United States v. Aircraft, Civil Action No. 2:11–cv–00280–WMA.

839 F.Supp.2d 1243

UNITED STATES of America, Plaintiff,

v.AIRCRAFT (ONE (1) DOUGLAS AD–4N SKYRAIDER AIRCRAFT, FAA Registration N–121CH, Serial Number 126956, together with its Log Books); Aircraft Cannons (Four (4) 20 MM M3); and Aircraft Parts (Assorted), Defendants,

v.Dixie Equipment, LLC, Claimant.

Civil Action No. 2:11–cv–00280–WMA.

United States District Court,

N.D. Alabama,

Southern Division.

Dec. 21, 2011.

James D. Ingram, U.S. Attorney's Office, Jennifer Smith Murnahan, United States Attorneys Office, Birmingham, AL, for Plaintiff.

Anthony A. Joseph, Erica Leigh Williamson, Joe Frank Lassiter, III, Maynard Cooper & Gale PC, Birmingham, AL, for Defendants/Claimant.

MEMORANDUM OPINION

WILLIAM M. ACKER, JR., District Judge.

Before the court is the motion of plaintiff, the United States of America (“United States”), for summary judgment pursuant to Rule 56, Fed.R.Civ.P. Doc. 22. The United States filed this civil action pursuant to 19 U.S.C. § 1595a, alleging that the named in rem defendant properties, the Douglas AD–4N Skyraider Aircraft (“aircraft”), the four (4) 20 mm cannons (“cannons”), and the assorted aircraft parts (“aircraft parts”) (collectively, the “defendant properties”), were each introduced into the United States contrary to law, and thus, are subject to forfeiture to the United States. Claimant, Dixie Equipment, LLC (“Dixie Equipment”), has filed the only verified claim and answer in this action, thereby challenging the forfeiture. For the reasons set forth below, the United States' motion for summary judgment will be granted.

FACTS

By letter dated June 27, 2008, Claude Hendrickson, III (“Hendrickson”), the president and sole member of Dixie Equipment, requested authorization from the U.S. Department of State to import the defendant aircraft into the United States. On July 1, 2008, before Hendrickson's request had been ruled on, Dixie Equipment purchased the aircraft, together with the cannons and aircraft parts, from an individual in France, Jacques Bourret (“Bourret”).¹ On August 10, 2008, Hendrickson and Fred Cabanas (“Cabanas”), a ferry pilot hired by Dixie Equipment to fly the aircraft into the United States, traveled to France to pick up the aircraft. Upon arrival, Cabanas removed the cannons from the aircraft,² and Hendrickson made separate arrangements with Bourret for the cannons to be shipped to a gun dealer in Washington State. Cabanas then left France and flew the aircraft to the United States, a trip that took several days, from August 13 to 21, 2008.

Meanwhile, on August 18, 2008, the Office of Regional Security and Arms Transfers, Bureau of Political–Military Affairs, U.S. Department of State, responded by letter to Hendrickson's request, denying authorization to import the aircraft based on foreign policy objections.

On August 21, 2008, Cabanas entered the United States with the aircraft through the port of Buffalo, New York. U.S. Customs and Border Protection Officer Timothy Tordy (“Agent Tordy”) was on duty at the port that day. Cabanas presented Agent Tordy with the aircraft's certificate of registration, his medical authorization, and his pilot's license and passport. Cabanas told Agent Tordy that the aircraft was going to Alabama to fly in air shows and that the aircraft was owned as of that date by Bourret, which was the name still listed as the owner on the aircraft's registration. Agent Tordy has testified that Cabanas also told him that the aircraft would remain in the United States for only six to eight months and would be returning to France, but Cabanas denies telling Agent Tordy this. Agent Tordy permitted Cabanas's and the aircraft's entry into the United States,³ and Cabanas then flew the aircraft to an airport in Bessemer, Alabama, and delivered it to Hendrickson the same day.

On September 8, 2008, Hendrickson submitted an application in the name of Dixie Equipment to the Federal Aviation Administration (“FAA”) for the purpose of changing the country of registration for the aircraft from France to the United States. The application included the bill of sale showing that Hendrickson had purchased the aircraft on July 1, 2008, from Bourret. The FAA approved Hendrickson's application on or about October 28, 2008, and as a result, the aircraft registration number was changed from “F–AZDQ” to “N–121CH.”

On October 8, 2008, officers of U.S. Customs and Border Protection in the port of Savannah, Georgia, conducted an inspection of a shipment of merchandise from France held in two 40–foot shipping containers. The containers had been shipped to the United States by Dixie Equipment, and the entry summary identified the contents of the two containers as “AIR, HELICOPT PARTS: OTHER.” During the inspection, officers discovered the cannons in a wooden box in the nose of one of the containers, located under the assorted aircraft parts. However, the cannons were not listed on the entry summary, bill of lading, or other documentation submitted by Dixie Equipment. After an initial detention period, the officers seized the cannons and aircraft parts for violation of customs laws on October 15, 2008.⁴

This seizure prompted further investigation by federal law enforcement authorities which led to the discovery that the aircraft had previously entered the United States in August 2008 without the requisite license, permit, or other authorization from the United States government. As a result, officers of U.S. Immigration and Customs Enforcement executed a federal seizure warrant at the Bessemer Air Center, Bessemer, Alabama, on April 24, 2009, constructively seizing the aircraft and its log books on that basis.

The United States filed a verified complaint for forfeiture in rem against defendants aircraft, cannons, and aircraft parts on January 27, 2011. Dixie Equipment filed the only verified claim and answer. The United States' motion for summary judgment followed, doc. 22, to which Dixie Equipment has responded, doc. 51.

DISCUSSION

Title 19 of the United States Code, section 1595a, provides that property may be seized and forfeited when it has been introduced into the United States “contrary to law.” 19 U.S.C. § 1595a(a). When the United States seeks forfeiture pursuant to the provisions of section 1595a, it may seize property upon a showing of probable cause to believe that the property is forfeitable. See19 U.S.C. § 1615; United States v. One Beechcraft King Air 300 Aircraft, 107 F.3d 829, 829 (11th Cir.1997); United States v. Parcel of Property, 337 F.3d 225, 230 (2nd Cir.2003). Probable cause for forfeiture is tested by the same criteria as used to determine probable cause for the issuance of a search or seizure warrant. United States v. $242,484,00, 389 F.3d 1149, 1178 n. 1 (11th Cir.2004) (en banc). Once the United States has established probable cause, the claimant has the burden of persuasion to show by a preponderance of the evidence that the property is not in fact subject to forfeiture. Parcel of Property, 337 F.3d at 230.

Thus, the United States bears the initial burden of showing that there is probable cause to believe that the aircraft, cannons, and aircraft parts were introduced into the United States contrary to law. The United States' forfeiture complaint alleges three theories of forfeiture based on violations of customs laws: 1) that the aircraft, cannons, and aircraft parts are subject to forfeiture pursuant to 19 U.S.C. § 1595a(c)(2)(B) for licensing requirement violations; 2) that the aircraft and cannons are also subject to forfeiture pursuant to 19 U.S.C. § 1595a(c)(1)(A) because they were smuggled or clandestinely imported or introduced into the United States in violation of 18 U.S.C. §§ 542 and 545; and 3) that the aircraft parts are also subject to forfeiture pursuant to 19 U.S.C. § 1595a(a) because they were used to facilitate the importation of merchandise contrary to law.

Although the United States asserts three bases on which the defendant properties are subject to forfeiture, its principal argument is that the defendant properties constitute merchandise whose importation or entry into the United States requires a license, permit, or other authorization of an agency of the United States government, and because they were not accompanied by such license, permit, or authorization at the time of importation or introduction into the United States, they constitute merchandise introduced or attempted to be introduced into the United States contrary to law and are subject to forfeiture under 19 U.S.C. § 1595a(c)(2)(B). Section 1595a(c)(2)(B) provides in pertinent part:

(c) Merchandise introduced contrary to law.

Merchandise which is introduced or attempted to be introduced into the United States contrary to law shall be treated as follows:

....

(2) The merchandise may be seized and forfeited if—

(B) its importation or entry requires a license, permit or other authorization of an agency of the United States Government and the merchandise is not accompanied by such license, permit, or authorization;

19 U.S.C. § 1595a(c)(2)(B).

The United States contends that the defendant properties constitute merchandise under this section because “merchandise” is defined in Title 19 as “goods, wares, and chattels of every description, and includes merchandise the importation of which is prohibited ...” 19 U.S.C. § 1401(c). Further, the United States argues that the aircraft, cannons, and aircraft parts are items that require a license, permit, or authorization under section 1595a(c)(2)(B) because they constitute “defense articles” that require a government license prior to importation pursuant to the terms of the Arms Export Control Act, 22 U.S.C. § 2778. This act authorizes the President to control the importation of defense articles that are designated on the United States Munitions List, and it prohibits the importation of such items without a license.⁵ The United States contendsthat all of the defendant properties are defense articles under the Arms...