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July 23, 1980

UNITED STATES of America, Plaintiff,
U. S. CURRENCY AMOUNTING TO the SUM OF $ 20,294.00 MORE OR LESS, Defendant; UNITED STATES of America, v. Carlos CARDONA, Defendant

The opinion of the court was delivered by: BARTELS

Defendant Carlos Cardona moves pursuant to F.R.Cr.P. 41(e) for the return of $ 20,000 allegedly seized from his apartment by Drug Enforcement Administration ("DEA") agents on January 29, 1980, one day following his arrest on charges of narcotics trafficking. This motion was originally noticed on April 7, 1980, subsequent to Cardona's indictment but prior to trial. Following a hearing on motions to suppress by Cardona and his several codefendants, the government moved to dismiss the indictment against Cardona, which motion was granted on June 6, 1980. The currency here in issue was never offered by the government at the trial of the remaining codefendants, and the government apparently has no intention of doing so in any future prosecution.

At trial, the government promised to commence a civil action for forfeiture of the currency claimed by Cardona, relying upon Section 881 of Title 21 of the United States Code, which provides for the forfeiture of money "furnished or intended to be furnished by any person in exchange for a controlled substance" in violation of the federal narcotics laws. At a conference with the attorney for the government in open court held one week later on June 20, 1980, defendant Cardona, by his attorney, agreed to waive any administrative proceedings to which he might otherwise be entitled and to consolidate his Rule 41(e) motion with the government's forfeiture proceeding in order to obtain the earliest possible determination by the Court of the rightful owner of the currency. At the time of that conference, the government expressed no objection to this procedure, and it subsequently filed its civil in rem forfeiture action on June 25, 1980.

 A hearing was held by the Court on the consolidated applications on July 14 and 15, 1980, at which time one witness was offered by the government and no evidence was presented by defendant Cardona, who did not appear and apparently could not be contacted even by his own counsel. Upon consideration of the briefs filed and the evidence adduced, the Court hereby renders the following opinion containing its findings of fact and conclusions of law.


 In view of the dispute as to the priority of the Court's jurisdiction over either application, it becomes necessary to note briefly the essential differences between a motion for return of property under F.R.Cr.P. 41(e) *fn1" and a forfeiture proceeding commenced pursuant to 21 U.S.C. § 881(a). *fn2" This area of the law is not with- out confusion. The former provides a remedy for a defendant aggrieved by an illegal seizure who claims ownership of certain property, *fn3" whereas Section 881(a) provides a mechanism for forfeiture under certain circumstances by the government. In a Rule 41(e) proceeding, as on a motion to suppress, lawful possession must be established by a preponderance of the evidence, see United States v. Birrell, 243 F. Supp. 38, 41 (S.D.N.Y.1965); United States v. Van Allen, 28 F.R.D. 329, 341 (S.D.N.Y.1961); United States v. Lyon, 397 F.2d 505 (7th Cir.), cert. denied, 393 U.S. 846, 89 S. Ct. 131, 21 L. Ed. 2d 117 (1968); United States v. Palmer, 565 F.2d 1063 (9th Cir. 1977); in a proceeding under § 881(a), however, once the government establishes probable cause for forfeiture, the burden shifts to the claimant to absolve the property from culpability. Ted's Motors, Inc. v. United States, 217 F.2d 777, 780 (8th Cir. 1954); United States v. One 1972 Toyota Mark II, 505 F.2d 1162, 1165 (8th Cir. 1974); Bramble v. Richardson, 498 F.2d 968, 970 (10th Cir.), cert. denied, 419 U.S. 1069, 95 S. Ct. 656, 42 L. Ed. 2d 665 (1974); 19 U.S.C. § 1615. In a forfeiture proceeding, probable cause is something more than a mere suspicion and generally must be regarded as reasonable under all the circumstances. United States v. One 1971 Chevrolet Corvette, 496 F.2d 210, 212 (5th Cir. 1974); United States v. One 1949 Pontiac Sedan, 194 F.2d 756, 758 (7th Cir.), cert. denied, 343 U.S. 966, 72 S. Ct. 1061, 96 L. Ed. 1363 (1952).

 Although initially amenable to the consolidation of its § 881 proceeding with Cardona's Rule 41(e) motion, the government now challenges the Court's jurisdiction over the Rule 41(e) application because of the existence of a civil forfeiture proceeding commenced at the suggestion of the Court during the trial of the criminal action. In support of its position, the government relies principally upon United States v. Rapp, 539 F.2d 1156 (8th Cir. 1976), and United States v. Fields, 425 F.2d 883 (3d Cir. 1970), in which both courts of appeals held that the respective district courts had no jurisdiction under Rule 41(e) to order the return of property under the particular circumstances presented.

 Neither decision is controlling here, however. In Rapp, the Eighth Circuit Court of Appeals noted specifically that the defendant's motion under Rule 41(e) "was not brought prior to indictment or institution of the forfeiture process but was brought subsequent." 539 F.2d at 1161. Unlike that case where the property in question had been seized for the sole purpose of forfeiture and had already been forfeited at the time the motion was made, defendant Cardona made his motion several months before trial and the government made no effort to seek forfeiture until the Court suggested at trial that it do so. In Fields, the Third Circuit Court of Appeals emphasized that the district court had ignored the civil forfeiture procedures and in a criminal proceeding had entered an order directing the return of property to a party not even before the court. 425 F.2d at 885. Cardona, on the other hand, was indicted and was being prosecuted at the time he moved for return of the currency, and the charges were not dismissed against him until the eve of trial, after a lengthy suppression hearing.

 We find more persuasive the view that a district court has both the jurisdiction and the duty to return seized property to a defendant lawfully entitled to possession once the government has no further evidentiary need for it. United States v. Rangel, 608 F.2d 120, 121 (5th Cir. 1979); United States v. Wilson, 176 U.S.App.D.C. 321, 540 F.2d 1100, 1103-04 (1976); United States v. Ortega, 450 F. Supp. 211, 212 (S.D.N.Y.1978); United States v. Totaro, 468 F. Supp. 1045, 1047-48 (D.Md.1979); see also United States v. Farrell, 196 U.S. App. D.C. 434, 606 F.2d 1341, 1343 (D.C.Cir.1979); United States v. Palmer, 565 F.2d at 1064; United States v. LaFatch, 565 F.2d 81, 83 (6th Cir. 1977), cert. denied, 435 U.S. 971, 98 S. Ct. 1611, 56 L. Ed. 2d 62 (1978). In Wilson, Judge MacKinnon, for the panel, explained:

Property which is seized in a criminal proceeding . . . may be ultimately disposed of by the court in that proceeding or in a subsequent civil action. It makes for an economy of judicial effort to have the matter disposed of in the criminal proceeding by the judge that tried the case. * * * A claim by the owner for the return of his property cannot be successfully resisted by asserting that the property is subject to forfeiture. If the property is subject to forfeiture, appropriate proceedings should be started expeditiously.
(T)he Government argues that adequate civil remedies exist for appellant's relief. That is true. He could also bring a civil action, but, as we just noted, that neither discharges the district court's duties nor disturbs its jurisdiction.

 540 F.2d at 1104. This analysis is equally applicable here. Accordingly, we conclude that the institution by the government of forfeiture proceedings with respect to the $ 20,000 allegedly seized from defendant Cardona's apartment does not eliminate either this Court's jurisdiction or responsibility to consider his pre-existing and timely motion for return of that property under Rule 41(e) of the F.R.Cr.P.

 In this case, it became apparent that regardless of the outcome of the Rule 41(e) proceeding the government would seek a forfeiture of the currency claimed by Cardona and that a final determination of lawful possession could not be made until the government had had an opportunity to show probable cause for forfeiture. In the interest of judicial economy, therefore, the Court ruled prior to the hearing that the § 881 procedure would be utilized initially to determine the question of forfeiture before proceeding under Rule 41. Although absent the stipulation by the parties here to consolidate the forfeiture action and the Rule 41(e) motion the Court would have been inclined to stay consideration of the motion pending resolution of the forfeiture proceeding, the consolidation rendered such a stay unnecessary.


 The facts were elicited solely from the testimony of United States Immigration and Naturalization Service ("INS") Officer Rocco Morelli and the exhibits introduced through him. He testified that he has been serving as a criminal investigator specializing in Colombian narcotics activities for approximately six years. On January 28, 1980, he was directed to proceed to DEA headquarters on 57th Street in Manhattan, where he arrived at 10:50 p.m. Ten minutes later, after being informed that one Carlos Cardona had been arrested on a narcotics charge and was possibly an illegal alien, Morelli questioned Cardona in Spanish concerning his name, country of origin, his property, if any, in the United States, and his place, manner, and date of entry. Cardona responded that he had entered the country in 1979 near San Ysidro, California after paying a smuggler to "pass him through" the border. He explained that he was self-employed as a beer vendor in the park. Morelli then informed Cardona of his rights based on INS Form I-214, *fn4" after which Cardona himself read and signed the ...

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