U.S. v. One Hundred Thirty-Eight Thousand
| Decision Date | 14 January 2003 |
| Docket Number | No. 98-CV-4747 (RJD/JMA).,98-CV-4747 (RJD/JMA). |
| Citation | 240 F.Supp.2d 220 |
| Parties | UNITED STATES of America, Plaintiff, v. ONE HUNDRED THIRTY-EIGHT THOUSAND, THREE HUNDRED EIGHTY-ONE DOLLARS IN U.S. CURRENCY ($138,381.00), SEIZED ON OCTOBER 24, 1996, AT JOHN F. KENNEDY INTERNATIONAL AIPORT FROM JOSE M. AGUDELGARCIA, Defendant. |
| Court | U.S. District Court — Eastern District of New York |
F. Franklin Amanat, Assistant United States Attorney, Brooklyn, NY.
John Nicholas Iannuzzi, Law Offices of Iannuzzi & Iannuzzi, New York, NY.
MEMORANDUM AND ORDER OF SUMMARY JUDGMENT, DECREE OF FORFEITURE, AND ORDER OF DELIVERY
WHEREAS:
1. On July 16, 1998, plaintiff the United States of America filed a verified complaint in the above-captioned proceeding, seeking civil forfeiture of the defendant in rem—to wit, the $138,381 in United States currency which the government seized from Jose Manuel Agudelo-Garcia ("Agudelo") on October 24, 1996, plus the $5,000 cost bond which Agudelo posted on February 2, 1998—pursuant to 31 U.S.C. § 5317(c) (1983 & Supp.1998) and the Supplemental Rules for Certain Admiralty and Maritime Claims of the Federal Rules of Civil Procedure;
2. On July 21, 1998, the Honorable Joan M. Azrack, Chief United States Magistrate Judge for the Eastern District of New York, issued a warrant for the arrest of the currency in rem, pursuant to which the United States Customs Service ("Customs") took the defendant currency into its custody;
3. Customs published legal notice of the forfeiture proceedings, and of the arrest of the currency in rem, in Newsday on August 14, 21, and 28, 1998;
4. On August 7, 1998, Agudelo filed an unverified notice of claim to the defendant currency in rem, seeking return of the currency pursuant to 19 U.S.C. § 1608 and Rule C of the Supplemental Rules, as well as a verified answer to the verified complaint;
5. On August 13, 1998, the verified complaint and the warrant of arrest were served on Agudelo's counsel via certified mail;
6. On August 25, 1998, Agudelo filed an unverified amended notice of claim, which was also signed by Yolanda Castro ("Castro");
7. On January 18, 2002, plaintiff the United States of America served notice of its motion to strike Agudelo's unverified amended claim and verified answer, including any portion of said claim putatively ascribable to Castro, and also served notice of its motion for summary judgment and for entry of a final decree of forfeiture and order of delivery;
8. By order dated December 13, 2001, this Court referred the government's motion to Chief Magistrate Judge Azrack for a report and recommendation;
9. After receiving full briefing on the government's motion, Chief Magistrate Judge Azrack issued a Report and Recommendation on September 19, 2002, recommending, inter alia, (a) that the government be granted summary judgment as to Agudelo's claim by default, as the result of Agudelo's failure to file papers in opposition to the government's motion for summary judgment, pursuant to Local Civil Rule 56.1; (b) that the government be granted summary judgment as to Agudelo's claim, pursuant to the fugitive disentitlement provision set forth at 28 U.S.C. § 2466(a); (c) that the government be granted summary judgment as to Agudelo's claim, because he lacks both statutory and Article III standing to contest the forfeiture of the defendant in rem; (d) that the government be granted summary judgment as to any portion of Agudelo's claim putatively ascribable to Castro, as the result of Castro's failure to comply with the Local Rules governing motions for summary judgment; (e) that the government be granted summary judgment as to any portion of Agudelo's claim putatively ascribable to Castro, because she lacks both statutory and Article III standing to contest the forfeiture of the defendant in rem; (f) that all other potential claimants be found to be in default; (g) that summary judgment be entered for the United States; and (h) that a final decree of forfeiture and order of delivery be issued;
10. A copy of Chief Magistrate Judge Azrack's Report and Recommendation is annexed hereto as Exhibit 1;
11. Pursuant to 28 U.S.C. § 636(b)(1) and FED. R. Civ.P. 6(a), 6(e), 72(b), any party wishing to object to the Chief Magistrate Judge's Report and Recommendation had until October 7, 2002, to file written objections to the Report and Recommendation;
IT IS NOW, HEREBY, ORDERED, ADJUDGED, AND DECREED, based upon all papers filed and proceedings had herein, as follows:
1. Chief Magistrate Judge Azrack's Report and Recommendation is accepted in full and is adopted as a Memorandum and Order of this Court.
2. Agudelo's unverified amended claim to the defendant in rem, Agudelo's verified answer, and any portion of said claim putatively ascribable to Castro, are all hereby stricken and dismissed with prejudice, for the reasons set forth in the Report and Recommendation.
3. Plaintiff the United States is awarded summary judgment as to Agudelo's unverified amended claim to the defendant in rem, and any portion of said claim putatively ascribable to Castro, for the reasons set forth in the Report and Recommendation.
4. All other potential claimants to the defendant in rem, including all other persons known or thought to have an interest in or claim to the defendant in rem, having been given due notice of these proceedings, are hereby held to be in default pursuant to FED. R. CIV. P. Supp. Rules A, C.
5. Pursuant to 31 U.S.C. § 5317(c) (1983 & Supp.1998), the defendant currency in the sum of $138,381, together with the cost bond in the sum of $5,000 which Agudelo posted on February 2, 1998, are hereby forfeited and condemned to the use and benefit of the United States of America for the reasons set forth in the verified complaint in Rem and in the Report and Recommendation.
6. Pursuant to 31 U.S.C. § 9703, the Department of the Treasury and its agencies, including, but not limited to, the United States Customs Service, are hereby directed to dispose of the defendant currency and the forfeited cost bond in accordance with all applicable laws and regulations.
7. The Clerk of the Court is hereby instructed to enter judgment for the United States in accordance with this Order and to forward four certified copies of this Order to the United States Attorney for the Eastern District of New York, Attention: Assistant United States Attorney F. Franklin Amanat, One Pierrepont Plaza, 16th Floor, Brooklyn, New York 11201-2776. The Clerk of the Court may then close this case.
By order dated December 13, 2001, the Honorable Raymond Dearie referred to me for report and recommendation Plaintiffs motion for summary judgment in the instant action. For the reasons contained herein, I recommend that Plaintiffs motion for summary judgment be granted, and a final decree of forfeiture and order of delivery be issued.
On October 24,1996, claimant Jose Manuel Agudelo-Garcia ("Agudelo") attempted to transport $131,200 in checked baggage, and $7,181 on his person, while declaring to customs inspectors that he was transporting a total of $7,000 on the flight from New York City to Bogota, Columbia. When customs inspectors, using X-ray equipment, discovered the $131,200 in Mr. Agudelo's checked baggage, he was removed from the airplane and arrested for violating 31 U.S.C. §§ 5316, 5317. The inspectors seized the $131,200 from his checked baggage, and the $7,181 on his person. On February 7, 1997, Mr. Agudelo pled guilty to knowingly and willfully failing to file a report, as defined in 31 U.S.C. § 5316(b), when knowingly transporting monetary instruments of more than $10,000 at one time from a place within the United States to a place outside the United States, in violation of 31 U.S.C. § 5316, and 18 U.S.C. § 3551. In his guilty plea allocution, Mr. Agudelo stated that he was offered $4,000 to take the money to Columbia. He also stated that he did not know exactly how much money he was transporting, but he was told that it was $100,000. On August 1, 1997, Mr Agudelo was sentenced to two years of supervised probation.
On April 4, 1997, Mr. Agudelo filed an administrative notice of claim seeking the return of the $138, 381 seized from him at the time of his arrest. In addition, he sought a waiver of the requirement that he post a $5,000 cost bond on the grounds that he could not afford to pay the bond. In his sworn affidavit in support of his waiver request, Mr. Agudelo stated that the maximum annual income he had earned since coming to the United States in August, 1986 was $19,000. In his deposition in the instant action, Mr. Agudelo stated that he never brought any money or assets into the United States from Colombia. Mr. Agudelo's expenses include: $100 to $150 per week he sent to support his children in Columbia, an unspecified amount of rent on a house in Columbia where his wife and children live, $80 per week in rent on the Brooklyn apartment where he lived with Yolanda Castro and his cousin, and approximately one-third of the total household expenses of $1100 on that apartment. Ms. Castro's tax returns from 1991 to 1997 reflect an annual adjusted gross income ranging from $1,106 to $16,477, with a total for that period of $46,596. In her deposition in the instant case, Ms. Castro approximated her monthly expenses at around $600.
On July 16, 1998, the United States filed a verified complaint in the instant case seeking civil forfeiture of the defendant in rem—the $138,381 seized from Mr. Agudelo, and...
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