MATTER OF $49,065.00 IN US CURRENCY, Civ. A. No. C87-1689A.

• Decision Date: 18 November 1987
• Docket Number: Civ. A. No. C87-1689A.
• Citation: 694 F. Supp. 1559
• Parties: In the Matter of $49,065.00 IN UNITED STATES CURRENCY.
• Court: U.S. District Court — Northern District of Georgia

694 F. Supp. 1559

In the Matter of $49,065.00 IN UNITED STATES CURRENCY.

Civ. A. No. C87-1689A.

United States District Court, N.D. Georgia, Atlanta Division.

November 18, 1987.

Jerome J. Froelich, David Mark Kupsky, McKenney & Froelich, Atlanta, Ga., for movant.

J.D. Roy Atchison, Asst. U.S. Atty., Atlanta, Ga., for United States.

ORDER

ROBERT H. HALL, District Judge.

This matter is currently before the court on movant, Facundo Nelson Izquierdo's, motion for return of seized property, pursuant to Rule 41(e), Fed.R.Crim.P. Movant alleges that the government illegally seized and detained $49,065.00, allegedly the property of movant, after an agent with the Drug Enforcement Agency ("DEA") stopped movant in the Atlanta Hartsfield International Airport. Movant contends that he is entitled to the return of the money pursuant to Fed.R.Crim.P. 41(e) which provides that a person aggrieved by an unlawful search and seizure may move the district court for the return of the seized property.

In late August 1987 movant advised the DEA, Asset Forfeiture Unit, that he claimed ownership in the money and he mailed to DEA an acceptable cost bond. On September 16, 1987, DEA mailed a forfeiture referral to the U.S. Attorney for the Northern District of Georgia requesting the filing of a forfeiture action. The U.S. Attorney either has or will institute a forfeiture proceeding involving the currency.

This court does not have jurisdiction to return the seized money pursuant to Rule 41(e). That Rule applies only in criminal proceedings and the currency claimed by movant is being held for purposes of a civil forfeiture proceeding. Rule 54(b)(5) of the Federal Rules of Criminal Procedure clearly provides that "these rules including Rule 41(e) are not applicable to ... civil forfeiture of property for violation of a statute of the United States...." See also United States v. Rapp, 539 F.2d 1156, 1160 (8th Cir.1976) (Rule 41(e) did not provide jurisdictional basis where seizure and forfeiture of automobile was in nature of in rem action which is civil rather than criminal).

Although movant did not argue in the alternative that this court should exercise equity jurisdiction to order the currency returned to him, the court finds that even if he had, the requirements necessary to invoke such jurisdiction have not been met. The former Fifth Circuit set forth the requirements for invoking equity jurisdiction in this type of case. In United States v. Chapman, 559 F.2d 402 (5th Cir. 1977), the court discussed the "doctrine of anamalous jurisdiction which projects the adjudicatory authority of a court to cover actions for the ... return of seized property even though no indictment has been returned and no criminal prosecution is yet in existence." Id. at 406. The court noted that the use of the doctrine is conditioned on a showing of several factors: whether the government, in seizing the property, displayed a callous disregard for the constitutional rights of the claimant; whether the claimant has an individual interest in and need for the property;...