Onwubiko v. U.S.
| Decision Date | 15 July 1992 |
| Docket Number | No. 1560,D,1560 |
| Citation | 969 F.2d 1392 |
| Parties | Martin ONWUBIKO, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee. ocket 91-2591. |
| Court | U.S. Court of Appeals — Second Circuit |
Martin Onwubiko, petitioner-appellant pro se, Federal Deportation Center, Oakdale, La.
Leslie Brodsky, Asst. U.S. Atty., E.D. New York, Brooklyn, N.Y. (Andrew J. Maloney, U.S. Atty., Robert L. Begleiter, Varuni Nelson, Asst. U.S. Attys., of counsel), for respondent-appellee.
Before: PRATT and ALTIMARI, Circuit Judges, and ROBERT J. KELLEHER, District Judge of the United States District Court for the Central District of California, sitting by designation.
On September 15, 1990, Onwubiko, a used-clothing dealer from the Benin Republic (a part of Nigeria), was arrested for importing 557 grams of heroin into the United States, in violation of 21 U.S.C. § 952(a), when he attempted to enter the United States at John F. Kennedy Airport with 72 heroin-filled balloons in his stomach. At the time of his arrest, the government took certain properties from Onwubiko: $2,483 in United States currency, his Nigerian passport, his return air ticket on Nigeria Airways, and his black garment bag and its contents.
The next day, Onwubiko was presented with the DEA's "Notice of Abandonment" form, which indicated that "one black soft side garment bag" was in the possession of the DEA and would be "deemed" abandoned with title vesting in the United States if a claim--which "must conform to the authorities cited in 41 CFR 128-46.50"--was not made within 30 days. Although Onwubiko claims to have requested that his property be sent to an address in Nigeria, DEA special agent Angel Calderon noted on the bottom of the notice of abandonment: "claims he has no family or forwarding [a]ddress". On a "Personal History Report" filled out that same day, however, Onwubiko provided a forwarding address in Birmingham, Alabama.
On October 2, 1990, Onwubiko's attorneys, the Legal Aid Society, sent a letter to agent Calderon requesting that they be provided with "certain items that Mr. Onwubiko was carrying in his luggage" before the garment bag was sent to the Nigerian address. The record does not reflect that the special agent ever responded to Legal Aid's inquiries; it is nonetheless undisputed that the garment bag was deemed by the government to have been abandoned by Onwubiko, and was retained by the government.
Onwubiko pled guilty before Judge Edward R. Korman to one count of illegal importation of heroin on November 2, 1990. See 21 U.S.C. § 952(a).
On November 4, 1990, Onwubiko sent a letter to agent Calderon (with a copy to Judge Korman), inquiring about the disposition of his property. He provided an address in the Republic of Benin. On November 10, Onwubiko sent another letter, this time directly to Judge Korman, which read as follows:
A SPECIAL REQUEST
I was arrested on the 15th Sept 1990 by the DEA's officials at the airport. During my arrest my personal properties, passport, air return ticket including TWO THOUSAND, FOUR HUNDRED AND EIGHTY THREE US DOLLAR ($2483) was seized from me.
This money was a short term loan given to me by one of my friend (MR KALU AMA) for the purchase of an industrial sewing machine for my wife's use and the balance for other necessary expenses while in the country.
Due to the unbearable human conditions which my life is undergoing here in the prison and my family at home, I hereby appeal to you to use your position to order the DEA agent to release this money to me at the prison and send my property together with the unused return ticket with the first, second and third pages photocopies of my passport to enable my family get refund of the air ticket as they have no other means of livelyhood. The forwarding address [illegible] the property is [illegible]--MR BONIFACE D. AKWARA, CARRE 229 MISSEBO, BP 06-21 COTONOU, REP POP DU BENIN.
Your cooperation will be highly appreciated as it will go a long way to alleviate my suffering.
Thanks and God bless.
Yours faithfully,
The government disputes the authenticity of these letters, pointing out that although they appear in the record on appeal, they bear no filing stamp, and in any event, the government was unaware of them. The record also contains a similar letter, also dated November 10, 1990, which was file-stamped by the clerk's office of the Eastern District of New York, but did not contain the address in the Benin Republic.
Judge Korman treated this letter as a motion for return of property pursuant to Fed.R.Crim.P. 41(e), and directed the United States Attorney to show cause why Onwubiko's motion should not be granted. In a response letter dated December 20, 1990, the government made this representation:
Onwubiko's passport, plane ticket and money are evidence in the case. They will be held as evidence until an order and judgment of conviction are entered.
After conviction, Onwubiko's passport will be released to the Immigration and Naturalization Service, and his ticket and money will be held as property subject to forfeiture pursuant to 21 U.S.C. Section 853.
Onwubiko was sentenced on January 11, 1991, and an appropriate judgment of conviction and sentence was entered on January 23, 1991. On January 11, 1991, the date of sentencing, Judge Korman endorsed the government's response to the order to show cause by noting that Onwubiko's motion for return of his property was denied, "on the condition that, within 30 days of the date of this order, formal forfeiture proceedings are commenced."
On February 20, 1991, the DEA sent Onwubiko a "Notice of Seizure" which indicated that the $2,483 was seized for forfeiture under 21 U.S.C. § 881, "because it was used or acquired as a result of a drug-related offense." (emphasis in original). No such notice was sent regarding the air ticket. This pre-printed notice of seizure informed Onwubiko that he had the right to contest this summary forfeiture in United States District Court, or he could petition the DEA, via an administrative process, to remit his property. Judicial review, however, was available to Onwubiko only if he could post a $250 bond along with his claim of ownership. The administrative process, on the other hand, allows remission only as a matter of discretionary "grace".
Trying to utilize the administrative option, Onwubiko responded to the DEA's notice on March 25, 1991, with a document entitled "A PETITION FOR REMISSION OF FORFEITURE OF PROPERTY". Stating "under oath" that none of the enumerated properties "are, or were acquired through illegal or drug related means for the crime which I pled guilty", he requested the return of his luggage, which contained his "personal properties such as [his] clothing, wrist watch, jewelry and a Cannon [sic ] camera", as well as "valuable documents". Onwubiko also petitioned for the return of his airline tickets and the $2,483 in U.S. currency; as to the latter, Onwubiko wrote that the money "was advanced to me as a short term loan by a friend Mr. Kaln [sic ] Ama for the purchase of sewing machine in the united states; and I will furnish the government with the documentation relating to the loan if needed."
The DEA responded to Onwubiko's petition on April 12, 1991, stating:
The referenced regulations [28 C.F.R. § 9.5(b) & (c) ] explicitly prohibit remission of a forfeiture unless the petitioner establishes: a valid, good faith interest in the seized property as owner or otherwise; no knowledge that the property in which an interest is claimed was or would be involved in any violation of the law; no knowledge of the particular violation which subjected the property to seizure and forfeiture; no knowledge that the user of the property had any record for violating laws of the United States or of any state for a related crime; and that petitioner had taken all reasonable steps to prevent the illegal use of the property.
A review of the factual basis surrounding this seizure reveals that there was Investigation reveals the forfeited currency was seized at an airport pursuant to a combination of some or all of the following factors tending to show evidence of illegal conduct: (1) cash purchases of airline tickets; (2) carrying unduly large amounts of cash currency; (3) traveling under an alias; (4) a destination of a source city for illicit drugs; (5) a short stay in proportion to time/distance of travel; (6) a nervous manner during the trip; and (7) no checked luggage. See United States v. Sokolow, U.S. [1,] 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989).
probable cause to believe the property had been used in violation of the law. Therefore, pursuant to 28 CFR Section 9.5(a), as the Determining Official, I did not further consider whether the evidence was sufficient to support the forfeiture since the filing of a petition presumes a valid forfeiture. The burden of proof lies with the petitioner to establish that each of the requirements of the noted regulations have been satisfied. The petition submitted fails to meet these requirements
Although the...
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