                                                                                                                           Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-5-2003

USA v. One Piper Aztec
Precedential or Non-Precedential: Precedential

Docket 02-1925




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Recommended Citation
"USA v. One Piper Aztec" (2003). 2003 Decisions. Paper 698.
http://digitalcommons.law.villanova.edu/thirdcircuit_2003/698


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PRECEDENTIAL

       Filed March 5, 2003

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 02-1925

UNITED STATES OF AMERICA

v.

ONE "PIPER" AZTEC "F" DE LUXE MODEL 250 PA 23
AIRCRAFT BEARING SERIAL NO. XX-XXXXXXX

       *Russell Robinson,
       Appellant

*(Pursuant to Rule 12(a), F.R.A.P)

On Appeal from the District Court of the Virgin Islands
Division of St. Thomas and St. John
D.C. Civil Action No. 99-cv-00082
(Honorable Thomas K. Moore)

Argued November 8, 2002

Before: SCIRICA, ALITO and RENDELL, Circuit Ju dges

(Filed: March 5, 2003)

       STEPHEN A. BRUSCH, ESQUIRE
        (ARGUED)
       International Plaza, Suite 2G
       P.O. Box 988
       Charlotte Amalie, St. Thomas
       U.S. Virgin Islands 00804

        Attorney for Appellant




       JOYCELYN HEWLETT, ESQUIRE
        (ARGUED)
       Office of United States Attorney
       Federal Building & United States
        Courthouse
       5500 Veterans Drive, Suite 260
       Charlotte Amalie, St. Thomas
       U.S. Virgin Islands 00802-6424

        Attorney for Appellee

OPINION OF THE COURT

SCIRICA, Circuit Judge:

This is a civil forfeiture action against an aircraft the
government claims was used to illegally transport aliens en
route to the United States Virgin Islands. The owner of the
aircraft contends the government did not meet its burden to
obtain forfeiture. In this pre-CAFRA1 forfeiture, we hold the
government demonstrated probable cause that the aircraft
was used in violation of 8 U.S.C. S 1324(a), and that the
owner presented no contrary evidence. We also hold that
CAFRA does not apply retroactively. We will affirm the
judgment of forfeiture in rem.

I

Russell Robinson owned a Piper Aztec F DeLuxe Model
250PA Aircraft, bearing serial number XX-XXXXXXX and
United States registration number N6257H. The
government alleged Robinson authorized pilot David Peltier
to fly to St. Maarten and transport three illegal aliens to
Anegada, British Virgin Islands. On July 3, 1998, Peltier
flew an aircraft matching the registration number of the
seized aircraft to Anegada where he dropped off the aliens
and notified Robinson of their arrival.
_________________________________________________________________

1. CAFRA refers to the Civil Asset Forfeiture Reform Act of 2000, Pub. L.
No. 106-185, S 21, 114 Stat. at 225 (codified at 8 U.S.C. S 1324 (note)),
which Congress enacted after the seizure at issue here took place.

                                2


The next day, a vessel docked at the Anegada Reef Hotel
to collect the three aliens. British Virgin Islands’s customs
agents stopped the vessel with Robinson and the three
aliens on board. But they were forced to release the vessel
once it entered U.S. waters. Later that evening, officers of
the U.S. Virgin Islands Department of Planning and Natural
Resources observed the vessel as it entered Cruz Bay 2
without running lights and witnessed the aliens
disembarking at the Virgin Islands National Park service
dock. The three aliens did not have permission to enter the
United States. On May 19, 1999, the government
commenced forfeiture in rem proceedings, and on May 25,
the District Court issued a warrant of arrest in rem. On
August 25, 1999, U.S. Marshals arrested the aircraft and
published notice. Robinson filed a notice of claim and
posted a $5,000 bond to formally contest the forfeiture. On
March 22, 2002, the District Court decreed the property be
forfeited to the United States. Robinson has appealed.

II

A

We first address the proper burden of proof. In 2000,
Congress enacted the Civil Asset Forfeiture Reform Act,
which changed the burden of proof in civil forfeiture
actions. Under CAFRA, in "any forfeiture proceeding
commenced on or after [August 23, 2000]," the government
must prove forfeiture under a preponderance of the
evidence standard. Civil Asset Forfeiture Reform Act of
2000, Pub. L. No. 106-185, S 21, 114 Stat. at 225 (codified
at 8 U.S.C. S 1324 (note)). As noted, the government’s initial
filing here occurred on May 19, 1999. At issue is whether
CAFRA applies retroactively.
_________________________________________________________________

2. According to the government’s uncontested evidence, Cruz Bay is not
a port of traditional entry. The United States Code provides for criminal
and civil penalties for bringing in and harboring certain aliens. 8 U.S.C.
S 1324. Under the Code, any conveyance involved in bringing an alien "to
the United States in any manner whatsoever . . . at a place other than
a designated port of entry" shall be liable for forfeiture. 8 U.S.C.
SS 1324(a)(1)(A)(I), 1324(b).

                                3


Most appellate courts have denied retroactive application
of CAFRA. United States v. $80,180.00 in U.S. Currency,
303 F.3d 1182 (9th Cir. 2002); United States v.
$557,933.89, More or Less, in U.S. Funds, 287 F.3d 66, 76
n.5 (2d Cir. 2002); United States v. Wagoner County Real
Estate, 278 F.3d 1091, 1095 (10th Cir. 2002); United States
v. Carrell, 252 F.3d 1193, 1198 nn.4 & 10 (11th Cir. 2001);
Larson v. United States, 274 F.3d 643 (1st Cir. 2001). Only
one appellate court, the Court of Appeals for the Sixth
Circuit, has held otherwise. United States v. Real Property
in Section 9, 241 F.3d 796 (6th Cir. 2001). In Real Property,
the Sixth Circuit concluded it was proper to apply CAFRA
retroactively where the application did not prejudice either
party. Real Property, 241 F.3d at 798-99.

Whether a statutory provision applies retroactively to
pending cases depends on statutory interpretation. See
Matthews v. Kidder, Peabody & Co., 161 F.3d 156 (3d Cir.
1998).3 CAFRA applies to "any forfeiture proceeding
commenced on or after [August 23, 2000]." This language is
clear and unambiguous. Accordingly, our inquiry is done.
Landgraf, 511 U.S. at 280; $80,180.00 in U.S. Currency,
303 F.3d at 1185-86 & n.5 ("Congress manifested a clear
intent to apply CAFRA’s heightened burden of proof only to
judicial forfeiture proceedings in which the government’s
complaint was filed on or after August 23, 2000. Congress
did not intend to apply the new law to cases filed before but
pending on the effective date.").

B

An aircraft used to bring or attempt to bring aliens into
the United States illegally is subject to forfeiture to the
United States under 8 U.S.C. S 1324(b).4 Civil forfeitures of
_________________________________________________________________

3. In the absence of clear congressional intent, the Supreme Court has
recognized a traditional presumption against retroactivity. Landgraf v.
USI Film Prods., 511 U.S. 244, 265 (1994) ("[T]he presumption against
retroactive legislation is deeply rooted in our jurisprudence, and
embodies a legal doctrine centuries older than our Republic."); see Lindh
v. Murphy, 521 U.S. 320 (1997).
4. "Any conveyance, including any vessel, vehicle, or aircraft, that has
been or is being used in the commission of a violation of subsection (a),
the gross proceeds of such violation, and any property traceable to such
conveyance or proceeds, shall be seized and subject to forfeiture." 8
U.S.C. S 1324(b)(1).

                                4


property used in bringing in and harboring illegal aliens are
governed by the procedures provided in 18 U.S.C.SS 981 et
seq.5 The government generally files a complaint for
forfeiture in rem and obtains a warrant for seizure of the
property pursuant to 18 U.S.C. S 981(b)(2). 6

Robinson contends that each step of the litigation
qualifies as a new "proceeding" and that his appeal, filed on
April 1, 2002, brings this forfeiture proceeding under
CAFRA. We disagree.

We apply normal rules of statutory construction. The
plain meaning of the statute controls unless the language
is ambiguous or leads to absurd results. Abdul-Akbar v.
McKelvie, 239 F.3d 307, 313 (3d Cir. 2001) (en banc); see
Carrell, 252 F.3d at 1198 (interpreting the plain language of
CAFRA). In Abdul-Akbar, we affirmed the American Plain
Meaning Rule enunciated by the Supreme Court in
Caminetti v. United States, 242 U.S. 470, 485 (1917)
(internal citations omitted):

        It is elementary that the meaning of the statute
       must, in the first instance, be sought in the language
       in which the act is framed, and if that is plain, and if
       the law is within the constitutional authority of the
       law-making body which passed it, the sole function of
       the courts is to enforce it according to its terms.

As the Supreme Court recently interpreted Caminetti,
"[o]ur task is to give effect to the will of Congress, and
where its will has been expressed in reasonably plain
terms, that language must ordinarily be regarded as
conclusive." Negonsott v. Samuels, 507 U.S. 99, 104 (1993).
The plain meaning is conclusive "except in the rare cases
_________________________________________________________________

5. "For purposes of this section, the provisions of the customs laws
relating to the seizure, summary and judicial forfeiture, condemnation of
property for violation of the customs laws . . . shall apply to seizures and
forfeitures incurred, or alleged to have been incurred, under this section
. . . ." 18 U.S.C. S 981(d).

6. "Seizures pursuant to this section shall be made pursuant to a
warrant obtained in the same manner as provided for a search warrant
under the Federal Rules of Criminal Procedure . . . ." 18 U.S.C.
S 981(b)(2).

                                5


[in which] the literal application of a statute will produce a
result demonstrably at odds with the intentions of its
drafters." United States v. Ron Pair Enters. , 489 U.S. 235,
242 (1989) (internal quotations omitted).

Here, CAFRA applies to "any forfeiture proceeding
commenced on or after [August 23, 2000]." The plain
language is clear: the commencement of a forfeiture
proceeding can mean only the point when the government
first files a complaint for forfeiture in rem under 18 U.S.C.
S 981(b)(2). The proceeding commences with the
government’s action and ends when the final appeal is
exhausted. No other interpretation is sensible.

Although unnecessary here, the legislative history is
instructive. As the bill passed the House originally, it would
have applied CAFRA to all "cases pending on the date of "
enactment. Civil Asset Forfeiture Reform Act, H.R. 1658,
106th Cong., S 6(b)(1) (1999), reprinted in 145 Cong. Rec.
H4858, H4878 (daily ed. June 24, 1999). But that language
was deleted in the bill’s final version. Subsequent legislative
history demonstrates that "the date on which a forfeiture
proceeding is commenced is the date on which the first
administrative notice of forfeiture relating to the property is
sent." 146 Cong. Rec. H2040, H2051 (daily ed. April 11,
2000) (statement of Rep. Hyde).

Furthermore, Congress expressly applied CAFRA
retroactively to S 14(c) of the Act, a section which prevents
fugitives from pursuing forfeiture claims. That Congress
drew a distinction between these two types of forfeiture
claims is significant. See Lindh, 521 U.S at 329-330
(describing the statutory analysis where two sections of the
same statute evolved differently).

We hold that CAFRA does not apply retroactively to civil
forfeiture proceedings commenced before August 23, 2000.
The civil forfeiture proceeding here commenced with the
government’s filing of a complaint for forfeiture of the Piper
Aztec aircraft, which was initiated more than one year prior
to CAFRA’s enactment. We therefore will apply the pre-
CAFRA burden of proof standard.

                                6


III

Robinson denies his aircraft was used to transport illegal
aliens. Under the pre-CAFRA burden of proof, "[i]n all suits
or actions brought for the forfeiture of any conveyance
seized under this section, where the conveyance is claimed
by any person, the burden of proof shall lie upon such
claimant, except that probable cause shall be first shown
for the institution of such suit or action." 8 U.S.C.
S 1324(b)(5).

Although we have had no occasion to address it
previously, several sister circuits have interpreted 8 U.S.C.
S 1324(b)(5) to require that the government demonstrate
probable cause to execute a forfeiture in rem. Once the
government demonstrates probable cause, the burden of
proof shifts to the owner of the seized property, who must
establish by a preponderance of the evidence that the
property was not used in connection with illegal activities.
E.g., United States v. $129,727.00 in U.S. Currency, 129
F.3d 486, 493 (9th Cir. 1997); United States v. One
Beechcraft King Air 300 Aircraft, 107 F.3d 829, 830 (11th
Cir. 1997); United States v. $94,000.00 in U.S. Currency, 2
F.3d 778, 784 (7th Cir. 1993); United States v. 228 Acres of
Land, 916 F.2d 808, 814 (2d Cir. 1990); United States v.
Santoro, 866 F.2d 1538, 1544 (4th Cir. 1989); United States
v. $250,000.00 in U.S. Currency, 808 F.2d 895, 900 (1st
Cir. 1987); Bramble v. Richardson, 498 F.2d 968, 970-73
(10th Cir. 1974).

The government satisfied its burden of proof here. It
offered the sworn testimony of pilot Peltier and Dean Foy,
a British Virgin Islands customs agent, and the affidavit of
INS special agent Brendan Hickey, who swore to facts that
more than demonstrate probable cause.7 Peltier testified he
piloted the seized aircraft that transported the illegal aliens
from St. Maarten to Anegada. Customs agent Foy testified
he stopped a vessel transporting the same illegal aliens
from Anegada, but could not detain them because the boat
_________________________________________________________________

7. Despite Robinson’s contention, the District Court correctly admitted
the hearsay evidence of Hickey’s affidavit. The government can rely on
hearsay evidence to meet its probable cause burden. United States v.
6109 Grubb Rd., 886 F.2d 618, 621 (3d Cir. 1989).

                                7


drifted into U.S. waters. Special agent Hickey gave an
affidavit that the three illegal aliens lacked U.S. visas and
entered the country illegally. Based on this evidence, the
District Court properly found probable cause that the Piper
Aztec aircraft had been used to transport illegal aliens.

With evidence demonstrating probable cause, the burden
shifted to Robinson to disprove this presumption by a
preponderance of the evidence. On appeal, Robinson
asserts he met his burden because his criminal conviction
was overturned.8 But the absence of a criminal conviction
is irrelevant in a civil forfeiture proceeding, which is
directed against the property, not the owner. United States
v. Sandini, 816 F.2d 869, 872 (3d Cir. 1987) ("Civil
forfeiture is an in rem proceeding. . . . The innocence of the
owner is irrelevant -- it is enough that the property was
involved in a violation to which the forfeiture attaches.").
Robinson fails to offer any evidence to controvert the
government’s contentions. His failure to do so means he
has not met his burden of proof.

IV

Robinson contends the pre-CAFRA burden of proof in
civil forfeiture actions violates his constitutional right to
due process under the Fifth Amendment. The pre-CAFRA
system, which we apply here, involved multiple steps. As
the statute provided, "the burden of proof shall lie upon
such claimant, except that probable cause shall be first
shown for the institution of such suit or action." 8 U.S.C
S 1324(b)(5).
_________________________________________________________________

8. On July 14, 1999, a jury convicted Robinson in the related criminal
proceedings for knowingly and willfully bringing aliens into the United
States at a place other than a designated port of entry. United States v.
Robinson, No. 99-cr-00021-1 (V.I. filed July 14, 1999). But this court
subsequently remanded the case to the District Court for a hearing on
whether the jurors improperly had access to prejudicial information.
United States v. Robinson, 263 F.3d 160 (3d Cir. 2001) (table). The
District Court vacated the judgment of conviction and granted Robinson
a new trial. The government has not filed new proceedings against
Robinson.

                                8


Robinson offers no argument why the pre-CAFRA burden
of proof violates due process. It is common that criminal
and civil matters may require different burdens of proof.
Johnson v. Elk Lake Sch. Dist., 283 F.3d 138, 147 (3d Cir.
2002). For civil forfeitures, we have found the burden of
proof is a preponderance of the evidence standard shifted to
the claimant. United States v. R.R. #1, Box 224 , 14 F.3d
864, 869 (3d Cir. 1994); accord $129,727.00 in U.S.
Currency, 129 F.3d at 492. We see no constitutional
infirmity in this standard for a civil action against the
seized property.

V

For the foregoing reasons, we will affirm the judgment of
forfeiture.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

                                9
