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UNITED STATES v. $10

August 31, 1981

UNITED STATES OF AMERICA, PLAINTIFF,
v.
$10,000 U.S. CURRENCY, DEFENDANT, JOSEPH J. ROLENC, CLAIMANT. UNITED STATES OF AMERICA, PLAINTIFF, V. ONE 1980 CADILLAC, DEFENDANT, JOSEPH J. ROLENC, CLAIMANT.



The opinion of the court was delivered by: Shadur, District Judge.

MEMORANDUM OPINION AND ORDER

In these consolidated actions the United States seeks to forfeit two types of property seized from Joseph Rolenc ("Rolenc") August 8, 1980: $10,000 in United States currency and Rolenc' 1980 Cadillac. Rolenc has filed a claim in each proceeding. For the reasons stated in this memorandum opinion and order Rolenc' claim is denied and both the currency and the Cadillac are forfeited to the United States.

Facts

By agreement of the parties the cases have been submitted on the record in the criminal proceedings against Rolenc and his co-defendant, Edward Fleming, 80 CR 712. In that case the Court authored a February 20, 1981 memorandum opinion and order denying the Fleming-Rolenc motion to suppress,*fn1 an April 21, 1981 memorandum opinion and order denying another suppression motion and May 7, 1981 findings under Fed. R.Crim.P. 23(c), pursuant to which Rolenc was found guilty of an attempt to possess cocaine with the intent to distribute it. In addition to the record in the criminal case the parties have stipulated that Rolenc owned the Cadillac and drove it from his residence to the scene of the arrest just before that arrest.

Forfeiture of the Currency

Consistently with its decision in the criminal case the Court finds that Rolenc' $10,000 in currency was "intended to be furnished by [Rolenc] in exchange for a controlled substance [Fleming's cocaine] in violation of" Subchapter I ("Control and Enforcement") of Chapter 13 ("Drug Abuse Prevention and Control") of United States Code Title XXI. That being the case there is no question that 21 U.S.C. § 881(a)(6) mandates forfeiture of the currency to the United States.

Forfeiture of the Cadillac

Were this case one of first impression this Court would be strongly disinclined to impose on Rolenc the harsh result of forfeiting his Cadillac as well as the $10,000. But it is not, and the forfeiture result is compelled by the combination of two factors:

(1) the burden of proof placed on Rolenc and

(2) the case law applying the forfeiture statute.

On the burden of proof issue the law is clear. As part of the forfeiture laws relating to transactions in contraband, 21 U.S.C. § 881(d) incorporates by reference all the provisions of like forfeiture statutes in the customs area. One of those statutes, 19 U.S.C. § 1615, imposes the burden of proof on the claimant. United States v. One 1976 Mercedes Benz, 618 F.2d 453, 456 (7th Cir. 1980). That means that, wholly unlike the situation in Rolenc' criminal proceedings tried by the Court, "ties go in favor of the runner" — the government. Once probable cause exists for the institution of forfeiture proceedings, as it plainly does in this case, Rolenc has the burden of demonstrating the inapplicability of the statute to his facts.

When the forfeiture statute (in this case 21 U.S.C. § 881(a)(4)) deals with means of transportation such as automobiles, it does not limit the forfeiture result to vehicles that have actually carried narcotics — in statutory language, "used . . . to transport" controlled substances. It also makes subject to forfeiture all conveyances such as automobiles:

(1) "intended for use to transport" or

  (2) "used . . . in any manner to facilitate
      the . . . receipt" ...

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