US v. ONE 1973 JAGUAR COUPE SER. NO. 1573953

• Decision Date: 02 March 1977
• Docket Number: No. 73 Civ. 5259.,73 Civ. 5259.
• Citation: 431 F. Supp. 128
• Parties: UNITED STATES of America, Plaintiff, v. ONE 1973 JAGUAR COUPE SERIAL NO. 1573953, Defendant.
• Court: U.S. District Court — Southern District of New York

431 F. Supp. 128

UNITED STATES of America, Plaintiff, v. ONE 1973 JAGUAR COUPE SERIAL NO. 1573953, Defendant.

No. 73 Civ. 5259.

United States District Court, S. D. New York.

March 2, 1977.

Robert B. Fiske, U. S. Atty., New York City, by Paul H. Silverman, Yonkers, for plaintiff.

Gino E. Gallina by Eric Weiss, New York City, Joel A. Brenner, Bay Shore, for claimant.

OPINION

KEVIN THOMAS DUFFY, District Judge.

This is an action brought pursuant to 21 U.S.C. § 881 by the United States for forfeiture of a 1973 Jaguar Coupe bearing vehicle Serial Number 1573953 and New York registration number 9615FX. Jurisdiction is premised upon 28 U.S.C. §§ 1345 and 1355 and 21 U.S.C. § 881. The registered owner of the vehicle has appeared by attorney and has opposed the forfeiture. A trial has been held and this opinion constitutes my finding of facts and conclusions of law. Rule 52, Fed.R.Civ.P.

On April 14, 1973 one Alphonse Sisca drove the silver Jaguar, which is the subject of this proceeding, to the home of Rosemarie De Esso, the claimant. Sisca parked the car in the driveway and was immediately arrested pursuant to a federal warrant by federal agents. The agents searched Sisca and found on his person a .25 calibre hand gun and a tin-foil package of white powder. In the rear of the Jaguar, they found a .22 caliber carbine rifle. The two weapons, the white powder, and the Jaguar were seized. According to the chemist who testified at trial, the powder has since been analyzed and found to be cocaine.

On March 18, 1975, before Judge Stewart of this Court, Sisca plead guilty to one count of a four-court indictment. Court Four to which Sisca pleaded charged the unlawful carrying of a firearm "during the commission of a felony."

Before discussing the legal arguments of the parties, one procedural point warrants mention. On the date of trial of this action, the attorney associated with the firm which represents the claimant sought an adjournment because the partner who was scheduled to try the case had been called out of town on important business. I denied the request for an adjournment, permitted the government to put on its case and continued the trial to another date with the understanding that on the adjourned date the attorney could recall government witnesses and introduce whatever evidence he wished. On the adjourned date the partner indicated that he did not wish to introduce any evidence but sought leave to file a post trial brief which was granted. That brief has been filed. Since the filing of the brief, the attorney for the claimant has sought leave to reopen the record and permit Rosemarie De Esso and Alphonse Sisca to testify. By endorsement dated January 11, 1977, I denied that request on the grounds that claimant has already had more than ample opportunity to introduce proof, that the testimony which claimant sought to present had been known to claimant's attorneys all along since both of the proposed witnesses had been deposed, and that the attorney's summary of the proposed testimony was not supported by the depositions upon which he relied upon in support of the motion to reopen the trial.

Section 881 of title 21 provides for a forfeiture to the United States of "all conveyances including aircraft, vehicle, 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 a controlled substance . . .."¹

Claimant argues that the forfeiture provisions do not apply to mere possession of a minute amount of drugs. This proposition does not have support in the case law. See Associates Investment Co. v. United States, 220 F.2d 885 (5th Cir. 1955). Quite recently, the court of appeals for the circuit has recognized, at least in dictum, the continued validity of forfeitures for small quantities of contraband. United States v. One 1974 Cadillac Eldorado, 548 F.2d 421, 425 (1977) ("the transportation of any quantity of drugs however minute is . . . sufficient to merit the forfeiture of the vehicle . . .."). Even the case relied upon by appellants acknowledge the basic correctness of this proposition. United States v. One 1972 Datsun, 378 F.Supp. 1200, 1202 (D.N.H.1974). I see no reason to depart from this rule merely upon the claimant's assertion that Sisca intended the cocaine for personal use.²

The claimant has also asserted that she is an "innocent" owner of the vehicle and should not be penalized through forfeiture, absent a showing that she had knowledge of Sisca's illegal activities. The law is not entirely clear on this point. In United States v. United States Coin & Currency, 401 U.S. 715, 722, 91 S.Ct. 1041, 1045, 28 L.Ed.2d 434 (1971) a suggestion was given that the government had to establish that the owner was "significantly involved in a criminal enterprise." However, in Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 94 S.Ct. 2080, 40 L.Ed.2d 452 (1974) the Court sustained forfeiture of a lessor's interest in a yacht even though the lessor was unaware of the lessee's illegal use. The statute at issue in Calero-Toledo was a Puerto Rican law employing language identical to section 881 and the rationale of that...