US v. $200,226.00 IN US CURRENCY

• Decision Date: 23 September 1994
• Docket Number: Civ. No. 94-1073 (JAF).
• Citation: 864 F. Supp. 1414
• Parties: UNITED STATES of America, Plaintiff, v. $200,226.00 IN U.S. CURRENCY, Defendant.
• Court: U.S. District Court — District of Puerto Rico

864 F. Supp. 1414

UNITED STATES of America, Plaintiff, v. $200,226.00 IN U.S. CURRENCY, Defendant.

Civ. No. 94-1073 (JAF).

United States District Court, D. Puerto Rico.

September 23, 1994.

COPYRIGHT MATERIAL OMITTED

Jose O. Vazquez-Garcia, Asst. U.S. Atty., Guillermo Gil, U.S. Atty., San Juan, PR, for plaintiff.

Francisco M. Lopez-Romo, San Juan, PR, Ronald I. Strauss, Strauss Schomber & Williams, John May, May & Cohen, Miami, FL, for defendant.

AMENDED OPINION AND ORDER

FUSTE, District Judge.

On July 12, 1994, this court entered an Opinion and Order denying claimant's motion to dismiss the verified complaint and claimant's motion to suppress evidence and to strike certain allegations from the government's complaint. On that occasion, this court also ordered the claimant to show cause why summary judgment should not enter on behalf of the United States.

After the filing of the Opinion and Order, the claimant has filed several motions and has responded to this court's order of July 12, 1994. The response calls the attention of the court to errors in the order of July 12 and addresses the subject of the entry of summary judgment as a matter of law sua sponte after notice to claimant.

The court has revisited the issues and withdraws the original July 12, 1994, opinion. Corrections to the original text have been made, and this Amended Opinion and Order will be entered in lieu of the July 12, 1994, Opinion and Order.

I. Introduction

On September 9, 1993, DEA agents seized $200,226 in United States currency from two carry-on bags which belonged to claimant, Gloria Isabel Echeverry Berrio Bueno Monsalve ("Echeverry"), at the International Airport, Carolina, Puerto Rico. The United States filed this civil action in rem under 21 U.S.C. § 881(a)(6), for the forfeiture of the currency, alleging it was drug-related, or represented proceeds from trafficking in controlled substances, or was used to facilitate a violation of Title II of the Controlled Substances Act, 21 U.S.C. § 881(a)(6). Jurisdiction is based on 28 U.S.C. §§ 1345 and 1355. Claimant alleges that she received the money as a gift from her Italian boyfriend.

Before the court is claimant's motion to dismiss under Fed.R.Civ.P. 12(b)(6) for failure to state a claim, a request to strike under Fed.R.Civ.P. 12(f), and claimant's motion to suppress the seized currency, Docket Document No. 14.¹ For the reasons outlined below, the court denies the motion and orders that summary judgment be entered in favor of the government.

II. Facts

The facts of this forfeiture action are simple and have been extracted from the pleadings, affidavits, and documents on file. On September 9, 1993, DEA agents at the Luis Muñoz Marin International Airport, Carolina, Puerto Rico, seized $200,226 in cash, mostly in $20 bills, from two carry-on bags which belonged to claimant, Echeverry, as she was returning to Miami after a two-day vacation in Puerto Rico.² The money was wrapped in towels. Claimant was travelling under her mother's name. One of the carry-on bags contained an eyeglass prescription card in the name of Ricardo Elias Echeverry, with a physician's address in Medellin, Colombia. A check by the DEA agents on Ricardo Elias Echeverry revealed that he had a July 1986 criminal record for cocaine trafficking from the Clearwater, Florida, Police Department. When questioned about the currency by the DEA agents, claimant responded that her Italian boyfriend had called that day at her hotel and offered the $200,000 as a gift. An unknown person then delivered the money in a brown bag to the hotel room. Claimant could not confirm her boyfriend's whereabouts, occupation, address or phone number.

The affidavits subscribed by the government witnesses confirm that as petitioner's bags passed through the airport's security checkpoint and X-ray machine, the X-ray machine attendant noted a dark object that looked suspicious and advised the petitioner that the carry-on bag had to be opened for further inspection. The government claims that following standard operating procedure, permission to open the suitcase was obtained.³ Upon opening the carry-on bag, the towels and the currency fell onto the conveyor belt. An attending police officer stationed nearby saw the cash and asked petitioner how much money she was carrying. When petitioner confirmed the amount of cash and came up with the boyfriend-gift story, the policeman informed petitioner that he had to hold the currency until Drug Enforcement Administration agents arrived. Petitioner was never placed under arrest. She was free to leave, and left after obtaining a receipt for the money from DEA agents. See Docket Document No. 16, Affidavits of Private Guard Vivian Agostini, Police Officer Juan C. Carreras, and DEA Agent Waldo Santiago.

III. Legal Standards

A. Motion to Dismiss Standard

A party may move to dismiss an action based only on the pleadings for "failure to state a claim upon which relief can be granted...." Fed.R.Civ.P. 12(b)(6). In assessing a motion to dismiss, "we begin by accepting all well-pleaded facts as true, and we draw all reasonable inferences in favor of the nonmovant." Washington Legal Foundation v. Massachusetts Bar Foundation, 993 F.2d 962, 971 (1st Cir.1993). However, when matters outside the pleading under scrutiny are brought into play, the Rule 12(b)(6) motion may be treated as a Fed. R.Civ.P. 56 motion for summary judgment.

B. Request to Strike: Fed.R.Civ.P. 12(f)

Fed.R.Civ.P. 12(f) allows the court to strike from the pleadings any "redundant, immaterial, impertinent, or scandalous matter." Motions to strike matters from pleadings are disfavored by the courts, Boreri v. Fiat S.P.A., 763 F.2d 17, 23 (1st Cir.1985), and "should not be granted, even in cases where averments complained of are literally within provisions of federal rule providing for striking of redundant, immaterial, impertinent or scandalous matter, in absence of a demonstration that allegations attacked have no possible relation to controversy and may prejudice other party." Gilbert v. Eli Lilly & Co., Inc., 56 F.R.D. 116, 121 (D.P.R.1972). See 5A Wright & Miller, Federal Practice and Procedure: Civil § 1382 (2d ed. 1990).

C. Summary Judgment Standard

A district court should grant a motion for summary judgment "if the pleadings, depositions, and answers to the interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); Lipsett v. University of Puerto Rico, 864 F.2d 881, 894 (1st Cir.1988). A factual dispute is "material" if it "might affect the outcome of the suit under the governing law," Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986), and "genuine" "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. The trial judge's function is not to weigh the evidence and determine the truth of the matter, but to determine whether there is a genuine issue for trial. There is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. If evidence is merely colorable or is not significantly probative, summary judgment may be granted. Id. at 249-50, 106 S.Ct. at 2510-11.

The First Circuit has sanctioned the use of the summary judgment rule by district courts sua sponte. First, discovery must be sufficiently advanced or it must be apparent that the litigants know what material evidence is relevant.⁴ Second,

waiver aside, it is well settled in this circuit that all summary judgment proceedings, including those initiated by the district judge, will be held to the standards enunciated in Rule 56 itself. See Donate-Romero v. Colorado, 856 F.2d 384, 387 (1st Cir.1988). Given this benchmark, we think that the notice requirement for sua sponte summary judgment demands at the very least that the parties (1) be made aware of the court's intention to mull such an approach, and (2) be afforded the benefit of the minimum 10-day period mandated by Rule 56.

Stella v. Town of Tewksbury, 4 F.3d 53, 56 (1st Cir.1993).

D. Forfeiture Statute: 21 U.S.C. § 881(a)(6)

21 U.S.C. § 881(a)(6) provides in pertinent part:

The following shall be subject to forfeiture to the United States and no property right shall exist in them:

(6) All moneys, negotiable instruments, securities, or other things of value furnished or intended to be furnished by any person in exchange for a controlled substance in violation of this subchapter, all proceeds traceable to such an exchange, and all moneys, negotiable instruments, and securities used or intended to be used to facilitate any violation of this subchapter 21 U.S.C. § 801 et seq..

The government has the initial burden to show probable cause that the money was connected with illegal drug transactions. Once this hurdle is met, the burden shifts to the private claimant to demonstrate that the property was not involved in illegal drug transactions. United States v. Parcels of Property, with Bldg., Appurtenances, and Improvements Located at 255 Broadway, Hanover, Mass., 9 F.3d 1000, 1003 (1st Cir. 1993); United States v. $250,000 in U.S. Currency, 808 F.2d 895, 897 (1st Cir.1987). "Probable cause to forfeit requires only a `reasonable ground for belief of guilt, supported by less than prima facie proof but more than mere suspicion' that the property is subject to forfeiture." Parcels of Property, 9 F.3d at 1004, quoting United States v. Parcel of Land and Residence at 28 Emery St., Merrimac, Mass., 914 F.2d 1, 3 (1st Cir.1990). The government has a "relatively light burden of showing probable cause" to believe that the subject property is forfeitable, Parcels of Property, 9 F.3d at 1004, and need not prove that the money was derived from a particular drug transaction, but only that the currency...