US v. Lopez
| Decision Date | 22 March 1988 |
| Docket Number | No. CR 87-546.,CR 87-546. |
| Citation | 688 F. Supp. 92 |
| Parties | UNITED STATES of America v. Nelson Esteban Bello LOPEZ and Marisol Hernandez, Defendants. |
| Court | U.S. District Court — Eastern District of New York |
Defendants were indicted for conspiracy to possess heroin with the intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), 841(b)(1)(B), 841(b)(1)(C), 843(b), 843(c), 846, 853 and 18 U.S.C. §§ 2, 924(c), 3623. This fourteen count indictment alleges a well organized and large scale heroin distribution operation.
Pursuant to 21 U.S.C. § 853(f) the government moved the Court for a seizure warrant after it was determined that there was a probable cause to believe that a United States dollar account, # 5181200/703, held by the Banco de la Republica Oriental del Uruguay, Montevideo, Uruguay constituted proceeds which were traceable to the sale of controlled substances in violation of Title 21. Accordingly, as the funds were traceable to activities which violated Title 21 they were subject to forfeiture under 21 U.S.C. § 853. The Court, therefore, granted the government's motion.
The United States Attorney's office contacted Banco de la Republica at its New York Branch office, 1270 Avenue of the Americas, New York, New York. The bank officials informed the government that in order to expedite compliance with the seizure warrant, the defendants, Lopez and Hernandez, must execute a release form transferring the account to the custody of the United States. Thereupon, the United States Attorney's office applied for a supplementary order pursuant to 21 U.S.C. § 853(f) directing the defendants to execute the release form so that the account at Banco de la Republica may be transferred to the custody of the United States government.
Section 853(f) states:
If the Court determines that there is probable cause to believe the property to be seized would, in the event of conviction, be subject to forfeiture and that an order under subsection (e) of this section may not be sufficient to ensure the availability of the property for forfeiture, the Court shall issue a warrant authorizing the seizure of such property.
If the Court authorizes the seizure of the property subject to forfeiture then the Court may take "any other action to protect the interest of the United States" if necessary. 21 U.S.C. § 853(a). Similarly, § 853(l) states that the district court shall have jurisdiction to "enter orders as provided in this section without regard to the location of any property which may be subject to forfeiture."
As the Court believed that the property which was subject to forfeiture was not sufficiently secure, the application for a supplementary order was granted on January 29, 1988. The Court's decision to issue the order was based in part on the access defendants have to the account prior to the disposition of this criminal matter. While the issuance of an order to a defendant to execute a document is considered unusual, it is by no means extraordinary or without precedent. In Feibelman v. Packard, 109 U.S. 421, 425, 3 S.Ct. 289, 291, 27 L.Ed. 984 (1883) the Supreme Court upheld a court order compelling execution of a document by a defendant. Recently, in United States v. Ghidoni, 732 F.2d 814 (11th Cir. 1984), the Court of Appeals for the Eleventh Circuit, in circumstances quite similar to this matter, affirmed a district court's order directing a defendant to execute a bank form. The bank suggested that problems between a foreign bank and the United States could be avoided if defendant would execute a directive consenting to the transaction. The government requested the district court to order the defendant to sign the directive and defendant's refusal to do so led to a finding of contempt. The Court of Appeals affirmed the district court finding no constitutional deprivation in the defendant being ordered to execute the document. Id. at 819.
As the primary concern of defendant is the safeguarding of assets which are not subject to forfeiture then defendants if they execute the form will suffer no undue prejudice. There is no undue prejudice as they still have an opportunity to contest the forfeiture if ultimately convicted. The government, however, may be foreclosed from ever retrieving the assets if the account is not ordered transferred. Accordingly, weighing the respective positions of the parties, the court finds that the issuance of the order is the least prejudicial alternative.
On January 29, 1988, the defendants, Lopez and Hernandez, appeared before the Court in regard to this matter. Present were counsel for both defendants and a translator. When informed of the Court's order directing them to execute the release form so as to expedite the transfer of funds from Banco de la Republic to the United States both defendants steadfastly refused to comply. The Court repeated the order to the defendants several times and each time they refused to comply with the order.
Finally, the Court stated that sanctions for contempt of court would be imposed if defendants continued to refuse compliance. Defendants refused to execute the release. "Federal courts have the power summarily to punish as contempt `misbehavior of any person in their presence, or so near thereto as to obstruct the administration of justice'" United States v. Martin-Trigona, 759 F.2d 1017, 1024 (2d Cir.1985) (quoting Ex Parte Terry, 128 U.S. 289, 304, 9 S.Ct. 77, 79, 32 L.Ed. 405 (1888)). This power of contempt is limited to misbehavior in the presence of the judge and which is known to him. Id. An opportunity to be heard should be afforded the defendants before punishment is imposed. Groppi v. Leslie, 404 U.S. 496, 502, 92 S.Ct. 582, 586, 30 L.Ed.2d 632 (1972).
"A court, must, of necessity, possess the power to act immediately and instantly" ...
Id. at 503-4, 92 S.Ct. at 586-7. See Levine v. United States, 362 U.S. 610, 613-14, 80 S.Ct. 1038, 1041-42, 4 L.Ed.2d 989 (1960).
In Shillitani v. United States, 384 U.S. 364, 86 S.Ct. 1531, 16 L.Ed.2d 622 (1966) the Supreme Court held that federal courts have inherent power to enforce compliance with their lawful orders through civil contempt. A civil contempt is conditional on obedience to the order, prospective in operation and often for the benefit of the other party to the litigation. To purge the contempt all the defendant need do is comply with the court's order. Consequently, the Court is left with no alternative but to impose sanctions upon the defendants for contempt of court.
Therefore, the defendants are to be fined twenty five hundred dollars per week each until the contempt is purged.
SO ORDERED.
APPENDIX
REQUEST FOR INTERNATIONAL JUDICIAL ASSISTANCE
The United States District Court for the Eastern District of New York presents its compliments to the appropriate authority of Uruguay and requests international judicial assistance to facilitate the seizure and possible forfeiture to the United States of narcotics proceeds now believed to be in an account in the Banco de la Republica Oriental del Uruguay.
Nelson Esteban Bello Lopez ("Bello") and Marisol Hernandez ("Hernandez") are awaiting trial before the United States District Court for the Eastern District of New York on charges that they and their accomplices operated a large scale heroin trafficking ring for several months in New York City.
On July 15, 1987, both Bello and Hernandez were arrested based on a criminal complaint filed with the United States District Court for the Eastern District of New York, based on the charges of trafficking in heroin for which they were eventually indicted by a Federal Grand Jury for the Eastern District of New York. On August 3, 1987, a Federal Grand Jury in the Eastern District of New York voted a multiple count indictment against Bello and Hernandez, charging them with one count of conspiracy to distribute heroin, in violation of Title 21 United States Code Sections 841(a)(1) and 846; five counts of knowingly and intentionally possessing heroin with intent to distribute heroin, in violation of Title 21 United States Code Sections 841(a)(1), 841(b)(1)(B) and 841(b)(1)(C); one count of possession of a firearm during a drug trafficking crime, in violation of Title 18 United States Code, Sections 924(c) and 3623(a)(3); and the use of a telephone to facilitate the distribution of heroin, in violation of Title 21 United States Code Sections 843(b) and 843(c), and Title 18 United States Code Section 3623 (). This indictment was superseded on October 16, 1987 to cite the forfeitability of certain property held by Bello and Hernandez as proceeds of their involvement in heroin trafficking, including the money held in Banco de la Republica Oriental del Uruguay account # XXXXXXX/703.
At the time of Bello's arrest, a passbook from the Banco de la Republica Oriental del Uruguay for account # XXXXXXX/703 was recovered. Entries from this passbook, as well as passports recovered at the same time, gave the United States Government reason to believe that the money in account # XXXXXXX/703 was proceeds from heroin trafficking in New York, had been smuggled illegally out of the United States in violation of United States Treasury regulations and deposited in the Banco de la Republica Oriental del Uruguay.
On September 4, 1987, the United States District Court for the Eastern District of...
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