$89,000, PLUS OR MINUS, IN US CURRENCY v. Ricon
| Decision Date | 21 June 1988 |
| Docket Number | Civ A. No. 1:87-CV-2000-JOF. |
| Citation | 691 F. Supp. 1411 |
| Parties | In the Matter of $89,000, PLUS OR MINUS, IN UNITED STATES CURRENCY AND CHECKS v. Rodrigo O. RICON and Jorge J. Castano, Movants. |
| Court | U.S. District Court — Northern District of Georgia |
Jane Wilcox Swift, Office of U.S. Atty., Atlanta, Ga., for respondent.
Alan Zev Eisenstein, Sheffield & Eisenstein, Atlanta, Ga., for movants.
This matter is before the court on petitioners Jorge Juan Castano and Rodrigo O. Rincon's petition pursuant to Fed.R.Crim.P. 41(e) for return of property and respondent United States of America's motion to dismiss. Fed.R.Crim.P. 12(b).
The subject property, designated as "$89,000 plus or minus, in United States currency and checks" and hereinafter referred to as "the defendant funds," was seized from petitioners June 4, 1987 at the Atlanta Hartsfield International Airport by agents of the Drug Enforcement Administration (DEA). Seven different seizure numbers were assigned the defendant funds; consecutive numbers were assigned the currency seized from each petitioner while individual numbers were assigned each of the five cashier's checks seized from petitioner Castano.1 For convenience, the court adopts a modified version of the seizure chart developed by respondent:
DEA
Seizure Seized
No. Seized Funds From
25549 $20,210 in U.S. currency Castano
25550 $25,490 in U.S. currency Rincon
25556 $9,800 cashier's Castano
check (Juan Gonzalez
payee)
25567 $9,800 cashier's, Castano
check (Javier Cuartas
payee)
25608 $4,800 cashier's check Castano
(Salamon Pineda
payee)
25609 $9,000 cashier's check Castano
(Manuel Dominguez
payee)
25612 $9,500 cashier's check Castano
(Juan Rivero,
payee)
Administrative forfeiture proceedings were commenced in June and July of 1987. 21 U.S.C. § 881; 19 U.S.C. § 1602-1619; 21 C.F.R. 1361.71-81. To this end, each seizure was advertised in USA Today for three consecutive weeks beginning July 29, 1987.2 In addition, notice of the pending forfeiture proceedings were sent to petitioner Castano at the Boston, Massachusetts address and petitioner Rincon at the Houston, Texas address given to the seizing DEA agents by petitioners.3 Notice was likewise sent to petitioners at both the Clayton County and Douglas County Jails.4 In all cases where the mails were utilized, however, service of notice on petitioners was apparently unsuccessful.5 In any event, no claim to any of the defendant funds was ever filed.
Petitioners challenge the sufficiency of notice on three grounds. First, it is alleged that as early as July 15, 1987, respondent had actual notice of the availability of petitioners' counsel for service. Indeed, it is clear from the record that DEA Special Agent Bob Johnson did receive from petitioners' counsel a letter dated July 14, 1987 wherein counsel advised that he was authorized to accept service of process in any forthcoming forfeiture proceeding. Respondents' Exhibit I(1). The letter was forwarded to the Washington, D.C. office of the DEA July 24, 1987. Id. Second, petitioners argue that respondent knew or should have known that petitioners had been released from the Clayton County Jail weeks prior to the mailing of notice to that facility. Finally, it is asserted that none of the payees named on the five seized cashier's checks were served with notice of the pending forfeiture proceedings.
Forfeiture proceedings concerning the above-captioned seizures have been stayed pending consideration of the present motions. Moreover, respondent has consented to allow petitioners twenty days from entry of this order in which to file claims and post the requisite bonds. Brief at 7, n. 2. For this reason, the court believes it appropriate that petitioners challenge the legality of the above-captioned seizures in the administrative system designed for such purposes. Castleberry v. Alcohol, Tobacco and Firearms, 530 F.2d 672, 674-75 (5th Cir.1976) (). Accordingly, as to the seizures captioned above, petitioners' motion for return of property is DENIED and the government's motion to dismiss is GRANTED.
As to the above-captioned seizures, the parties' motions are not subject to such easy disposition. The funds represented by these seizure numbers, both cashier's checks, were declared forfeited to the United States on October 3 and 5, 1987, respectively. Respondent's Exhibit H(1-2). Petitioners claim that these forfeitures are invalid on the aforementioned notice grounds.
As noted above, petitioners base their "Motion for Return of Property Illegally Seized and Illegally Held" on Criminal Rule 41(e). This rule provides in relevant part:
A person aggrieved by an unlawful search and seizure may move the district court for the district in which the property was seized for the return of the property on the ground that such person is entitled to lawful possession of the property which was illegally seized. The judge shall receive evidence on any issue of fact necessary to the decision of the motion. If the motion is granted the property shall be restored and it shall not be admissible in evidence at any hearing or trial.
Respondent argues that Rule 41(e) cannot support petitioners' motion. Brief at 5. The court agrees. Rule 41(e) applies only to criminal proceedings and is expressly made inapplicable to forfeiture of property for violation of a statute of the United States. Fed.R.Crim.P. 54(b)(5); see also In the Matter of $49,065.00 in United States Currency,6 No. 87-1680 (N.D.Ga. Nov. 18, 1987) (Hall, J.) (); United States v. Rapp, 539 F.2d 1156, 1160 (8th Cir.1976) (). This is not to say that petitioners have no avenue of relief available to them, however. Rule 41(e) is a "crystallization of a principle of equity jurisdiction which persists as to situations not specifically covered by the rule." Hunsucker v. Phinney, 497 F.2d 29, 34 (5th Cir.1974). Thus, where, as here, there is no "suggestion of criminal proceedings," a Criminal Rule 41(e) motion "is more properly considered simply as a suit in equity rather than one under the Rules of Criminal Procedure." Richey v. Smith, 515 F.2d 1239, 1245 (5th Cir.1975). Thus, petitioners' Rule 41(e) motion is hereby converted into a civil petition for equitable relief.
As the foregoing discussion implies, "federal district courts have power to order the ... return of unlawfully seized property," Hunsucker at 32, grounded in their supervisory authority "over those who are their officers."7Id. at 34. "Though firmly established, this jurisdiction is an exceptional one," id. at 32, and should be exercised with caution and restraint. Id. at 34. Resmondo at 19-20. The decision whether to exercise this extraordinary jurisdiction is subject to the sound discretion of the district court. Richey at 1243. In reaching this decision, the district court is governed by equitable principles, Hunsucker at 34, and should exercise its jurisdiction only "in those cases where equity demands its intervention." Resmondo at 20. "The court must inquire whether the equitable principles governing the exercise of this jurisdiction warrant jurisdiction in the case before it;" that is, the court must determine whether equitable considerations exist "which would warrant invoking the anomalous jurisdiction to adjudicate the merits of the case." Hunsucker at 34-35.
In an effort to aid the district courts in this determination, the former Fifth Circuit has identified several factors which may be considered in addition to the more general principles of equity.
Some of the considerations that should govern the decision by the district court whether to exercise this "anomalous" jurisdiction are (1) whether ... the government agents ... in seizing the property displayed a callous disregard for the constitutional rights of the petitioner; (2) whether the petitioner has an individual interest in and need for the material whose return he seeks; (3) whether the petitioner would be irreparably injured by denial of the return of the property; and (4) whether the petitioner has an adequate remedy at law for the redress of his grievance.8
Richey at 1243-44; United States v. Chapman, 559 F.2d 402, 406 (5th Cir.1977). As a preliminary matter, the court notes that petitioners failed to address the above-enumerated considerations in either their petition or their response to respondent's motion to dismiss.9 Instead, they appear to take the position that requiring that they meet their burden under Richey at this time is "premature." Response at 6, 7. The court need not consider this argument, however, because it declines to exercise its equity jurisdiction on other grounds.
As noted previously, respondent attempted to notify petitioners of the pending forfeiture proceeding in three ways: (1) notice mailed to the Boston address given the seizing DEA agents by petitioners; (2) notice mailed to the institution wherein petitioners were housed following their arrest; and (3) notice by publication in USA Today for three consecutive weeks. It is petitioners' position that the notice mailed to the Douglas County and Clayton County Jails is insufficient because the government knew or should have known that petitioners had some time earlier been released from...
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