Faldraga v. Carnes

• Decision Date: 23 November 1987
• Docket Number: No. 87-10018-Civ.,87-10018-Civ.
• Citation: 674 F. Supp. 845
• Parties: Dalia FALDRAGA, Plaintiff, v. Harry W. CARNES, District Director of the United States Customs Service, Defendant.
• Court: U.S. District Court — Southern District of Florida

674 F. Supp. 845

Dalia FALDRAGA, Plaintiff, v. Harry W. CARNES, District Director of the United States Customs Service, Defendant.

No. 87-10018-Civ.

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

November 23, 1987.

Rudolph Browd, Miami, Fla., for plaintiff.

Marilynn G. Koonce, Asst. U.S. Atty., Miami, Fla., for defendant.

JAMES LAWRENCE KING, Chief Judge.

THIS CAUSE arises before the Court upon Defendant United States Customs Service's ("Customs") motion to dismiss plaintiff's complaint.

The plaintiff, Dalia Faldraga, instituted this action on April 9, 1987, alleging two grounds for the return of her vessel. As to her first claim, plaintiff alleges that the length of time of the vessel's seizure constitutes a violation of her due process rights under the fifth amendment. Regarding her second claim, the plaintiff seeks an injunction staying all summary forfeiture proceedings claiming that Customs' demand for the posting of a $5,000 certified check or money order to institute judicial proceedings, in accordance with 19 U.S.C. § 1608 (West Supp.1987), was arbitrary, unreasonable and unconscionable; thus, a violation of her rights to equal protection. After a careful review of both claims the court grants the defendant's motion to dismiss.

I. PROCEDURAL HISTORY OF THIS ACTION

The plaintiff's vessel, "Mr. Rainbow," was seized by U.S. Customs officers on August 4, 1986, when the officers found a residue of what turned out to be marijuana. The plaintiff, on October 3, 1986, filed a Petition for Remission or Mitigation pursuant to 19 U.S.C.A. § 1618 (West Supp.1987) alleging that she was an innocent owner. On January 16, 1987, plaintiff's counsel, sent a letter to the Customs Director, requesting Customs to consider plaintiff's Petition for Remission or Mitigation administratively within thirty days or, if the thirty day period could not be met, to institute forfeiture proceedings. Customs responded stating that the administrative procedure could not be completed within 30 days as requested.

Customs enclosed with its response letter a waiver form which allowed the plaintiff to elect one of two remedies: (1) the plaintiff could either proceed with the administrative forfeiture proceedings, "which would begin with the publication of a notice of seizure and intent to forfeit as provided in section ... 19 U.S.C. 1607," or (2) the plaintiff could "REQUEST THAT THE CUSTOMS SERVICE COMMENCE ADMINISTRATIVE FORFEITURE PROCEEDINGS IMMEDIATELY." Id. (emphasis supplied in original). Plaintiff's counsel informed Customs on March 13, 1987 that the plaintiff had elected the second option. On March 20, 1987, Customs sent, by certified mail, another letter notifying the plaintiff of the summary forfeiture proceedings and setting out in detail the statutory scheme and the plaintiff's rights with respect to it.

II. THE STATUTORY SCHEME

A. Background

Forfeiture actions have a rich history in American and English common law. They first arose with respect to an object which caused an accidental death of a King's subject and this English common law practice had its roots in pre-Judeo-Christian times. The object of death, the deodand (literally "given to god"), needed to be expiated of the evil which it committed. Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 679, 680-82, 94 S.Ct. 2080, 2089-2090, 2090-91, 40 L.Ed.2d 452 (1974). Although deodands were never part of the common law tradition of the United States, Id. at 682-83, 94 S.Ct. at 2091-92, in rem actions were available against commodities and vessel used in violation of customs law. Id.

In Calero-Toledo the Supreme Court found the pre-hearing seizures of property to be in general constitutionally permissible because of the "extraordinary situation" present in the government's fight against illicit drug activity and the transient nature of the property involved. Id. at 677-80, 94 S.Ct. at 2088-90. The Court, however, noted that certain circumstances may exist where pre-hearing seizures are unconstitutional:

"where an owner who proved not only that he was uninvolved in and unaware of the wrongful activity, but also that he had done all that reasonably could be expected to prevent the proscribed use of his property; for, in that circumstance, it would be difficult to conclude that forfeiture served legitimate purposes and was not unduly oppressive."

Id. at 689-90, 94 S.Ct. at 2094-95. (footnotes and citations omitted). Accord United States v. United States Coin Currency, 401 U.S. 715, 91 S.Ct. 1041, 28 L.Ed.2d 434 (1971) (finding that the forfeiture statutes were intended "to impose a penalty only upon those who are significantly involved in a criminal enterprise." Id. at 721-22), 91 S.Ct. at 1045; Boyd v. United States, 116 U.S. 616, 634, 6 S.Ct. 524, 534, 29 L.Ed. 746 (1886) ("We are also clearly of opinion that proceedings instituted for the purpose of declaring the forfeiture of a man's property by reason of offenses committed by him, though they may be civil in form, are in their nature criminal."); see generally Strafer, Civil Forfeitures: Protecting The Innocent Owner, 37 U.Fla.L.Rev. 841 (1985).

B. Background of Summary Forfeiture Procedure

Congress created summary forfeiture proceedings in 1844, to allow the government to pursue summary proceedings in cases involving $100 or less. See Act of April 2, 1844, ch. 8, 5 Stat. 653 (1844). See generally United States v. United State Currency in the Amount of $2,857, 754 F.2d 208 (7th Cir.1985); United States v. One Tintoretto Painting Enitled "The Holy Family With Saint Catherine And Honored Donor", 691 F.2d 603, 605 (2d Cir.1982). Since that time Congress has amended the monetary amounts at various times to increase the viability of forfeiture proceedings in drug related crimes. In 1984 Congress, as part of the Comprehensive Crime Control Act of 1984, Pub.L. 98-473, 98 Stat. 2053 (1984) (codified as amended at 19 U.S.C.A. § 1607 (West Supp. 1987)), raised the monetary amount to $100,000 or less. 19 U.S.C. § 1607 (West Supp.1987). Congress' intent in raising the monetary limits of sections 1607 and 1608 is in line with its intent "to enhance the use of forfeiture, and in particular, the sanction of criminal forfeiture, as a law enforcement tool in combatting two of the most serious crime problems facing the country: racketeering and drug trafficking." S.Rep. No. 98-225, 98th Cong., 2d Sess. 191, reprinted in 1984 U.S.Code Cong. & Admin. News 3182, 3374.

C. Summary Procedures under 19 U.S.C. §§ 1602-1620

When Customs seizes a "vessel, vehicle, aircraft, merchandise, or baggage" 19 U.S. C.A. § 1607(a) (West Supp.1987) which is worth $100,000 or less, the agency "shall cause a notice of the seizure of such articles and the intention to forfeit and sell or otherwise dispose of the same." 19 U.S.C. A. § 1607(c) (West Supp.1987). The language of 1607 mandates Customs to proceed under the statutory scheme.

This statutory scheme, as it has been interpreted by the Supreme Court, provides an interested claimant with at least three courses of action. First, if the agency delays in filing for forfeiture, a "claimant can file an equitable action seeking an order compelling the filing of the forfeiture action or return of the seized property." United States v. Von Neumann, 474 U.S. 242, 106 S.Ct. 610, 612, n. 3, 88 L.Ed.2d 587 (1986) (quoting United States v. $8,850, 461 U.S. 555, 569, 103 S.Ct. 2005, 2014, 76 L.Ed.2d 143 (1983)) (citing Slocum v. Mayberry, 15 U.S. (2 Wheat.) 1, 10, 4 L.Ed. 169 (1817)).

The claimant's second option allows the plaintiff to petition the Commissioner of Customs for remission or mitigation within 30 days of the seizure. See 19 U.S.C.A. § 1618 (West Supp.1987); 19 C.F.R. § 171.12 (1987). The power to grant or deny the claimant's petition rests solely within the discretion of the Commissioner of Customs and the Commissioner's discretion is not reviewable by a federal court. 19 U.S.C.A. § 1618 (West Supp.1987); See Jary Leasing Corporation v. United States, 254 F.Supp. 157, (E.D.N.Y.1966) (quoting United States v. One 1961 Cadillac, 337 F.2d 730, 731-33 (6th Cir.1964)). When the property is worth more that $100,000 and the claimant does not receive a response within a constitutionally permissible time, see United States v. 8,850, 461 U.S. 555, 103 S.Ct. 2005, 76 L.Ed.2d 143 (1983), Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), she may institute an action in federal district court claiming a violation of her due process rights.

A claimant's final statutory option is available only if the property seized is within the ambit of 19 U.S.C.A. § 1607 (West Supp.1987). If so the claimant has the right to a judicial forum to determine the issues surrounding the forfeiture if she posts the requisite bond. 19 U.S.C.A. § 1608 (West Supp.1987). In order to obtain this judicial forum, the claimant must post her bond within 20 days from the date of the first publication of the notice of seizure. 19 U.S.C.A. § 1608 (West Supp. 1987); 19 C.F.R. § 162.45(a) (1987). The claimant is required to post a bond for "$5,000 or 10 percent of the value of the claimed property, whichever is lower." 19 U.S.C.A. § 1608 (West Supp.1987). The purpose of the bond is to cover the costs and expenses of the proceedings to obtain condemnation. If the outcome of the judicial proceeding is in the claimants favor, the bond is returned. If the claimant can prove indigency the bond requirement will be waived. 19 C.F.R. § 162.47(e) (1987). If no claim is filed or a bond is not posted within the 20 day period, then the property is declared forfeited by the appropriate customs officer. 19 U.S.C.A. § 1609 (West Supp.1987).

III. THE FORFEITURE LAW AS APPLIED IN THIS INSTANCE

A. No Subject-Matter Jurisdiction Over Count I

This Court has no subject matter jurisdiction to determine Count I of plaintiff's complaint. While a district court has jurisdiction to determine whether it in fact has...