US v. $80,760.00 IN US CURRENCY, Civ. A. No. 4-91-228-K.

• Court: U.S. District Court — Northern District of Texas
• Writing for the Court: BELEW
• Citation: 781 F. Supp. 462
• Parties: UNITED STATES of America, Plaintiff, v. $80,760.00 IN U.S. CURRENCY, Defendant.
• Docket Number: Civ. A. No. 4-91-228-K.
• Decision Date: 16 December 1991

781 F. Supp. 462

UNITED STATES of America, Plaintiff,
v.
$80,760.00 IN U.S. CURRENCY, Defendant.

Civ. A. No. 4-91-228-K.

United States District Court. N.D. Texas, Fort Worth Division.

December 16, 1991.

William J. Andersen, Asst. U.S. Atty., Fort Worth, Tex., for plaintiff.

Charles F. Alario, Brooklyn, N.Y., for defendant.

MEMORANDUM OPINION AND ORDER

BELEW, District Judge.

This court ... is not empowered to suspend constitutional guarantees so that the government may more effectively wage a "war on drugs." If that war is to be fought, those who fight it must respect the rights of individuals, whether or not those individuals are suspected of having committed a crime. By the same token, this Court is not empowered to forbid law enforcement practices simply because it considers them distasteful. Florida v. Bostick ___ U.S. ___, 111 S.Ct. 2382, 2389, 115 L.Ed.2d 389, 401 (1991).

781 F. Supp. 463

Once again, the dilemma created by the "war on drugs" confronts this Court: effective prosecution of the war forces the government to aggressively employ new weapons that burden our individual rights. One of the most effective "weapons" in the government's arsenal is the law of forfeiture. Through this obscure, but effective law, the government is able to confiscate property that drug traffickers use to further their trade, as well as any profit that may result. In recent years the government has successfully forfeited businesses, commercial real estate, family homes, vehicles, airplanes, boats, negotiable instruments, currency, bank accounts and virtually any other property linked to violation of the drug laws. Plaintiff United States brings this case under 21 U.S.C. section 881 against the Defendant, $80,760.00 in United States currency. The Plaintiff alleges that the currency is traceable in some way to a transaction involving controlled substances in violation of Title 21. Robert Molini, Vincent Beltran and John Stella claim an interest in the currency.

The instant matter is before the Court on motions by the Plaintiff and the Claimants. The Plaintiff has moved to strike the Claimants' Answer and moved for summary judgment. Plaintiff's contentions are that there are no proper claimants to the currency and the obligatory probable cause for forfeiture exists. The Claimants have cross-moved for summary judgment. Their contentions are that they are proper claimants and the currency is the fruit of an illegal seizure.

After careful consideration of the record, motions, briefs, summary judgment evidence and applicable law, the Court determines that subject to the Court's Order in this opinion, Claimants Molini, Beltran and Stella shall have standing to defend this forfeiture; therefore, Plaintiff's Motion to Strike must be denied. The Court also concludes that genuine issues remain concerning the legality of the search, seizure and pending forfeiture. Because these issues are appropriate grist for the factfinder at trial, the Court is of the opinion that the motions for summary judgment must be denied.

I. BACKGROUND

A. The Search and Seizure:¹

On October 15, 1990, Drug Enforcement Administration ("DEA") Agents Munday and Vineyard were assigned to routine observation duties as members of the Dallas/Fort Worth Airport Task Force. At approximately 3:10 p.m. they observed the arrival of an American Airlines flight from New York City. While watching the passengers disembark they noticed the following activities of two male passengers, later identified as Robert Molini and Vincent Beltran:

As they exited the jetway, Molini came off first followed by Beltran, however, neither made eye contact or spoke to each other. As Molini left the gate 12 area, he seemed to be waiting for someone. He hesitated, looked toward the gate arrival area, then hurriedly left. Beltran seemed to be following Molini as they passed the gate 13 area and bypassed the baggage claim area. Molini turned around several times, looking nervously behind him. Both seemed somewhat confused and worried as whether or not to make contact with each other and then looking down at the concourse floor.

Relying on previous encounters with passengers, Munday and Vineyard decided that the actions of Molini and Beltran warranted an initial encounter. The agents approached the two men and identified themselves by showing their identification.² Munday then asked permission to speak with them and they immediately gave their consent. Munday asked to see Molini's ticket and Molini responded that Beltran had it. Beltran looked through his luggage, found a ticket folder and handed it to

781 F. Supp. 464

Munday. The folder contained two, one-way cash tickets with a New York to San Diego itinerary. Munday noticed that Claimants purchased the tickets on the date of travel and "checked bag stubs" were not attached. On the basis of these preliminary observations, Munday asked if Molini and Beltran had any identification. Beltran handed Munday a valid New York driver's license in the name of Vincent Beltran and Molini provided a valid United States Passport in the name of Robert Louis Moline. Molini told Munday that although his passport indicated that his name was "Moline," it was really spelled "Molini."

Despite a match between the proffered identification and airline tickets, the agent's initial suspicions were not extinguished and they continued the questioning by delving into travel plans and personal backgrounds.³ Molini indicated that they were travelling to San Diego to vacation and visit friends for about a week. He then added that they were travelling to San Diego to buy cars and Beltran said that he bought cars for a living.⁴ However, after further questioning, Munday concluded that their story was not plausible. Beltran did not have a New York wholesale car dealer's license, they did not possess any literature pertaining to auto sales and knew very little about the business.

After assessing Molini and Beltran's "actions, nervousness,⁵ flight itinerary, and overall story sic concerning their trip," the agents concluded that Molini and Beltran were involved in "some type of illegal activity, probably narcotics." Next, Munday asked Molini for permission to search his bag and Molini initially shrugged his shoulders in response. When Munday asked if the shrug meant yes or no, Molini answered, "I don't think I want you to look." Munday then initiated the "next step of this interview, which included telling both of them they were not under arrest and were free to leave." Despite this third indication that they were free to leave, Molini and Beltran apparently decided to subject themselves to a more extensive interview and apparently consented to a search of their luggage.

The initial search of Molini's luggage discovered $5,000.00 in a side pouch. Munday then opened the main part of the bag and "observed several thousand dollars rubberbanded in one thousand dollar increments." Based on Munday's past encounters at the airport with drug traffickers and the currency which they routinely carry, he concluded that the suitcase contained more currency than claimed by Molini. Munday again explained that Molini and Beltran were not under arrest and were free to leave, however, this time he told them that he would take their bags to the DEA Task Force Office where a narcotics detection dog would sniff the currency.

After removing several bundles of money from Molini and Beltran's luggage, the agents took the currency to the immigration clearance area of the airport and placed it in a drawer. Then Customs canine "Jack" searched the area, located the drawer and alerted to a positive scent of narcotics. After considering the facts, Munday concluded that the $80,760.00 seized from Molini and Beltran was "proceeds of drug trafficking and/or intended to be used to purchase illegal drugs."

B. The Administrative Claim and Judicial Condemnation:

Citing the search of the luggage and the Munday's conclusion that the currency was "proceeds of drug trafficking and/or intended to be used to purchase illegal

781 F. Supp. 465

drugs," the DEA decided to seize the currency pursuant to 21 U.S.C. section 881(a)(6).⁶ The DEA initiated "summary forfeiture" procedures against the currency and informed the Claimants that they must file an administrative claim during the applicable publication period. On December 26, 1990, Claimants filed a claim and bond in the amount of $5,000.00 with the DEA's Asset Forfeiture Section. On February 4, 1991, claimants' counsel received a letter from the DEA indicating receipt of the claim and notifying the Claimants that the matter was referred to the United States Attorney for the Northern District of Texas

On March 29, 1991, this Court entered an Order for Warrant of Arrest of Property and for Notice. On April 1, 1991, claimants' counsel received a copy of the Complaint for Forfeiture and Order for Warrant of Arrest. Pursuant to the Court's Order publication was made on April 11, 18, and 25, 1991. On April 16, 1991, claimants' counsel mailed an Answer to the Complaint for Forfeiture to the clerk of this Court, however, the Answer was returned because it was not verified. Claimants filed a second Answer in which they each alleged their status as "intervener" and claimed an interest in the seized currency. Plaintiff correctly argues that the alleged Claimants "still have not asserted their right to defend the respondent pursuant to the requirements of Supplemental Rule C(6)."

II. THE PLEADING REQUIREMENTS

Plaintiff argues that Claimants' failure to follow the procedure for filing a claim deprives them of standing to defend the forfeiture. Claimants argue that filing an administrative claim with the DEA satisfies the pleading requirements for judicial forfeiture. The force with which Claimants argue their complete compliance with the applicable procedure leads the Court to believe that they lack a fundamental understanding of forfeiture procedure....