Bottini v. Dep't of Fin.

• Citation: 450 Md. 177,147 A.3d 371
• Decision Date: 07 October 2016
• Docket Number: No. 3,Sept. Term, 2016,3
• Parties: Daniela Bottini, et al. v. Department of Finance, Montgomery County, Maryland
• Court: Court of Special Appeals of Maryland

450 Md. 177

147 A.3d 371

Daniela Bottini, et al.

v.Department of Finance, Montgomery County, Maryland

No. 3

Sept. Term, 2016

Court of Appeals of Maryland.

October 7, 2016

William Michael Jacobs (Law Office of W. Michael Jacobs of Columbia, MD) on brief for Petitioners.

Haley M. Roberts, Associate County Attorney (Marc P. Hansen, County Attorney, Edward B. Lattner, Division Chief, Office of the County Attorney of Rockville, MD) on brief for Respondent.

Barbera, C.J., Greene, Adkins, McDonald, Watts, Getty, Glenn T. Harrell, Jr. (Retired, Specially Assigned), JJ.

Opinion by Watts

, J.

Everyone is familiar with the saying “the money is in the bank.” But we possibly have not considered what this phrase really means and what a bank account actually contains. This case calls upon the Court to address the question of whether the funds in a bank account are “money” for purposes of Maryland's forfeiture statute, Md. Code Ann., Crim. Proc. (2001, 2008 Repl. Vol., 2016 Supp.)

(“CP”) 12-101

to 12-505.¹ In this case, the answer to that question is determinative of whether the forfeiting authority timely filed a complaint for forfeiture within the deadline set forth in CP 12-304. Specifically, we must decide whether funds contained in a bank account are “money” under CP 12-101(m)(1)(iv) of the forfeiture statute, and whether the forfeiting authority timely filed a complaint for forfeiture of that bank account. We hold that the funds contained in a bank account are “money” for purposes of the forfeiture statute under CP 12-101(m)(1)(iv), and are not a type of tangible or intangible personal property under CP 12-101(m)(1)(ii) ; we further hold that, in accordance with CP 12-304(c)(1), the forfeiting authority timely filed the complaint for forfeiture of the bank account within ninety days after the final disposition of the criminal proceedings arising out of the Controlled Dangerous Substances law, the deadline applicable to the filing of a complaint for forfeiture of money.

BACKGROUND

On April 13, 2012, law enforcement officers of the Montgomery County Department of Police arrested Gianpaolo Bottini (“Gianpaolo”),² Petitioner, at his residence for illegal drug activity.³ Shortly after Gianpaolo's arrest, as part of their investigation and pursuant to a search warrant, law enforcement officers seized from Gianpaolo's residence, among other things, drug paraphernalia, items with suspected drug residue, tally sheets, Bank of America banking documents and statements, and United States currency in the amount of $5,610.⁴

Following his arrest, Gianpaolo was released on bond, and was scheduled to return to court on April 16, 2012, for further proceedings. On the morning of April 16, 2012, while free on bond and before appearing in court, Gianpaolo withdrew all of the money contained in two Bank of America bank accounts, titled in his name, totaling $64,388.33. On the same day and at the same time, that exact amount of money—$64,388.33—was deposited into a Bank of America bank account belonging to Gianpaolo's sister, Daniela Bottini (“Daniela”), Petitioner (together with Gianpaolo, “Petitioners”). The following day, April 17, 2012, Daniela wrote herself a check drawn on her Bank of America bank account, opened a bank account in her name only with Capital One, and deposited $63,891.93 into the Capital One bank account.

On April 18, 2012, law enforcement officers obtained subpoenas for both of Gianpaolo's Bank of America bank accounts. At that time, law enforcement discovered that all of the money contained in Gianpaolo's Bank of America bank accounts had been withdrawn, and they traced the money to Daniela's Capital One bank account. On that same day, April 18, 2012, a law enforcement officer applied for a search and seizure warrant for Daniela's Capital One bank account. In the application, the law enforcement officer averred that law enforcement had obtained wage records for Gianpaolo, which indicated that Gianpaolo had no reported income in the past year. Indeed, Gianpaolo had no legitimate source of income at all supporting the amount of money contained in his Bank of America bank accounts. This led law enforcement to believe that the money that was transferred from Gianpaolo's Bank of America bank accounts was either the direct proceeds of illegal drug transactions or illegal drug proceeds that had been commingled with legitimate funds.

On April 18, 2012, a judge of the Circuit Court for Montgomery County (“the circuit court”) issued a search and seizure warrant for the Capital One bank account. The following day, April 19, 2012, the Montgomery County Department of Police seized the Capital One bank account. On the same day, Montgomery County sent to Petitioners a “Notice of Money Seizure,” advising them of its intent to petition for forfeiture.

Approximately one year later, on May 10, 2013, Gianpaolo's criminal charges were resolved, when he was convicted and sentenced to twenty years' imprisonment.⁵ On August 1, 2013, less than ninety days after the conclusion of the criminal proceedings, the Department of Finance of Montgomery County, Maryland (“the County”), Respondent, filed in the circuit court a Complaint Petition for Currency Forfeiture as to the Capital One bank account. On August 20, 2013, the County filed an Amended Complaint Petition for Currency Forfeiture. On September 27, 2013, Daniela filed an answer.

In the meantime, on August 23, 2013, the circuit court issued a show cause order, ordering Gianpaolo and Daniela to appear before the circuit court on November 18, 2013. On November 18, 2013, the circuit court conducted a hearing. At the hearing, the circuit court treated Daniela's answer as a motion to dismiss. Specifically, in the answer, Daniela argued that the Capital One bank account was not “money” for purposes of the forfeiture statute, and that, as a result, the complaint for forfeiture was untimely filed. In the answer, Daniela argued that the bank account was intangible personal property and that the forfeiture statute required that a complaint seeking forfeiture of intangible personal property be filed ninety days after seizure. The County's complaint for forfeiture had been filed more than ninety days after seizure and would have been untimely under that theory. The circuit court rejected that argument and denied the motion to dismiss, orally ruling from the bench as follows:

Two issues before the Court. That wonderful [issue] of what is the definition of money. What constitutes money. And the second, definition as to whether the procedural requirements were, had been me[ ]t with respect to the timing of the filing from the, under the statute, and the date of the complaint having been filed on August 1, 2013.

With respect to the first argument, it brings to mind that old Potter Stewart ... line ... from the Supreme Court decision of trying to define obscenity and Justice Stewart's comment that, I don't know how to define obscenity, but I sure know it when I see it. I have the same application to money. I don't know, I don't know that I need the legislature to tell me what the definition of money is. I know that when I open on the screen an account and I look at my money, it may be in the bank, and I guess technically the bank's holding it for me, but it's money. It better be there, it's my money.

So, to suggest that an account in a bank is not money and therefore [there] would be a procedural defect in this case suggesti[ng] that we don't have (unintelligible) jurisdiction, this Court simply rejects. The amount that's in the account by anybody's definition, at least in this Court's definition, would constitute money.

Secondly, the procedural requirement with regard to when the complaint has been filed. The Complaint was filed on August 1st[,] 2013, that is the date the Court looks to as to ascertain whether it was timely filed, it was, and the Motion to Dismiss is denied.

After its oral ruling, and with the agreement of the parties, the circuit court set the case in for a trial on the merits.

On April 2, 2014, the circuit court conducted a trial. At trial, Daniela again argued that the Capital One bank account was not “money” and that the complaint for forfeiture was untimely filed. At the conclusion of the trial, the circuit court again rejected that argument, explaining, in pertinent part:

The Court, in this case, finds that the intent of the legislature was to treat the designation of money, not simply to be as currency, meaning fungible cash, as argued by [d]efense counsel, but, rather, proceeds which are in a liquid state in the sense that they are funds on deposit subject to the call of the owner of those funds.

So, I'm making a determination that, in this case, the funds which originally were deposited to two Bank of America accounts of Gianpaolo Bottini, which were cashed in on the morning of a court appearance of April 16, 2013, from Account No. 8612, in the amount of $56,009.78, and on Account ending in 5676 for $8,378.55 that those liquidations, which were then made into cashier's checks, which, ultimately, were deposited to a Bank of America account of Daniela Bottini, and then, ultimately, transferred to a Capital One account of Daniela Bottini, within a couple days of the termination of those accounts by Gianpaolo Bottini that those funds are money within the meaning of the statute. Therefore, the period of time for which the forfeiture must be filed is the 90 days after termination of the criminal action.

The circuit court ruled that only Gianpaolo had any right, title, or claim to the funds in the Capital One bank account, and that Daniela had no right, title, or claim to the funds, stating:

I am satisfied that, in this case, where Daniela Bottini judicially admitted, in response to the Court's question, that the funds were transferred to her as an accommodation for designated purposes, that they were not a gift from her brother, that they were not a loan from her brother to her, but for identified purposes

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