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Aircraft Seizure and Forfeiture

By Arthur J. Negrette | July 1, 2016


Arthur J. Negrette

Most aircraft owners, pilots and aviation managers in the U.S. are generally aware that the government may seize a civil aircraft when its use is implicated in a crime.

However, most people do not appreciate the scope of federal criminal provisions related to aircraft and how they may be applied. It is possible for a pilot or aircraft owner to become ensnared unwittingly in a legal process that could result in federal law enforcement or courts not only imposing fines and suspending airman and operator certificates but pursuing criminal penalties.

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Consider the example of Randall Wallace, who landed his Cessna May 28, 2001, at the airport in Springhill, Louisiana, a city about 35 mi NNE of Shreveport on the state border with Arkansas. As he disembarked, Wallace was met by deputies from the Webster Parish, Louisiana, Sheriff’s Office.

U.S. Customs Service officials had asked the deputies to intercept Wallace, whom they suspected of transporting illegal drugs.

Wallace consented to searches of his aircraft and truck. Deputies found no contraband or illegal drugs, but they arrested him for allegedly possessing a concealed weapon. Customs agents seized Wallace’s aircraft for further testing, which failed to find any illegal drugs or contraband. He subsequently was acquitted of the weapons charge.

During the airport searches, Wallace could not produce FAA registration documents for his Cessna. He allegedly reported to the deputies that he had registered the airplane in his father’s name to conceal ownership during a divorce.

A search of FAA records found the most recent registration certificate had been issued to the Arkansas Forestry Commission in 1988. Further investigation indicated the commission had sold Wallace the Cessna seven years before his arrest.

On Nov. 21, 2002, the U.S. indicted Wallace on three counts in Louisiana. Four and a half months later, he reached an agreement with federal prosecutors. He pleaded guilty to the first count (of owning and knowingly and willfully operating an unregistered aircraft), while they dropped the second count (knowingly and willfully operating the unregistered aircraft).

Count three sought the forfeiture of Wallace’s aircraft under Title 49 of the U.S. Code, specifically Subtitle VII, Part A, which governs air commerce and safety. Chapter 463 of that part spells out penalties for violations, including those involving “registration violations involving aircraft not providing air transportation.”

Subpart 46306(d)(1) allows the Drug Enforcement Administration (DEA) or Customs and Border Protection (CBP now, but the Customs Service at the time) to seize and forfeit an aircraft used in violation of registration laws.

For the third count, Wallace agreed to a bench trial, in which he would be tried by a judge, not by a jury. The judge questioned whether forfeiture of the aircraft (which Wallace argued was worth $30,000 to $53,000) would violate the U.S. Constitution’s Eighth Amendment, which prohibits the government from imposing excessive fines. The judge concluded no violation would result.

Noting that Wallace had no criminal history and had flown safely for years (and that Customs had not established a sentencing guideline that applied to the alleged crime), the judge sentenced him to one year of unsupervised probation, fined him $100 and ordered him to forfeit the aircraft.

Wallace appealed, arguing the forfeiture was excessive and that he was not the type of offender targeted by the statute (that is, a drug trafficker).

The U.S. Court of Appeals in New Orleans rejected that argument. It found that Wallace’s penalty was “not grossly disproportional to the gravity of his offense.” The statute in question set a maximum penalty of $250,000, it ruled, and Congress in enacting the statue said it did not intend to limit application to drug traffickers.

From a big-picture perspective, U.S. law allows the DEA or CBP to seize and forfeit aircraft for numerous registration, marking and certification violations. Those agencies can seize and forfeit aircraft for violations involving serving, attempting to serve or employing someone to serve as an airman when he or she knowingly and willfully does so without authorization from an airman’s certificate.

The scope of 49 U.S.C. 46306(d) is applicable only to aircraft not used for carrying passengers or property as a common carrier for compensation or hire.

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