United States v. One (1) Blue Lobster Vessel
| Decision Date | 21 April 1986 |
| Docket Number | No. 84-2398-Civ.,84-2398-Civ. |
| Citation | 639 F. Supp. 865 |
| Parties | UNITED STATES of America, Plaintiff, v. ONE (1) BLUE LOBSTER VESSEL NAMED TONY, JR., OFFICIAL NO. 559940, With its Tackle, Apparel & Equipment, Defendant. |
| Court | U.S. District Court — Southern District of Florida |
Samuel D. Armstrong, Asst. U.S. Atty., Miami, Fla., for United States.
Arthur Newman, Miami, Fla., for defendant.
This cause was tried to the court without a jury on February 18, 1986. Plaintiff, United States of America, seeks civil forfeiture of the defendant vessel (Tony Jr.) pursuant to 21 U.S.C. § 881, 49 U.S.C. § 782, 19 U.S.C. § 1595a(a), and 19 U.S.C. § 1703. The court has reviewed the pleadings and heard the testimony of the witnesses, made determination as to the credibility of the witnesses presented, considered the evidence, and heard argument of counsel. On the basis thereof, the court concludes the subject vessel, the Tony Jr., is subject to forfeiture.
The court has jurisdiction pursuant to 28 U.S.C. §§ 1345 and 1355.
The parties are in agreement that the following correctly reflects the procedural background:
Plaintiff, United States of America, filed a complaint for forfeiture in rem on October 10, 1984. In its complaint, the United States alleges that on or about March 20, 1984, officers of the United States Customs Service seized the defendant vessel and that the vessel was used or was attempted to be used to facilitate the transporation, carriage, conveyance, concealment, receipt or possession of marijuana in the United States.
Claimant, Oscar Aldarondo, filed his answer and affirmative defenses, alleging an interest in the defendant vessel as its lawful owner, and denying knowledge of or any connection with the alleged illegal activities relating to the defendant vessel.
Claimant also filed a crossclaim. Both the United States and the claimant have stipulated in open court that the crossclaim should be dismissed if the court rules that the subject vessel is forfeited to the United States, and to defer further proceedings on the crossclaim pending the court's determination as to forfeiture.
On March 10, 1984, a lookout coordinated by the El Paso Information Center (EPIC) was initiated for the Tony Jr. This lookout resulted from information received by United States Customs Officer Lawrence E. Winberg from a confidential informant. The latter had proved to be reliable on prior occasions. The confidential informant provided information that the Tony Jr. and two other boats were to be used to pick up loads of marijuana in the vicinity of the Bahama Islands and transport that marijuana to the United States. Prior to the boardings of the Tony Jr., described below, the other two boats were seized with large quantities of marijuana on board.
On March 18, 1984, officers of the United States Coast Guard assigned to the ship Sea Hawk boarded and inspected the Tony Jr. approximately 20 nautical miles northwest of Cayo Lobos in the area of the Great Bahamas Bank. The Coast Guard boarding party observed that no fish, oversize tanks, fishing tackle, fishing equipment, lobster pots, trap puller, or ice for storage of fish was on board the Tony Jr. Although the captain of the Tony Jr., Manuel Portillo, informed the Coast Guard that the boat was being used for fishing, he had no explanation for the absence of fish, fishing tackle, fishing equipment and ice for storage of fish. The documents were in order. Finding no violations, the vessel as released. The location where the boarding of the Tony Jr. took place was known to the Coast Guard as a "hot spot" for trafficking of marijuana and other drugs.
The Coast Guard notified EPIC about the boarding of the Tony Jr. and informed EPIC that, based upon the observations and information delineated in the proceeding paragraph, it appeared that Tony Jr. would be receiving a shipment of marijuana. EPIC immediately disseminated this information to the Customs Service.
On March 20, 1984, the Customs Service received a telephone call from an anonymous person who stated that a "suspicious boat" had just docked in a marina at Marathon Island, and that the people on board the boat had hastily left. Customs officers and detective personnel from the Monroe County Sheriff's Office immediately proceeded to the marina to investigate, and upon arrival learned that the "suspicious boat" was the Tony Jr. No one was on board the boat when they arrived.
The Customs officers, one of whom was Officer Winberg, boarded the Tony Jr. and proceeded to perform a documents inspection. The boat's documents were located in the wheelhouse and found to be in order. Upon entering the wheelhouse, the odor of marijuana was detected by the boarding party. The officers also noticed the absence of any fish, fishing tackle, fishing equipment and ice for storage of fish.
As part of the Customs Service's standard procedure, the Customs officers proceeded to the engine room of the Tony Jr. in order to verify that the identification number located on the mainbeam of the boat corresponded with the number indicated on the documents found in the wheelhouse.
In proceeding to and upon entering the engine room, marijuana residue was observed by the Customs officers. Accordingly, a search of the Tony Jr. was conducted and 14 grams of marijuana was gathered. Marijuana residue was found throughout the engine room and hold of the vessel, and was distributed in a manner which indicated to Officer Windberg that a large quantity of marijuana had been stored in the Tony Jr. The boarding officers observed that the vessel's engines were still warm, indicating that the boat had recently arrived at the dock.
Officer Winberg performed a field test on the gathered residue which tested positive, confirming that the residue was from marijuana. Officer Winberg had previously received training in performing marijuana field tests. He had conducted approximately 500 such tests prior to his boarding the Tony Jr.
Neither Manual Portillo, the captain of the Tony Jr., nor anyone else associated with the Tony Jr., reported its arrival into United States territory to the Customs Service or any of the governmental stations which ordinarily receive such notifications.
Prior Seizures of the Tony Jr.
The Tony Jr. was seized on two occasions prior to the March 20, 1984 seizure. In 1979, the Tony Jr. was seized with over 15,000 pounds of marijuana on board, and the boat was seized during the Mariel boatlift for illegally transporting aliens. On both occasions the Tony Jr. was seized while being used by someone to whom claimant had rented the boat.
Claimant, Oscar Aldarondo, testified at the trial. Among other matters he stated:
(a) He purchased the Tony Jr. in 1978 for $48,900.00. The entire purchase price was satisfied with cash payments made from 1978 through 1981. He made a down payment of $17,000 on the purchase price and the balance of $38,900.00 was paid from proceeds received by him from rentals of the Tony Jr.
(b) Aldarondo received a $50,000.00 loan in 1979 which was satisfied solely from cash payments. The full $50,000.00 was paid with proceeds received by claimant from renting the Tony Jr.
(c) Aldarondo charged approximately $1500.00 each time he rented the Tony Jr. and rented the boat on approximately six to seven occasions during the entire time he owned the Tony Jr.
Claimant's testimony as to the payment of the purchase price, payment of the above loan, and rental income from Tony Jr. is not credible. He contends he made cash payments of $88,900.00 from rental proceeds, yet claimant admits that rentals for the entire time he owned the boat did not exceed $14,500.00 ($1500 × 7 rentals).
Prior to the March 20, 1984, seizure of the Tony Jr., claimant had rented the boat to Manuel Portillo, who had purportedly taken possession of the boat in early February, 1984. Portillo was expected to retain possession of the boat for several months.
Claimant Aldorando has admitted the following:
(a) He received income from boat rentals in 1981, 1982 and 1983. However, the income tax returns signed and filed by Aldarondo for those years do not report any income from rentals of the Tony Jr. In fact, Aldarondo has never reported to the Internal Revenue Service the income he received from renting the Tony Jr. during 1981, 1982 and 1983.
(b) Aldarondo never required nor used any type of written agreement or contract when he rented the Tony Jr.
(c) Aldarondo never required a security deposit when he rented the Tony Jr.
(d) Aldarondo had no insurance on the Tony Jr. when it was seized on March 20, 1984.
(e) At the time Aldarondo rented the Tony Jr. to Portillo, the former knew Portillo only as "Manola." Aldarondo did not know either Portillo's last name or his address prior to renting him the boat.
(f) The only information Aldarondo had as to Portillo prior to renting him the Tony Jr. were the statements of several fishermen that Portillo was also a fisherman but Aldarondo did not know the names of these fishermen or anything about them.
(g) When Aldarondo rented the Tony Jr. to Portillo, claimant did not know on what date Portillo would return with the boat. He only knew that Portillo would be returning "in one or two months."
(h) Aldarondo did not require and did not receive a security deposit or any rental money from Portillo prior to Portillo's departure with the Tony Jr.
(i) Claimant had no written rental agreement or contract with Portillo. The only agreements claimant had with Portillo were verbal understandings.
(j) Claimant did not ask where Portillo would be taking the Tony Jr., but assumed he would be taking the boat to commonly used fishing grounds in the vicinity of the...
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