United States v. $20, 000.00 in U.S. Currency
| Decision Date | 08 March 2022 |
| Docket Number | Civil 20-1259 (FAB) |
| Court | U.S. District Court — District of Puerto Rico |
| Parties | UNITED STATES OF AMERICA, Plaintiff, v. $20, 000 IN U.S. CURRENCY, Defendants. |
Claimant Andy Morales-Vélez (“Morales-Vélez”) moves to dismiss the United States' verified complaint for forfeiture in rem pursuant to Rule G(8)(b) of the Supplemental Rules for Admiralty or Maritime Claims and Asset Forfeiture Actions (“Supplemental Rules”) and Federal Rules of Civil Procedure 12(b)(1), 12(b)(2), 12(b)(4), 12(b)(5), and 12(b)(6). (Docket No. 23.) For the reasons set forth below the motion to dismiss is DENIED.
The Court construes the following facts from the complaint and pleadings[1] “in the light most favorable to the plaintiff[]” and “resolve[s] any ambiguities” in the plaintiff's favor. See Ocasio-Hernández v. Fortuño-Burset, 640 F.3d 1, 17 (1st Cir. 2011) (discussing the Rule 12(b)(6) standard of review); see Viqueira v. First Bank, 140 F.3d 12, 16 (1st Cir. 1998) (discussing the Rule 12(b)(1) standard of review).
The United States seeks to forfeit $20, 000 seized from Morales-Vélez on September 18, 2019 by the Drug Enforcement Administration (“DEA”) in Arecibo, Puerto Rico. (Docket No. 1 at p. 1.) The United States asserts that the money is forfeitable pursuant to 21 U.S.C. § 881(a)(6) and 18 U.S.C. § 981(a)(1)(C) (), and 18 U.S.C. § 981(a)(1)(A) (which allows the forfeiture of property related to money laundering). Id. at p. 2.
The United States filed its civil forfeiture complaint on June 3, 2020, id., accompanied by an ex parte unsworn declaration by a DEA task force officer. (Docket No. 3.) According to the declaration, at some time prior to August 2018, a source tipped the DEA that Morales-Vélez was part of a drug trafficking organization based in a public housing project, and that Morales- Vélez was using private mail services to send cocaine to the United States and receive cash in return. (Docket No. 3 at p. 2.) On August 2, 2018, DEA agents seized a FedEx box sent by Morales- Vélez from an address in Pennsylvania to an address in Arecibo, Puerto Rico. Id. at pp. 2-3. The box contained U.S. currency amounting to almost $90, 000, concealed inside toy boxes, wrapped in a material known to be used to avoid detection of currency. Id. at p. 3.
About a year later, on September 18, 2019, a public housing project inspector, accompanied by agents of the Puerto Rico Police Department, was conducting routine interventions into possible housing violations at the Manuel Zeno Gandía Public Housing Project. Id. The inspector knocked on the door at apartment #266 in building C-12 and received no answer. Id. The inspector and police officers heard children crying inside, and police officers stationed outside the building reported seeing smoke coming out of the apartment. Id. The officers forcibly entered the apartment on suspicion that the children inside were in danger. Id. Inside, the officers found Morales-Vélez holding a black bag which turned out to contain two and a half bricks of what they recognized as kilograms of cocaine. Id. at p. 4. The officers arrested Morales- Vélez. Id. Officers inspecting the apartment also found burn marks on one wall, likely the source of the smoke seen from outside. Id. They found a partially burned and destroyed cellphone in a trash can and noticed burn marks on Morales-Vélez's hands. Id. The officers also found drug paraphernalia and empty mail parcels. Id.
After being advised of his constitutional rights, Morales- Vélez disclosed to the officers that he had a pistol converted to fire automatically, and consented to a search of his two vehicles. Id. at p. 4-5. Inside the glove compartment of one vehicle, the officers found the pistol, a 16-round magazine with 9mm munitions, three pistol magazines, about 125 9mm rounds of ammunition, and a large amount of U.S. currency. Id. at p. 5. The currency amounted to $20, 000 and was all in 100-dollar bills. Id. Morales-Vélez stated to the officers that the gun was given to him by the owner of the drugs to protect himself and the goods. Id. The unsworn declaration states that there is no record of Morales-Vélez having filed Puerto Rico income taxes. Id.
On October 2, 2019, Morales-Vélez was charged with violating 18 U.S.C. § 922(g)(1) (), 18 U.S.C. § 924(a)(1)(A) (), 18 U.S.C. § 924(a)(1)(A)(i) (), and 21 U.S.C. § 841(a)(1) and (b)(1)(B)(ii) (). (Criminal Case No. 19-620 (FAB), Docket No. 14.)[2] The indictment alleged that, upon conviction of an offense in violation of 21 U.S.C. § 841, Morales- Vélez would forfeit any property constituting, or derived from, any proceeds of distribution of controlled substances. Id. at p. 3-4.
On January 7, 2020, Morales-Vélez's attorney filed, through the Department of Justice's website, an electronic “Petition for Remission/Mitigation Form” for the return of the $20, 000. (Docket No. 15-2.) His attorney indicated on the form that Morales-Vélez was the owner of the $20, 000 seized by the DEA on September 18, 2019 in Arecibo, Puerto Rico. Id. at p. 3. In “Section III - Interest in Property, ” his attorney wrote that her Id. at p. 4. The form next asks the applicant to “please explain the reason for filing a petition.” Id. His attorney wrote “Client has a propriety interest and criminal case is still pending.” Id. The last question of this section asked the applicant to Id. It appears that here Morales-Vélez's attorney attached a .pdf document entitled “Lottery Tickets Receipts - Talonarios.”[3] Id.
Section V of the form, “Declaration and Representation” states that this section may be completed by an attorney as long as the petitioner completes the ‘Sworn Notice of Representation.' Id. at p. 5. Moralez-Vélez's attorney electronically signed on his behalf that “I attest and declare under penalty of perjury that my petition is not frivolous and the information provided in support of my petition is true and correct to the best of my knowledge and belief.” Id. In the Sworn Notice of Representation, it states The signature line states “Petition is electronically signed by the attorney for the petitioner, ” and then lists Morales-Vélez's name on the next line.[4] Id.
On March 5, 2020, Morales-Vélez pled guilty to possession of a firearm in furtherance of a drug trafficking crime, and agreed to forfeit the pistol, magazines, and ammunition, as well as any property derived “as a result of his drug trafficking activities.” (Criminal Docket No. 33 at pp 1, 6.) The words “including but not limited to $20, 000” had previously been written at the end of this sentence, but were crossed out and initialed by the parties. Id. at p. 6.
On April 23, 2020, the DEA sent a letter to Morales-Vélez's attorney stating that it had “received the submission regarding the [$20, 000.00]. The following information is provided:
The previously filed petition has been referred to the judicial district noted above [District of Puerto Rico]. Please direct all inquiries regarding this matter to that office.”
On June 3, 2020, the United States filed the current complaint to forfeit the $20, 000 civilly, (Docket No. 1), as well as a motion for the issuance of a warrant of arrest in rem and seizure. (Docket No. 4.) The complaint was accompanied by the unsworn declaration, filed ex parte, in which the United States moved to restrict or seal to protect an ongoing criminal investigation. (Docket No. 2.) The United States simultaneously requested a stay of the proceedings, (Docket No. 5), which was neither granted nor denied by the Court.
Unaware of the civil forfeiture complaint, Morales-Vélez filed a 41(g) motion for return of his property in the criminal docket on July 9, 2020. (Criminal Docket No. 37.) On July 23, 2020, the United States responded, opposing the motion based on the existence of the civil case. (Docket No. 39.) In its response, the United States noted that it had filed a civil judicial forfeiture action against the currency “[i]n response to defendant's request that his administrative claim against the $20, 000.00 in U.S. currency be referred for judicial forfeiture . . . .” Id. at p. 3-4. The Court denied Morales-Vélez's motion, due to the adequate remedy at law of the civil proceeding, and cited to the civil case docket. (Criminal Docket No. 40.)
On November 17, 2020, the United States moved to set aside its request for a stay in the civil docket, noting that a plea agreement was reached on March 5, 2020, and that sentencing would be held on February 12, 2021, and thus there was no further need for the complaint to be stayed. (Docket No. 9.) The Court granted the motion the same day and issued a warrant in rem. (Docket No. 12.)
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