United States v. $8,440,190.00 in U.S. Currency (In re Rem)

• Decision Date: 17 June 2013
• Docket Number: No. 11–1611.,11–1611.
• Citation: 719 F.3d 49
• Parties: UNITED STATES, Plaintiff, Appellee, v. $8,440,190.00 IN U.S. CURRENCY, Defendant In Rem, Robert Hovito Van Bommel Duyzing, Claimant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

719 F.3d 49

UNITED STATES, Plaintiff, Appellee,

v. $8,440,190.00 IN U.S. CURRENCY, Defendant In Rem,Robert Hovito Van Bommel Duyzing, Claimant, Appellant.

No. 11–1611.

United States Court of Appeals,First Circuit.

June 17, 2013.

Ramón M. Gonzalez, with whom Luis Rafael Rivera was on brief, for appellant.

Myriam Yvette Fernández–González, Assistant United States Attorney, with whom Rosa Emilia Rodríguez–Vélez, United States Attorney, Nelson Pérez–Sosa, Assistant United States Attorney, Chief, Appellate Division, and Thomas F. Klumper, Assistant United States Attorney, were on brief, for appellee.

Before HOWARD, LIPEZ, and THOMPSON, Circuit Judges.

THOMPSON, Circuit Judge.

While fleeing from the Coast Guard aboard a go-fast vessel, the claimant Robert Hovito Van Bommel Duyzing (“Van Bommel”) and his crew tossed approximately $8 million into the Caribbean Sea. The money was recovered by the Coast Guard and the government filed this action seeking to have the currency, along with some additional money found on the crew members' persons, forfeited to the United States. Van Bommel tried to put a stop to this, claiming that the money was his. The district court dismissed his claim on summary judgment and Van Bommel now appeals. After careful review, we affirm in part and reverse in part.

BACKGROUND

A. The Interdiction

In the late evening hours of June 20, 2009, the United States Coast Guard cutter Harriet Lane was conducting a routine patrol in the waters off of Panama when the crew began tracking a nearby small, fast-moving vessel. A helicopter was launched from the Harriet Lane to initiate visual and radar contact. It was determined that the boat was a go-fast vessel of approximately forty feet in length that had four persons on board, four engines, and no masthead, stern light or sidelights visible as required by maritime regulations. The Coast Guard crew's suspicions were aroused and so the helicopter approached the vessel, which was located in international waters, and fired three warning shots as an order to stop. The vessel did not heed the warning and it took a round of disabling fire from the helicopter to bring the vessel to a halt. The helicopter crew witnessed the individuals aboard the go-fast vessel throwing numerous bales overboard.

An inflatable boat was launched from the Harriet Lane and Coast Guard crew members headed to the disabled boat. They boarded to find four men, one of whom is the claimant in this case, Van Bommel.¹ The boat, which contained none of the tell-tale indicators of a vessel's nationality, was determined to be stateless after contact was made with Panamanian authorities. ² Surface samples were taken from the boat, revealing that certain areas had been in recent contact with cocaine.

The jettisoned bales, which had been marked by the helicopter's crew with strobe lights and a data marking buoy, were found floating in the sea (six bales were never found; it seems they may have sunk or drifted away). The Coast Guard scooped them up. There were approximately twenty-one bales total, all of similar shape and size, as well as a plastic package containing a loaded semi-automatic handgun and ammunition. Aboard the Harriet Lane, thirteen of the bales were opened. Each contained roughly $400,000 putting the preliminary estimate of recovered currency at $8.4 million.

Van Bommel and his three companions, who had also been transferred to the Harriet Lane, were advised of their rights and interviewed. Van Bommel stated that he was offered $40,000 to transport the bales of money and was paid $10,000 of it up front. Consistent with his story, Van Bommel had $10,000 cash on his person as did each of his associates. Van Bommel also told Coast Guard officers that he and his crew had tossed the bales overboard when they saw the helicopter.³

B. Van Bommel Talks with Law Enforcement

About a week later, on June 29, Van Bommel was again interviewed by law enforcement officials and he continued talking. Van Bommel said that while drinking at a bar on San Andres Island, he and his three crew members met a man named Tomas (last name unknown). After the group hung out a few times, Tomas cut to the chase. He wanted the four men to participate in a smuggling venture that would involve them moving bales of money from one area of Panama to another. Van Bommel said Tomas then made arrangements for all four men to be transported from San Andres Island to Boca de Toro, Panama to board the go-fast vessel.

Also on the day of his interview, June 29, Van Bommel signed U.S. Immigration and Customs Enforcement (“ICE”) forms titled “Notice of Abandonment of All Rights and Interest in Property” (the “notices of abandonment”). One form pertained to the twenty-one bales and the other to $10,000 in currency (indubitably the $10,000 found on Van Bommel's person).⁴ The forms contained an “Acknowledgment and Abandonment of Claim” that stated:

I understand that I have a right to assert a claim in the seized property described above and to seek return of the property. With full knowledge of those rights, I hereby abandon any and all claims I may have to that property. I waive my right to receive notice of future administrative or judicial proceedings involving the property. I also waive any further right to contest the administrative or judicial forfeiture of the property described above.

Van Bommel signed the notices of abandonment, both for the twenty-one bales and the $10,000, and an ICE agent and Drug Enforcement Administration (“DEA”) agent signed as witnesses.

C. Criminal Charges

The same day he met with law enforcement, a criminal complaint was filed against Van Bommel (and his three cohorts). It alleged that Van Bommel, by failing to stop his boat when ordered to do so by the Coast Guard, had violated 18 U.S.C. § 2237, which makes it unlawful for an operator of “a vessel subject to the jurisdiction of the United States, to knowingly fail to obey” a federal law enforcement officer's order “to heave to that vessel” (in layman's terms, failing to slow down or stop). See18 U.S.C. § 2237(a)(1), (e)(2). Van Bommel was ultimately indicted and pled guilty on December 22, 2009. Van Bommel was sentenced on February 4, 2010 to time already served and a three year term of supervised release was imposed.

D. The Forfeiture Action

We backtrack a little. A few months earlier, on November 25, 2009, the United States filed this action, a verified complaint for forfeiture in rem as to $8,440,190. Relying on an affidavit completed by ICE agent Antonio Rivera, who participated in the investigation of Van Bommel, the government alleged that the $8,440,190 in currency was seized from Van Bommel and his accomplices, and the go-fast vessel that they were traveling on. The complaint indicated that the currency, which represented the $8,400,190 found in the bales and the $10,000 found on each crew member's person, was currently in the custody of the DEA, ICE, Department of Homeland Security (“DHS”), U.S. Customs and Border Protection (“CBP”), and the Federal Bureau of Investigation (“FBI”). The complaint asserted that the currency should be forfeited to the United States, see46 U.S.C. § 70507, because it was involved in a violation of the law, specifically the manufacture, distribution, or possession of a controlled substance on a vessel, see id. § 70503. On December 1, the district court ordered that a warrant of arrest in rem be issued for the seized currency. On that same day, the court granted the government's motion to seal the case.

Once Van Bommel and the others' criminal convictions were all wrapped up, the court ordered the forfeiture case unsealed. A week or so later, on March 19, 2010, Van Bommel filed a verified claim of ownership with the district court for $8,410,190 of the currency-representing all the money in the bales plus the $10,000 found on Van Bommel's person. The claim, after detailing the amount of money and where it was presently being held, ⁵ simply indicated that Van Bommel was the owner of the currency. He signed the document under the pain of perjury. That same day, Van Bommel filed a motion to dismiss the complaint. In essence, Van Bommel argued that the government had not established that he was involved in a drug smuggling venture and he also took issue with the timing of the complaint and the fact that it was sealed. Attached to the motion to dismiss were three more verified claims of ownership (one each pertaining to the $10,000, $4,200,000, and $4,200,190) that again simply averred that Van Bommel was the owner.

The government then filed an amended complaint, which Van Bommel moved to dismiss. He also filed an answer. Motion practice continued with the government moving for summary judgment. It argued that Van Bommel did not have Article III standing under the United States Constitution to challenge the forfeiture because he had no colorable interest in the seized currency. The government said Van Bommel's claim for the money should be stricken. Van Bommel objected, arguing among other things that he did have standing and that the district court lacked jurisdiction over the in rem action. Van Bommel reiterated his lack of jurisdiction argument in a motion to quash the arrest warrant in rem.

Given the various filings going back and forth, the district court decided that an evidentiary hearing was needed to flesh out the standing issue. The hearing took place on August 19, 2010. Though billed as an evidentiary hearing, neither side ended up offering factual evidence or testimony. Van Bommel, for his part, had by then been deported to Colombia.⁶ The government had two agents at the ready to testify—the ones who interviewed Van Bommel and witnessed his signing the notices of abandonment—however they were never ultimately called. The attorneys did make their pitches though. Van Bommel's argued that his client never intended to abandon the property—supposedly he planned to retrieve it from the sea...