an action pursuant to 21 U.S.C. § 881 by the United States of America for forfeiture of one 1977 Chevrolet Pickup. Jurisdiction is based on 28 U.S.C. §§ 1345 and 1355 and 21 U.S.C. § 881. The owner of the vehicle has appeared pro se and has opposed the forfeiture. A bench trial was held and this memorandum constitutes my findings of fact and conclusions of law in compliance with Rule 52 of the Federal Rules of Civil Procedure. The fair value of the vehicle is alleged to be $3,375. The registered owner of the vehicle is Harry H. McMichael, 7329 E. Eastman Ave., Denver, Colorado; he also is the claimant and has posted a bond in the amount of $250 herein.

On March 24, 1980, one Pamela Nelson used the subject vehicle to transport a crate weighing approximately 172 pounds from Stapleton International Airport, Denver, Colorado, to claimant's residence, 7329 E. Eastman Avenue. At that time and for some months prior thereto, Ms. Nelson was living with claimant at the above residence.

On or about March 20, 1980, the Drug Enforcement Administration (DEA) received information regarding a package or crate which was coming into Denver from Los Angeles, California; the shipment had originated in Quito, Ecquador. It weighed approximately 172 pounds and arrived in Denver via United Airlines. Agents of the DEA had obtained a search warrant to seize and search the crate; after taking custody of it, the crate was taken to the DEA offices in downtown Denver. The crate was dismantled by DEA agents and in some of the 2 × 4 pieces of lumber used as a frame for the crate (and which had been hollowed out) the agents found plastic cylinders containing a total of nine pounds, one ounce of a white powder substance. The substance was field tested and found to be cocaine. The agents substituted nine pounds of flour for an equivalent amount of the white powder substance and also placed the one ounce of the white powder substance back into the crate. The crate was then reconstructed and on March 24 was taken back to the United Airlines terminal and put in the normal flow of traffic. Shortly after noon on March 24, Pamela Nelson arrived in the subject vehicle, called for the crate, and had it put in the back of the truck.

The vehicle was followed by a surveillance team to 9450 E. Jewell Avenue, Denver, Colorado, where claimant McMichael maintains his offices. Ms. Nelson went into the offices and shortly thereafter she and claimant came out and looked in the back of the truck. Ms. Nelson then drove the vehicle with claimant following in his Mercedes, to the apartment residence at 7329 E. Eastman Avenue. The truck and the Mercedes were parked near the apartment residence and both parties went in. A short time thereafter McMichael, Nelson and a small child came out of the apartment and entered the Mercedes. The child was delivered to the home of a babysitter on South Grant Street in Denver and the adults returned to the Tamarac Square area where McMichael bought a saber saw, some Scotch liquor and beer. In the meantime, Nelson had made a phone call from a public telephone. They then returned to the apartment residence. At about 6:45 p.m. McMichael and Nelson took the crate from the truck and attempted to carry it to the apartment residence which was on the third floor of the building. At this point two DEA agents came up to the parties and asked if they needed help and assisted in taking the crate up two flights to McMichael's apartment. When asked by one of the agents what was in the box, McMichael responded, "Dishes." The agents then left the apartment; McMichael and Nelson hung a sheet over the sliding glass door in the living room-ostensibly to preserve their privacy. In the meantime the agents went to the magistrate's office in the United States Courthouse and obtained a search warrant for the apartment; they returned to the apartment and executed the warrant. After the search the agents took the box and contents back to the DEA offices, dismantled the box and removed the one ounce of cocaine which was still therein. McMichael and Nelson were placed under arrest. During the search DEA agents saw the saber saw, a claw hammer and screw driver in the apartment. During the surveillance some of the agents had heard sounds emanating from the apartment which indicated that the box was being opened. Upon entry into the apartment the agents found that the box had in fact been opened and among other things contained several ceramic objects and considerable styrofoam packing.

McMichael and Nelson were separately charged with knowingly and intentionally possessing with intent to distribute a controlled substance, to wit, cocaine, a Schedule II narcotic in violation of Title 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. McMichael was tried on May 21-May 23, 1980, and acquitted. Nelson has not yet been tried.

Claimant contends that (1) he had no knowledge that a...