US v. Sims' Personal Property
Filing
UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 7:12-cv-00332-FL. Copies to all parties and the district court/agency. [999393666]. [13-2163]
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-2163
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
THOMAS EDWARD SIMS, II,
Claimant - Appellant,
and
SIMS' PERSONAL PROPERTY, Specifically Described as a 2012
Volkswagen Passat SEL, VIN: 1VWCH7A34CC057759 and any and
all proceeds from the sale of said property,
Defendant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. Louise W. Flanagan,
District Judge. (7:12-cv-00332-FL)
Submitted:
May 1, 2014
Decided:
July 11, 2014
Before NIEMEYER and SHEDD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
William
Lee
Davis,
III,
Lumberton,
North
Carolina,
for
Appellant.
Thomas G. Walker, United States Attorney, Rudy A.
Renfer, Jr., Assistant United States Attorney, Stephen A. West,
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Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Pursuant to 21 U.S.C. § 881, a vehicle used or intended for
use
“to
transport,
or
in
any
manner
to
facilitate
the
transportation, . . . possession, or concealment of,” 21 U.S.C.
§ 881(a)(4),
“controlled
substances
which
have
been
manufactured, distributed, dispensed, or acquired in violation
of [21 U.S.C., Chapter 13, Subchapter I],” id. § 881(a)(1), is
“subject
right
to
shall
appeal,
forfeiture
exist
Thomas
in
to
the
[it],”
Edward
Sims,
United
id.
II
States
§ 881(a).
(Sims)
and
no
In
the
challenges
property
present
the
civil
forfeiture of his vehicle, a 2012 Volkswagen Passat SEL (the
Passat), pursuant to 21 U.S.C. § 881.
For reasons that follow,
we affirm.
I.
The initial burden of proof in a civil forfeiture action
“is on the Government to establish, by a preponderance of the
evidence,
that
the
U.S.C. § 983(c)(1).
property
is
subject
to
forfeiture.”
18
Moreover, “if the Government’s theory of
forfeiture is that the property was used to commit or facilitate
the commission of a criminal offense, or was involved in the
commission of a criminal offense, the Government shall establish
that there was a substantial connection between the property and
the offense.”
Id. § 983(c)(3).
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Of relevance in the present appeal, a claimant such as Sims
“may petition the court to determine whether the forfeiture was
constitutionally excessive,” id. § 983(g)(1), in “violation of
the
Excessive
Fines
Clause
of
Constitution,”
id.
forfeiture
the
constitutionally
is
§ 983(g)(4).
Eighth
In
Amendment
determining
excessive,
“the
of
whether
court
the
a
shall
compare the forfeiture to the gravity of the offense giving rise
to the forfeiture.”
the
burden
of
Id. § 983(g)(2).
establishing
that
“The claimant shall have
the
forfeiture
is
grossly
disproportional by a preponderance of the evidence at a hearing
conducted by the court without a jury.”
Id. § 983(g)(3).
II.
This action began on November 26, 2012, when the government
filed a civil complaint in the United States District Court for
the Eastern District of North Carolina for the forfeiture in rem
of the Passat, then currently registered to Sims.
alleged
that,
(Officer
pursuant
McVicker),
a
to
the
North
declaration
Carolina
The complaint
of
State
James
McVicker
Highway
Patrol
Trooper on assignment as a Task Force Officer with the Drug
Enforcement Administration, “there is a reasonable basis for a
belief that the defendant vehicle was used, or intended to be
used, to facilitate violations of Title II of the Controlled
Substances
Act,
21
U.S.C.
§ 801
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et
seq.,
and
is
therefore
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subject to forfeiture to the United States of America pursuant
to
21
U.S.C.
incorporated
§ 881(a)(4).”
Officer
McVicker’s
(J.A.
8).
declaration
The
by
complaint
reference,
and
the government attached it to the complaint.
In his declaration under oath, Officer McVicker declared
that,
based
upon
official
reports
he
had
reviewed
from
the
Lumberton Police Department, on June 15, 2012, during a traffic
stop of the Passat, which Sims was driving, for speeding:
(1) a
drug dog alerted positively to the driver’s side door; (2) the
resulting
search
of
the
Passat
revealed
(a)
a
pill
bottle
containing twenty yellow Percocet pills hidden behind the panel
covering the fuse box, (b) a Crown Royal bag with two plastic
sandwich bags containing marijuana hidden behind the dashboard
airbag cover, and (c) a handgun in an outer pocket of a coat on
the back seat; (3) after Sims waived his right to counsel, he
admitted that the Percocet pills, the marijuana, and the handgun
belonged to him; and (4) Sims was arrested and charged with
maintaining a vehicle to keep controlled substances, carrying a
concealed weapon, possession of drug paraphernalia, trafficking
in opium by possession, trafficking in opium by transportation,
and possession with intent to sell and deliver marijuana.
Percocet
containing
is
the
a
brand
active
name
for
ingredient
Schedule II controlled substance.
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a
prescription
oxycodone.
medication
Oxycodone
is
a
21 U.S.C. § 812(c); 21 C.F.R.
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§ 1308.12(b)(1)(xiii).
substance.
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Marijuana is a Schedule I controlled
21 U.S.C. § 812(c), Schedule I(c)(10).
In response to the government’s forfeiture complaint, Sims
filed a letter-style document in which he claims ownership of
the
Passat
although
and
“[he]
opposes
its
forfeiture
understand[s]
[he]
broke
on
the
basis
the
law
and
that,
[he
is]
willing to take responsibility for [his] charges still pending,
. . . [he] do[es] not believe that the forfeiture of [his] car
is fair, because [he] plan[s] on doing something with his life.”
(J.A.
11).
Sims
goes
on
in
the
document
to
detail
his
educational and career plans and to explain that he needs the
Passat
to
accomplish
such
plans.
He
also
states
that
he
purchased the Passat outright with funds he inherited from his
father upon his father’s death.
The
government
moved
for
summary
Federal Rule of Civil Procedure 56.
judgment
pursuant
to
In response, Sims did not
dispute that the marijuana, the yellow Percocet pills, and the
firearm
found
in
the
Passat
belonged
transported such items in the Passat. 1
the
government’s
cross-motion
for
motion
for
summary
summary
judgment
1
on
to
him
or
that
he
Nonetheless, Sims opposed
judgment
the
basis
and
filed
that:
a
(1)
Notably, Sims affirmatively admitted that the yellow
Percocet pills found in the fuse box of the Passat are ten
milligrams each.
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forfeiture of his Passat based solely upon what he describes as
the small amount of marijuana found in it (amounting to only a
misdemeanor offense) would violate the Excessive Fines Clause of
the Eighth Amendment; and (2) a substantial connection does not
exist between what he describes as the small amount of marijuana
found in the Passat and any violation of 21 U.S.C., Chapter 13,
Subchapter I.
Notably, Sims offered no evidence regarding the
value
Passat
of
the
in
support
of
his
affirmative
defense
asserting a violation of the Excessive Fines Clause.
The
government
made
several
points
in
response.
Of
particular note, the government pointed out that Sims had not
addressed the concealment of the twenty Percocet pills at ten
milligrams
each
therefore,
did
conduct
in
government
offered
the
Marshal’s
Carolina.
used
not
by
the
fuse-box
fully
assess
connection
(Whitfield),
States
in
the
Asset
with
the
sworn
panel
the
for
of
Passat,
his
and
illegal
Additionally,
declaration
the
the
gravity
Passat.
Forfeiture
Service
of
of
Coordinator
Eastern
Jenny
for
Whitfield
the
District
the
of
United
North
In her declaration, Whitfield explained the procedure
the
United
States
Marshal’s
Service
to
produce
an
appraisal value for a vehicle transferred to its custody during
forfeiture
proceedings.
Applying
such
procedure,
Whitfield
declared that the clean retail appraisal value of the Passat is
$25,775.
The government then pointed out that this figure is
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well within the applicable statutory fine range for a defendant
convicted of possession with intent to distribute a controlled
substance, 21 U.S.C. § 841(b)(1)(C), which range is $1,000 to
$1,000,000.
The government then went on to explain that Sims’
hypothetical
fine
Guidelines,
had
range
he
under
the
been
United
convicted
States
Sentencing
under
21
U.S.C.
§ 841(b)(1)(C), would be $3,000 to $30,000.
Although
Sims
had
the
opportunity
to
respond
to
the
government’s reply to his response/memorandum in support of his
summary judgment motion, including Whitfield’s appraisal of the
clean retail value of the Passat, he did not respond.
On August 22, 2013, the district court entered judgment in
favor of the government, ordering forfeiture of the Passat.
the
district
dispositionary
court’s
memorandum
analysis,
the
opinion
district
setting
court
forth
concluded
In
its
that,
based upon the summary judgment record, the “[government] has
established by a preponderance of the evidence that the [Passat]
is subject to forfeiture where the vehicle was used to transport
illegal
schedule
I
and
schedule
II
controlled
substances.”
United States v. Sims’ Personal Property, No. 7:12-CV-332, 2013
WL 4460320, at *3 (E.D.N.C. Aug. 20, 2013).
further
illegal
concluded
that
controlled
transported
in
“[t]he
substances
claimant’s
facts
of
were
vehicle,
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The district court
this
case,
purposely
also
clearly
where
hidden
the
and
establish
a
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‘substantial connection between the property and the offense.’”
Id. (quoting 18 U.S.C. § 983(c)(3)).
Finally,
defense in
the
which
district
he
court
asserted
rejected
forfeiture
Sims’
of
the
affirmative
Passat
would
violate the Excessive Fines Clause of the Eighth Amendment.
The
district court reasoned that the undisputed facts of this case
established
that
substances,
and
Sims
not
“was
involved
merely
a
casual
misdemeanor level as” he contended.
marijuana
divided
distribution,
Percocet
hidden
pills
into
in
(active
two
the
in
dealing
marijuana
Id.
ingredient
user
on
These facts are:
sandwich
Passat;
controlled
(2)
bags,
twenty
Oxycodone,
a
(1)
suggesting
ten-milligram
a
Schedule
II
controlled substance), hidden in the Passat; and (3) a firearm
hidden in the Passat.
the
district
court
Referring to 21 U.S.C. § 841(b)(1)(C),
reasoned
that,
“[w]hen
considering
the
totality of the conduct at issue in this case, the statutory
fines
that
claimant
$1,000,000.00.”
Id.
would
face
are
between
$1,000.00
and
The district court also observed that,
according to the government, Sims’ fine range under the United
States Sentencing Guidelines would be $3,000 to $30,000.
“Upon
weighing the gravity of the offense conduct against the value of
the Passat at issue in this case, the court [found] that the
forfeiture is not grossly disproportional by a preponderance of
the evidence.”
Id. (internal quotation marks omitted).
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So, when all was said and done, the district court granted
the government’s motion for summary judgment and denied Sims’
cross-motion for summary judgment.
This timely appeal followed.
III.
We review the district court’s grant of summary judgment de
novo.
United States v. Kanasco, Ltd., 123 F.3d 209, 210 (4th
Cir. 1997) (civil forfeiture action).
“The court shall grant
summary judgment if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.”
Fed. R. Civ. P. 56(a).
IV.
Raising
three
contentions,
Sims
challenges
the
district
court’s grant of summary judgment in favor of the government.
Each contention is without merit.
A.
First,
Sims
contends
considering
the
twenty
that
the
district
ten-milligram
court
Percocet
erred
pills
in
in
determining whether the Passat is subject to forfeiture under
21 U.S.C. § 881, because the government did not reference the
Percocet
pills
in
its
initial
motion for summary judgment.
memorandum
in
support
of
its
This contention is without merit
because Federal Rule of Civil Procedure 56(c)(3) permitted the
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district court to consider the evidence regarding the Percocet
pills
found
government
in
did
the
not
Passat
regardless
reference
them
in
of
the
its
fact
initial
that
the
memorandum
opinion in support of its motion for summary judgment.
See Fed.
R. Civ. P. 56(c)(3) (“The court need consider only the cited
materials, but it may consider other materials in the record.”).
B.
Second,
Sims
contends
the
district
court
erred
in
considering the Percocet pills in determining whether the Passat
is
subject
to
forfeiture
under
21
U.S.C.
§ 881,
because
the
government failed to carry its initial burden of demonstrating
that the twenty Percocet pills found in the Passat, which he
expressly admitted below in his response to the government’s
motion
for
summary
judgment
were
ten
milligrams
each,
could
support a prosecution for possession with intent to distribute
under 21 U.S.C. § 841(a)(1).
mark.
The
inference
that
Sims’ contention widely misses the
Sims
possessed
the
twenty
Percocet
pills, a Schedule II controlled substance, with the intent to
distribute is supported not only by the fact that he hid such
pills (which he stole from his grandmother) in the fuse box of
the Passat, but also by the fact that:
(1) he hid two sandwich
bags of marijuana (in packaging suggesting intent to distribute)
and a firearm in close proximity to the twenty Percocet pills
and the two sandwich bags of marijuana; and (2) Sims admitted
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culpability to the three state charges arising from the stop
involving distribution of controlled substances (trafficking in
opium by possession, trafficking in opium by transportation, and
possession
with
intent
to
sell
and
deliver
marijuana).
See
United States v. Mitten, 592 F.3d 767, 777–78 (7th Cir. 2010)
(recognizing “[d]rug traffickers will commonly possess firearms
to protect their product, to protect their drugs, to protect
their cash, to protect their life and even to protect their
turf”
(alteration
in
original)
(internal
quotation
marks
omitted)); cf. United States v. Grogins, 163 F.3d 795, 799 (4th
Cir. 1998) (noting that “the background fact that the connection
between illegal drug operations and guns in our society is a
tight one”).
Stated simply, the government carried its burden
of proving, by a preponderance of the evidence viewed in the
light most favorable to Sims, that Sims possessed the twenty
Percocet pills and the two sandwich bags of marijuana with the
intent to distribute, and a genuine issue of material fact does
not exist on this point.
C.
Third and finally, Sims contends that forfeiture of the
Passat is grossly disproportional to his offense conduct, which
offense
conduct
he
characterizes
as
simple
possession
of
controlled substances in violation of 21 U.S.C. § 844(a), and
therefore, violates the Excessive Fines Clause of the Eighth
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Amendment.
appraised
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In this regard, he makes the subcontention that the
value
declaration
the
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of
the
($25,775)
government
is
failed
Passat
set
inadmissible
to
meet
forth
in
hearsay,
its
burden
Whitfield’s
and
of
therefore,
proving
the
forfeiture of the Passat is not grossly disproportional to the
gravity of his simple possession offense.
We
court.
we
affirm
this
issue
on
the
reasoning
of
the
district
Sims’ contention does not account for the fact that, as
just
held
in
Part
IV.B.,
supra,
the
proper
offense
for
conducting a proportionality analysis under the Excessive Fines
Clause
in
this
case
is
possession
of
controlled
substances
(Percocet and the marijuana) with the intent to distribute.
U.S.C. § 841(a)(1).
meets
itself
coming
21
Additionally, Sims’ position on this issue
and
going
because
Sims’
assertion
that
forfeiture of the Passat violates the Excessive Fines Clause is
an affirmative defense upon which he bears the burden of proof.
18
U.S.C.
§ 983(g)(3).
Sims
himself
offered
no
evidence
regarding the value of the Passat.
V.
In sum, we affirm the judgment below.
oral
argument
because
the
facts
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and
legal
We dispense with
contentions
are
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adequately
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presented
in
the
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materials
before
the
court
and
argument would not aid the decisional process.
AFFIRMED
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