US v. US CURRENCY AMOUNTING TO SUM OF $5393.00
Citation | 583 F. Supp. 1447 |
Decision Date | 10 April 1984 |
Docket Number | No. 82 CV 1954 (ERN).,82 CV 1954 (ERN). |
Parties | UNITED STATES of America, Plaintiff, v. UNITED STATES CURRENCY AMOUNTING TO the SUM OF FIVE THOUSAND, THREE HUNDRED AND NINETY-THREE DOLLARS ($5,393.00) More or Less and Bolivian Currency Amounting to the Sum of One Thousand One Hundred and Eighty Pesos (1,180 Pesos) More or Less, Defendants. |
Court | U.S. District Court — Eastern District of New York |
Raymond J. Dearie, U.S. Atty., Eastern Dist. of N.Y., by Winstanley F. Luke, Asst. U.S. Atty., Brooklyn, N.Y., for plaintiff.
William M. Kunstler, New York City, for claimant Michelle Lewis.
This forfeiture action arises as a by-product of the narcotics smuggling conspiracy treated in United States v. Feld, 514 F.Supp. 283 (E.D.N.Y.1981), and United States v. Muench, 694 F.2d 28 (2d Cir. 1982). The facts are not in dispute. One of the principal defendants in that crime, Michelle Lewis, is the claimant at bar. On November 10, 1980, she was arrested at Kennedy Airport in New York while en route from Bolivia to West Germany. At that time, she completed a customs declaration, stating that she did not possess currency in excess of $5,000. A customs officer's search of Ms. Lewis produced the currency sought to be forfeited. The case is before the Court upon the government's motion for summary judgment.
31 U.S.C. § 1102(a) (now § 5317) provides:
"Any monetary instruments which are in the process of any transportation with respect to which any report required to be filed under section 1101(a) of this title either has not been filed or contains material omissions or misstatements are subject to seizure and forfeiture to the United States."
By definition, 31 U.S.C. § 1052(l), monetary instruments include currency of the United States and other countries.
In opposing the motion, claimant assumes that the elements of a criminal prosecution under 31 U.S.C. § 1058 for a violation of § 1101 (now § 5316), see United States v. Dichne, 612 F.2d 632, 636 (2d Cir.1979), are the same as the elements for a civil forfeiture of the funds involved. Specifically, she desires to litigate the issue of whether she acted "willfully" or "knowingly", i.e., with knowledge of the reporting obligation imposed by § 1101.
She relies on the following passage from Ivers v. United States, 581 F.2d 1362, 1367 (9th Cir.1978):
In Ivers the government counterclaimed for a judgment of forfeiture in response to Ivers' suit to recover funds seized, which he had failed to declare when he had entered the United States. Ivers had also pled guilty to the criminal charge stemming from the failure to report; thus the Court applied collateral estoppel to preclude any dispute about whether he had acted knowingly or willfully. The Court's phraseology seemingly assumes that the willfulness necessary to sustain a criminal conviction is also required to obtain a civil forfeiture. In the next paragraph, however, the Court acknowledges the possibility of securing a valid forfeiture of the funds prior to the institution of criminal proceedings but does not list the elements of the government's case where there has been no prior criminal proceeding.1
Given the posture of summary judgment, the instant case presents the issue of whether the government may keep property under § 1102(a) where the claimant protests innocence of any criminal conduct.2 More on point than Ivers is United States v. Six Thousand Seven Hundred Dollars, etc., 615 F.2d 1, 3 (1st Cir.1980), where the court found the claimant's lack of intent immaterial:
See also One Lot Emerald Cut Stones And One Ring v. United States, 409 U.S. 232, 235 n. 5, 93 S.Ct. 489, 492 n. 5, 34 L.Ed.2d 438 (1972) (per curiam); United States v. One 1975 Pontiac LeMans, etc., 621 F.2d 444, 447 (1st Cir.1980) (...
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U.S. v. One Hundred Twenty-Two Thousand Forty-Three Dollars ($122,043.00) In U.S. Currency
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U.S. v. $359,500 in U.S. Currency, 827
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