U.S. v. U.S. Currency in the Amount of $228,536.00

• Decision Date: 07 February 1990
• Docket Number: No. 279,D,279
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. UNITED STATES CURRENCY IN THE AMOUNT OF $228,536.00, Defendant-Appellant. Appeal of Edward A. PARKER, Claimant-Appellant. ocket 89-6110.
• Court: U.S. Court of Appeals — Second Circuit

Page 908

895 F.2d 908

UNITED STATES of America, Plaintiff-Appellee, v. UNITED STATES CURRENCY IN THE AMOUNT OF $228,536.00,

Defendant-Appellant.

Appeal of Edward A. PARKER, Claimant-Appellant.

No. 279, Docket 89-6110.

United States Court of Appeals, Second Circuit.

Argued Oct. 20, 1989.

Decided Feb. 7, 1990.

Frederick J. Scullin, Jr., U.S. Atty. for N.D.N.Y. (John G. Duncan, Asst. U.S. Atty., on the brief) for plaintiff-appellee.

Frank Policelli, Utica, N.Y. (Kenneth P. Ray, Utica, N.Y., on the brief) for claimant-appellant.

Before MESKILL and WINTER, Circuit Judges, and LASKER, District Judge. ^*

LASKER, Senior District Judge, sitting by designation:

This appeal presents the novel question whether the Due Process clause of the Fifth Amendment requires a court, before accepting a plea of guilty to a crime, to inform the defendant that the government might at some later time institute a civil in rem forfeiture proceeding against the Edward Parker appeals from a judgment entered in the United States District Court for the Northern District of New York (McAvoy, D.J.) ordering forfeiture of money seized from his property during a state drug investigation. We hold that because the forfeiture was not a direct consequence of his criminal conviction the court had no duty to alert Parker to the possibility of forfeiture before accepting his plea. Moreover, we agree with the district court's holding that Parker was collaterally estopped from interposing a Fourth Amendment defense to the forfeiture because his Fourth Amendment claim was fully and fairly litigated in the state court criminal proceedings. Accordingly, the judgment of forfeiture entered by the district court is affirmed.

fruits or instrumentalities of that crime. ¹

BACKGROUND

A. The Investigation

In January of 1983 a confidential informant told the New York State Police Department (the "Police") that Parker was dealing large quantities of cocaine and that the informant, who had seen Parker sell drugs, could help the Police infiltrate a drug network by introducing them to Parker's customers.

The informant introduced the Police to Walter Raymond, who told them that he purchased large quantities of cocaine from Parker on a regular basis. In April and May of 1983, an undercover officer and the confidential informant bought drugs from Raymond on several occasions. The Police made unsuccessful attempts to verify Raymond's claim that he purchased drugs from Parker. A pen register on Parker's phone revealed no telephone calls between Parker's residence and Raymond, and surveillance teams failed to substantiate Raymond's claims that he obtained drugs from Parker at Parker's home.

The Police sought and received a thirty-day eavesdropping warrant from an Oneida County judge on June 4, 1983 authorizing a tap on Parker's phone based on affidavits from the officer in charge of the investigation and the undercover officer who purchased drugs from Raymond. The affidavits recited the allegations of the confidential informant and Raymond that Parker sold large quantities of cocaine from his house. They also contained information obtained from a pen register indicating that Parker's phone had been used to place calls to phones of individuals identified by the FBI as suspected drug dealers.

The wiretap yielded tape recordings of numerous conversations implicating Parker in drug trafficking. At the same time, evidence was developed suggesting that Raymond may not have been dealing directly with Parker. The warrant was extended twice and amended to add the names of other individuals and to delete Raymond's name as an informant because the Police had been unable to verify his information. Following the last extension of the warrant, the Police intercepted a number of conversations relating to cocaine trafficking and they learned that cocaine was buried on Parker's property.

Based on the intercepted conversations, on August 22, 1983 an Oneida County judge issued a search warrant for Parker's residence. On August 27, 1983, the wiretap revealed that Parker had recently received a shipment of cocaine. Three days later, the Police searched Parker's residence and seized eleven kilograms of cocaine and $228,536 in cash.

B. The State Proceedings

Parker was indicted by a New York state grand jury on September 29, 1983 on charges of Criminal Possession of a Controlled Substance in the First Degree and Conspiracy in the Second Degree. He A suppression hearing was held before an Oneida County judge in February of 1984 to determine whether probable cause had existed to issue the eavesdropping warrants and whether the police made materially false or reckless representations in their affidavits. The judge concluded that although the Police made false statements in the warrant applications, the statements were negligent, not reckless, and were not material to a finding of probable cause. The judge held that probable cause to issue the eavesdropping warrants had been established and that the warrants had been issued in conformity with New York Criminal Procedure Law.

moved to suppress the evidence obtained in the search, including the cocaine and the currency, on the ground that the eavesdropping warrants and search warrant were not based upon probable cause. Parker asserted that the affidavits in support of the eavesdropping warrants failed to alert the judge that the initial information from the confidential informant which prompted the investigation was stale and could not be verified; that Raymond had lied on numerous occasions; and that all attempts at verifying Raymond's claims about drug deals with Parker had failed.

In December of 1984, Parker moved to reopen the February 1984 suppression hearing on several grounds. First, he claimed that "newly discovered" aerial photos taken by the Police in January of 1983 proved that the Police had reason to doubt Raymond's veracity when they asked the judge to rely on information from Raymond to establish probable cause. ² He also claimed to have new information indicating that the Police were untruthful in their affidavits about the availability of money for drug buys, the identity of certain individuals and the interpretation of certain phone conversations overheard pursuant to the eavesdropping warrant and used to obtain the search warrant. The judge denied Parker's motion to reopen.

On December 18, 1984, Parker pled guilty to Criminal Possession of a Controlled Substance in the First Degree. The conspiracy count was dismissed and Parker received a sentence of twenty years to life. The disposition of the money seized from Parker's property pursuant to the search warrant was not discussed.

Parker appealed the denial of his motion to suppress. The Appellate Division affirmed, holding that although the Police included statements in the warrant application that demonstrated "a reckless disregard for the truth," the false statements were not material to a finding of probable cause. People v. Baris, 116 A.D.2d 174, 185, 500 N.Y.S.2d 572, 581 (1986). Leave to appeal to the New York Court of Appeals was denied on May 21, 1986. People v. Parker, 67 N.Y.2d 1055, 495 N.E.2d 364, 504 N.Y.S.2d 1031 (1986).

C. The Forfeiture Proceedings

On December 29, 1986 and January 13, 1987, the Oneida County District Attorney's Office, Troop D of the New York State Police and the Utica Police Department submitted to the U.S. Department of Justice Applications for Transfer of Federally Forfeited Property asking the federal government to seize the $228,536 found on Edward Parker's property. ³ On June 7 In September of 1987, Parker sought to depose Raymond. The government moved to preclude the deposition and to strike Parker's Fourth Amendment defense on collateral estoppel grounds, claiming that Parker had had a full and fair opportunity to litigate his Fourth Amendment claim in the state court criminal proceeding. Parker replied that he was denied a full and fair hearing arguing, among other things, that Raymond had been unavailable at the time of the state court probable cause hearing but had subsequently become available. ⁵ Judge McAvoy granted the government's motion to strike Parker's Fourth Amendment defense on collateral estoppel grounds and ruled that because Parker's Fourth Amendment claim was stricken, Raymond's testimony would be irrelevant. Before the trial of the federal forfeiture case, Parker also moved to dismiss the government's complaint on Fifth Amendment Due Process grounds, claiming that at the time of his guilty plea in state court he was never advised that forfeiture proceedings might be brought against the money. Parker claims that since the forfeiture was requested by state agencies, the U.S. Attorney's Office was an agent of the state and therefore bound by the plea agreement. Parker's motion to dismiss was denied.

                1987, a federal warrant was issued for seizure of the $228,536, which at that time was stored in a safety deposit box at the Oneida City Savings Bank.  On June 24, 1987, the federal government served Parker with a civil, in rem complaint against the currency seeking forfeiture under 21 U.S.C. Sec. 881. 4   On August 10, 1987, Parker filed an answer and a claim to the property in which he asserted as an affirmative defense that the currency was obtained in violation of the Fourth Amendment
                

A bench trial on the forfeiture claim was held on March 27-29, 1989. The government's proof that the money was drug-related included tapes and eyewitness testimony from a roommate and business associate of Parker detailing Parker's possession, processing and sales of multi-kilo amounts of cocaine, testimony from an F.B.I. analyst describing drug records belonging to Parker which detailed hundreds of thousands of dollars of cocaine transactions, and Parker's federal tax records which reflected $19,000 gross income in the two preceding years. Parker testified that the money represented the proceeds of two inheritances plus...