United States v. 1990 Toyota 4Runner

9 F.3d 651, 1993 U.S. App. LEXIS 29701, 1993 WL 469284
CourtCourt of Appeals for the Seventh Circuit
DecidedNovember 16, 1993
DocketNo. 92-3709
StatusPublished
Cited by14 cases

This text of 9 F.3d 651 (United States v. 1990 Toyota 4Runner) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. 1990 Toyota 4Runner, 9 F.3d 651, 1993 U.S. App. LEXIS 29701, 1993 WL 469284 (7th Cir. 1993).

Opinions

POSNER, Chief Judge.

This appeal by the United States requires us to interpret 21 U.S.C. § 881, which subjects property used in federal drug offenses to forfeiture. The government filed a complaint to forfeit a 1990 Toyota 4Runner seized in the following circumstances. Abio-dun Oloko wanted to import two kilograms of heroin from the Philippines. He needed someone to go to Manila to pick up the drugs. The person he approached was, unbeknownst to him, an undercover agent of the Drug Enforcement Administration. On September 9,1991, Oloko met with the agent and other conspirators in a Chicago restaurant. At the meeting, which lasted from 4:10 to 4:40 p.m., Oloko instructed the agent to obtain a passport and agreed to pay him $10,000 for transporting the heroin from Manila to Chicago. Oloko drove to and from the meeting in the 1990 Toyota 4Runner. The agent flew to Manila and on November 1, [652]*6521991, as arranged with Oloko, picked up a suitcase containing two kilograms of heroin. On the basis of the events we have narrated, Oloko pleaded guilty to conspiracy to import a controlled substance illegally. In response to the forfeiture complaint he and another person filed a claim of ownership and moved successfully to dismiss the complaint on the ground that the use of the automobile fell outside the scope of the forfeiture statute.

The statute provides for the forfeiture of controlled substances, raw materials used in their manufacture, cash, drug paraphernalia, firearms, real estate, records, equipment, and “conveyances” (including aircraft and boats), when these things are used in federal drug offenses, except to the extent that an innocent person has an interest in the property in question. Our concern is with the conveyances provision, 21 U.S.C. § 881(a)(4), which covers all conveyances “which are used, or are intended for use, to transport, or in any manner to facilitate the transportation, sale, receipt, possession, or concealment of’ controlled substances or the equipment or raw materials used to make controlled substances. A vehicle or other conveyance used to transport the drugs is forfeitable by virtue of the “to transport” clause, but Oloko’s Toyota is forfeitable if at all only if it can be said to have been “used, or ... intended for use, ... in any manner to facilitate the transportation, sale, receipt, possession, or concealment of’ the heroin that Oloko ordered from Manila.

In order to import the heroin into the United States and place it in Oloko’s possession, someone had to go to Manila, get it, and bring it back. In order for someone to go to Manila for this purpose, arrangements for the trip had to be made, including arrangements for procuring a passport for the courier (if he didn’t have one already) and for compensating him. In order to make these arrangements, the conspirators had to meet, and Oloko’s presence at the meeting was “facilitated” by the Toyota, his mode of conveyance to and from the meeting. In facilitating the meeting, the Toyota facilitated a later transportation of the heroin to, and its receipt and possession by, Oloko. The charge of importation encompassed transportation. Cf. United States v. One Gates Learjet, 861 F.2d 868, 871 (6th Cir.1988).

It does not appear that the heroin was actually brought to the United States, let alone received by Oloko; but we do not think this matters. The words “intended for use” seem designed not merely for the unusual case of the aborted use (Oloko might have had a flat tire en route to the meeting and missed it), but also and more centrally for the aborted conspiracy. His intention (goal, purpose, desire, object) in using the Toyota to drive to the meeting was to facilitate the transportation of heroin to Chicago, but his intention was thwarted.

At argument his lawyer conceded that if a sale had taken place at the meeting, the automobile would be forfeitable. This was a damaging concession. The statute is not limited to conveyances used to facilitate a sale. It extends to conveyances used to facilitate transportation, receipt, or possession. No doubt what the lawyer meant was that the transportation, receipt, possession, or sale (or concealment) has to occur at the meeting or other encounter to which the conveyance conveys the drug offender. His position was that if all that goes on at the meeting or encounter is a discussion of future plans, the facilitative effect of the vehicle or other conveyance is too remote to come within the statute’s reach.

The district judge’s ground for thinking the statute inapplicable was broader. He thought the term “facilitate” connotes causation. To label one thing a “cause” of another is, in criminal as in tort law, ordinarily to imply not only that the second would not have occurred but for the first, but also that the first made the second more likely to occur. Suppose that through the negligence of a taxi company a person misses his plane and has to take a later one. The later plane crashes, and he is killed. The taxi company’s negligence would not be deemed a cause of his death, even though he would not have died had the company gotten him to the earlier plane, because that negligence made it no more likely that the later plane would crash. Central of Georgia Ry. v. Price, 106 [653]*653Ga. 176, 32 S.E. 77 (1898); Berry v. Sugar Notch Borough, 191 Pa. 345, 43 Atl. 240 (1899). Likewise, since Oloko could equally well have gotten to and from the restaurant by some alternative means, such as a taxi, his use of the Toyota could not be said to be a cause of the meeting or of anything that took place at it. This ground for the dismissal of the government’s suit is inconsistent with Oloko’s concession that the Toyota would be forfeitable if drugs had changed hands at the meeting. For it implies that the availability of equally good alternative means of conveyance to and from the meeting establishes that the Toyota had not been used to facilitate the meeting or anything that might have gone on there, including an actual sale of illegal drugs.

We do not see any warrant for these narrowing interpretations of the statute. The obvious purpose of the statute read as a whole is to deprive drug traffickers of the principal tools of their trade, which include the drugs themselves, the equipment and raw materials for their manufacture, the firearms used to enforce contracts in an illegal business, the premises used for making and selling drugs — and the vehicles, boats, and aircraft that the traffickers use in their business. No doubt they could use public transportation exclusively — public transportation is used extensively for the importation and other transportation of illegal drugs already. But taking away their cars, boats, and planes, like taking away their stash houses and guns, is bound to cramp their style. Yet this might be impossible to prove in a particular case. The main effect of depriving drug traffickers of the tools of their trade is to curtail their activities rather than to eliminate them altogether, and normally it would be unknowable whether a particular transaction would have occurred or been attempted had the traffickers been relegated to public transportation.

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9 F.3d 651, 1993 U.S. App. LEXIS 29701, 1993 WL 469284, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-1990-toyota-4runner-ca7-1993.