US v. Proceeds from Sale

• Decision Date: 19 August 1993
• Docket Number: No. 91-0339-CIV,92-1586-CIV.,91-0339-CIV
• Citation: 834 F. Supp. 385
• Court: U.S. District Court — Southern District of Florida
• Parties: UNITED STATES of America, Plaintiff, v. The PROCEEDS FROM the SALE OF APPROXIMATELY 15,538 PANULIRUS ARGUS LOBSTER TAILS, Defendants. In the Matter of Louis MARTINEZ and Lista Enterprises Seafood, Inc., Appellants/Respondents.

834 F. Supp. 385

UNITED STATES of America, Plaintiff, v. The PROCEEDS FROM the SALE OF APPROXIMATELY 15,538 PANULIRUS ARGUS LOBSTER TAILS, Defendants In the Matter of Louis MARTINEZ and Lista Enterprises Seafood, Inc., Appellants/Respondents.

Nos. 91-0339-CIV, 92-1586-CIV.

United States District Court, S.D. Florida, Miami Division.

August 19, 1993.

Robert K. Senior, U.S. Attys. Office, Miami, FL, for plaintiff U.S.

Michael I. Rose, Miami, FL, for claimant Lista Enterprises Seafood Corp.

Karen Antrim Raine, NOAA Regional Counsel, St. Petersburg, FL, for National Oceanic and Atmospheric Admin.

Kevin M. Plunkett, U.S. Dept. of Justice, Environmental and Natural Resource Div., Washington, DC, for U.S. Dept. of Justice.

ORDER GRANTING MOTIONS FOR SUMMARY JUDGEMENT

EDWARD B. DAVIS, District Judge.

Before this Court in these consolidated cases are cross motions for summary judgment in the first case, and the government's motion for summary judgment in the second. In the first case, the United States sought civil forfeiture of the proceeds from the sale of several thousand lobster tails seized as imported into the United States in violation of the Lacey Act, 16 U.S.C. § 3371, et seq. The Claimant, Lista Enterprises (along with its president, Louis Martinez) filed a motion for summary judgment and attorneys' fees claiming, among other grounds: (1) there was no probable cause to support seizure and forfeiture of the lobster tails at issue, (2) the eleven month delay between the seizure and the institution of civil forfeiture violated due process, and (3) the Claimant was an innocent owner of the lobster tails and therefore, forfeiture was inappropriate. The government responded with its own motion for summary judgment opposing these arguments and claiming that the facts demonstrate, by a preponderance of the evidence, that forfeiture is appropriate.

In the second case, Lista and Martinez seek this Court's review of the imposition $10,000 fine, imposed jointly and severally, after an administrative proceeding arising out of the same facts. They challenge the findings of the administrative judge as unsupported by the evidence and contrary to law. The government responds that the evidence adduced in the administrative hearing amply supports the ALJ's ruling and was well within his discretion, and on these grounds seeks summary judgment upholding the administrative order. Lista and Martinez argue summary judgment is inappropriate because they claim there exist disputed issues of material fact. The Court will review each of these cases in turn.

BACKGROUND

This case arose out of the seizure of some 15,538 lobster tails of the species Panulirus argus, more commonly known as "spiny lobster," imported into the United States by the Claimant Lista Enterprises Seafood, Inc. from the Turks and Caicos Islands, a British territory in the Caribbean. The seized tails were a portion of a shipment which arrived into Ft. Lauderdale on a commercial flight on March 14, 1990. A portion of this shipment, eighty-five (85) cartons weighing 3,400 lbs., was shipped "in bond," and another portion, seventy-eight (78) cartons, was not bonded. Both groups of lobster tails were subjected to "spot" inspection by officers of the Florida Marine Patrol ("FMP").

Upon visual inspection of a portion of the bonded shipment the FMP officers concluded that some of the lobster tails were undersized and might be in violation of the Lacey Act. They then contacted the National Marine Fisheries Service ("NMFS") to alert that office that further investigation was warranted. The bonded shipment was then detained and put in freezer storage. Five days later, Special Agent Rebecca Stefanescu from NMFS arrived to inspect the lobster tails for compliance with the Lacey Act. The Lacey Act prohibits the importation of fish or wildlife which is taken in violation of foreign law.¹

Operating under the mistaken belief that Bahamian law provided the relevant guidelines, Special Agent Stefanescu proceeded, with the assistance of two Coast Guardsman, to measure each lobster tail in the shipment because Bahamian law prohibits the possession of lobster tails under six inches. At the conclusion of the measuring process all of the tails had been separated into three groups. Of the entire shipment of approximately 16,000 tails, 460 were found to be six inches in length or longer. That group was returned to Martinez.² A small portion of the remaining tails, 2,738, were less than six inches in length but greater than 5½ inches,³ and 12,800 were less than 5½ inches long. The total number of tails found to be under six inches was 15,538 and all were seized as imported in violation of the Lacey Act.

At some point, either during the measuring process or at its conclusion, Agent Stefanescu became aware that the Turks and Caicos were not a part of the Bahamas and that the relevant law in the Turks and Caicos set a minimum standard in terms of weight rather than length, that standard being 7 ounces. Rather than go back and weigh each tail individually, Agent Stefanescu relied on some conversion tables to translate length to weight and determined, on the basis of these formulae, that the seized tails were all under the 7 ounces minimum required by Turks and Caicos law.⁴

On March 23, 1990, Agent Stefanescu mailed Martinez a Notice of Seizure and proceeded to solicit bids for the seized tails. She retained approximately 140 of the tails as evidence and sold the remainder to the highest bidder for $31,636.95. After the deduction of packing costs, a total of $31,548.87 was deposited into a suspense account pending the outcome of the administrative forfeiture proceeding. Lista and Martinez were also sent a notice of the sale, and a citation for violation of § 3372(a)(2)(A) of the Lacey Act.

On April 2, 1990, Attorney Michael Rose sent a letter to the Southeast Regional Counsel for the National Oceanic and Atmospheric Administration ("NOAA") which administers these forfeitures, contesting the seizure and sale. A little over a month later Mr. Rose submitted a Claim for Seized Property/Restoration of Proceeds and Customs Form 301. On this form Lista Enterprises is listed as the principal, with Luis Martinez signing as its president, and also listing Martinez as the surety for the required bond. The purpose of this form is to allow the claimant to demand referral to the United States Attorney's Office in order to proceed as a contested forfeiture and to avoid summary administrative forfeiture. The NOAA attorney handling the case notified Mr. Rose that this claim could not be referred to the United States Attorney as the claim did not conform to NOAA regulations regarding the posting of a bond because Martinez could not, under the regulations, act as his own surety. See 15 C.F.R. 904.504(b)(3)(ii) and 31 U.S.C. §§ 9304-9306.

A Summary Declaration of Forfeiture was entered on May 22, 1990. Nevertheless, NOAA again contacted Mr. Rose and outlined the acceptable bonding procedures and communicated to him that he would be given additional time to comply, at which time the Summary Order would be rescinded. Mr. Rose was informed that should his clients fail to comply with the appropriate procedures within this time frame then the Summary Declaration would remain the final agency action.

On June 12, 1990 Mr. Rose sent a letter to the NOAA attorney asking NOAA to waive the bond requirement claiming that his client could not post the bond. However, once again, Martinez failed to submit the necessary documentation to support waiver of the bond requirement, see 15 C.F.R. 904.504(b)(3)(v), and waiver was denied. Then, after the case was reassigned at NOAA to Staff Attorney William J. Nielander, the agency reversed itself, granting the remission of the administrative forfeiture, notwithstanding the failure to post a bond, and forwarded the case to the United States Attorney's Office in late August of 1990. An investigation was officially opened by that Office on September 25, 1990 and the instant complaint in the first case was filed in February of 1991.

As to the administrative citation, Lista Enterprises and Martinez requested a hearing on the matter and this request was granted. A full evidentiary hearing was held on February 5, 1991 before Administrative Law ("ALJ") Judge Hugh J. Dolan. At this hearing Lista and Martinez were permitted to present evidence and cross examine witnesses for NOAA. At the conclusion of the hearing the ALJ found both in violation of the statute and upheld the $10,000 fine imposed by NOAA.

DISCUSSION

A. Forfeiture Under the Lacey Act (1) Probable Cause

At the outset the Court notes that the burden on the government to establish probable cause for seizure and forfeiture is not a difficult one to satisfy. "Probable cause is defined as a reasonable ground for belief of guilt, supported by less than prima facie proof, but more than a mere suspicion." United States v. A Single Family Residence, 803 F.2d 625, 628 (11th Cir.1986) (citations and internal quotations omitted). "The existence of probable cause is judged not with clinical detachment but with a common sense view to the realities of normal life." Id. (citations and internal quotations omitted). See also United States v. 3,210 Crusted Sides of Caiman Crocodilus Yacare, 636 F.Supp. 1281, 1284 (S.D.Fla.1986) (Gonzalez, J.) (reciting "less than prima facie, more than mere suspicion" standard).

In its argument that the seizure here was not supported by probable cause, the Claimant Lista relies primarily on the fact that the lobster tails were not individually weighed.⁵ (Cl.'s Mot.Summ.J. at 4, 6). From this fact Claimant appears to reason that Agent Stefanescu's use of conversion tables for length to weight represented an impermissible interpretation or "construction" of the Turks and Caicos law that legal size could be determined by this method as opposed to individual weighing. Claimant then goes on to...