The opinion of the court was delivered by: MILTON I. SHADUR
This case presents a variant on the types of drug-related forfeiture actions most frequently brought by the United States. Claimant Abiodun Oloko ("Oloko") has moved to dismiss the forfeiture as bearing too attenuated a connection to the substantive drug offense to bring the relevant statute, 21 U.S.C. § 881(a)(4),
into play. For the reasons stated in this memorandum opinion and order, Oloko's motion is granted and this action is dismissed.
Statutory Forfeiture Provisions
Although only the vehicle forfeiture subsection of Section 881 is implicated here, it is also instructive to look (at least for comparative purposes) at other portions of the statute that place a fatal taint on property other than (1) the controlled substances themselves (which are covered by Section 881(a)(1)) and (2) materials integrally related to the production, importation or exportation of the controlled substances (those related materials are covered by Section 881(a)(2) and (9)). Here are the other forfeiture provisions:
The following 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 property described in paragraph (1), (2), or (9), [with exceptions not relevant here].
(7) All real property, including any right, title, and interest (including any leasehold interest) in the whole of any lot or tract of land and any appurtenances or improvements, which is used, or intended to be used, in any manner or part, to commit, or to facilitate the commission of, a violation [of the federal felony drug laws].
Application of the Forfeiture Provisions
Forfeiture of course stems from the ancient notion that tangible property (or intangible property such as money) may itself become imbued with the evil that makes certain substantive conduct unlawful. As a result the property itself is made the defendant in the action, and no one can acquire ownership of that property because of its contraband nature (see, e.g., Caplin & Drysdale v. United States, 491 U.S. 617, 627, 105 L. Ed. 2d 528, 109 S. Ct. 2646, 109 S. Ct. 2667 (1989), with its reference to the "taint theory" that "has long been recognized in forfeiture cases").
Courts tend to apply the Section 881 forfeiture provisions--despite the harshness of their operation--with a broad brush, no doubt in part to create a powerful deterrent by stepping up the risks that are attendant on dealing in drugs. In the case of real property, where the only requirement for forfeiture is that the realty has been "used, or intended to be used, in any manner or part, . . . to facilitate the commission of" a drug offense, all that the government must demonstrate is a nexus to the offense that is "more than incidental or fortuitous" (United States v. 916 Douglas Ave., 903 F.2d 490, 493 (7th Cir. 1990)). This Court has spoken in much the same tongue, applying such a forfeiture to a situation of first impression--a firmly-grounded mobile home linked to a drug transaction ( United States v. 30 Ironwood Court, 776 F. Supp. 1242, 1244 (N.D. Ill. 1991)).
Where conveyances are at issue under Section 881(a)(4), rather than real property under Section 881(a)(7), broad application of the statute has again been the order of the day. It is thus not necessary to seize the automobile with a controlled substance in the trunk or the glove compartment or concealed in rocker panels or seat cushions--or even with the driver or passenger carrying contraband on his or her person. It has been enough for example that the vehicle was used to travel to or from the scene of the drug transaction (as in this Court's opinion in United States v. $ ...