US v. 280,505 DOLLARS

• Decision Date: 19 June 1986
• Docket Number: No. 82-2230-Civ.,82-2230-Civ.
• Citation: 655 F. Supp. 1487
• Parties: UNITED STATES of America, Plaintiff, v. TWO HUNDRED EIGHTY THOUSAND FIVE HUNDRED AND FIVE DOLLARS, etc., et al., Defendants.
• Court: U.S. District Court — Southern District of Florida

655 F. Supp. 1487

UNITED STATES of America, Plaintiff, v. TWO HUNDRED EIGHTY THOUSAND FIVE HUNDRED AND FIVE DOLLARS, etc., et al., Defendants.

No. 82-2230-Civ.

United States District Court, S.D. Florida, Civil Division.

June 19, 1986.

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Patricia D. Kenny, Chief, Civil Div., U.S. Atty. Office, Miami, Fla., for plaintiff.

Philip Carlton, Jr., Law Offices of Carlton & Carlton, Miami, Fla., for defendants.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

HOEVELER, District Judge.

THIS CAUSE was tried to the Court, non-jury, in July, 1984. The Court heard testimony, received exhibits, as well as argument from counsel. After study of the trial proceedings and consideration of the applicable law, the Court makes its Findings of Fact and publishes its Conclusions of Law.

FINDINGS OF FACT

1. This case comes before this Court as a civil forfeiture action against the defendant currency, TWO HUNDRED EIGHTY THOUSAND SIX HUNDRED EIGHTY FIVE DOLLARS ($280,685.00) in U.S. currency and against the defendant 1982 BMW 528E automobile.¹

2. On October 21, 1982, the United States filed a Complaint for Forfeiture in Rem which alleged that on or about July 6, 1982, Dade County police officers seized the defendant currency, TWO HUNDRED EIGHTY THOUSAND SIX HUNDRED EIGHTY FIVE DOLLARS ($280,685.00). The complaint alleges that the currency was money furnished or intended to be used to facilitate a narcotics violation under 21 U.S.C. § 881(a)(6).

3. The complaint further alleged that on August 20, 1982, Special Agent John Howard of the United States Customs Service seized the defendant BMW pursuant to a seizure warrant issued by a United States Magistrate because the BMW had been used or was intended for use to transport or to facilitate the transportation, sale, receipt, possession or concealment of a controlled substance within the meaning of 21 U.S.C. § 881(a)(4) and had been purchased with proceeds derived from drug trafficking in violation of 21 U.S.C. § 881(a)(6).

4. Evidence produced by the plaintiff disclosed that on July 6, 1982, Dade County Police Officers Thomas Turpin and Robert Shipley responded to a radio call of gunshot fire near 401 N.W. 140 Street, Miami. As the officers arrived in the area, they observed claimant Mark Gidus ("Gidus") driving the defendant BMW east on 140th Street and N.W. 5th Avenue. Apparently, seeing the police, Gidus fled north on N.W. 5th Avenue. Although Officer Shipley could not testify positively that the police unit's siren had been operating, Officer Turpin testified that the siren had been on. Both officers testified that the police unit's lights had been operating, and that Gidus continued to flee from them at excessive speed. There was further testimony that he left the roadway and drove on residential property, continued to disobey stop signs and endangered the life of at least one pedestrian. Gidus admitted that he saw the police unit behind him for at least one block prior to stopping. He testified that he did not stop immediately upon seeing the police unit because he did not want to drive on private lawns. As noted, he had already done so.

5. Gidus' vehicle came to a stop in the driveway of 14711 South Biscayne River Drive. He was told to get out of the vehicle and was arrested for reckless driving and willfully fleeing a police officer. An officer testified Gidus appeared to be extremely nervous and was sweating profusely. During a safety search of the vehicle for weapons (as indicated, gun shots had been reported in the area from which Gidus had come), a metal suitcase was found on the left rear floorboard. The suitcase is of the type used to contain weapons. When Gidus was asked about the contents of the suitcase, he replied that it was not his. He was then advised of his Miranda rights and was again asked about the suitcase. He again responded that it was not his and that it belonged to someone he knew, although he did not state the individual's name. He then changed his response and stated that it was his. When asked what was in the suitcase, Gidus said it contained $280,000. Gidus was then asked to open the suitcase. The suitcase contained U.S. currency in the amount of $265,000. An additional $14,980 was found in the glove compartment of the vehicle, and $105 was found in the door pouch. The currency was then impounded by the officers.

6. The officers testified that they found trace residue of marijuana consisting mainly of seeds and stems in the trunk of the defendant BMW. Gidus contends, however, that there was no marijuana in the vehicle and points to the fact that he was not charged with possession of marijuana, that the discovery of the marijuana was not mentioned in one of the officer's reports, and that there was such a small amount of marijuana allegedly found. Mr. Gidus in 1981 had been convicted of possession of 1200 pounds of marijuana with intent to distribute. No evidence was offered to suggest that either of the officers had any motive to lie about the presence of marijuana in the vehicle. The Court accepts the testimony of Officer Shipley that marijuana residue was embedded in the rug of the vehicle's trunk. Officer Shipley testified further that he had collected only a trace amount of residue because he would have had to vacuum the remaining residue from the rug to retrieve it all. He also explained that he did not charge Gidus with possession of marijuana because it was such a small amount. The Court notes as well that the discovery of the marijuana was documented by Officer Turpin in the incident report he wrote. Moreover, that there was only a trace amount of residue found supports the credibility of Officer Shipley. Any implication that the officers placed it there is not supported by the evidence. Furthermore, Special Agent Armando Marin of the Drug Enforcement Administration testified, and the Court so finds that the presence of residue embedded in the trunk of the vehicle indicated that a larger amount of marijuana had been present in the vehicle's trunk.

7. Eleanor Gidus and Mark Gidus both are named on the title to the defendant BMW. Eleanor Gidus alleges that she gave her son Mark $8,000 towards the purchase of the vehicle although she cannot document the source of the money nor how she could afford to give such an amount to her son. She admitted that prior to 1982, she was a secretary and a bookkeeper and that her income in 1981 was between $8,000 and $10,000. Although Eleanor Gidus claimed that she took the $8,000 from her safe and that she kept most of her savings in a safe, she later testified that she in fact did have a savings account. However, she produced no evidence proving a withdrawal of $8,000 from her account. Moreover, Eleanor Gidus admits that she expected her son to repay the $8,000 only if she needed it. Neither she nor Mark Gidus submitted any document pertaining to a loan given by Eleanor Gidus to her son. She also admitted that the vehicle basically belonged to Mark and that he was the one who exercised dominion and control over it. Accordingly, it is Mark Gidus who stands to suffer from the vehicle's being forfeited.

8. DEA Agent Marin testified that drug traffickers commonly put the title to their conveyances in the names of friends or family members.

9. Eleanor Gidus testified that although she knew about her son's arrest, she did not know about his conviction for drug trafficking. However, she also claimed to be very close to her son and her family and to love her children very much. The Court finds that it is unlikely that Eleanor Gidus did not know about Mark Gidus' 1981 conviction for possession of marijuana with intent to distribute prior to her having loaned him $8,000 in April, 1982, if in fact she did make such a loan.

10. Testimony was offered that Mark Gidus was arrested for attempting to buy 1200 pounds of marijuana worth $302,000 from undercover D.E.A. agents in 1980. In 1981, he was convicted of possession of marijuana with intent to distribute and sentenced to a term of five years probation.

11. Mark Gidus bought the defendant BMW in or about April, 1982, with $13,000 in cash, $8,000 of which was allegedly from his mother and $5,000 of which was said to be from savings kept in his safe. Mark Gidus submitted no documentary proof, such as a bank statement, that he had $5,000 in savings. Moreover, it was he that carried the $13,000 into the car dealership and it was he that selected the car and its accessories and engaged in all negotiations with the dealer.

12. Mark Gidus was employed as a landscaper and car mechanic in 1981, and he earned about $20,000 in that year. He earned approximately $16,000 in 1982.

13. Claimant George Marion testified that $280,000 of the defendant $280,685 belongs to him. He claims that he is a collector and trader of antiques, that some-time in 1979 he bought an antique stein for $8,000, had it polished for $300 and sold it for $280,000 to a Mr. Ullrich of Zurich, Switzerland on July 6, 1982. He does not know the full name or address of Mr. Ullrich nor the name or anything else about the principal on whose behalf Mr. Ullrich allegedly was acting. No documentation was provided nor was any claimed in connection with the sale. As indicated, Mr. Marion testified he gave Mr. Ullrich a receipt. Although the Court finds that George Marion owned a stein, he has failed to prove by a preponderance of the evidence that he sold it to a Mr. Ullrich from Switzerland on July 6, 1982, in exchange for the defendant currency.

14. While it appears reasonably clear, as indicated, that claimant Marion owned a stein of the type described, he has failed to prove by a preponderance of the evidence that the money in question constituted the proceeds of a sale of the stein. This conclusion makes somewhat academic claimant's proof problems as to valuation of the stein. However, a brief discussion of these problems lends support to the Court's...