Filed: Jul. 11, 2014
Latest Update: Mar. 02, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-2163 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. THOMAS EDWARD SIMS, II, Claimant -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-
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-2163 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. THOMAS EDWARD SIMS, II, Claimant -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-0..
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UNPUBLISHED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Affirmed by unpublished per curiam opinion.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,
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Unpublished opinions are not binding precedent in this circuit.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 to forfeiture to the United States and no property
right shall exist in [it],”
id. § 881(a). In the present
appeal, Thomas Edward Sims, II (Sims) challenges 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 property is subject to forfeiture.” 18
U.S.C. § 983(c)(1). 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 the Eighth Amendment of the
Constitution,”
id. § 983(g)(4). In determining whether a
forfeiture is constitutionally excessive, “the court shall
compare the forfeiture to the gravity of the offense giving rise
to the forfeiture.”
Id. § 983(g)(2). “The claimant shall have
the burden of establishing that 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. The complaint
alleged that, pursuant to the declaration of James McVicker
(Officer McVicker), a North Carolina State 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 et seq., and is therefore
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subject to forfeiture to the United States of America pursuant
to 21 U.S.C. § 881(a)(4).” (J.A. 8). The complaint
incorporated Officer McVicker’s declaration by 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 is a brand name for a prescription medication
containing the active ingredient oxycodone. Oxycodone is a
Schedule II controlled substance. 21 U.S.C. § 812(c); 21 C.F.R.
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§ 1308.12(b)(1)(xiii). Marijuana is a Schedule I controlled
substance. 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 and opposes its forfeiture on the basis that,
although “[he] understand[s] [he] broke the law and [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 judgment pursuant to
Federal Rule of Civil Procedure 56. In response, Sims did not
dispute that the marijuana, the yellow Percocet pills, and the
firearm found in the Passat belonged to him or that he
transported such items in the Passat. 1 Nonetheless, Sims opposed
the government’s motion for summary judgment and filed a
cross-motion for summary judgment on the basis that: (1)
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 of the Passat 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 in the fuse-box panel of the Passat, and
therefore, did not fully assess the gravity of his illegal
conduct in connection with the Passat. Additionally, the
government offered the sworn declaration of Jenny Whitfield
(Whitfield), the Asset Forfeiture Coordinator for the United
States Marshal’s Service for the Eastern District of North
Carolina. In her declaration, Whitfield explained the procedure
used by 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 range under the United States Sentencing
Guidelines, had he been convicted 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. In
the district court’s memorandum opinion setting forth its
dispositionary analysis, the district court concluded 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). The district court
further concluded that “[t]he facts of this case, where the
illegal controlled substances were purposely hidden and
transported in claimant’s vehicle, also clearly establish a
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‘substantial connection between the property and the offense.’”
Id. (quoting 18 U.S.C. § 983(c)(3)).
Finally, the district court rejected Sims’ affirmative
defense in which he asserted forfeiture of the Passat would
violate the Excessive Fines Clause of the Eighth Amendment. The
district court reasoned that the undisputed facts of this case
established that Sims “was involved in dealing controlled
substances, and not merely a casual marijuana user on a
misdemeanor level as” he contended. Id. These facts are: (1)
marijuana divided into two sandwich bags, suggesting
distribution, hidden in the Passat; (2) twenty ten-milligram
Percocet pills (active ingredient Oxycodone, a Schedule II
controlled substance), hidden in the Passat; and (3) a firearm
hidden in the Passat. Referring to 21 U.S.C. § 841(b)(1)(C),
the district court reasoned that, “[w]hen considering the
totality of the conduct at issue in this case, the statutory
fines that claimant would face are between $1,000.00 and
$1,000,000.00.”
Id. 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 that the district court erred in
considering the twenty ten-milligram Percocet pills 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 memorandum in support of its
motion for summary judgment. 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 in the Passat regardless of the fact that the
government did not reference them in its initial 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). Sims’ contention widely misses the
mark. The inference that 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. In this regard, he makes the subcontention that the
appraised value of the Passat set forth in Whitfield’s
declaration ($25,775) is inadmissible hearsay, and therefore,
the government failed to meet its burden of proving the
forfeiture of the Passat is not grossly disproportional to the
gravity of his simple possession offense.
We affirm this issue on the reasoning of the district
court. Sims’ contention does not account for the fact that, as
we 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. 21
U.S.C. § 841(a)(1). Additionally, Sims’ position on this issue
meets itself coming 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. We dispense with
oral argument because the facts and legal contentions are
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adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED
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