United States v. $62,552.00 in U.S. Currency

• Decision Date: 20 January 2015
• Docket Number: CIVIL ACTION NO. 03-10153-RBC
• Parties: UNITED STATES OF AMERICA, Plaintiff, v. $62,552.00 IN UNITED STATES CURRENCY, Defendant. DELIA J. BAEZ, Claimant.
• Court: U.S. District Court — District of Massachusetts

UNITED STATES OF AMERICA, Plaintiff, v. $62,552.00 IN UNITED STATES CURRENCY, Defendant.DELIA J. BAEZ, Claimant.

CIVIL ACTION NO. 03-10153-RBC

United States District Court District of Massachusetts

January 20, 2015

FINDINGS OF FACT AND CONCLUSIONS OF LAW AFTER NON-JURY TRIAL

COLLINGS, U.S.M.J.

I. Introduction

On January 23, 2003, the United States filed a Complaint for Forfeiture in Rem (#1) seeking the forfeiture of $62,552.00 which was seized at Logan International Airport on August 13, 2002. According to the Affidavit of Mark K. West (#1, Exh. A), the money was found in five envelopes in the carry-onluggage which the claimant, Delia J. Baez ("Baez" or "the claimant") and her companion, one Jose DelCarmen Geronimo ("Geronimo"), had with them as they attempted to pass through security to board an American Airlines flight to the Dominican Republic. The United States alleges that the "[c]urrency constitutes money furnished or intended to be furnished by a person in exchange for a controlled substance, in violation of Title 21, proceeds traceable to such an exchange, and/or money used or intended to be used to facilitate a violation of Title 21." (#1, pp. 1-2) As such, the Government avers that it is subject to forfeiture pursuant to 21 U.S.C. § 881(a)(6). Id. Baez has made claim to the funds. A non-jury trial was held on December 3, 2004.¹

II. Findings of Fact

First, the Court finds as fact those facts which are denoted as undisputed and are stipulated to as set forth in the Parties' Submission of Disputed and Undisputed Facts (#30).² Second, with respect to those facts which are listedas not being subject to stipulation on pages 1 through 14 of the Parties' Submission (#30), the Court makes the following findings using the numeration in the submission:

12. I find that Ms. McKenna did so testify at a deposition, but I do not make any further finding on the subject matter of the paragraph. Ms. McKenna did not testify at trial, and the Court has no way of determining the source of her knowledge. For all the Court knows she may not have personal knowledge of the facts; rather they may be based on statements of others. In short, the Court finds that she so testified, but the Court does not give any weight to the testimony.

14. - 18. The Court finds that the facts set forth in paragraphs 14 through 18 have been proven by the evidence at trial. The only objection is that the evidence is not relevant; the Court found at trial that the evidence was relevant on the issue of the claimant's credibility.

Third, the Court makes the following additional findings of fact:

1. On August 13, 2002, the claimant and Geronimo arrived at Logan International Airport, Boston, Massachusetts in order to board an American Airlines Flight to Santo Domingo, Dominican Republic. (Tr. 65, 79)

2. Baez checked bags but had two purses which she intended to carry onthe plane. A larger one contained, inter alia, $62,000 in cash; a smaller one contained $552.00 in cash. (Tr. 65) The cash was contained in five envelopes. (Exhs. 4 through 8) (Tr. 24, 65-66)

3. When Baez went through security, she asked for a form on which to declare that she was taking currency out of the country. (Tr. 79-82) She was told that she could get the form in a small room after she passed through security. (Tr. 81) Her two carry on bags went through the screening machine without incident. (Tr. 82)

4. When Baez reached the small room, she was given the form. Because she needed to count the money in order to get the precise amount she was carrying, she laid the money out on a table in the room and began counting it. (Tr. 82) The money was out on the table. (Tr. 84) The claimant had partially filled out the form. (Exh. 22)

5. While this was occurring, a State Police Officer Mark West ("Trooper West") appeared to question the claimant about the money. The claimant stated that the money was hers. (Tr. 83) After questioning the claimant, Trooper West seized the currency and gave the claimant a receipt. (Tr. 21-23) The claimant was told that the address she had given, i.e., 3383 WashingtonStreet, Jamaica Plain, Massachusetts, was linked to drugs. (Tr. 86) The claimant denied that the address was linked to drugs after she either rented or owned it. (Tr. 86)

6. The claimant and Geronimo were allowed to depart on a later flight and, in fact, flew to Santo Domingo. (Tr. 85)

7. Trooper West worked with a drug-sniffing dog named Tracer who was trained to detect the odor of marijuana, cocaine, heroin and methamphetamine. (Tr. 15)

8. At the time, i.e., August 13, 2002, Tracer had been trained by Trooper West (Exh. 2) and had been certified for the four substances. (Exh. 3)(Tr. 17-19)

9. After the seizure, Trooper West put the five envelopes and cash in a manila envelope and placed it in a room with three other envelopes which contained shredded currency from the Federal Reserve Bank. (Tr. 23) When Tracer was let into the room, in a matter of seconds she reacted to the manila envelope in which the claimant's envelopes and cash were located. (Tr. 24) She did not react to the other three envelopes. (Tr. 27)

10. Since Tracer reacts to the odor of one or more of the four substances,and the odors dissipate over time, one or more of the envelopes and/or the currency which the claimant was carrying was exposed to one of the four substances within the recent past. (Tr. 35)

11. The Dominican Republic is a source for drugs, drug activity and money laundering of drug proceeds. (Tr. 22, 31) The same is true of other countries in South America and the Caribbean. (Tr. 31)

III. The Law

A. An Overview

Enacted in 2000, the Civil Asset Forfeiture Reform Act ("CAFRA") applies in the instant case given that the Government's verified complaint for forfeiture in rem was filed on January 23, 2003. U.S. v. $21,510.00 In U.S. Currency, 144 Fed. Appx. 888, 889 (1 Cir., 2005) (CAFRA "applies to civil forfeiture cases which . . . were commenced on or after August 23, 2000."). Among other changes, this legislation altered the burden of proof in civil judicial forfeiture proceedings: "Since the Civil Asset Forfeiture Reform Act of 2000 . . . the Government's burden to prove that certain property is subject to forfeiture was 'increased . . . from mere probable cause (the old standard) to the preponderance of the evidence.'" U.S. v. 6 Fox Street, 480 F.3d 38, 42 (1 Cir.,2007)(footnote omitted)(quoting U.S. v. Lopez-Burgos, 435 F.3d 1, 2 (1 Cir., 2006); $21,510.00 In U.S. Currency, 144 Fed. Appx. at 889; U.S. v. $80,180.00 in U.S. Currency, 303 F.3d 1182, 1184 (9 Cir., 2002).³ In other words, "the government carries the burden of proving by a preponderance of the evidence that the Funds were either the proceeds of an illegal drug transaction, or were intended to facilitate such a transaction. 18 U.S.C. § 983(c)(1); 21 U.S.C. § 881(a)(6)." U.S. v. Funds in Amount of One Hundred Thousand One Hundred and Twenty Dollars ($100,120.00), 730 F.3d 711, 716 (7 Cir., 2013). "To meet this burden, the government may rely on evidence obtained after the filing of the complaint for forfeiture." $21,510.00 In U.S. Currency, 144 Fed. Appx. at 889;Title 18 U.S.C. 983(c)(2). Further, where "the Government's theory of forfeiture is that the property was used to commit or facilitate the commission of a criminal offense, or was involved in the commission of a criminal offense, the Government shall establish that there was a substantial connection between the property and the offense." See Title 18 U.S.C. § 983(c)(3); Funds in Amount of One Hundred Thousand One Hundred and Twenty Dollars ($100,120.00), 730 F.3d at 716.

There is no dispute that United States currency may be subject to forfeiture. See 21 U.S.C. §881(a)(6)⁴. In this case the Government contends that the monies seized are related to illegal drug trafficking.

In order to establish that the seized funds were the proceeds of, or intended to facilitate, an illegal drug transaction, the United States must demonstrate a nexus between the seized property and illegal drug activity. See [U.S. v.] $506,231, 125 F.3d [442,] 451 [(7 Cir., 1997)].

U.S. v. $30,670 in U.S. Funds, 2002 WL 31093587, *2 (N.D. Ill., Aug. 5, 2002), aff'd, 403 F.3d 448 (7 Cir., 2005); U.S. v. One Lot of U.S. Currency ($36,634)⁵, 103 F.3d 1048, 1053 n.6 (1 Cir., 1997)("This circuit has most recently described the government's burden as being one of showing a 'nexus.' See [U.S. v. One Lot of U.S. Currency] $68,000, 927 F.2d [30] at 32 (1st Cir. 1991) Earlier cases used the term 'substantial connection.' United States v. 28 Emery St., 914 F.2d 1, 3-4 (1st Cir. 1990) (citing cases). We need not resolve whether, as some cases suggest, 'nexus' means something less than 'substantial connection.' Cf. United States v. West Side Building Corp., 58 F.3d 1181, 1188 n. 13 (7th Cir.1995) (comparing the two standards and endorsing 'nexus' standard); United States v. Daccarett, 6 F.3d 37, 55-56 (2d Cir.1993) (same), cert. denied, 510 U.S. 1191, 510 U.S. 1192, and 511 U.S. 1030 (1994). The facts adduced here are more than adequate to establish a 'substantial connection.'"); cf. U.S. v. Sum of $185,336.07 U.S. Currency Seized from Citizen's Bank Account L7N01967, 731 F.3d 189, 196 (2 Cir., 2013) ("CAFRA also replaced the existing "'nexus standard'" with the more rigorous 'substantial connection' test, which we had specifically declined to adopt in the pre-CAFRA era. See United States v. Daccarett, 6 F.3d 37, 55-56 (2d Cir.1993); see also 18 U.S.C. § 983(c)(3) (effectively abrogating Daccarett ).").

"After CAFRA, in order for the government to prove that property used to facilitate a drug transaction is subject to forfeiture, it must prove there is a substantial connection between the property and the crime. See 18 U.S.C. §983(c)(3)." U.S. v. One Parcel of Real Property with Buildings, Appurtenances and Improvements k/a 45 Claremont St., Located in City of Central Falls, R.I., 395 F.3d 1, 6 n. 5 (1 Cir., 2004). The substantial connection ...