United States v. Ortega, 77 Cr. 779 (CHT).
| Decision Date | 18 May 1978 |
| Docket Number | No. 77 Cr. 779 (CHT).,77 Cr. 779 (CHT). |
| Citation | 450 F. Supp. 211 |
| Parties | UNITED STATES of America v. German ORTEGA, Defendant. |
| Court | U.S. District Court — Southern District of New York |
Robert B. Fiske, Jr., U. S. Atty. for the Southern District of New York, by Kenneth V. Handal, Asst. U. S. Atty., New York City, for the Government.
Bohrer & Ullman, by Jeffrey D. Ullman, New York City, for defendant.
Defendant German Ortega pleaded guilty on December 5, 1977 to one count of conspiracy to distribute cocaine and one count of distribution of cocaine. On January 30, 1978, he was sentenced to a term of imprisonment, which he is presently serving. At the time of his arrest, Ortega's briefcase was seized and was found to contain $13,200 in American currency. That property was the subject of a timely pretrial motion to suppress its use as evidence and to return it to Ortega; this motion became moot with Ortega's guilty plea. Ortega now moves for the return of the money, contending that there is no valid reason for its retention by the Government. For the reasons stated below, the motion is granted.
Jurisdiction over this application lies in this Court as ancillary to jurisdiction over the criminal proceeding. As the court stated under virtually identical circumstances in United States v. Wilson, 176 U.S. App.D.C. 321, 325, 540 F.2d 1100, 1104 (1976):
Property which is seized in a criminal proceeding . . . may be ultimately disposed of by the court in that proceeding or in a subsequent civil action. It makes for an economy of judicial effort to have the matter disposed of in the criminal proceeding by the judge that tried the case.
While the instant case never went to trial, this Court has become familiar with its facts and circumstances in the process of taking the guilty pleas of the three defendants involved and in passing sentence upon these defendants. Thus, the assignment of this application to another judge of this court as a separate civil case would be a needless waste of judicial time and energy. Id. 176 U.S.App.D.C. at 324, 540 F.2d at 1103.
The defendant stated under oath, and the Government has offered no evidence to the contrary, that $10,000 of the money in the briefcase represented the proceeds of the cocaine prosecution upon which the defendant was convicted and that the remaining $3,200 was what was left of the money that he had brought into the country to pay his expenses. Documentary evidence shows that Ortega obtained $2,500 in United States currency by exchange in his native Chile before he departed for this country; he stated under oath that the remainder of the money was obtained legally in a prior trip to the United States in August 1977. Affidavit of German Ortega, sworn to February 9, 1978. The evidence also showed that the $10,000 and the $3,200 were in separate parts of the...
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