United States v. $3,799.00 in United States Currency, Thomas Fred Ward, Claimant-Appellant
684 F.2d 674
10th Cir.
1982
Check Treatment

*2 McWILLIAMS, Before BARRETT and McKAY, Judges. Circuit BARRETT, Judge. Circuit (Ward), claimant, Fred ap- Thomas peals judgment of the District Court ordering the forfeiture of in Unit- currency ed States to the United States in accordance U.S.C.A. § laws, provides part: used, 1. U.S.C.A. “It shall be under such or been which has so any possess property property rights in- unlawful to have or and no shall exist in such ” violating provisions property. for use in . .. tended laws, regulations prescribed revenue or internal proper warrant for Ward’s residence was in companion case to Unit 7302). This is a (§ legal respects; during in all F.2d 876 form and ed States 6, 1982 (McWilliams, agents Circuit search of the Ward residence told 1982)filed arrest; The facts as detailed and that dissenting). Ward he Judge, *3 here, repeated except Ward, segre- will not be found on which was therein $449.00 necessary Ward’s con money, as to address gated insofar from other this “convince[s] appeal. question tentions on court without that the was $499.00 part gambling pay, a of a whereas other Billy Henry Jack On October pockets monies in the billfold and of Ward agent with the Internal (Henry) special a [R., segregated.” p. was not so Vol. I at Service, a warrant obtained search Revenue 64], Lawton, residence in Oklahoma. for Ward’s following day Henry concluded, and three fellow The inter The district court alia: to the residence. After agents proceeded $3,799.00 part gambling the was of a ar- residence, Agent entering Henry the ad- illegal rangement which was since Ward right of his to decline to answer vised Ward paid wagering imposed by had not the tax right law; questions $3,799.00 and his have a law- subject is to forfeiture Henry patted 7302; then him down yer present. agents the actions of the weapons, inquired and if he was armed. improper for were not so and unlawful as to carry he responded search; Ward When although void the fruits of the and knife, carry pocket a gun a but that he did Josey and both Ward were under “consider- empty pock- Henry requested that Ward his legal compulsion” able to turn over the place the contents on a table. In ets and money question agents, to the it makes emptying pockets, difference, his Ward removed “money no since the was still pocket. from his left front This such, clearly being $499.00 contraband and used as Agent money by Henry seized, was seized after properly and should be forfeited “just stated that he didn’t know” [R., ...” Vol. I at 66]. where it came from. appeal Ward the money On contends residence, During the search Ward’s question was seized in violation of his con- Henry (using posing as Ward’s alias rights making stitutional improp- forfeiture agent) telephone numer- answered Ward’s Specifically, er. Ward contends that call, ous times. As a result of one such prohibition against Fourth Amendment un- Josey (Josey) Kenneth was directed to applies lawful searches and seizures to for- his arrival at the Upon Ward residence. feiture proceedings and can be asserted as a residence, Henry porch on the Josey met government defense herein where the gam- gave representing him a seeking money to forfeit seized without a Thereafter, bling debt to Ward. owed warrant and not incident to a lawful arrest. when an Inter- Henry identified himself as recently general addressed the law of agent, Josey nal Revenue furnished Service forfeiture in United States One 1957 detailing gambling a sworn statement Commander, etc., (10th Aero 671 F.2d 414 activities with Ward. 1982): Cir. complaint forfei- On June clearly Forfeitures are not favored and seeking ture was the United filed States only are to be enforced when within both $3,799.00, being forfeiture of the $449.00 spirit and letter of the law. United seized from Ward and the re- Coach, Ford One 307 U.S. Josey. ceived from (1939); 83 L.Ed. 1249 Rush States, v. United evidentiary hearing,

After an the district 1958). recognized We have heretofore findings court entered its of fact and con- found, remedy. as a harshness forfeiture clusions of law. The district court United States v. One 1975 Thunder- inter alia: who claims the bird, etc., 1978). question, engaged illegal the cash in has F.2d years; Accordingly proof prop- the search of the use of activities for Coffey, Boyd, Plymouth One Se- What must be of a statute in violation erty Currency dan, Id. Coin & is ordered. and United States forfeiture clear before civil nature of is that harsh, do indicate However, admittedly although permit- gov- proceedings will not be a useful recognized as compliance through provide to assure an avenue tool ted to ernmental of conduct. United recognized protection standards fundamental 2-Door El Dorado v. 1978 Cadillac searches and sei- against unreasonable (D.Utah etc., F.Supp. 532 C.D. Coupe, can be frus- self-incrimination zures and Government, here, 1980). as Once reading A close of those cases trated. showing proba- its initial burden meets justify the inference that simply does not institution of a forfei- cause for the ble forfei- they were intended to transform action, burden to it is the claimant’s ture criminal actions for proceedings ture into *4 does requested the forfeiture prove that purposes. The absence procedural all the corners of fall within the four not in the reasonable doubt standard the 1977 Pick- v. One statute. United States process does not re- challenged forfeiture (D.Colo.1980). etc., F.Supp. 1027 up, 503 process. in a denial of due sult discretion in forfei- have little Courts p. F.2d at 973. 498 v. One In United States ture actions. mind, will guidelines these in we With etc., F.Supp. 453 639 Skylark, Buick 1976 forfeiture of now address the seizure and (D.Colo.1978),the court observed: money question. the in little, any, have if discre- The courts (U. eases. S. v. One tion in forfeiture F.Supp. 431 128 Jaguar Coupe, $499.00

1973 govern- the It (D.C.N.Y.1977)). that the agree with Ward was prove that there burden to ment’s seized, and, accord improperly was $499.00 the institution of a probable cause for noted, As ingly, subject not to forfeiture. (U. v. One 1973 action. S. forfeiture court, upholding in the supra, the district (D.C.Mich. Van, F.Supp. 43 Dodge 416 of the and related forfeiture $499.00 seizure it is the 1976)). Once established pocket, did so on from Ward’s left removed that the for- prove burden to claimant’s agents told Ward assumption that the the within the properly not fall feiture does Such, however, arrest. that he was under Mark (U. Toyota v. One 1972 act. S. was not the case. II, (C.A.Mo.1974)). 1162 453 Henry testified: Agent F.Supp. pp. at 641-642. Q you did ever tell him he was But p. under arrest? nature, Although inherently civil in No, A sir. not to be effectu proceedings are fact, Q As a matter of he was not ever derogation of one’s constitutional ated arrest, rights. Plymouth placed In One 1958 Sedan v. was he? under 1246, 14 Pennsylvania, 380 85 S.Ct. U.S. A That’s correct. Supreme the Court made L.Ed.2d 170 [R., Vol. II at 33]. inadequacy process that the of the it clear Ward, supra, In United we the possession may defeat used to secure pat held that the initial down of Ward was to possession, to at least government’s Illinois, unwarranted under Ybarra v. 444 government may be the extent that the 85, 100 (1979), U.S. S.Ct. 62 L.Ed.2d 238 illegally introducing evidence barred accordingly, “the second search of of the Fourth Amend seized in violation Ward, i.e., that which resulted in disclosure forfeitability. claim to prove ment to its pockets of evidence obtained from Richardson, Ward’s 498 F.2d 968 And in Bramble v. denied, 1069, pursuant Henry’s request, pass to 1974), does cert. U.S. (1974) we stat constitutional muster Fourth 42 L.Ed.2d 665 under 95 S.Ct. apply Amendment.” We a lesser ed: cannot outset, At the we observe that Ward had the forfeiture of the $499.00 standard to possession or constructive no actual emptied he seized from Ward after $3,300.00; only proprietary Ward’s interest Ybarra, our supra, and pockets. Under money it represented Richardson, supra, the seizure of Bramble v. by Josey; debt owed to him and the related forfeiture was $499.00 Josey voluntarily tendered money rights. constitutional violative Ward’s Agent Henry. set the district court’s Thus we must aside only proper- of the The $499.00. Montgomery, In United States property in- 7302 is ty forfeitable 1980), denied, F.2d 753 cert. internal rev- violating use in tended for 66 L.Ed.2d 106 U.S. laws. United v. United States enue (1980) we stated: Currency, 401 U.S. 91 S.Ct. Coin and government argues appel- The that the 1041, L.Ed.2d 434 United States lant lacks Fourth Amendment interest segregated can be from cur- currency which the search truck or the seizure of subject to the forfeitable rency which marijuana found therein and thus statute is not forfeitable. standing challenge does not have

suppression of the fruits of the seizure. suppression It is well established that the may urged only by be those whose contends that re- infringed by a are search or seizure and *5 Josey subjected was also to ceived by aggrieved those solely by the in- consti- violation of his [Ward’s] incriminating troduction of evidence. rights. disagree. tutional Illinois, 128, Rakas v. 439 U.S. 99 S.Ct. As discussed in United States v. (1978); 58 L.Ed.2d 387 Alderman v. Commander, supra, Aero once the One 1957 States, [165, United 394 U.S. 89 S.Ct. government meets its initial burden of (1969). Usually person L.Ed.2d a 176] showing the institution probable cause for aggrieved if he has an interest in the action, a forfeiture it is claimant’s bur premises searched or in the items seized prove den is not with to that the forfeiture gives or some other interest which him a in the authoriz expectation four corners of the statute basis for an privacy. Katz case, States, ing forfeiture. In the instant it is v. United 389 U.S. 88 S.Ct. Josey appeared at [Emphasis uncontested that L.Ed.2d 576 voluntarily supplied]. Ward tendered residence and $3,300.00 Agent Henry in satisfaction to 759. Upon to Ward. debt owed Here, as in Montgomery, ag- Ward was $3,300.00, Henry’s receipt of grieved solely by the court ordered forfei- of show Government met its initial burden $3,300.00, ture of the and not the seizure ing probable the institution of a cause for money, voluntarily ten- Thereafter, proceeding. the bur Agent Henry by Josey. dered to Under prove to that the for den shifted to Ward circumstances, such we hold that Ward feiture did “not fall within four corners proprietary failed to establish a interest the statute” ... 7302. Ward has § Thus, the money. standing lacjks Nothing in the failed to meet this burden. $3,300.00. challenge the forfeiture of the supports proposition before record us part part. Affirmed in and reversed in that the forfeiture of the fall under 7302. § McKAY, Judge, concurring: Circuit

Assuming, arguendo, that Ward had I concur in the judgment court’s prove been able to that the forfeiture of opinion except and in its as it discusses 7302, Ward, standing. did not fall under Since latter discussion is dic event, tum, standing challenge prefer lacked I to await occasion when it proceeding. squarely addressing the forfeiture at issue before it. McWILLIAMS, Judge, concurs in Circuit part: dissents in

part and in No. 81- my dissent

Consistent 876, I would U.S.A. in the judgment instant

affirm entered entirety. its

case in SWEETEN, Owen, P. H. Gordon

Beth Owen,

Jr., Carolyn wife, his

Plaintiffs-Appellants, STATES DEPARTMENT OF

UNITED SERVICE,

AGRICULTURE FOREST Bowcutt, Bowcutt

Verlin and Jeannette wife, Defendants-Appellees.

No. 80-1670. Appeals,

United Court of

Tenth Circuit.