On Appeal from the District Court of the Virgin Islands Division of St. Thomas and St. John D.C. Civil Action No. 99-cv-00082 (Honorable Thomas K. Moore)
Before: Scirica, Alito and Rendell, Circuit Judges
The opinion of the court was delivered by: Scirica, Circuit Judge
This is a civil forfeiture action against an aircraft the government claims was used to illegally transport aliens en route to the United States Virgin Islands. The owner of the aircraft contends the government did not meet its burden to obtain forfeiture. In this pre- CAFRA *fn2 forfeiture, we hold the government demonstrated probable cause that the aircraft was used in violation of 8 U.S.C. § 1324(a), and that the owner presented no contrary evidence. We also hold that CAFRA does not apply retroactively. We will affirm the judgment of forfeiture in rem.
Russell Robinson owned a Piper Aztec F DeLuxe Model 250PA Aircraft, bearing serial number 27-7654057 and United States registration number N6257H. The government alleged Robinson authorized pilot David Peltier to fly to St. Maarten and transport three illegal aliens to Anegada, British Virgin Islands. On July 3, 1998, Peltier flew an aircraft matching the registration number of the seized aircraft to Anegada where he dropped off the aliens and notified Robinson of their arrival.
The next day, a vessel docked at the Anegada Reef Hotel to collect the three aliens. British Virgin Islands's customs agents stopped the vessel with Robinson and the three aliens on board. But they were forced to release the vessel once it entered U.S. waters. Later that evening, officers of the U.S. Virgin Islands Department of Planning and Natural Resources observed the vessel as it entered Cruz Bay *fn3 without running lights and witnessed the aliens disembarking at the Virgin Islands National Park service dock. The three aliens did not have permission to enter the United States. On May 19, 1999, the government commenced forfeiture in rem proceedings, and on May 25, the District Court issued a warrant of arrest in rem. On August 25, 1999, U.S. Marshals arrested the aircraft and published notice. Robinson filed a notice of claim and posted a $5,000 bond to formally contest the forfeiture. On March 22, 2002, the District Court decreed the property be forfeited to the United States. Robinson has appealed.
We first address the proper burden of proof. In 2000, Congress enacted the Civil Asset Forfeiture Reform Act, which changed the burden of proof in civil forfeiture actions. Under CAFRA, in "any forfeiture proceeding commenced on or after [August 23, 2000]," the government must prove forfeiture under a preponderance of the evidence standard. Civil Asset Forfeiture Reform Act of 2000, Pub. L. No. 106-185, § 21, 114 Stat. at 225 (codified at 8 U.S.C. § 1324 (note)). As noted, the government's initial filing here occurred on May 19, 1999. At issue is whether CAFRA applies retroactively.
Most appellate courts have denied retroactive application of CAFRA. United States v. $80,180.00 in U.S. Currency, 303 F.3d 1182 (9th Cir. 2002); United States v. $557,933.89, More or Less, in U.S. Funds, 287 F.3d 66, 76 n.5 (2d Cir. 2002); United States v. Wagoner County Real Estate, 278 F.3d 1091, 1095 (10th Cir. 2002); United States v. Carrell, 252 F.3d 1193, 1198 nn.4 & 10 (11th Cir. 2001); Larson v. United States, 274 F.3d 643 (1st Cir. 2001). Only one appellate court, the Court of Appeals for the Sixth Circuit, has held otherwise. United States v. Real Property in Section 9, 241 F.3d 796 (6th Cir. 2001). In Real Property, the Sixth Circuit concluded it was proper to apply CAFRA retroactively where the application did not prejudice either party. Real Property, 241 F.3d at 798-99.
Whether a statutory provision applies retroactively to pending cases depends on statutory interpretation. See Matthews v. Kidder, Peabody & Co., 161 F.3d 156 (3d Cir. 1998). *fn4 CAFRA applies to "any forfeiture proceeding commenced on or after [August 23, 2000]." This language is clear and unambiguous. Accordingly, our inquiry is done. Landgraf, 511 U.S. at 280; $80,180.00 in U.S. Currency, 303 F.3d at 1185-86 & n.5 ("Congress manifested a clear intent to apply CAFRA's heightened burden of proof only to judicial forfeiture proceedings in which the government's ...