U.S. v. Delgado
| Citation | 959 F.Supp. 1523 |
| Decision Date | 15 January 1997 |
| Docket Number | No. 96-593-CR.,96-593-CR. |
| Parties | UNITED STATES of America, Plaintiff, v. Hugo DELGADO and Miguel Delgado, Defendants. |
| Court | U.S. District Court — Southern District of Florida |
Randy Hummell, Assistant U.S. Attorney, Miami, FL, for Plaintiff.
Alan Karten, Miami, FL, for Defendants.
THIS CAUSE came before the Court upon Defendants' Motion to Dismiss the Forfeiture Count of the Indictment as violative of the Excessive Fines Clause of the Eighth Amendment to the United States Constitution (D.E.24)1 and upon Plaintiff's Motion for an Order of Forfeiture (D.E.34). For the reasons set forth herein, the Motion to Dismiss is DENIED and the Motion for an Order of Forfeiture is GRANTED.2
In June, 1996, U.S. Customs Inspectors, using X-rays, found currency concealed in defendants' luggage checked for a flight from Miami to Bogota, Colombia. Subsequent investigation by Customs revealed that the defendants had $237,282 in U.S. currency on their persons and in their luggage that they were attempting to remove from the United States without reporting. Defendants were arrested and the currency was seized. Defendants were charged in a four count indictment.3 At the July 25, 1996 plea colloquy, defendants pled guilty to Count 2, which alleged that the defendants knowingly and willfully failed to file Customs form 4790 in violation of 31 U.S.C. §§ 5316(a)(1)(A) and 5322(a), 18 U.S.C. § 2 and 31 C.F.R. § 103.23. The final count of the indictment is a forfeiture count, which states:
As a result of the offense in Count 2, the defendants HUGO DELGADO and MIGUEL DELGADO shall forfeit to the United States, pursuant to Title 18, United States Code, Section 982, any and all interest that defendants have in the property involved in said offense and all property traceable to such property, including but not limited to two hundred thirty-seven thousand two hundred eighty-two dollars ($237,282).
As part of the plea agreement, each defendant agreed to waive his right to a jury trial to contest the forfeiture count of the indictment and to submit that limited issue to the district court judge for the court to make findings of fact, conclusions of law and the rendering of a forfeiture verdict (Plea Agreement, ¶ 6). The Court held a sentencing hearing on October 17, 1996, and counsel presented evidence and arguments. Accordingly, based on the evidence presented and the record in this case, the Court makes the following findings of fact and conclusions of law in the rendering of a forfeiture verdict.
On or about June 19, 1996, defendants were approached by U.S. Customs Inspectors in Miami International Airport. The Customs Inspectors advised defendants of the obligation to report any U.S. currency that they were transporting out of the country in excess of $10,000, and provided defendants with a copy of Customs form 503B to complete (Plea Colloquy, p. 9, ll. 1-10). Each defendant completed the form. Defendant Hugo Delgado ("Hugo") stated that he had $9,200 in U.S. currency in his carry on luggage (Presentence Investigation Report ("PSR"), ¶ 4). He denied having additional currency in his checked luggage (id.). A search of his luggage revealed approximately $197,982 in U.S. currency hidden in the plastic housing of a television set that the defendants had purchased the day before at a local Miami electronics store (id., ¶ 5; Plea Colloquy, p. 10, ll. 10-19).
Defendant Miguel Delgado ("Miguel") stated that he had $8,400 in U.S. currency on his person and he denied having additional currency in his luggage (PSR, ¶ 6). A search of his luggage revealed $39,300 in U.S. currency hidden in a box of diapers (id., ¶ 7). After being advised of his Miranda rights, Miguel admitted that the currency in the package of diapers belonged to him, that he was aware of the reporting requirements and that he had reported only the currency on his person (id. ¶ 8; Plea Colloquy, p. 10, ll. 3-9).
The Court finds that defendants were working together to remove the currency from the United States without reporting it (PSR, ¶ 5). Defendants stated that the currency was to be used to purchase watches and electronic goods for sale in Colombia and they supplied bank records and other materials in support of that assertion. (PSR, ¶ 13; Objection to PSR, ¶¶ 11-12). However, the bank records provided were not business account records, the currency in defendants' possession at the time of the arrest was not withdrawn from any of the accounts for which defendants provided records and, according to Customs records, the seized currency had not been declared upon defendants' entry into the United States (Addendum to PSR, at 2-3). One of the government's witnesses stated that neither the bank records nor the CMIR filings submitted by defendants account for the money that was seized in this case . Moreover, although defendants claim that they conduct a business of purchase and resale of electronics and watches, neither defendant was transporting a sizable stock of either item at the time of their arrest. Based on the record before the Court, including Hugo's testimony and demeanor at the sentencing hearing, the Court finds defendants' explanation regarding the source of and intended use for the seized currency unsupported by the evidence.
Moreover, the court has reason to doubt the credibility of defendants in this proceeding. Hugo's testimony at the sentencing hearing contradicted his representations to the Court at the plea colloquy. Specifically although he had stipulated to the contrary, he testified before the Court that no Customs officer told him that outgoing currency had to be declared and that no one asked him if he had any currency in his luggage. The Court rejects defendant's argument that these misrepresentations are immaterial. Subsequent investigation by Probation revealed that Miguel Delgado had lied about never having been arrested. In 1993, Drug Enforcement Agency ("DEA") personnel seized $400,000 from Miguel and arrested him and his companions, Maria Marta Delgado-Devazib and Jose Maria Tejada. According to the DEA Investigative Report, Miguel, Delgado-Devazib and Tejada are believed to be employed as money couriers by a narcotics trafficking organization (Second Addendum to PSR, at 1-2). Additionally, in 1994, U.S. Customs seized $299,735 from Miguel in New York City as part of an ongoing undercover operation involving alleged narcotics proceeds. The petition for return of the seized funds was denied in August 1996 based on inconsistencies in his explanation for a legitimate source of the income seized in 1994 and a lack of evidence (Addendum to PSR, at 5).
The Court finds that defendants knew or were made aware of the currency reporting requirements and consciously disregarded them in an attempt to remove the currency from the United States without reporting it. Moreover, the testimony given by the government's witnesses at the sentencing hearing indicates a strong likelihood that the currency and defendants were part of a money laundering operation.
The Eighth Amendment provides that "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." U.S. Const. Am. VIII. The Excessive Fines Clause limits the Government's power to extract payments whether in cash or in kind, as punishment for some offense.4 Alexander v. United States, 509 U.S. 544, 559, 113 S.Ct. 2766, 2776, 125 L.Ed.2d 441 (1993). Forfeiture serves both punitive and deterrent purposes and it imposes an economic penalty, designed to render the illegal behavior unprofitable. Bennis v. Michigan, ___ U.S. ___, ___, 116 S.Ct. 994, 1000, 134 L.Ed.2d 68 (1996); Libretti v. United States, ___ U.S. ___, ___, 116 S.Ct. 356, 363, 133 L.Ed.2d 271 (1995); Austin v. United States, 509 U.S. 602, 617-19, 113 S.Ct. 2801, 2810, 125 L.Ed.2d 488 (1993); Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 686-687, 94 S.Ct. 2080, 2093-94, 40 L.Ed.2d 452 (1974). In Alexander v. United States, 509 U.S. 544, 113 S.Ct. 2766, 125 L.Ed.2d 441 (1993), the Supreme Court held that the Excessive Fines Clause of the Eighth Amendment applies to criminal in personam forfeiture.
Thus, a criminal in personam forfeiture violates the Eighth Amendment if it is "excessive." The Supreme Court declined to provide a checklist for determining when a forfeiture is "excessive" within the meaning of the Eighth Amendment. Austin, 509 U.S. at 621-23, 113 S.Ct. at 2812. A court must consider all factors when evaluating whether a forfeiture is unconstitutionally excessive. Alexander, 509 U.S. at 559, 113 S.Ct. at 2776 (); see Austin, 509 U.S. at 627-28, 113 S.Ct. at 2815 (Scalia, J., concurring) (); see also U.S. v. One Parcel Property Located at 427 and 429 Hall Street, 74 F.3d 1165 (11th Cir.1996). To arrive at a judgment of excessiveness, the court must look at whether the fine is in proportion to the harm inflicted or the loss sustained. Alexander, 509 U.S. at 559, 113 S.Ct. at 2776 (). Thus, whether a forfeiture is excessive must be viewed in light of the aims of the statute, defendants' criminal activities, the source of the monies and the loss sustained. See id.
The United States seeks forfeiture of the currency pursuant to 18 U.S.C. § 982, which statute requires...
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U.S. v. Funds in the Amount of $170,926.00
...previous history of failing to report currency before holding that a forfeiture of $237,282 was not excessive. United States v. Delgado, 959 F.Supp. 1523, 1525 (S.D.Fla.1997). Only if the government meets its burden and claimant subsequently establishes the legal nature of his funds would t......
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