The opinion of the court was delivered by: BRIEANT
This action was tried to the Court on June 29, 1978. The Government seized and seeks forfeiture, pursuant to § 511(a) of the Comprehensive Drug Abuse Prevention and Control Act of 1970, 21 U.S.C. § 881(a), of a Lincoln Mark V automobile, defendant in this in rem proceeding. That statute provides:
"The following shall be subject to forfeiture to the United States and no property right shall exist in them:
(4) All conveyances, including aircraft, vehicles, or vessels, which are used, or are intended for use, to transport, or in any manner to facilitate the transportation, sale, receipt, possession, or concealment of [contraband]."
The claimant in this proceeding, and registered owner of the Lincoln Mark V is Rudy Ford, a/k/a Rudy Powell, Robert Rudy Ford, John Arnold Powell, Rudolph John Arnold Powell, Rudolph Powell, and "Butch."
Ford was tried and acquitted on April 6, 1978 by a jury in this District, on charges of distributing and possessing heroin and of aiding and abetting the sale of heroin [77 Cr. 863-CMM]. A conspiracy charge against Ford was dismissed by the Court and, therefore, not submitted to the jury. This forfeiture arises out of the same events on which Ford's indictment was based. The judgment of acquittal thus does not preclude the Government at this trial, as is explained infra, p. 1391.
The Court has subject matter jurisdiction of this action pursuant to 28 U.S.C. §§ 1345 and 1355.
At all relevant times, the 1977 Lincoln Mark V, Serial No. 7Y89A832686 was owned by the claimant, Rudy Ford. On August 22, 1977, Alfredo Iglesias, Special Agent in the Drug Enforcement Administration (hereinafter "the DEA"), acting in an undercover capacity, met Jack Bell at a Holiday Inn and asked him to sell Iglesias 1/8 kilogram of heroin. Bell said that he didn't have that much, but that he could get it in a few days from "his people" who were currently "sold out." Bell showed Iglesias "some" heroin at that first meeting. Iglesias and Bell next met on August 25th at approximately 12:30 or 1:00 P.M. in Bell's room at the President Hotel on West 48th Street, after Iglesias had telephoned Bell earlier the same day to ask Bell to arrange a sale of heroin. In the hotel room, Bell showed Iglesias a sample of heroin and made several telephone calls in an attempt to locate the person who was to deliver the heroin. After about an hour of negotiations at the hotel room, the illicit transaction was postponed to the next day, August 26th.
The second meeting between Bell and Iglesias on August 26, 1977 took place around 5:30 P.M. when Iglesias called for Bell at the President Hotel and drove to 121st Street and Lexington Avenue in Iglesias' unmarked government car. At 122nd Street and Lexington Avenue, Bell pointed to a green Lincoln Mark V automobile parked slightly north of the northeast corner of 121st and Lexington, and across the street from an apartment building at 1990 Lexington Avenue. Bell said that the Lincoln belonged to his "man from the Bronx." The Court admitted the statements of Bell, otherwise hearsay, pursuant to Rule 801(d)(2)(E), F.R.Evid. Bell directed Iglesias to park in the middle of the block on the north side of 121st Street between Lexington and Park Avenues. Meanwhile, Agent Salvatore was parked on 120th Street between Lexington and Park and observed Bell and Iglesias arrive and park on 121st Street. Salvatore had an unobstructed view of Iglesias' government car. At the same time, Agent Nolan was parked on the northeast corner of 122nd Street and Lexington Avenue. He saw Bell and Iglesias drive down Lexington Avenue and turn right onto 121st Street.
Before Nolan took up his surveillance station, he surveyed the area, observed the green Lincoln parked across the street from 1990 Lexington Avenue and noted its license number. He made a radio communication and ascertained the name and address of the registered owner of the Lincoln.
Back in Iglesias' car, Iglesias had refused to front Bell the money to purchase the heroin, insisting that the sale take place in the car. Faced with this refusal, and in response to it, Bell left the car, saying that he didn't know if "his people" would do a deal that way. Salvatore then saw Bell walk up Lexington Avenue; and Nolan saw Bell enter the building at 1990 Lexington, and leave that building about 30 minutes later with two other men, one of whom was Mr. Ford, claimant in this action. Bell, Ford and the third man approached the Iglesias car, Bell re-entering the car, while Ford and his companion remained outside, under circumstances warranting the inference that they were acting as lookouts. Bell removed the heroin from within the zipper area of his pants. After testing the heroin, Iglesias got out of the car, removed the customary brown paper bag of the sort used to carry money and narcotics in such transactions from the trunk, and re-entered the government car where he paid Bell $7,000.00 in pre-marked bills. Bell then left the car, and Salvatore saw Bell give "a quantity of money" to Rudy Ford. Iglesias also saw Bell hand something to Rudy Ford. Bell re-entered the Iglesias car, and Iglesias and Bell drove away together.
Salvatore watched Rudy Ford go to an outdoor telephone booth, where Ford's back was turned to Salvatore. Ford and his companion then walked up Lexington Avenue, out of Salvatore's sight. Salvatore received a radio communication and shortly thereafter followed the green Lincoln to a traffic light at 121st or 122nd Street and Third Avenue where the agent pulled abreast of the Lincoln. He saw Rudy Ford and his male companion, and a female in the car. When the light turned green, Salvatore stopped following the Lincoln. Nolan watched Ford and his companion walk up Lexington Avenue and get into "a car." When, immediately thereafter, the green Lincoln pulled out of its parking space, Nolan followed it on a somewhat circuitous route through the Bronx until he lost the Lincoln near the 231st Street exist on the Major Deegan Expressway. Nolan identified the driver of the Lincoln as Rudy Ford. At the beginning of the trip, Ford let his two companions out of the car at 123rd or 124th Street and Adam Clayton Powell ...