US v. $288,914 in US Currency, Civ. A. No. 89-1102.

CourtUnited States District Courts. 5th Circuit. United States District Court (Eastern District of Louisiana)
Citation722 F. Supp. 267
Docket NumberCiv. A. No. 89-1102.
PartiesUNITED STATES of America v. $288,914 IN UNITED STATES CURRENCY.
Decision Date11 September 1989

722 F. Supp. 267

UNITED STATES of America
v.
$288,914 IN UNITED STATES CURRENCY.

Civ. A. No. 89-1102.

United States District Court, E.D. Louisiana.

September 11, 1989.


722 F. Supp. 268

Constantine D. Georges, Asst. U.S. Atty., New Orleans, La., for U.S.

Hilliard C. Fazande, II, New Orleans, La., for U.S. Currency aka $288,914 in U.S. Currency, Irene Wesley and Betty C. Roussell.

ORDER AND REASONS

FELDMAN, District Judge.

The Court has before it a Motion to Strike Answer and Counterclaim; to Enter Default Judgment and for Rule 11 and Rule 37 Sanctions filed by the United States of America, and a Motion to Dismiss filed by the claimants of the defendant currency. The United States' motion is GRANTED. The claimants' Motion to Dismiss is DENIED.

Background

The facts alleged by the government are not disputed, only their inferences are challenged.

On December 11, 1988, the claimants, Irene Wesley and Betty Roussell, together with a male companion later identified as Mack Dorsey, a/k/a Mack Cushingberry, purchased one-way airline tickets to Los Angeles, California. The tickets were purchased in the names of "Rose Jones," "Mary Jones," and "Darrell White." Dorsey, identifying himself as "White," paid for the tickets in cash with $1,400 in small bills which he removed from his sock. When informed that airline policy required identification for cash purchases of one-way tickets, the claimants and Dorsey, unable to produce identification for the names given, left the ticket counter. The next day, the three changed the names on their tickets to Irene Wesley, Betty Roussell and Mack Dorsey.

Law enforcement agents were alerted to the behavior of the claimants and Dorsey, and intercepted them at the airport security checkpoint prior to their boarding the airplane. When Roussell's purse was searched (with her permission), approximately $3,000 in cash was found inside.

Further investigation led the agents to inquire as to the purpose of the claimants' and Dorsey's trip. Dorsey stated that he was going to attend his sister-in-law's funeral. Wesley initially said she was going Christmas shopping and to visit friends, but changed her story to say that she was going to buy a house in Oakland, California. Roussell, who had also said she was going shopping, changed her story to say she was going to a funeral, but was unable to say whose funeral.

With the permission of the claimants, the agents opened and searched their luggage. Inside, the agents found the currency that is the subject of this forfeiture action. The claimants at first denied any knowledge of the money, then they said that it represented the pooled savings of the two. When asked their occupations, Wesley identified herself as a hairdresser and Roussell said she was a maid. Wesley said she thought that the suitcases contained about $140,000, but Roussell said she thought the amount was about $1,000.

A K-9 certified narcotics dog alerted to the currency in question, indicating the presence of the scent of narcotics. Further investigation revealed that Mack Dorsey had numerous narcotics arrests. The

722 F. Supp. 269
agents seized the currency, totalling $288,914, under 21 U.S.C. § 881(a)(6)

The government filed a Complaint of Forfeiture on March 15, 1989. The Clerk of Court issued a Warrant of Arrest for the currency on March 16, 1989. On April 27, 1989, the government published notice of the Complaint of Forfeiture in The Times Picayune in the City of New Orleans. The notice instructed that any person claiming an interest in the currency was required to file a verified claim on or before May 12, 1989, and that an answer was required to be filed within twenty days of the claim. The notice further stated that failure to follow the time schedule could result in default and a judgment of forfeiture.

Claimants filed a timely verified claim on May 12, 1989. When no answer was filed within the requisite time period, the Clerk of Court entered a default against the currency on June 21, 1989. On that same date, claimants filed an Answer, Special Affirmative Defenses and Counterclaim.

I. Claimants' Motion to Dismiss

The claimants seek dismissal of the government's complaint on three grounds: First, that the complaint does not allege sufficient facts to support an inference that the property is subject to forfeiture under the statute; second, that the government did not obtain a judicial review of the post-seizure warrant, in violation of the United States Constitution and the Supplemental Rules for Certain Admiralty and Maritime Claims; and, third, that the government did not strictly follow the Supplemental Rules.

A.

Cash involved in drug trafficking, or potential drug trafficking, is subject to forfeiture to the United States.1 The government's initial burden in a forfeiture case like this one is to establish that there was probable cause for belief that a substantial connection exists between the criminal activity under the statute and the property to be forfeited. United States v. $38,600.00 in U.S. Currency, 784 F.2d 694, 697 (5th Cir.1986). The Fifth Circuit threshold for probable cause is the same in this context as elsewhere: reasonable ground for belief of guilt, supported by something less than prima facie proof but more than mere suspicion. Id. It is clear that the discovery of large sums of money, without credible explanation, can provide the necessary circumstantial evidence that the money was furnished or intended to be furnished in a drug transaction. Id. at 697-98. In this case, the claimants' evasiveness as to the existence of the money, the purchase of tickets under the circumstances recited, the conflicting explanations about the purpose of the trip, the K-9 dog's "alerting" to the money, and the fact that the claimants' companion, Dorsey, had numerous narcotics arrests, provide sufficient grounds to meet the threshold test established by the Fifth Circuit.

B.

As support for their second contention, claimants rely on United States v. Pappas, 613 F.2d 324 (1st Cir.1979). Pappas does not represent the law in the Fifth Circuit. Instead, this Circuit in United States v. One 1978 Mercedes Benz, Four-Door Sedan, 711 F.2d 1297 (5th Cir.1983), criticized Pappas and adopted the view taken by the dissent in that case. Id. at 1300. The Fifth Circuit allows a warrantless seizure without exigent circumstances and without time restriction when the Attorney General has probable cause to believe the contraband was used in violation of the drug control laws. Id. at 1302. Even if it were illegal, the seizure would not bar the

722 F. Supp. 270
government's right to claim the money through forfeiture proceedings. Improper seizure does not jeopardize the government's right to secure forfeiture if probable cause to seize the money can be supported with untainted evidence. Id. at 1302-1303. As already discussed, ample circumstantial evidence exists in this record to support probable cause for the seizure of the defendant currency

C.

The government complied fully with the requirements of the Supplemental Rules, which the parties agree govern the procedure to be followed in this forfeiture action. See United States v. Beechcraft Queen Airplane, 789 F.2d 627, 629 (8th Cir.1986). The appropriate procedures under the Supplemental Rules are enumerated in United States v. United States Currency Totalling $3,817.49, 826 F.2d 785, 786 (8th Cir.1987):

The United States commences a judicial forfeiture by filing a complaint in the district where the seizure occurred. Supp.Rule C(2). Upon the filing of the complaint, the district court clerk issues a warrant for the arrest of the property at issue. See Supp.Rule C(3). The United States must then publish notice of the action and arrest in a newspaper of general circulation within the district. The notice must specify the time within which the party filing the claim must file an answer. See Supp.Rule C(4). Rule C(6) specifies that a claimant must file an answer within twenty days after filing the claim. Supp.Rule C(6). Rule C(6) also provides that the claim "shall be verified on oath or solemn affirmation."

Id. at...

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22 practice notes
  • US v. $80,760.00 IN US CURRENCY, Civ. A. No. 4-91-228-K.
    • United States
    • U.S. District Court — Northern District of Texas
    • December 16, 1991
    ...(E.D.Mo.1991); United States v. $175,260, 741 F.Supp. 45, 47-48 (E.D.N.Y.1990); United States v. $288,914 in United States Currency, 722 F.Supp. 267, 268-69 (E.D.La.1989); United States v. United States Currency Totalling $92,000.00, 707 F.Supp. 540, 541 (N.D.Ga.1989); United States v. $29,......
  • US v. Real Property in Mecklenburg County, NC, No. C-C-89-344-M.
    • United States
    • United States District Courts. 4th Circuit. Western District of North Carolina
    • January 21, 1993
    ...after the United States filed a memorandum showing their lack of jurisdiction and legal basis.50 In United States v. $288,914, 722 F.Supp. 267, 272 (E.D.La.1989), the court imposed sanctions under Fed.R.Civ.P. 11 for a claimant's similar attempt to assert counterclaims against the United St......
  • Albajon v. Gugliotta, No. 98-2719-CIV.
    • United States
    • United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Southern District of Florida
    • September 7, 1999
    ...(11th Cir.1982)(use of drug sniffing dog sufficient to establish probable cause); United States v. $288,914 in United States Currency, 722 F.Supp. 267, 269 (E.D.La. 1989) (it is clear that the discovery of large sums of money, without credible explanation, can provide the necessary circumst......
  • U.S. v. One Parcel Real Property Located Route 2, No. Civ.A. 3:97-CV-96WS.
    • United States
    • United States District Courts. 5th Circuit. Southern District of Mississippi
    • March 4, 1998
    ...strictly comply with the pleading requirements of Supplemental Rule C(6)." United States v. $288,914 in United States Currency, 722 F.Supp. 267, 270 (E.D.La.1989). This form of standing is "statutory standing" which requires a claimant to comply with the procedures set forth ......
  • Request a trial to view additional results
22 cases
  • US v. $80,760.00 IN US CURRENCY, Civ. A. No. 4-91-228-K.
    • United States
    • U.S. District Court — Northern District of Texas
    • December 16, 1991
    ...(E.D.Mo.1991); United States v. $175,260, 741 F.Supp. 45, 47-48 (E.D.N.Y.1990); United States v. $288,914 in United States Currency, 722 F.Supp. 267, 268-69 (E.D.La.1989); United States v. United States Currency Totalling $92,000.00, 707 F.Supp. 540, 541 (N.D.Ga.1989); United States v. $29,......
  • US v. Real Property in Mecklenburg County, NC, No. C-C-89-344-M.
    • United States
    • United States District Courts. 4th Circuit. Western District of North Carolina
    • January 21, 1993
    ...after the United States filed a memorandum showing their lack of jurisdiction and legal basis.50 In United States v. $288,914, 722 F.Supp. 267, 272 (E.D.La.1989), the court imposed sanctions under Fed.R.Civ.P. 11 for a claimant's similar attempt to assert counterclaims against the United St......
  • Albajon v. Gugliotta, No. 98-2719-CIV.
    • United States
    • United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Southern District of Florida
    • September 7, 1999
    ...(11th Cir.1982)(use of drug sniffing dog sufficient to establish probable cause); United States v. $288,914 in United States Currency, 722 F.Supp. 267, 269 (E.D.La. 1989) (it is clear that the discovery of large sums of money, without credible explanation, can provide the necessary circumst......
  • U.S. v. One Parcel Real Property Located Route 2, No. Civ.A. 3:97-CV-96WS.
    • United States
    • United States District Courts. 5th Circuit. Southern District of Mississippi
    • March 4, 1998
    ...strictly comply with the pleading requirements of Supplemental Rule C(6)." United States v. $288,914 in United States Currency, 722 F.Supp. 267, 270 (E.D.La.1989). This form of standing is "statutory standing" which requires a claimant to comply with the procedures set forth ......
  • Request a trial to view additional results

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