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NOVEMBER 14, 1984




Jack Carlton Reed appeals from a judgment of the Circuit Court of Oktibbeha County, sitting without a jury, ordering forfeiture of seven (7) packages of $100.00 bills, twenty-four (24) loose bills of United States currency, one hundred seventy-seven (177) bills of foreign currency, and two hundred ten (210) gold Krugerrands, aggregating in excess of two hundred nineteen thousand dollars ($219,000) in value. He assigns three (3) errors in the trial below, contending: (1) that the lower court erred in ordering the seized currency and coins forfeited because the State did not meet its burden of proof; (2) sufficient probable cause did not exist to support the issuance of search warrants for Reed's suitcase and safety deposit box and to seize the items therein; and (3) the lower court erred in admitting hearsay and irrelevant evidence in the forfeiture trial. The State cross-appeals, assigning as error: (1) the lower court erred in refusing to strike Reed's answer because it was not verified as required by Mississippi Code Annotated 41-29-179 (1) (1972); and (2) Reed's failure to comply with discovery orders of the court.

We are of the opinion that the State's first cross-assignment of error should be sustained and that it is dispositive of the case. However, there are questions which should be answered in the direct appeal, and we briefly discuss them.

 This case could have been taken from any number of books in the libraries and bookstores in this country, which involve intrigue, espionage, drug dealing, big-time crime, etc. The principal actor is Carlos Lehder, who conducted the largest cocaine smuggling operations by air in the world. *fn1 His righthand man and chief confederate was Jack Carlton Reed. The operation originated in Colombia, South America, where the cocaine was accumulated and processed. Reed extended it to Norman's Cay, Bahamas, an island which Lehder bought, and upon which he established a veritable armed camp and society.

 Lehder had a fleet of planes which moved the cocaine from Colombia to Norman's Cay, and thence from that point into various areas of Florida for distribution over North America.

 Narcotics authorities, both Federal and State, had been investigating Lehder and Reed for many years and the noose began to tighten upon them. Lehder and Reed decided that they needed a rural area outside Florida within range of their aircraft at Norman's Cay, where their Colombian pilots could land, unload the contraband, refuel and then return to Norman's Cay.

 With the new plan in mind, Jack Reed, accompanied by a female companion, Michelle Brown, and a Laborador Retriever dog, went to Canada, thence to Starkville and Oktibbeha County, Mississippi. Reed's dog had a severe case of heartworms and a Canadian veterinarian advised him that Dr. Gregg Boring, a veterinarian at Mississippi State University, was one of the best specialists in that field of dog treatment. Reed arrived in Starkville for the ostensible purpose of having his dog treated by Dr. Boring. Shortly thereafter other confederates appeared upon the scene. A real estate agency was contacted and eventually, a tract of land was acquired consisting of forty-five (45) acres with a house and airplane runway on it. The cost of the property was $165,000.00 and, although the transaction was to be in cash, the purchase price was actually paid for by a check drawn on the Bank of Nova Scotia, Nassau, Bahamas.

 Expert carpenters were brought in from Canada and they reconstructed the walls of the house with false storage cabinets, apparently for the purpose of storing the cocaine expected to be delivered there. Arrangements were made with a nearby farmer to keep the runway mowed. During this time, Dr. Boring had been treating Reed's Laborador Retriever successfully, resulting in a warm friendship between the two men.

 As time passed, Reed and his female companion went to a local bank in Starkville, rented a lock box, and placed in the box the contents of a heavy laden briefcase. Thereafter, Reed left Starkville and he, Michelle Brown, and the dog departed via private plane. Dr. Boring agreed to take care of a blue suitcase for Reed until he returned in about three months, since there was insufficient room in the small plane for the suitcase. Reed told Dr. Boring that he desired him to resume treatments on the dog upon his return after the three-month absence.

 By this time, the authorities had become suspicious,

 and the sheriff, the Mississippi State Bureau of Narcotics, and the Federal officers had become alerted. A search warrant was obtained to search the blue traveling bag left with Dr. Boring. *fn2 The bag contained many papers, photographs, names, and a small amount of cocaine. Officers next obtained a search warrant for the lock box and contents at the local bank. The search uncovered the large amount of money which is the subject of this forfeiture proceeding.

 The parties were not in agreement at the time of the trial regarding what constituted the burden of proof. Prior to trial of the case sub judice and filing briefs, the case of Ervin v. State, ex rel. Mississippi Bureau of Narcotics, 434 So. 2d 1324 (Miss. 1983), was decided. A question there concerned what burden of proof the State has under Mississippi Code Annotated 41-29-179 (2) (1972):

 (2) If the owner of the property has filed a verified answer denying that the property is subject to forfeiture, then the burden is on the state to prove that the property is subject to forfeiture. However, if no answer has been filed by the owner of the property, the petition for forfeiture may be introduced into evidence and is prima facie evidence that the property is subject to forfeiture.

 Ervin held that the burden of proof on the State under the above section is a preponderance of the evidence. The appellee cites the Federal forfeiture statute and forfeiture statutes of other states. However, those statutes are materially different from the Mississippi statute and it ...

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