§190 Facilitating Property and Contraband, Generally
Alabama District Court
Massachusetts District Court
New York District Court
Puerto Rico District Court
1st Circuit holds defendant need not personally use property to commit crime for it to be forfeitable. (190) Defendant was indicted for conspiring to distribute marijuana. The indictment contained a count seeking the criminal forfeiture of real estate jointly owned by defendant and his siblings, one of whom was a co-conspirator. Defendant pled guilty to the conspiracy, but argued that his interest in the property should not be forfeited because he did not personally use the property to commit any crime. At most, he knowingly acquiesced in the use of the property to carry out the objectives of the conspiracy. The First Circuit rejected the contention that there is a heightened nexus requirement in criminal forfeiture cases which would require a showing of personal use of the property to commit a crime. It was enough under 21 U.S.C. §853 that “the appellant owned an interest in the property that his coconspirators, to his knowledge and with his tacit acquiescence, used in facilitating the business of the marijuana conspiracy.” U.S. v. White, 116 F.3d 948 (1st Cir. 1997).
1st Circuit holds that claimant is not entitled to reimbursement for improvements added to property after commission of drug crimes. (190) The drug transactions giving rise to the forfeiture occurred during December 1988 and January 1989. Prior to that time, defendant had begun remodeling his house. Despite his arrest on January 10, 1989, defendant continued to install improvements on the property. Defendant contended that the improvements made after January 10, 1989 did not fall within the definition of real property used to facilitate a drug transaction, and sought reimbursement from the government for the value of the improvements. The 1st Circuit upheld the summary denial of defendant’s claim. All title and interest in the property vested in the United States upon the commission of the drug crimes. Once this occurred, defendant could not retain or acquire any interest in the property. The court acknowledged that the same rule might not apply to a proceeding under §881(a)(6), which provides for the forfeiture of property purchased with drug proceeds. U.S. v. Land and Building at 2 Burditt Street, Everett, Massachusetts, 924 F.2d 383 (1st Cir. 1991).
1st Circuit affirms forfeiture despite failure to instruct jury that “substantial connection” must exist between residence and drug crime. (190) Defendant argued that the district court erroneously refused to instruct the jury that in order to sustain its criminal forfeiture claim, the government was required to establish a “substantial connection” between defendant’s residence and his drug offenses. The 1st Circuit rejected this, finding any error to be harmless. It noted that it has yet to determine the degree of interrelatedness required to support a criminal forfeiture under 21 U.S.C. §853(a)(2). However, the “substantial connection” test is the burden required under the civil statute, 21 U.S.C. §881(a)(7). Even assuming this was the burden, any error was harmless. The evidence linking defendant’s conduct to his residence was (a) an express mail package containing marijuana, addressed to and received at the residence, and (b) the controlled substance and related paraphernalia were discovered in the basement of the residence. Either of these was sufficient to establish a substantial connection between the residence and the drug crimes. U.S. v. Desmarais, 938 F.2d 347 (1st Cir. 1991).
2nd Circuit says admission during plea colloquy of intent to use cash to buy drugs bars return of funds. (190) During his plea colloquy, claimant admitted that he intended to use approximately $720,000 seized at the time of his arrest to purchase heroin. The money was administratively forfeited, but the government failed to give claimant proper notice. Years later, claimant sought return of the funds due to the improper notice. The Second Circuit concluded that his admission during allocution that the money was intended for use to facilitate a drug transaction was sufficient to support a grant of summary judgment for the government, regardless of any deficiencies in notice. Adames v. U.S., 171 F.3d 728 (2d Cir. 1999).
2nd Circuit finds nexus between property and trafficking in stolen auto parts. (190) Claimants owned an automotive salvage and repair shop and the land upon which the business was located. The government sought the forfeiture of the business and the land based on claimants’ trafficking in VIN-altered auto parts and money laundering activities. The Second Circuit held that the government established probable cause to believe that there was a nexus between the property and the illegal conduct. An informant testified that he sold many stolen vehicles and components with removed VINs to the business. Numerous cars and parts found in the company’s yard had VINs removed or altered, and the VINs found intact belonged to vehicles that had been reported stolen. Finally, a former bookkeeper testified to the company’s irregular transactions with certain “suppliers” of parts. Claimants did not refute this evidence. U.S. v. All Assets of G.P.S. Automotive Corp., 66 F.3d 483 (2d Cir. 1995).
2nd Circuit remands to determine probable cause to forfeit bank accounts. (190) In a civil forfeiture action against real property and bank accounts, the district court ordered the forfeiture of the real property, but found that the government had not traced the money in the bank account to drug trafficking. The 2nd Circuit remanded because it was unclear whether the court had found (a) no probable cause to forfeit the accounts, or (b) that claimants had shown that the accounts did not contain drug proceeds. As the trial began, the judge announced that the probable cause requirement had been met by the government. The finding was not limited to the property, so the government presented no further evidence. The court’s later finding was contrary to this initial ruling. The case was remanded to determine whether probable cause existed for the forfeiture of the accounts. The court noted that on remand, probable cause could be based on circumstantial evidence and the funds need not be linked to specific drug transactions. U.S. v. All Right, Title, and Interest in Real Property and Appurtenances Thereto Known as 785 St. Nicholas Ave., 983 F.2d 396 (2d Cir. 1993).
2nd Circuit finds sufficient nexus between sales of small amounts of cocaine and condominium in which sales took place. (190) Claimant’s condominium was seized after he made two small sales of cocaine to a government informant inside the condominium. No drugs, weapons, large amounts of cash, drug paraphernalia or drug records were discovered in the condominium. The 2nd Circuit affirmed that the drug activity was sufficiently connected with the property to bring the property within the purview of 21 U.S.C. §881(a)(7). The court rejected defendant’s claim that the statute requires a “substantial connection” between the property and the crime. Instead, the statute only requires a “nexus” between the drug activity and the property. As a site for the sales, the property “facilitated” them by permitting them to be conducted in an atmosphere of relative privacy. Moreover, the statute permits forfeiture to be predicated upon only a small quantity of drugs. U.S. v. Certain Real Property and Premises Known as 38 Whalers Cove Drive, 954 F.2d 29 (2d Cir. 1992).
3rd Circuit holds property pledged to obtain loan to finance drug transaction was forfeitable, even though funds were never used for that purpose. (190) The 3rd Circuit held that real property pledged to obtain a home equity loan to finance a drug purchase was forfeitable, even though the loan proceeds were not ultimately used to make the drug deal, and were returned to the bank. No distinction is made in the forfeiture statute, 21 U.S.C. §881(a)(7), between an actual use and an intent to use property to facilitate a drug transaction. Here, claimant admitted that he intended to use the loan proceeds to buy marijuana and that he took all necessary steps with the bank to obtain the loan. The only reason he did not use the funds was because they were not available in time to coincide with his trip to Arizona to buy the marijuana. U.S. v. RD 1, Box 1, Thompsontown, Delaware Township, 952 F.2d 53 (3d Cir. 1991).
4th Circuit finds adequate nexus between credit card fraud and inventory of defendant’s stores. (190) Two clothing merchants were convicted of credit card fraud and money laundering for orchestrating a scheme in which credit card thieves used stolen cards at defendants’ stores with defendants’ connivance. The jury also returned a verdict of criminal forfeiture against the inventories of the two stores, pursuant to 18 U.S.C. §982(a)(1), as property “involved in” the offense of money laundering. Defendants argued that there was an insufficient nexus between the inventories and the scheme, and that the jury was improperly instructed that forfeiture should be ordered if they found the inventories “facilitated” money laundering. The Fourth Circuit held that, although §982(a)(1) does not include the term “facilitate,” the phrase “property involved in” does embrace property that “facilitates” illegal money laundering. The court held that property “need not have been ‘indispensable’ to the commission of the crime so long as it played a significant role in the prohibited activity.” Here, defendants used the inventory to reward the credit card thieves and store employees for their roles in the crime, and the stores “provided a façade of respectability and lawfulness to the conduct.” The forfeiture verdict was proper. U.S. v. Matai, 199 WL 61913 (4th Cir. 1999) (table) .
4th Circuit okays forfeiting cars as proceeds where indictment alleged facilitation. (190) Defendant pleaded guilty to drug trafficking crimes and agreed to forfeit certain vehicles. Defendant’s girlfriend challenged the forfeiture in a third-party claim under 21 U.S.C. §853. She argued, inter alia, that the district court erred in ordering forfeiture of the cars on the theory that they were purchased with drug trafficking proceeds when the indictment alleged they were forfeitable because used to facilitate drug trafficking. The Fourth Circuit held that the court was not limited by the theory asserted in the indictment. “[W]hether the property was forfeited because it facilitated [defendant’s] drug activities or was purchased from drug proceeds is irrelevant, as either prong justifies the forfeiture.” U.S. v. Holmes, 133 F.3d 918 (4th Cir. 1998) (table) (unpublished).
4th Circuit says federal government cannot return guns seized and possessed by state police. (190) Defendant, a thrice convicted felon, was convicted of possessing 79 firearms. Virginia state police seized 52 guns, most of which defendant had just purchased. Defendant complained that the government never moved for forfeiture, and challenged the district court’s sua sponte order to forfeit the guns. The Fourth Circuit held that the United States could not return the guns because it did not possess them. The guns were seized by Virginia state police, and there was no evidence that they were given to the federal government. Although the district judge’s forfeiture order might have been premature, given the lack of a forfeiture motion, the error was harmless. U.S. v. Presley, 52 F.3d 277 (4th Cir. 1995).
4th Circuit finds no “substantial connection” between drug crime and parcel over which drugs traveled. (190) Defendant offloaded a large quantity of drugs from a boat docked at one parcel of land, then transported the quantity by car across an adjoining tract that provided the sole path to a public highway. The district court concluded that this conduct was insufficient to subject the adjoining tract to forfeiture, and the 4th Circuit agreed, concluding that the adjoining tract lacked the “substantial connection” to the drug crime required for forfeiture. To find a substantial connection, “human agency somehow must bear responsibility” for the property’s facilitation of crime; here, however, it was physically impossible to reach a public street without crossing the land. U.S. v. Two Tracts of Real Property with Buildings, Appurtenances and Improvements Thereto, Located in Carteret County, 998 F.2d 204 (4th Cir. 1993).
4th Circuit limits forfeiture based on parcel’s ability to shield crime on adjoining property from view. (190) The government sought to forfeit a parcel which helped shield from view defendant’s offloading of marijuana from a boat docked at an adjoining parcel. Only by traveling a dirt path across the target parcel could one drive from a public street to the parcel on which the drug activity took place. The 4th Circuit concluded that the parcel was not forfeitable. It distinguished an earlier case, U.S. v. Schifferli, 895 F.2d 987 (4th Cir. 1990), in which a dentist’s office was forfeited because the dentist wrote unlawful prescriptions there. While the dentist’s unlawful activity would be more difficult to detect because of its similarity to the kind of legal activity one would expect at a dentist’s office, a “natural object’s inherent, irrepressible ability to conceal whatever lies behind it from the view of persons on the other side” is a different matter. The court noted, however, that a different result might be called for if a person with knowledge of the drug activity had possessed a legal interest in the property at the time of the wrongdoing. U.S. v. Two Tracts of Real Property with Buildings, Appurtenances and Improvements Thereto, Located in Carteret County, 998 F.2d 204 (4th Cir. 1993).
4th Circuit reverses summary judgment that property was related to criminal activity. (190) After claimant’s conviction for unlawfully prescribing drugs, the government sought to forfeit his property as proceeds of claimant’s illegal activity. The district court granted summary judgment in favor of the government, but the 4th Circuit reversed, finding no showing of a substantial connection between the property and claimant’s criminal activity. Though the government had asserted that claimant’s sole source of income was his tainted medical practice, that explanation did not connect claimant’s crimes to property that he acquired before his criminal activity. Even regarding other property, the court found the government’s “conclusory allegation” inadequate to support summary judgment in the absence of any indication of the “source or the basis” for the information. U.S. v. Borromeo, 995 F.2d 23 (4th Cir. 1993), added to in part and vacated in part, 1 F.3d 219 (4th Cir. 1993).
4th Circuit upholds finding that money was to be used to finance a drug transaction. (190) The 4th Circuit found that the government had met its burden to establish probable cause that the money seized from claimant was to be used to finance a drug transaction: an undercover agent arranged a sale of six kilograms of cocaine, claimant produced this large sum of cash in small bills, which was represented to be the consideration for the cocaine, and claimant’s companion gave the cash to the undercover agent, a total stranger, in a bowling ball bag. Claimant had little income and no bank account, and gave no reason why he would be carrying such a large sum of cash in a bowling ball bag. Defendant did not give any facts to rebut the showing of probable cause. The 4th Circuit found the summary judgment order proper. U.S. v. $95,945.18 United States Currency, 913 F.2d 1106 (4th Cir. 1990).
4th Circuit upholds forfeiture of dentist’s office used to write illegal prescriptions. (190) The dentist wrote proscriptions at his office for illegal drugs to at least eight individuals on over forty different occasions from September 1984 to June 1985. The 4th Circuit held that the office had a “substantial connection” to his illegal drug prescriptions, even though most of his illegal activities were conducted off the premises. Accordingly the dentist’s office and the property on which it was located were properly forfeited to the government on summary judgment. U.S. v. Schifferli, 895 F.2d 987 (4th Cir. 1990).
4th Circuit holds that scope of forfeitable property is determined by description filed with county clerk. (190) Defendant contended that the scope of the forfeiture should be limited to the actual portion of the property where the illegal activity occurred, i.e., her home. She pointed to the fact that the property was divided by a road. The 4th Circuit disagreed, stating that documents filed with the county recorder described the property as a single, undivided tract. It is to these documents that a court will look for guidance when ordering the forfeiture of “the whole of any lot or tract of land.” U.S. v. Santoro, 866 F.2d 1538 (4th Cir. 1989).
4th Circuit rules repeated use of home to sell cocaine constitutes a “sufficient connection” between property and offense. (190) Using a “common sense” interpretation of the terms of 21 U.S.C. §881 (a)(7), the 4th Circuit held that repeated use of one’s home to sell drugs establishes the “substantial connection” necessary to subject the property to forfeiture. The defendant contended that the sale of 12.8 grams of cocaine over a two month period was insufficient to justify the forfeiture of her home. The 4th Circuit disagreed, stating that because Congress chose not to set a quantity limit on the predicate acts of 21 U.S.C. §881, the defendant’s property was subject to forfeiture. Courts cannot legislate where Congress has refused to do so. U.S. v. Santoro, 866 F.2d 1538 (4th Cir. 1989).
5th Circuit says facilitating real property is forfeitable in money laundering statute. (190) Defendants were convicted of bribery, fraud, and money laundering in connection with the construction of a private Louisiana prison. The jury returned a verdict finding the prison building itself was forfeitable as property “involved in” money laundering, or traceable to such property. 18 U.S.C. §982(a)(1). Defendants contended that forfeiture of facilitating property is not permissible under the money laundering statute unless the facilitation involves commingling of legitimate and tainted funds as a method of concealing “dirty money,” a situation not presented here. The Fifth Circuit disagreed, finding that the building was forfeitable as facilitating property “because of its substantial nexus to the crimes.” U.S. v. Wyly, 193 F.3d 289 (5th Cir. 1999) (table) (unpublished).
5th Circuit says court improperly limited scope of property forfeitable under 18 U.S.C. §1467. (190) Under 18 U.S.C. §1467(a)(3), a person convicted of certain offenses involving obscene materials forfeits his interest in any property used or intended to be used to commit or promote the commission of the offense. The 5th Circuit found that the district court improperly construed §1467 to authorize forfeiture only of property actually used in the offense. The court’s discretion is much broader, and includes both property used or intended to be used. The district court also improperly narrowed the scope of §1467(a)(3) to include only property used to produce or transport obscene articles. This improper construction led the court to improperly refuse consideration of certain evidence — FBI summaries of 72 unindicted videotapes, and 369 videos in defendants’ inventory which had been found obscene in unrelated state prosecutions. U.S. v. Investment Enterprises, Inc., 10 F.3d 263 (5th Cir. 1993).
5th Circuit affirms that there was probable cause as to crime and forfeitability of property. (190) Defendant moved before trial for the return of approximately $75,000 in cash seized from him after he was arrested for attempting to purchase cocaine in a “reverse sting” operation. The district court referred the matter to a magistrate to conduct a hearing to determine probable cause as to both the commission of a narcotics offense and the forfeitability of the money. The 5th Circuit affirmed the magistrate’s determination that there was probable cause. Defendant had thousands of dollars in cash stored and packaged in exactly the same way, $20,000 of which he used to pay for the cocaine in the instant offense. He had no legitimate employment and admitted that he sold cocaine for years. The $42,000 seized from a warehouse was just over the amount defendant needed to complete the next phase of the drug deal he had discussed with the undercover agent. U.S. v. Ivy, 973 F.2d 1184 (5th Cir. 1992).
5th Circuit says that mere possession of small quantity of cocaine would not support a forfeiture. (190) In a forfeiture action against claimant’s house, the government contended that the district court erroneously excluded claimant’s admission that marijuana and cocaine were in his house in 1986. The 5th Circuit found that the district court did not “exclude” the evidence of the 1986 drug possession, but rather considered it and then held that the drug possession could not be a basis for the forfeiture of the house. The appellate court agreed that the 1986 drug evidence could not compel a forfeiture, since mere possession of a controlled substance is punishable under 21 U.S.C. §844 by imprisonment for less than a year. Absent inferences that the small amount of cocaine found meant that larger amounts were stored on the premises or that defendant distributed cocaine from his house, such possession would not support a §881(a)(7) forfeiture. U.S. v. Land, Property Currently Recorded in the Name of Gerald Franklin Neff, 960 F.2d 561 (5th Cir. 1992).
5th Circuit refuses to intervene in administrative forfeiture process to compel return of non-pornographic materials. (190) After various pornographic materials were seized from defendant, defendant challenged the government’s failure to return certain other items of property including non-pornographic photographs of his children and family. The 5th Circuit refused to invoke its mandamus power to compel the district court to order the immediate return of those items. The government was in the process of administratively forfeiting the non-contraband materials, and the remaining property would be returned to defendant at the conclusion of that process. An intervention into the administrative process would be premature. U.S. v. Schmeltzer, 960 F.2d 405 (5th Cir. 1992).
5th Circuit upholds forfeiture of sheep under Lacey Act because Pakistan law prohibited export. (190) The 5th Circuit affirmed summary judgment in favor of the government in a forfeiture action brought against a sheep imported by claimant into the United States from Pakistan. The action was brought under the forfeiture provisions of the Lacey Act. The court held that the forfeiture statute provides for strict liability, and contains no “innocent owner” defense. Once the government establishes probable cause, the burden shifts to the claimant to establish either that a defense to the forfeiture applies or that the property is not subject to forfeiture. Thus, the government needed to establish only that importation of the sheep violated the laws of Pakistan. The Pakistani Imports and Export Act prohibited the sheep’s export out of Pakistan. Although defendant possessed an export permit issued by the province of Baluchistan, this permit was void to the extent it conflicted with the Imports and Export Act. U.S. v. One Afghan Urial Ovis Orientalis Blanfordi Fully Mounted Sheep, 964 F.2d 474 (5th Cir. 1992).
5th Circuit affirms that jury’s special verdict adequately identified assets to be forfeited. (190) The 5th Circuit rejected defendant’s argument that the jury’s special verdict regarding the forfeiture of his car business inadequately specified the property that had been forfeited in violation of Fed. R. Crim. P. 31(e). The jury found that the business had been used to control, and had been purchased with the proceeds of, a continuing criminal conspiracy. This finding identified with sufficient specificity the asset subject to forfeiture. The jury was under no obligation to select only certain of the entity’s assets for forfeiture. If any part of the business was purchased by, or used to control, the proceeds of a continuing criminal conspiracy, then the entire property was subject to forfeiture. U.S. v. Puma, 937 F.2d 151 (5th Cir. 1991).
6th Circuit upholds forfeiture of modified descramblers under Electronic Communications Privacy Act. (190) Claimants modified otherwise legal descramblers to enable purchasers to receive premium pay satellite television channels without paying a fee to the programmers. The 6th Circuit held that the modified descramblers were forfeitable under the Electronic Communications Privacy Act. The Act prohibits the intentional interception of electronic communications. The court found that this included the modification of descramblers to allow unauthorized viewing of scrambled satellite television. Since claimant was subject to criminal prosecution under the statute, the defendant res was subject to forfeiture under 18 U.S.C. §2513. U.S. v. One Macom Video Cipher II, 985 F.2d 258 (6th Cir. 1993).
6th Circuit reverses summary judgment against spouse who denied knowledge of drugs in home. (190) Claimant’s husband was convicted of drug offenses, and claimant was tried but acquitted. Subsequently, the government sought to forfeit the family’s mobile home and the tract on which it sat, as well as other property owned by the family. The district court granted summary judgment to the government, but the 6th Circuit reversed with respect to claimant’s interest in the parcel. The only evidence tying drug activity to the home was proof that a bag of marijuana and a jar containing several thousand marijuana seeds were found in the mobile home. At her criminal trial and in an affidavit in the forfeiture action, claimant denied knowing that these items were in her home. A reasonable trier of fact could have concluded that claimant satisfied the innocent-owner defense. U.S. v. Three Tracts of Property Located on Beaver Creek, 994 F.2d 287 (6th Cir. 1993).
6th Circuit addresses forfeiture of property that facilitates marijuana growing on adjacent property. (190) Defendant owned four contiguous tracts of property. He grew marijuana on one of the tracts. The 6th Circuit permitted forfeiture of an adjacent tract because the corn field that hid the marijuana extended to the adjacent tract. However, it rejected the government’s argument that the tract on which a residence was located should be forfeited because defendant “used the residence to guard the marijuana and to conceal the entire operation by making the farm appear to be a legitimate use of the land.” The record contained no evidence that defendant had actually used the residence to guard the marijuana, and the court found no error in the district court’s conclusion that the mere presence of a residence did not sufficiently “facilitate” the offense to permit forfeiture. U.S. v. Smith, 966 F.2d 1045 (6th Cir. 1992).
6th Circuit defines forfeitable “property” by reference to recorded instruments, state law. (190) Defendant used his farm to grow marijuana. Though defendant’s interest in the farm was created by four deeds covering four separate tracts, the government argued that the entire farm should be considered a single piece of “property” subject to criminal forfeiture under 21 U.S.C. §853(a)(2) if any part of the farm was used to facilitate drug activity. Following 4th Circuit cases on civil forfeiture, the 6th Circuit disagreed with the government’s contention, looking to the four separate deeds creating defendant’s interests to define what constituted a single piece of “property.” Relying on state law about when an interest is created, the court declared irrelevant that defendant’s ex-wife had conveyed her interest in the four tracts in a single quitclaim deed. Judge Guy dissented on this issue. U.S. v. Smith, 966 F.2d 1045 (6th Cir. 1992).
6th Circuit holds forfeiture of vehicle improper when owners’ intent was not to support aliens’ illegal presence. (190) Claimants’ automobile was forfeited after an INS agent discovered undocumented Salvadorans in the car. The district court ordered the vehicle forfeited under 8 U.S.C §1324 (b)(1). The 6th Circuit reversed, and held that the purpose of the claimant’s transportation from Texas to Kentucky was not to support their illegal presence, even though that may have been the ultimate effect of their actions. Thus, the vehicle did not transport aliens, “in furtherance of violation of law” (i.e. illegal entry). Interpreting the meaning of the “furtherance” clause, the court chose an “intent” test over an “effects” test. Because the government had failed to prove the claimant’s intent was to aid the illegal presence of the aliens, summary judgment was improper. U.S. v. 1982 Ford Pick-up, 873 F.2d 947 (6th Cir. 1989).
6th Circuit holds that criminal forfeiture statute is not exclusive method of forfeiting imported contraband. (190) An importer of forfeited drug paraphernalia claimed that the criminal forfeiture mechanism of 19 U.S.C. §857(c) was the exclusive method of forfeiting such property and therefore the government’s use of the civil forfeiture provisions of 19 U.S.C. §1595a(c) was improper. The 6th Circuit disagreed, stating that absent a clearly expressed Congressional intention to the contrary, two co-existent statutes will each be regarded as effective. Here, the purposes of civil and criminal forfeitures are different. Thus, the two statutes are not mutually exclusive. U.S. v. 57,261 Items of Drug Paraphernalia, etc., 869 F.2d 955 (6th Cir. 1989).
6th Circuit holds that seized contraband may not be returned regardless of validity of seizure. (190) Customs agents searched a warehouse seized large quantities of merchandise believed to be drug paraphernalia. Petitioner filed a F.R.Crim.P. 41(e) motion for return of property. The district court agreed the Rule 41(e) motion was proper to challenge the forfeiture, even though no criminal case had yet been filed. The district court concluded, and the Sixth Circuit agreed, that the seized items were properly classified as illegal drug paraphernalia and, consequently, petitioner’s arguments that the seizures were procedurally or constitutionally defective were immaterial to a Rule 41(e) motion. Because the seized goods were contraband, the government could not return them even if the seizure had been legally deficient. United States v. Search of Music City Marketing, Inc., 212 F.3d 920 (6th Cir. 2000).
7th Circuit upholds forfeiture of $30,000 interest in house based on $50,000 drug transaction. (190) Defendant was convicted of charges stemming from a large cocaine conspiracy. The Seventh Circuit rejected his claim that the forfeiture of his home was an excessive fine under the Eighth Amendment. The connection between the offense and the property was not incidental and fortuitous. The government claimed the house primarily on the basis of one phone call made to the house in which defendant set up a large cocaine transaction. Defendant used the privacy of his home to conduct drug-related business over the phone. Moreover, defendant’s equity in the house was only about $30,000, while the drug deal involved $50,000 worth of cocaine. U.S. v. Plescia, 48 F.3d 1452 (7th Cir. 1995).
7th Circuit approves forfeiture of vehicle driven to and from meeting with proposed drug courier. (190) Claimant met with an undercover agent to pay him $10,000 to act as a courier and transport heroin from the Philippines to Chicago. The 7th Circuit reversed the district court’s determination that the vehicle claimant drove to and from the meeting with the “courier” could not be forfeited under 21 U.S.C. §881(a)(4). Defendant facilitated the attempted transportation, receipt, and possession of illegal drugs, thus bringing the car within the statute’s grasp. The court rejected the district court’s conclusion that the term “facilitate” connotes causation. This interpretation would render the statute impotent, requiring proof of the impossible–that it was essential that the offender use his own car rather than a rental car. Defense counsel conceded that if a sale had taken place at the meeting, the automobile would be forfeitable. A distinction between the meeting at which the plot is hatched and the meeting at which the drug changes hands would be arbitrary. U.S. v. 1990 Toyota 4Runner, 9 F.3d 651 (7th Cir. 1993).
7th Circuit affirms that funds, rather than account in which funds are located, must be traced to fraudulent activity. (190) Defendants sold stereo speakers using fraudulent sales techniques, and put the proceeds from the fraud in several different accounts. The United States brought a forfeiture action under 18 U.S.C. §981 against the funds in these accounts. Claimants contended that they ended their fraudulent scheme in 1988, and the sums seized from the accounts in September 1989 could not be traced to their fraudulent scheme. The government contended that it did not matter whether the balances in the accounts could be traced to unlawful activity since the accounts were “involved in” the fraud during 1988. The 7th Circuit rejected the argument, holding that such tracing was necessary. “It makes no sense to confiscate whatever balance happens to be in a account bearing a particular number, just because proceeds of crime once passed through that account.” Only property used in or traceable to “specified unlawful activity” is forfeit. However, the money seized in this case was forfeitable. Claimants only admitted phasing out the use of one of their fraudulent sales techniques. Abandoning one deceitful device among a large repertory does not make the operation lawful. U.S. v. $448,342.85, 969 F.2d 474 (7th Cir. 1992).
7th Circuit upholds forfeiture order based on 460 marijuana plants and gardening equipment at residence. (190) The 7th Circuit rejected claimant’s contention that the district court’s forfeiture order concerning his residence was not supported by the evidence. Claimant’s argument emphasized what the evidence did not show rather than what it did show. The government established probable cause that claimant’s property was used to facilitate the commission of a drug-related offense. The presence in defendant’s residence of 460 marijuana plants, together with “sophisticated” home gardening equipment and growing tools provided a reasonable ground for believing that claimant engaged in the intentional manufacture of marijuana, and that the plants were going to be trafficked. Since the government established probable cause, the burden shifted to claimant to refute the forfeitability by a preponderance of the evidence. Claimant failed to meet this burden. U.S. v. Certain Real Property, Commonly Known as 6250 Ledge Road, Egg Harbor, WI, 943 F.2d 721 (7th Cir. 1991).
7th Circuit rejects statutory and constitutional challenges to forfeiture of entire parcel of land. (190) Claimant contended that the forfeiture of his entire five-acre parcel was not valid under the civil forfeiture statute because only a portion of the property was “substantially connected” to the drug activity. He also contended that the forfeiture violated the 8th Amendment. The 7th Circuit upheld the forfeiture of the entire five acres. First, a substantial connection is not required between the property and the related drug offense for a civil forfeiture of real estate under 21 U.S.C. §881(a)(7). The court agreed with other courts that have held that §881(a)(7) contemplates the forfeiture of an entire tract of land based on drug-related activities on a portion of a tract. Claimant’s 8th Amendment challenge also failed. The court believed that the 8th Amendment does not apply to civil in rem actions, but acknowledged that the opposing view has some support. However, even if the 8th Amendment did apply, claimant failed to show how the forfeiture was disproportional. He mentioned, but did not discuss, any of the factors which are typically considered in determining proportionality. U.S. v. Certain Real Property, Commonly Known as 6250 Ledge Road, Egg Harbor, WI, 943 F.2d 721 (7th Cir. 1991).
7th Circuit rejects requirement of “substantial connection” for forfeiture of property. (190) The 4th and 8th Circuits have held that there must be a “substantial connection” between the forfeited property and the drug offense before real property can be forfeited under 21 U.S.C. §881(a)(7). The 7th Circuit ruled that the distinction between a “substantial connection” test and the “in any manner, or part” language offered directly in the statute, “is blurry at best.” The courts said that the “more principled and direct approach, and the one demanded by the plain wording of the statute itself, is to affirm forfeiture of any real estate that is used in any manner or part to commit or facilitate a commission of a drug related offense.” In the present case, the undercover agent arranged to buy cocaine from the defendant by telephoning him at his house on two occasions. The 7th Circuit ruled that the district court properly found that the nexus between the defendant’s house and the drug offense “was not incidental or fortuitous.” U.S. v. One Parcel of Real Estate commonly known as 916 Douglas Ave., 906 F.2d 490 (7th Cir. 1990).
7th Circuit affirms forfeiture despite reversal of one of defendant’s drug convictions. (190) Defendant was convicted by a jury of a drug conspiracy and possession with intent to distribute cocaine, and cash found in his residence was ordered forfeited. On appeal, the conspiracy conviction was reversed, but the 7th Circuit affirmed the forfeiture order. Although the cash could not have been the proceeds of the cocaine offense for which he was convicted, the jury was entitled to believe that the cash was intended to facilitate the commission of the crime. The jury could conclude that defendant was in the drug business, and that the cash was an asset of that business. U.S. v. Lamon, 930 F.2d 1183 (7th Cir. 1991).
7th Circuit upholds criminal forfeiture of money and Mercedes in continuing criminal enterprise despite erroneous jury instruction on the government’s burden of proof. (190) Although the government was not required to prove beyond a reasonable doubt that defendant’s assets were subject to forfeiture, the jury was instructed using the reasonable doubt standard and the 7th Circuit used that standard to analyze the evidence. Even with that heightened burden however, the court concluded that the jury could have reasonably found that the money seized from defendant’s apartment was intended to be used to pay for cocaine. As for the Mercedes, the evidence showed that the defendant used the Mercedes to meet with cocaine dealing associates and to drive to his office on a daily basis. The office had no legitimate use and contained 200 grams of cocaine and assorted other items including empty plastic bags containing cocaine residue. U.S. v. Pace, 898 F.2d 1218 (7th Cir. 1990).
7th Circuit upholds forfeiture of real property under gambling forfeiture statute. (190) Claimant argued that 18 U.S.C. §1955(d), which provides for the forfeiture of “any property” used in violation of the federal anti-gambling statute, does not provide for the forfeiture of real property. The 7th Circuit rejected this argument, finding the term “all property” encompassed both real and personal property. Although in 1984 Congress amended several other forfeiture statutes to clarify that they included real property, and did not so amend the gambling forfeiture statute, claimant’s argument that this evidenced Congressional intent to exclude real property from the gambling forfeiture statute amounted to “speculation.” U.S. v. On LeongChineseMerchantsAssociationBuilding, 918 F.2d 1289 (7th Cir. 1990).
8th Circuit holds that claimant’s vehicle was substantially connected to claimant’s criminal activity and thus subject to forfeiture. (190) Claimant pleaded guilty in state court to possession of a controlled substance by theft, fraud, or subterfuge. The government filed a forfeiture action against her 2000 Dodge Caravan Sport SE following her conviction. She had been arrested for obtaining and having filled fraudulent prescriptions from drug stores to which she drove the vehicle. She also used the vehicle to drive up and down the pharmacy parking lots to conduct counter-surveillance. The district court ordered forfeiture of the vehicle at the conclusion of a non-jury trial. The 8th Circuit held that the minivan was substantially connected to the claimant’s criminal activity and thus was subject to forfeiture. However, the 8th Circuit reversed and remanded for further proceedings to determine whether the facts indicate gross disproportionality under the Eighth Amendment Excessive Fines Clause. The district court was directed to consider multiple factors, including the extent and duration of the criminal conduct, the gravity of the offense weighed against the severity of the criminal sanction, and the value of the property forfeited. U.S. v. Dodge Caravan Grand SE/Sport Van, 2004 WL 2389747 (8th Cir., Oct. 27, 2004).
8th Circuit holds that forfeiture under 18 U.S.C. §1955 is not mandatory, but court may not subdivide property to create proportional forfeiture. (190) Under 18 U.S.C. §1955(d), any property used in an illegal gambling operation “may be seized and forfeited.” The 8th Circuit held that unlike mandatory provisions found in other forfeiture statutes, this language does not require an automatic forfeiture where an illegal gambling operation is shown. Courts have some discretion, and can refuse a forfeiture if it seems to work a disproportionate penalty in a particular case. However, this does not grant courts the authority to subdivide property in order to create a proportional forfeiture. Here, the forfeiture of the entire property was proportional, even though claimants only used the second floor of the building for their gambling operation. Claimant was part of a national organization which facilitated gambling in its member chapters. The national organization received a percentage of the profits realized from the illegal gambling operations of its member chapters. U.S. v. Premises Known as 318 South Third Street, Minneapolis, Minnesota, 988 F.2d 822 (8th Cir. 1993).
8th Circuit affirms forfeiture of firearms and ammunition based upon felon’s joint possession of them. (190) The district court ordered the forfeiture of miscellaneous firearms and ammunition based upon their possession by claimant and claimant’s son, a convicted felon. The 8th Circuit affirmed, finding the district court’s conclusion that claimant and her son jointly possessed the firearms and ammunition was not clearly erroneous. Claimant’s contention that two witnesses lied at trial was conclusory and without merit. U.S. v. Miscellaneous Firearms and Ammunition, 945 F.2d 239 (8th Cir. 1991).
8th Circuit rules possession of cocaine on person while driving automobile is sufficient to forfeit car. (190) Defendant was arrested on an outstanding warrant while driving his automobile. He attempted to discard a vial of cocaine, but was prevented from doing so. The car was forfeited and the defendant appealed. The Eighth Circuit affirmed. Possession of any amount of cocaine on one’s person while driving an auto establishes “a sufficient connection between the drug and the car to justify forfeiture under the civil forfeiture statute.” Summary judgment for the government was proper given the undisputed facts. U.S. v. One 1980 Red Ferrari, 875 F.2d 186 (8th Cir. 1989).
9th Circuit finds that federal statute prohibiting contraband cigarette trafficking applies on Indian lands. (190) While executing a search warrant at an Indian trading post on Indian lands, ATF agents seized 1.4 million cigarettes that were not marked with state tax stamps. The government filed a civil forfeiture action pursuant to 18 U.S.C. Section 2344, and the claimant filed an administrative claim for the cigarettes and answered the civil forfeiture action. The district court granted the government’s motion for summary judgment because the cigarettes bore no evidence of tax payment, nor were they exempt from the state tax. On appeal the claimant, a tribally-licensed business of the Yakima Nation, argued that because the state could not directly enforce its tax laws by seizure within Indian country, the federal contraband cigarette trafficking act could not do so by proxy. The 9th Circuit noted that the federal act is a federal statute of general applicability that applies equally to Indians, even on reservations, as it does to others. The 9th Circuit found the cigarettes to be contraband because they were possessed in violation of the state cigarette tax statute, and affirmed. U.S. v. 1,371,100 Assorted Brands of Cigarettes, 282 F.3d 1175 (9th Cir. 2002).
9th Circuit says using truck to pick up profits from drug sales gave probable cause for forfeiture. (190) The informant said that after he sold the drugs on the East Coast, he met with the claimant in California and delivered the profits to him. The claimant drove away in his pickup after receiving the money. When the government sought to forfeit the truck, claimant argued that the use of the truck to drive to the meeting in California did not “facilitate” the sale of the drugs on the East Coast within the meaning of the forfeiture statute, 21 U.S.C. §881(a)(4). The Ninth Circuit found nothing in the statute to indicate that a vehicle used to transport a participant to carry away the proceeds of an earlier distribution is beyond the reach of §881. Accordingly, the government had probable cause to file a forfeiture complaint. U.S. v. One 1986 Ford Pickup, CA License No. 2W03753, 56 F.3d 1181 (9th Cir. 1995).
9th Circuit holds plane was not “fitted out for smuggling” and was not subject to forfeiture. (190) In this amended opinion, the 9th Circuit rejected the government’s argument that the aircraft was subject to forfeiture under 19 U.S.C. §1703. Assuming without deciding that §1703 applies to aircraft, the court held that none of the requirements for forfeiture were met. There was no evidence that the claimant failed to display his lights or failed to comply with an order to stop his airplane. Moreover the government failed to establish probable cause to believe that the plane was fitted out for smuggling. Although it had been altered, it was done with FAA approval. U.S. v. Dickerson, 873 F.2d 1181 (9th Cir. 1989).
9th Circuit holds that transportation of aliens was only incidentally connected to violation of law. (190) Defendant’s van was forfeited under 8 U.S.C. §1324(b) on the basis that it had been used to transport aliens to further their illegal presence in the United States. The aliens were being transported from one job site to another to perform a contract for reforestation. The 9th Circuit held that the transportation here did not amount to transportation in furtherance of violation of the law. The judgment of forfeiture was reversed. U.S. v. One 1984 Ford Van, 826 F.2d 918 (9th Cir. 1987).
9th Circuit upholds forfeiture of entire parcel of land on which marijuana is grown. (190) Defendant was convicted of cultivating and possessing with intent to distribute over 700 marijuana plants. The government sought forfeiture pursuant to 21 U.S.C. §853(a) of all defendant’s right, title and interest in the 40-acre parcel of property on which the marijuana was grown. The 9th Circuit rejected defendant’s argument that only the portion of land actually growing the crop was subject to forfeiture, holding that §853 requires forfeiture of the entire parcel of land. U.S. v. Littlefield, 821 F.2d 1365 (9th Cir. 1987).
10th Circuit upholds forfeitability of condo adjacent to one containing drugs where walls between the two were removed. (190) Claimant and her husband owned an interior design business. The husband also sold drugs in his spare time. The government sought the forfeiture of various properties, including a business property consisting of two adjacent industrial condominiums. Claimant and her husband had removed the wall between the two units and used the enlarged space to house tools and machinery for their business. In Unit 9, police found cocaine, a triple beam scale and a cocaine grinder. In Unit 10, they found nothing. Claimant argued that Unit 10 was not forfeitable because it was a separate lot or tract. The Tenth Circuit rejected the argument, noting that once the wall was removed, any contraband kept in Unit 9 depended for its continued concealment at least in part on the walls surrounding Unit 10. The property facilitated the illegal activity by concealing its presence. U.S. v. 9844 South Titan Court, Unit 9, Littleton, Colorado, 75 F.3d 1470 (10th Cir. 1996).
10th Circuit affirms probable cause for forfeiture of cash and vehicles based on hidden currency and drug paraphernalia. (190) The 10th Circuit affirmed the district court’s determination that there was probable cause to forfeit cash found in claimant’s home and several vehicles owned by claimant. The unusually large amount of hidden currency ($149,442) and presence of drug paraphernalia, including packaging supplies and drug notations reflecting large drug transactions, established a sufficient nexus between the property and claimant’s involvement in drug trafficking. Claimant did not establish that the money was from legitimate sources. The vehicles were also properly subject to forfeiture. One contained a loaded pistol and a notebook containing drug notations, which indicated that it had been used to facilitate drug trafficking. Moreover, a sufficient nexus was established between the purchase of the vehicles with cash and claimant’s involvement in illegal drug transactions. Although the government did not tie the vehicles to a specific drug transaction, both were purchased with cash during the years when the district court found that claimants had failed to demonstrate legitimate alternate sources of income large enough to account for their cash expenditures. U.S. v. One Hundred Forty-Nine Thousand Four Hundred Forty-Two and 43/100 Dollars ($149,442.43), 965 F.2d 868 (10th Cir. 1992).
10th Circuit holds that forfeiture statute allows forfeiture of entire sum of money even if only a portion of it was used for illegal purposes. (190) 21 U.S.C. §853(a)(2) provides that a person convicted of violating certain criminal statutes shall forfeit any property “used or intended to be used, in any manner or part, to commit, or to facilitate the commission of, such violation.” Agreeing with the 9th Circuit, the 10th Circuit held that this statutory language “allows the forfeiture of property in its entirety even if only a portion of it was used for illegal purposes.” Thus the court rejected the defendant’s argument that the jury should have been allowed to determine how much of the $413,493 in currency was used to facilitate possession of marijuana. The court also ruled that there was a sufficient “nexus” with the illegal activity, and that the forfeiture was not disproportionate under the 8th Amendment. U.S. v. Harris, 903 F.2d 770 (10th Cir. 1990).
11th Circuit finds sufficient connection between property and drug transaction. (190) Defendant contended that in order to forfeit property under 21 U.S.C. §881(a)(7), the government must establish probable cause to conclude a “substantial connection” exists between the property at issue and a narcotics transaction, and that the government failed to do so. The 11th Circuit refused to determine whether a “substantial connection” standard or a “sufficient nexus” standard was sufficient, since in this case the connection between the property and the drug transaction was sufficient to support the forfeiture. Claimant orchestrated a narcotics delivery which occurred on the driveway of his residence. He had insisted that the transaction take place on familiar territory, and later led the buyer to his residence. The property played a central role in the transaction, facilitated the transaction, and was properly forfeited. U.S. v. Real Property and Residence at 3097 S.W. 111th Avenue, Miami, Florida, 921 F.2d 1551 (11th Cir. 1991).
11th Circuit holds horses bred on ranch where drug transaction occurred were properly forfeited as “front” for activities. (190) Drug defendant appealed from an order forfeiting 27 quarter horses which were used to facilitate drug transactions. The 11th Circuit affirmed, holding that it was not necessary for the horses to be physically used to carry out the drug transactions. Rather, it was sufficient that the defendant’s horse breeding business, including the horses he had on hand, were used as a cover for his drug trafficking activities. The evidence at trial proved he had conducted drug transactions from the ranch and he had used words associated with horse breeding as code words for drug trafficking transactions. U.S. v. Rivera, 879 F.2d 1247 (11th Cir. 1989).
11th Circuit holds yacht intended for use in drug trafficking is subject to forfeiture. (190) The 11th Circuit held that the mere fact that the yacht was the site of discussions concerning present and future drug deals would not make it forfeitable. However, it was forfeitable because initial steps were made to modify the yacht for that purpose. Noting that the government need only make the minimal showing that the yacht be “intended for use” in a drug transaction, the court held that the claimant’s stated intention to use the yacht for that purpose qualified the yacht for forfeiture, even though he never actually used the yacht for that purpose. U.S. v. One 1980 Bertram 58 Foot Motor Yacht, 876 F.2d 884 (11th Cir. 1989).
Alabama District Court holds government not required to present evidence of a “continuing drug business or ongoing operation” to show a “substantial connection between property and drug activity.” (190) The government filed a civil forfeiture action against claimants’ residence under 21 U.S.C. §881(a)(7), alleging the defendant-property was the situs of discussions to purchase powder cocaine, and where an unspecified quantity of crack was distributed. The district court granted the government’s motion for summary judgment, finding more than a “reasonable ground for belief” that a “substantial connection” existed between the property to be forfeited and an illegal exchange of a controlled substance. At the same time, the court rejected claimants’ argument that the government is required to present evidence of a “continuing drug business or ongoing operation” in order to show a “substantial connection” between the defendant-property and offense giving rise to forfeiture. The court held that if a person makes property available as a situs for an illegal drug transaction, the property is forfeitable. United States v. One Parcel Property Located at 7079 Chilton County Road 37, 123 F.Supp.2d 602 (M.D. Ala. 2000).
Massachusetts District Court declines to order return of seized Uzi. (190) After his conviction for possession of a firearm by a convicted felon was vacated on appeal, defendant filed a motion under Rule 41(e), Fed. R. Crim. P., for return of certain firearms seized during the criminal investigation. The district court ordered the return of various handguns and ammunition to defendant’s brother, who was acting as his designate because, having pled guilty to other felonies, the defendant himself could not legally possess a firearm. The court declined, however, to return an Uzi assault weapon to either the defendant or his brother because neither could legally possess such a weapon under federal law. U.S. v. Indelicato, 964 F.Supp. 555 (D. Mass. 1997).
New York district court grants summary judgment in favor of claimants because forged historical documents were not used to facilitate the alleged criminal violation; however, the court orders that documents will be released only after government places a visible mark on the back of each document indicating that they were forgeries. (190, 390, 450) The government commenced a forfeiture action against approximately 250 forged documents purporting to be the writings of John F. Kennedy and other prominent historical figures, alleged to have been used in a mail and wire fraud scheme to sell forged documents. The government also sought a judicial declaration that the documents may be destroyed to prevent the documents from reentering the marketplace where other innocent unsuspecting purchasers, like the victim-claimants there, could be deceived into believing the documents are authentic and highly valuable as such. Approximately 50 claimants originally contested forfeiture, and in an effort to resolve the matter, the government offered to return the documents to all claimants provided they are stamped, in a prominent manner across the text thereof, that they are forgeries; all claimants, with the exception of John and Deborah Lee Sabolich, were willing to accept the Government’s proposed compromise. The Saboliches instead moved for summary judgment dismissing the complaint and ordering the government to return the 11 documents they purchased for over $800,000 as an investment, contending the documents do not constitute “proceeds” subject to forfeiture and that they were innocent owners. The government produced copies of the Saboliches’ documents with exhibit stickers, on their face, indicating they were introduced into evidence at trial of the criminal defendant, Cusack. At Cusack’s sentencing, the trial judge observed that “[t]he evidence at trial conclusively demonstrated that all of the Cusack documents are indeed forgeries and were authored by Cusack.” In the forfeiture case, the government contended that the documents were the proceeds of Cusack’s mail and wire fraud because he obtained them as a result of his fraudulent misrepresentations regarding the documents’ origin and content. The court held, however, that Cusack’s false representations as to the authenticity of the writings were not used to “obtain” the documents. Rather, his fraudulent misrepresentations allowed him to obtain approximately $7 million from the sale of the documents which he thereafter used to finance a lavish lifestyle. It was those monies he obtained, and any substituted assets traceable thereto (such as: homes, cars and designer clothing), that constituted the proceeds of his mail and wire fraud activities. The documents instead were the instrumentality or means that enabled Cusack to commit the crimes, from which he reaped his ill-gotten gains, i.e., the subject matter of that fraud. On the other hand, 18 U.S.C. §981(a) (1)(A), upon which the government’s second cause of action for forfeiture was premised, provides that the property must simply be “involved in” a transaction in violation of specified money laundering statutes, which includes property used to facilitate a money laundering offense. The government thus claimed that the documents were involved in a violation of 18 U.S.C. §1957. The court found, however, that the complaint was bereft of any factual allegations to support a claim that the documents themselves were used to facilitate a money laundering transaction. The documents were not property that were themselves being laundered nor were they otherwise involved in, derived from, or used to facilitate a money laundering offense. The court thus held that the claimants were legally entitled to regain possession of their documents. However, it added that the laws do not affirmatively afford the claimants the absolute right to obtain their property in its original criminally-tainted condition. That legally protected possessory right is limited to the documents’ true character and intrinsic worth. Even as innocent owners, they would have the responsibility to prevent any further illegal use of the documents. Thus, the court held that visibly marking the back of each of the documents to indicate that the government has concluded that they are forgeries will negate any artificially inflated value, will not alter their textual content and will best safeguard their aesthetic appearance. U.S. v. Approximately 250 Documents Containing the Forged Hand Writing of President John F. Kennedy and Others, 2008 WL 4129814 (S.D.N.Y.) (September 5, 2008).
New York District Court forfeits car for assisting alien entitled to enter U.S. to enter by illegal means. (190) The U.S. District Court in the Western District of New York granted summary judgment for the government in this case involving forfeiture of a Mercedes Benz for a violation of immigration law. Edward Chan was riding in a car owned by Kerry Hui when Chan tried to gain entry into the U.S. from Canada by falsely claiming to be a U.S. citizen and presenting forged documents in support of his claim. Ironically, Chan had a visa entitling him to enter the U.S. legally, but chose not to use it to avoid alerting U.S. officials that he had previously been deported from Canada. The district court held that the attempted entry under false pretenses was a violation of immigration law, that the owner of the car (Hui) had aided Chan in his illegal attempt, and that this made the car forfeitable under 8 U.S.C. §1324(a)(1) (A)(iv). The government submitted affidavits from INS inspectors detailing their encounters with Chan and Hui. Claimant Hui denied some of the inspectors’ assertions in his pleadings, but presented no countervailing evidence. The court granted summary judgment for the government. U.S. v. One 1989 Mercedes Benz, 971 F.Supp. 124 (W.D.N.Y. 1997).
Puerto Rico district court finds that unusually large amounts of currency found in shoe boxes inside vehicles and use of vehicle to drive to drug planning meeting facilitated sale of the drugs and constituted substantial connection to drug trafficking, and even though written notice of the forfeiture was sent one day late, claimant suffered no prejudice from inadequate notice because he had actual notice of government’s intent to forfeit from forfeiture count in indictment. (190, 445, 210) The United States sought forfeiture of a 2004 Dodge Durango and approximately $328,673 in U.S. currency seized from the claimant following a DEA search of his residence in Trujillo Alto, Puerto Rico. During the search, DEA agents interviewed the claimant’s consensual wife, who stated that at the time both she and her husband were unemployed and that the claimant purchased the Dodge Durango and registered it under her name. During an inventory search of vehicles at the residence, agents found $4,110 in U.S. currency inside the Dodge Durango vehicle and in a Nissan Armada, which the agents later learned had been reported stolen by its owner, they found several boxes which contained a total of $317,992 in U.S. currency. Inside a Toyota Tundra, the agents found $5,416 in U.S. currency. During their surveillance of the claimant, DEA agents observed him driving the vehicles while coordinating his drug trafficking business. The claimant later plead guilty to two counts of conspiracy to distribute and possession with intent to distribute approximately 449.4 kilograms of cocaine and 3.37 kilograms of heroin. The government and the claimant then cross-moved for summary judgment in the civil forfeiture case filed against the vehicles and money. The court noted that because the United States proceeded under 21 U.S.C. §881, it must establish a substantial connection between the property and currency and a criminal offense involving the exchange of a controlled substance; however, it need not link the defendant property to a particular drug transaction. In support of its motion, the government argued that the DEA had targeted the claimant for his participation in the distribution of cocaine base and heroin, as well as his involvement in money laundering activities. He also has a criminal record that dated back to 1989 when he was convicted on charges of drug distribution and conspiracy to posses a firearm and was still serving a period of probation for that conviction. To establish a connection between the vehicles and drug trafficking, the government argued that the claimant used the Nissan Armada vehicle and Dodge Durango to meet with a DEA cooperator and during both meetings discussed matters related to his drug trafficking business. In regard to the currency, the government argued that the unusually large amounts of currency were found in shoe boxes inside the vehicles, that the source of the currency was unknown, and that the claimant offered no plausible explanation as to the source of the currency. The court stated that it was not fatal to the United States’ case that no drugs or drug paraphernalia were found with the currency when it was seized, and because a planning meeting is without a doubt an “integral part” of a drug transaction, the use of the vehicle to drive to the meeting certainly facilitated the sale of the drugs, even if the vehicle itself was not used to transport the drugs. Moreover, the claimant offered no proof in support of his proffered theory as to the source of the currency or why he would keep such a large sum of money in currency packed in shoe boxes inside his vehicles. Without such a showing, and given his prior convictions for drug trafficking and money laundering, claimant simply failed to convince the court that the source of the currency is anything other than drug or money-laundering proceeds or that it was intended to be furnished in exchange for drugs. The claimant also moved to dismiss the complaint against the $317,992 in currency found inside the Nissan Armada because it failed to provide him with written notice of forfeiture within 60 days, pursuant to 18 U.S.C. §983(a)(1)(A)(i). The court denied the motion, however, holding that because the claimant had actual knowledge of ongoing forfeiture proceedings from another source, inadequacies in the notice would not work a deprivation of due process. The government had obtained an indictment against the claimant that contained a forfeiture allegation within 60 days after seizure of the currency. Although the indictment did not specifically identify the defendant property and currency, the description of the property provided adequate notice to claimant that any property or currency that constituted drug proceeds or was used in any manner to facilitate the distribution or possession of narcotics were subject to forfeiture. Accordingly, even if it sent written notice of the forfeiture one day late, because claimant had actual notice of the United States’ intent to forfeit the defendant property, the claimant suffered no prejudice from the inadequate notice. The motion is denied. U.S. v. One Dodge Durango 2004, 2006 WL 3337492 (D. Puerto Rico 2006) (Nov. 15, 2006).