U.S. v. $557,933.89, More or Less, in U.S. Funds, Docket No. 00-6261.

CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)
Writing for the CourtSotomayor
Citation287 F.3d 66
PartiesUNITED STATES of America, Plaintiff-Appellee, v. $557,933.89, MORE OR LESS, IN U.S. FUNDS, Seized from Ramis A. Mercado-Filpo, and All Proceeds Traceable Thereto, Defendant, Ramis Mercado, Claimant-Appellant.
Docket NumberDocket No. 00-6261.
Decision Date26 March 2002
287 F.3d 66
UNITED STATES of America, Plaintiff-Appellee,
v.
$557,933.89, MORE OR LESS, IN U.S. FUNDS, Seized from Ramis A. Mercado-Filpo, and All Proceeds Traceable Thereto, Defendant,
Ramis Mercado, Claimant-Appellant.
Docket No. 00-6261.
United States Court of Appeals, Second Circuit.
Submitted: May 4, 2001.
Decided: March 26, 2002.

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J.C. Elso, Miami, FL, for the appellant.

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Sarah J. Lum, Assistant United States Attorney, Brooklyn, NY (Varuni Nelson, Arthur P. Hui, on the brief), for Loretta E. Lynch, United States Attorney for the Eastern District of New York, for the appellee.

Before: MESKILL, KEARSE, and SOTOMAYOR, Circuit Judges.

SOTOMAYOR, Circuit Judge.


Following a jury trial, claimant Ramon Mercado appeals a judgment of civil forfeiture entered by the United States District Court for the Eastern District of New York (Gleeson, J.) with respect to the defendant funds, which were seized from claimant after a routine security search at LaGuardia Airport in New York. The funds, well over a half-million dollars in value, consisted mostly of small-denomination money orders with no payor or payee information, purchased over the span of two to three days. The government asserted that these money orders were purchased in such a way as to avoid currency transaction reporting requirements, in violation of 31 U.S.C. § 5324(a) (1994), thus making them subject to forfeiture under 18 U.S.C. § 981(a)(1)(A) (2000). The government also claimed, largely based on the additional evidence of a positive canine alert to the money orders for narcotics residue and other evidence of claimant's involvement in narcotics trafficking, that the money orders were proceeds of drug trafficking subject to forfeiture under 21 U.S.C. § 881(a)(6) (1994) (amended 2000) and were also involved in money laundering transactions in violation of 18 U.S.C. §§ 1956(a)(1)(A)(i) and 1957(a) (2000). Claimant Mercado argues on appeal that much of the evidence presented by the government at trial was obtained in violation of the Fourth Amendment and that without this evidence the government failed to meet its burden of establishing probable cause for the forfeiture of the defendant funds. In addition, claimant argues that the government should be barred from forfeiture because of the allegedly unreasonable delay between the seizure of the funds at LaGuardia and the institution of the forfeiture proceedings. Finding no reversible error below, we affirm.

BACKGROUND

The following facts are undisputed except where otherwise noted. On the evening of June 8, 1994, Mercado passed through an American Airlines security checkpoint at LaGuardia Airport in New York, on his way to board a flight to Miami. After passing his briefcase through the carry-on luggage scanner, security personnel for American could not see the contents of the briefcase. The security officer asked Mercado if he would open his briefcase for inspection, and Mercado complied. Upon opening the briefcase, it could be seen that the briefcase contained a number of money orders. The American security personnel detained the suitcase with the money orders while contacting the Port Authority Police ("PAPD"), who have primary law enforcement jurisdiction over LaGuardia. Detective Robert Martin arrived within a few minutes.

When Martin arrived, he asked Mercado if he was carrying a large number of money orders. After Mercado responded affirmatively, Martin — with Mercado's consent, he claims, although Mercado disputes this — opened the briefcase and saw the money orders. Martin "thumbed through" the orders and was able to see that they were unsigned, undesignated, and in small denominations (less than $1000 each). Martin called DEA agent Tony Garifo and told him what he had discovered. Garifo

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asked Martin to hold on to the briefcase and its contents.

Martin thereupon informed Mercado that he would be taking the briefcase and the money orders to the PAPD office near LaGuardia. Martin invited Mercado to accompany him. According to Martin, this was because Mercado had told him that the money orders did not belong to him but rather to his boss, Isidro Castro, and Martin told Mercado that at PAPD offices he could call Castro to see if Castro could provide documentation of the money orders' "legitimacy." Mercado denies that he ever told Martin that the money orders were anyone's other than his own. Following an interview of roughly twenty minutes, Mercado was given a receipt for the money orders and driven back to LaGuardia, where he caught his flight to Miami.

The next day, Detective Robert Schneider of the Nassau County Sheriff's Department, who was on assignment to the DEA, was summoned to the DEA office along with his canine partner, a German Shepherd named Brent. Schneider and Brent were asked to perform a "canine sniff" of the money orders, which had apparently been transported from the PAPD offices to the DEA offices at John F. Kennedy Airport, also in New York. The canine sniff was conducted by leading Brent past several similar plastic bins; Brent alerted to the bin containing the money orders seized from Mercado, indicating that the dog detected some form of narcotics residue present.

On July 11, 1994, the DEA instituted administrative forfeiture proceedings, pursuant to 21 U.S.C. § 881(d) (2000) and 19 U.S.C. § 1607(a)(4) (2000),1 by sending a notice of seizure to Mercado and by publishing the notice. Mercado, at that point represented by counsel, filed a claim shortly thereafter, but this claim was neither properly executed nor accompanied by either a cost bond or an affidavit of indigency as required by 19 U.S.C. § 1608 (2000). On August 22, 1994, Mercado refiled his claim, which now included a verified statement by Mercado that he was the "custodian and/or owner" of the money orders, but which still lacked the required bond. The cost bond was finally filed with the DEA on January 24, 1995.

Some eight months later, on September 29, 1995, the United States filed a verified complaint, subsequently amended on October 27, 1995, commencing the instant civil forfeiture proceedings in the district court. The complaint alleged that the money orders were subject to forfeiture pursuant to 18 U.S.C. § 981(a)(1)(A) as a result of their involvement in "structuring violations" — i.e., structuring financial transactions so as to avoid the currency transaction reporting ("CTR") requirements of 31 U.S.C. §§ 5313(a) and 5325 (1994) — in violation of 31 U.S.C. § 5324. (The CTR provisions require financial institutions to report to the Secretary of Treasury transactions above certain threshold amounts — e.g., over $3000 in the case of § 5325.) The complaint was verified by Postal Inspector James Callery, who had investigated the purchase dates and locations of the money

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orders based on the information taken from the face of the money orders. According to the complaint, the money orders (over 900 in total) were purchased over the span of three days from over 40 locations in the New York metropolitan area, with no individual money order exceeding $1,000 in value.

Claimant filed an answer to the complaint on November 22, 1995, and, in accordance with Supplemental Rule C(6) of the Supplemental Rules for Certain Admiralty and Maritime Claims, also filed a verified claim2 again stating that he was the "custodian and/or owner" of the defendant funds. The claim did not, however, include any statement regarding Mercado's authorization to make the claim on behalf of another person entitled to possession. Mercado also filed answers to the government's interrogatories in which, for all practical purposes, he asserted the Fifth Amendment privilege against self-incrimination to every interrogatory.

In March 1996, claimant moved, pursuant to Fed.R.Crim.P. 41(e) and Fed.R.Civ.P. 12(b), for suppression of evidence obtained by the government as a result of the seizure at LaGuardia, which claimant asserted was in violation of the Fourth Amendment. Claimant further moved for dismissal of the complaint and return of the defendant funds on the ground that, without this evidence, the government lacked probable cause for forfeiture, and additionally that the complaint failed to satisfy the pleading requirements of Supplemental Rule E(2)(a). The government cross-moved to strike Mercado's claim, initially as a discovery sanction (for his failure to answer the government's interrogatories) but also later (in a supplemental letter brief) for lack of statutory standing due to claimant's failure to comply with Supplemental Rule C(6)'s requirement that (as the rule then stood) "[i]f the claim is made on behalf of the person entitled to possession by an agent, bailee, or attorney, it shall state that the agent, bailee, or attorney is duly authorized to make the claim."

In opposing claimant's motion, the government submitted an affidavit from DEA Agent Garifo describing the events at LaGuardia. Claimant countered with his own affidavit. The motions were referred to Magistrate Judge Steven Gold. Without holding an evidentiary hearing, Magistrate Judge Gold issued his Report and Recommendation on February 28, 1997, recommending (1) that claimant's motion for suppression of evidence and dismissal of the complaint for failure to establish probable cause be denied, finding no Fourth Amendment violation in the seizure at LaGuardia; (2) that claimant's motion to dismiss for failure to meet the Rule E pleading requirements be denied; and (3) that the government's motion to strike Mercado's claim for his Fifth Amendment assertions be denied without prejudice to renewal. On the suppression motion, the Magistrate Judge decided no evidentiary hearing was required because "Mercado has failed to point to any factual dispute pertinent to this Court's decision." Report & Recommendation, slip op. at 4...

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  • U.S. v. $242,484.00, No. 01-16485.
    • United States
    • U.S. Court of Appeals — Eleventh Circuit
    • November 20, 2003
    ...probable cause, the claimant's ability or inability to prove their right to the property is immaterial. See United States v. $557,933.89, 287 F.3d 66, 77 (2d Cir.2002) ("It must be remembered that what is adjudicated in a judicial civil forfeiture proceeding is the government's right to the......
  • Walczyk v. Rio, No. 04-5711-cv(L).
    • United States
    • U.S. Court of Appeals — Second Circuit
    • August 1, 2007
    ...found in Walczyk's home, we conclude that these items were properly seized under the "plain view" doctrine. United States v. $557,933.89, 287 F.3d 66, 81 (2d 22. As the Supreme Court has explained: [P]olice officers called upon to aid other officers in executing ... warrants are entitled to......
  • Morlan v. Universal Guar. Life Ins. Co., No. 01-3795.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • July 26, 2002
    ...but standing does not require a perfectly clear title to the claim sued upon. United States v. $557,933.89, More or Less, in U.S. Funds, 287 F.3d 66, 75, 78-79 (2d Cir.2002); United States v. Rodriguez-Aguirre, 264 F.3d 1195, 1204 (10th Cir.2001). This is a corollary of the probabilistic ch......
  • Lafleur v. Whitman, Docket No. 01-4126.
    • United States
    • U.S. Court of Appeals — Second Circuit
    • July 31, 2002
    ...of the Petitioners We must first address petitioners' standing. See, e.g., United States v. $557,933.89, More or Less, in U.S. Funds, 287 F.3d 66, 78 (2d Cir.2002) ("Standing is a question that determines whether the claimant may properly invoke the jurisdiction of the federal courts to det......
  • Request a trial to view additional results
143 cases
  • U.S. v. $242,484.00, No. 01-16485.
    • United States
    • U.S. Court of Appeals — Eleventh Circuit
    • November 20, 2003
    ...probable cause, the claimant's ability or inability to prove their right to the property is immaterial. See United States v. $557,933.89, 287 F.3d 66, 77 (2d Cir.2002) ("It must be remembered that what is adjudicated in a judicial civil forfeiture proceeding is the government's right to the......
  • Walczyk v. Rio, No. 04-5711-cv(L).
    • United States
    • U.S. Court of Appeals — Second Circuit
    • August 1, 2007
    ...found in Walczyk's home, we conclude that these items were properly seized under the "plain view" doctrine. United States v. $557,933.89, 287 F.3d 66, 81 (2d 22. As the Supreme Court has explained: [P]olice officers called upon to aid other officers in executing ... warrants are entitled to......
  • Morlan v. Universal Guar. Life Ins. Co., No. 01-3795.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • July 26, 2002
    ...but standing does not require a perfectly clear title to the claim sued upon. United States v. $557,933.89, More or Less, in U.S. Funds, 287 F.3d 66, 75, 78-79 (2d Cir.2002); United States v. Rodriguez-Aguirre, 264 F.3d 1195, 1204 (10th Cir.2001). This is a corollary of the probabilistic ch......
  • Lafleur v. Whitman, Docket No. 01-4126.
    • United States
    • U.S. Court of Appeals — Second Circuit
    • July 31, 2002
    ...of the Petitioners We must first address petitioners' standing. See, e.g., United States v. $557,933.89, More or Less, in U.S. Funds, 287 F.3d 66, 78 (2d Cir.2002) ("Standing is a question that determines whether the claimant may properly invoke the jurisdiction of the federal courts to det......
  • Request a trial to view additional results

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