United States v. $4,255,625.39

• Decision Date: 10 November 1982
• Docket Number: 81-1868-Civ-JLK.,No. 81-1867-Civ-JLK,81-1867-Civ-JLK
• Citation: 551 F. Supp. 314
• Parties: UNITED STATES of America v. FOUR MILLION TWO HUNDRED AND FIFTY-FIVE THOUSAND, SIX HUNDRED AND TWENTY-FIVE DOLLARS AND THIRTY-NINE CENTS, etc. UNITED STATES of America v. THREE MILLION SIX HUNDRED EIGHTY-SIX THOUSAND, SIX HUNDRED THIRTY-NINE DOLLARS, etc.
• Court: U.S. District Court — Southern District of Florida

551 F. Supp. 314

UNITED STATES of America v. FOUR MILLION TWO HUNDRED AND FIFTY-FIVE THOUSAND, SIX HUNDRED AND TWENTY-FIVE DOLLARS AND THIRTY-NINE CENTS, etc.

UNITED STATES of America v. THREE MILLION SIX HUNDRED EIGHTY-SIX THOUSAND, SIX HUNDRED THIRTY-NINE DOLLARS, etc.

Nos. 81-1867-Civ-JLK, 81-1868-Civ-JLK.

United States District Court, S.D. Florida.

November 10, 1982.

Gregory Baldwin and Joseph A. Florio, Asst. U.S. Attys., Miami, Fla., for plaintiff.

Raymond J. Takiff, Coral Gables, Fla., for defendant.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

BEER, District Judge.

This matter came on for trial on September 20, 1982, before the court without a jury. Trial continued each working day through September 27, 1982. Thereafter, written briefs were filed and, on the court's motion, oral argument took place in open court in Miami on October 29, 1982.

To the extent any of the following findings of fact constitute conclusions of law, they are adopted as such. To the extent any conclusions of law constitute findings of fact, they are so adopted.

Findings of Fact

1. These are civil forfeiture actions which the government has filed against Four Million Two Hundred Fifty-Five Thousand Six Hundred and Twenty-Five Dollars and Thirty-Nine Cents ($4,255,625.39), on deposit at Capital Bank in account number XXXXXXXXXX in the name of Sonal, and against Three Million Six Hundred Eighty-Six Thousand Six Hundred Thirty-Nine Dollars ($3,686,639.00), in U.S. currency. The two actions have been consolidated for all purposes, including trial.

2. This court has jurisdiction.

3. Viajes Atlas is a travel agency with an office in Cali, Colombia, operated by, among others, Beno Ghitis, a citizen and resident of Cali, Colombia.

4. In conjunction with the travel agency business noted above, Ghitis and others also operated a money exchange business.

5. In connection with operating the money exchange business, the operators made use of an entity referred to as Sonal. That entity, as will be more particularly discussed, obtained United States dollars and, thereafter, deposited those dollars in their bank account number XXXXXXXXXX with Capital Bank in Miami, Florida.

6. The Sonal account at the Capital Bank in Miami, Florida, was opened in March, 1980. The signatories on that account were Beno Ghitis, Sonia Ghitis and Alter (Abraham) Ghitis.

7. At the time of the opening of the Sonal account, Capital Bank originally charged a service fee of 1/8 of 1% of the total of the dollar deposits made by Sonal each month. This monthly service fee was paid on a monthly basis and, as will be noted hereafter, ranged upward to six figure amounts.

8. From March, 1980 through about April or May, 1980, large cash deposits were made into the Sonal account. These deposits were, in large part, actually carried into the bank for deposit by individuals who were, more likely than not, from the nation of Colombia.

9. Certain of the deposits into the Sonal account between March, 1980 and April or May, 1980 were cash deposits in amounts ranging up to $1,000,000. These deposits were, in most instances, in small denominations (5's, 10's, 20's, 50's and 100's). Such deposits were sometimes made within a day or two or three of each other and were counted at the bank by bank employees who usually made their count in the presence of the individuals who delivered it to the bank.

10. Some time in April or May, 1980, one Victor Eisenstein introduced himself to Capital Bank branch manager Rolando Pozo as the person who would make deposits into the Sonal account from that time onward.

11. Eisenstein had been employed by Ghitis (at a salary of approximately $1,500.00 per month) to receive and, thereafter, to deposit dollars into the Sonal account at Capital Bank.

12. Eisenstein subsequently was present at the bank to introduce Ghitis to Capital Bank president Abel Holtz. Ghitis and Holtz met, thereafter, to deal with matters regarding the Sonal account.

13. Then, in May, 1980, Capital Bank branch manager Pozo refused to accept any more cash deposits into the Sonal account from Eisenstein.

14. Very quickly after Eisenstein was advised that cash deposits would no longer be accepted for the Sonal account, Ghitis met with Pozo who reaffirmed that cash deposits by Sonal would not be accepted. This led very quickly to a meeting between Holtz, Capital's president, and Ghitis wherein it was agreed that Capital Bank would again accept cash deposits into the Sonal account. However, the bank fees for so accepting were raised to ½ of 1% of the dollar deposits made into the account each month.

15. Accordingly, cash deposits again were made in the Sonal account by Eisenstein. These deposits continued to be made at the rate of two or three times per week and in amounts ranging from $1 to $2 million per deposit until July, 1980. These cash deposits by Eisenstein were usually delivered to the bank's branch office in suitcases, duffle bags or flight bags.

16. Commencing in late July or early August, 1980, the cash deposits in the Sonal account, which had, until then, been made at the downtown branch of Capital Bank, were, thereafter, made at the North Bay Village branch of the bank.

17. From late July or early August, 1980 until August 21, 1981, Eisenstein continued to be the principal physical depositor of cash into the Sonal account at the North Bay Village branch. In August of 1980, Eisenstein moved the office from which he operated to the building which also housed the North Bay Village branch of the Capital Bank. He continued to receive cash which he then, forthwith, deposited into the Sonal account. Eisenstein would usually bring the cash to a particular room used by the Capital Bank for counting purposes.

18. The cash above described was then counted by the bank, using a money counting machine which had been purchased by Sonal for the bank's use.

19. In March, 1981, Eisenstein apparently became concerned about the source and origin of the cash he was physically receiving and depositing into the Sonal account. These concerns were expressed to Ghitis who, thereupon, transmitted a letter to Eisenstein dated March 7, 1981, from Cali, Colombia. In that letter, Ghitis advised: "The monies received by us in the U.S. are in connection with exchange transactions from (as far as we know) the exporting and importing of agricultural products, raw materials, etc., sales commissions and other categories, received abroad by private individuals who are primarily from our country." (Emphasis mine.)

20. Sonal's records apparently identify various individuals from whom dollars were allegedly purchased. All are Colombians, none of whom maintains offices in the State of Florida, none of whom are licensed, incorporated or registered to do business in the State of Florida and none of whom are noted in records maintained by the U.S. Customs Service as having imported or exported materials into or out of the United States.

21. Yet, these transactions form the alleged legitimate basis (according to Sonal's representative) for the cash deposits of $242,238,739.00 in the Sonal account (via Eisenstein) between January 1, 1981 and August 21, 1981 — a period of less than eight months.

22. The agent of one of these "private individuals" was identified as "Alberto" who was responsible for deliveries (via Eisenstein) of over $191,000,000 in cash between January 1 and August 20, 1981. These funds were earmarked for the Sonal's account in the name of Carlos Molina.

23. Carlos Molina apparently does his various business activities from a Colombian base. His representative, "Alberto," apparently is not a resident of the United States.

24. In August, 1981, cash in excess of $2,000,000 was delivered to Eisenstein by "Alberto" (who may, as will hereafter be discussed, also be one "Toro"). Among the boxes of cash delivered by Alberto to Eisenstein was one box which, when first unsealed at the U.S. Customs Office in Miami on the night of August 20, contained a Colombian newspaper, "El Colombiano," dated August 17, 1981.

25. Among the items delivered to Victor Eisenstein on August 20, 1981 was a parcel of cash. That parcel contained a check dated "Julio 14, 1981" payable to the bearer in the amount of $32,000. That parcel was delivered by "Alberto" who was acting for Carlos Molina. The check was drawn on an account owned by Export Car, Inc., an import-export business located in Miami, owned and operated by Gustavo and Diego Londano, Colombian citizens. Diego Londano resides in Colombia.

26. Between August 18 and August 20, 1981, the identities of various couriers who delivered money to Eisenstein were sought to be obtained by Eisenstein at the request of U.S. Customs Agents. Some couriers were apparently identified by Eisenstein. Each of those identified presented Colombian identification (passports, cedulas or Colombian driver's licenses).

27. I conclude that the couriers who brought the above noted cash to Eisenstein were Colombian people who had recently arrived from Colombia with the cash.

28. A Currency Transaction Report (IRS Form 4789) is required to be filed by all primary and secondary financial institutions involved in transactions which receipt or deposit currency in excess of $10,000 in cash. These forms are required to be mailed to the IRS in Ogden, Utah.

29. Eisenstein, acting for Sonal as receiver of the large amounts of cash to be deposited into the Sonal account at Capital Bank, was obliged to file Form 4789 for each receipt of cash in excess of $10,000. I conclude that Eisenstein was or should have been sufficiently aware of this requirement as to obviate any reasonable misunderstanding about the requirements for same at least from March, 1981 onward.

30. A Report of International Transportation of Currency or Monetary Instruments, Customs Form 4790, must be filed by persons who transport or cause to be transported currency or monetary instruments from a place outside the...