concurring and dissenting.

I concur fully in Part II of the majority’s opinion and in the judgment.

The central problem posed by this appeal is whether 22 U.S.C. § 401 (a) authorizes the forfeiture of a vehicle which its operators neither used to carry contraband across an international boundary, nor attempted to use to carry contraband across an international boundary. The statute authorizes the seizure and forfeiture of “any ... vehicle ... which has been or is being used in exporting or attempting to export” articles in violation of law. 22 U.S.C. § 401 (a). The claimant’s contention is that the forfeiture statute was designed to reach only actual or intended “carrier vehicles”, that is, vehicles which carried contraband out of the country, or vehicles which its operators intended to use, and attempted to use, to carry goods out of the country. The argument is not insubstantial. Since the quoted clause was added to the statute in 1953, all the reported cases of forfeiture under its authority have involved the seizure of vehicles which had carried, or which its operators attempted to use to carry, contraband out of the United States. Consequently, the issue posed here — whether a vehicle not used to carry contraband across an international boundary, and which no one attempted or intended to so use, can nonetheless be held forfeit in the circumstances of this case — is a novel one.

A logical application of this statute must necessarily turn on the content given to the statutory description: “any ... vehicle ... used in exporting” contraband. Given the wording of the statute, in which the provision authorizing seizure of vehicles used “in ... attempting to export” contraband follows within the same prepositional phrase the provision authorizing forfeiture of vehicles “used in exporting” such goods, it is clear that Congress did not intend to attribute to each provision a distinct and independent significance; rather, Congress must have intended the definition of what constitutes a vehicle “used in ... attempting to export” to be wholly dependent upon, and derivative of, the content of the statutory phrase “any ... vehicle ... used in exporting”. I think the majority opinion errs in making the implicit contrary assumption. The result is that without any inquiry into the meaning of the statutory description “used in exporting”, the majority concludes that the defendant vehicle is properly forfeit as one “used in ... attempting to export” contraband, even though the contraband was in fact unlawfully exported. I fear that the majority’s anomalous reasoning will cause confusion in the district courts.

In this case, the district court concluded that the defendant was forfeitable under 22 U.S.C. § 401 since “the vehicle was used in exporting articles in violation of law.” United States v. One 1980 Mercedes Benz 500 SE, No. CV 83-0875-RJK (C.D.Cal. Jan. 25, 1984). The majority finds no error in that conclusion, but chooses instead to rest its affirmance on the grounds stated. I believe that where, as here, the criminal enterprise accomplished its unlawful aim— the illegal exportation of the contraband— the use of the “attempting to export” provision of § 401(a) is inappropriate. More importantly, I believe that the meaning of *608 the'“attempting to export” provision is wholly derivative of that of the statute’s “used in exporting” term. For those reasons, I would directly address, as did the district court, the issue of whether the defendant vehicle, which was used to carry articles intended for illegal export to the point of embarkation, from which the goods were illegally exported, was “used in exporting” contraband. I would hold that it‘was, and affirm the judgment on that ground.

Where, as here, (1) a vehicle is used to transport articles, intended for export or removal from the United States in violation of law, to the very place, such as a seaport, airport, or international boundary, from which the goods are to be “exported or removed from the United States”, and (2) such articles are in fact unlawfully exported, I would conclude that it may be forfeited under § 401(a) as a “vehicle ... used in exporting ... articles” in violation of law.

Congress clearly authorized the forfeiture of actual and intended exporting carriers pursuant to § 401(a). There is no indication, however, that such vehicles were the only ones Congress intended to fall within the statutory compass. Where a vehicle is used to transport goods intended for unlawful removal to the very point from which the exportation is to occur, and where those goods are in fact exported in violation of law, the vehicle’s role in the success of the scheme of illegal exportation is too crucial, and its use too intimate to the actual exportation which ensues to believe that Congress intended it to escape forfeiture under § 401(a). As we noted in applying this statute in an earlier case, forfeiture statutes are “not to be construed, like penal laws generally, strictly in favor of the defendant; but they are to be fairly and reasonably construed, so as to carry out the intention of the legislature.” United States v. Morachis, 154 F.2d 918, 920 (9th Cir.1946), quoting United States v. Stowell, 138 U.S. 1, 12 , 10 S.Ct. 244, 246 , 33 L.Ed. 555 (1890).

Indeed, the legislative history of amendments made to § 401 in 1953 clearly shows that Congress understood the amendments to provide for the forfeiture not only of a “vehicle ... in which the exportation is intended to be accomplished” but also of a “vehicle ... used in the accomplishment of the illegal exportation.” See H.R. Report No. 1073, 83d Cong., 1st Sess. 3 (letter from Acting Treasury Sec’y Rose to Senate President), reprinted in 1953 U.S.Code Cong. & Ad.News 2386, 2388. While claimant would have us read the latter language to refer solely to exporting carrier vehicles, I cannot do so and give full credit to the stated Congressional purpose, in amending § 401, to “moderniz[e] and strengthen[ ]” the section’s provisions relating to the enforcement of the exportation laws. 1 See id. at 2, reprinted in 1953 U.S.Code Cong. & Ad.News at 2387.

In a case such as this, use of the vehicle provides safe and easy mobility to the point of intended exportation, safeguards and conceals the articles intended for unlawful removal, and substantially contributes to the probability that the unlicensed goods will be removed from the country. In such a case, the automobile is so instrumental and intimately related to the crime of exportation which ensues that it plainly constitutes a vehicle “used in the accomplishment of the illegal exportation”, and thus is properly seized and held forfeit under the authority of § 401(a).

For the reasons stated, I would not place reliance on the statute’s “used in ... attempting to export” provision. Rather, I would squarely hold with the district court that the defendant was “used in exporting” *609 the unlicensed electronic equipment, and thus was properly declared forfeit.

. The absurdity of the claimant’s rationale supports my construction. The case law makes plain that if the defendant were used to transport the unlicensed equipment so much as ten feet over the international border into Mexico, the vehicle could be lawfully seized. Under the claimant's reading of § 401, however, if the car Instead drove the articles to within inches of the border, from which point they were unloaded and carried across the border on foot, the car could not be confiscated. I cannot infer such an irrational distinction from the statutory language.