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September 24, 1984

UNITED STATES OF AMERICA, Plaintiff, against ONE MERCEDES-BENZ 380 SEL VIN. #WDBCA 33A1BB10331, Defendant.

The opinion of the court was delivered by: HAIGHT


HAIGHT, District Judge:

 The Government brings this forfeiture proceeding against the defendant automobile pursuant to 21 U.S.C. § 881(a)(4). The statute subjects to forfeiture to the United States all "conveyances . . . which are used, or are intended for use, to transport, or in any manner to facilitate the transportion, sales, receipt, possession or concealment" of those species of property prescribed by federal drug laws.

 Following seizure of the vehicle, its registered owner, William Staton, filed a claim and contested forfeiture. The case was tried to the Court. The following constitute my findings of fact and conclusions of law. Rule 52(a), F.R.Civ.P.

 Findings of Fact

 In July, August and September, 1982, Julio Mercado, a special agent of the Drug Enforcement Agency ("DEA"), and other agents were conducting an investigation of one Robert Brown, a suspected dealer in heroin.Mercado and other agents acted in undercover capacities in their dealings with Brown. The agents were posing as sellers of significant quantities of heroin. I need not recount the full details of the investigation, surveillance and negotiations as revealed by the evidence. It is sufficient to say that on September 15, 1982, Brown and his associate, one Bernard Barnett, agreed to meet the undercover agents outside a diner in Manhattan to consummate a purchase of heroin. Brown said he would be driving a black Mercedes.In fact, Brown appeared for the transaction driving such a vehicle. Mercado gave Brown and Barnett bags of non-narcotic white powder, Barnett handed over the agreed amount of cash, and surveillance unit agents arrested Brown and Barnett.

 The car which Brown had driven to the meeting was the claimant's car, and forms the subject matter of this action.

 Claimant's Mercedes was taken by DEA agents to the DEA garage, where it was inventoried. A search of the vehicle revealed a written authorization from its owner, claimant William Staton, to one William Brewington, giving Brewington permission to drive the car. Various documents were also discovered, including an envelope containing a $10 bill and a white powder. The powder was taken to the DEA offices and field tested. It checked out positive for heroin. A subsequent laboratory analysis identified the substance at cocaine. The evidence does not fully explain the discrepancy in test results. In the view I take of the case, I need not resolve it.

 At the pertinent times, Staton was and remains a successful executive in the recorded music industry. After four or five years with RCA Records in New York, in July 1981 Staton accepted employment with Electric Records, based in Los Angeles. In January, 1983 Staton left Electric and rejoined RCA, as vice-president of the black music marketing department. He is presently an independent consultant. At the pertinent times, however, he was employed by Electric Records in Los Angeles.

 Staton had purchased the Mercedes car at issue in April, 1981. He paid $40,000 for it. When he joined Electric Records several months later, and had to transfer to Los Angeles, Staton concluded that he did not need his car there, because the company furnished him with one. In consequence, Staton made arrangements to leave the Mercedes in New York under the care of William Brewington.

 Staton had known Brewington for about four to five years. He considered that he knew Brewington well. Staton, an increasingly successful business man, had extended help to Brewington by giving the latter a variety of odd jobs to do. Brewington was handy at electricity, plumbing and carpentry; and at the pertinent times, Staton was the lessee of a building containing a roller rink on West 155th Street in Manhattan. Staton held an option to purchase the building, and had potential plans for its development; Brewington kept an eye on the place and assisted Staton in dealing with contractors. Brewington had also performed some messenger and delivery services for Staton while Staton was at RCA.

 When Staton left for Los Angeles, he left his Mercedes in Brewington's care. It was kept on the leased premises. Staton executed a letter on RCA stationery, dated June 16, 1981, addressed "To Whom It May Concern" (CX A), which stated: "William Brewington is my personal driver and has access to my car 24 hours a day." This notice went on to describe the car as a black 1981 Mercedes Benz, and gave the serial number, license number, and insurance particulars, together with telephone numbers at which Staton could be reached in case of need.

 Staton testified that he was aware Brewington was on parole from a prior criminal conviction. He testified, however, that he did not know what the conviction was for, and did not ask Brewington about it. In point of fact, Brewington had served three years in prison for conviction of conspiracy to traffic in heroin and cocaine.

 Staton phrased the notice concerning Brewington as he did because he did not wish Brewington to have any difficulty if he used Staton's car, which Staton gave him permission to do. In fact, Brewington was not Staton's "personal driver" in the sense that Staton employed him as a chauffeur. It is more accurate to characterize Brewington as a friend, in whose hands Staton thought he could leave the car safely. There is no quesiton that Staton gave Brewington an unfettered ability to drive the car himself. Staton testified that he did not intend to authorize Brewington to sell the car, or to loan it to others; but he could not recall specifically instructing Brewington not to lend the car to others, and there is no writing in evidence imposing such a limitation.

 For his part, Brewington testified that Staton left the car in his care. Brewington said that, according to his understanding, he was permitted to use the car, but he was not supposed to lend it to others, or of course to sell it or give it away. But Brewington, no more than Staton, could not describe in his testimony any direct or specific conversations with Staton prohibiting a loan of the car to others; and Brewington acknowledged on cross-examination that, prior to the incidents in question, he had loaned the car to a numer of individuals, including Robert Brown, Brown's uncle and daughter, and an unnamed friend whose car had broken down.

 As the legal discussion infra shows, it is to Staton's interest in pressing his claim to the car to demonstrate that he placed restrictions upon Brewington in respect of its use. Brewington would, in the circumstances of their relationship, be naturally expected to regard Staton not only as an employer but as a benefactor.Accordingly, Brewington's testimony that he understood that he was not to loan the car to others may arguably be regarded as an act of loyalty, of doubtful credibility. That inference loaned the car to other people. I do not believe that Brewington would have deliberately and repeatedly acted contrary to Staton's directions.

 In short, I find from the credible evidence that Staton left the car in Brewington's care; that, save for the written authorization which insured Brewington against difficulty if he was stopped while driving the car, the arrangement was quite informal; and that Staton neither imposed nor Brewington comprehended restrictions about the possible use of the car by others.

 It is also pertinent to note that Staton, Brewington and Brown frequented social clubs on the upper west side of Manhattan where people openly used cocaine. Staton, in his testimony, denied any personal use, and nothing in the evidence suggests otherwise. But he did testify that he ahd attended clubs, one of them being the "Big Track Club" on West 145th Street, where people could be seen ingesting cocaine, and that Brewington, to Staton's knowledge, also visited such clubs.Again, there is no evidence that Brewington used drugs himself. Robert Brown, who was brought down on a writ from prison to testify, also testified that he had seen Staton and Brewington at social clubs where cocaine was openly used. Brown was admittedly a user.

 Against this background, I come to the events of mid-September, 1982, which culminated in the forfeiture of the car. That forfeiture was the last link in a chain of events which began when Brewington loaned the Mercedes to Robert Brown. Both Brewington and Brown gave evidence on the point. There are some discrepancies. Staton has nothing to add of his own knowledge, becausehe was in Los Angeles at the time.

 Brewington testified that on a Monday, Brown drove a rented car to the roller rink premises on West 155th Street and asked Brewington to lend him the Mercedes. According to Brewington, he was at first reluctant, but Brown talked him into it. Brewington testified that he told Brown to return the car before he, Brewington, went off work that afternoon. Brown left his rented car at the 155th Street building, and its keys in Brewington's possession. Brown did not return the car on time. Brewington waited for him, left the building at 7:00 p.m. to visit a friend, and returned to the building at 11:00 p.m. The Mercedes had still not been returned. Brewington used Brown's rented car to go home.

 It is common ground that Brown and Barnett were arrested, and the Mercedes seized, on September 15, 1982, which was a Wednesday. I find therefore that Brewington, in describing events that occured "on a Monday," was referring to Monday, September 13.

 The next morning, Tuesday, September 14, Brewington went to Brown's residence. Brown was not there. The Mercedes was not there. Brewington visited a number of Brown's customary haunts, leaving word for him. He could not find Brown during the course of that day, or during the day following.

 At about 7:00 p.m. on Wednesday, September 15, Brewington learned from Brown's girlfriend that Brown had been arrested. Brewington reported to Staton by telephone that night. Staton was not pleased. He instructed Brewington to attempt to regain possession of the car. Those efforts, of course, did not succeed.

 Brown testified that he borrowed the Mercedes from Brewington about September 9, having agreed to return it on Monday, September 13. Brown testified that he deliberately kept the car past that deadline. Brown testified that he frequently placed or removed his own possessions from the trunk of the car, and he believes that the small quantity of cocaine found in the trunk during the DEA inventory belonged to him. Brown based that conclusion upon the fact that he was using cocaine at the time, whereas, to his knowledge at least, Brewington and Staton were not using cocaine.

 While the testimony of these two witnesses in respect of timing of the loan of the Mercedes is in conflict, I do not regard the discrepancy as particularly significant. According to Brewington, Brown borrowed the car on the morning of September 13 and promised to return it later that day. According to Brown, he borrowed the car on Septemer 9 and promised to return it at the end of the day on September 13. In either event, September 13 was the promised return day, and Brown ...

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