The opinion of the court was delivered by: PLATT
The United States has commenced these consolidated forfeiture proceedings pursuant to 21 U.S.C. § 881(a)(6), on the grounds that the defendant currency was furnished or intended to be furnished in exchange for a controlled substance in violation of 21 U.S.C. §§ 841 et seq., or was directly traceable to proceeds of a sale of a controlled substance made in violation of 21 U.S.C. §§ 841 et seq. Claims to the defendant currency have been filed by Edgar Romero and Betty Lemos.
The facts surrounding the seizure of the currency are not in dispute. On December 2, 1980, law enforcement officers seized a quantity of cocaine, drug paraphernalia, and $30,800 in United States currency from an apartment in Queens, New York. The following day, an additional quantity of cocaine, drug paraphernalia, and $7,500 in United States currency were seized from the same apartment. Orlando Romero, and the claimants in this proceeding -- Edgar Romero and Betty Lemos -- were subsequently indicted in the Eastern District of New York and charged with conspiracy to possess and distribute cocaine and possession of cocaine with intent to distribute, in violation of 21 U.S.C. §§ 846 and 841(a)(1) and 18 U.S.C. § 2.
All three defendants made motions in the criminal proceeding to suppress the evidence seized, but the motions were granted as to Edgar Romero and Betty Lemos only.
Orlando Romero was convicted, following a jury trial, on all counts, and his conviction was affirmed by the United States Court of Appeals for the Second Circuit. United States v. Orlando Romero, 688 F.2d 817 (2d Cir. 1982).
The government then commenced forfeiture proceedings against the currency seized. Although all three of the original criminal defendants were given notice of the forfeiture proceedings, only Edgar Romero and Betty Lemos filed claims to the currency. The government now moves, pursuant to Rule 56 of the Federal Rules of Civil Procedure, for summary judgment.
In a forfeiture proceeding, a three-step process is employed to analyze the issues raised by the parties:
The Court must first determine whether the plaintiff has proved requisite cause for the seizure of the currency. If the Court finds this cause, then the burden shifts to the claimants to establish by a preponderance of the evidence that they possess sufficient standing to claim the currency pursuant to the Rules of Civil Procedure and the established case law. If it is the determination of this Court that the claimants possess the requisite standing to claim the currency they are then entitled to present any affirmative defenses to the forfeiture of the currency.
United States v. Eleven Thousand Five Hundred and Eighty Dollars in U.S. Currency, 454 F. Supp. 376, 377 (M.D. Fla. 1978).
The government, therefore, must first show that probable cause exists for the belief that the money "was furnished or intended to be furnished by any person in exchange for a controlled substance in violation of [21 U.S.C. §§ 841 et seq. ]." 21 U.S.C. § 881(a)(6); United States v. U.S. Currency Amounting to the Sum of $20,294.00, 495 F. Supp. 147, 150 (E.D. N.Y. 1980). In this case, the currency in question was submitted as evidence in Orlando Romero's trial. The jury in that trial concluded that the currency, together with the evidence of the cocaine and the testimony, established beyond a reasonable doubt that Orlando Romero was guilty of the crimes charged. See P.2 supra. Thus, in light of the jury's verdict, and in light of the undisputed facts as recited above, the government has clearly established the requisite cause for the belief that the defendant currency was used, or intended to be used, in exchange for a controlled substance.
Once the government establishes this probable cause, the claimant has the burden to establish, by a preponderance of the evidence, that he has an ownership or possessory interest in the defendant currency. United States v. Eleven Thousand Five Hundred and Eighty Dollars in U.S. Currency, supra, at 381. Thus, the claimant must demonstrate a "possessory interest in the res with its attendant characteristics of dominion and control", United States v. One 1945 Douglas C-54 (DC-4) Aircraft, 604 F.2d 27, 28 (8th Cir. 1979), in order to establish the requisite standing to claim the currency.
Claimant Edgar Romero has submitted his claim in the form of an attorney affidavit.
He has also stipulated that he would refuse to testify as to how he acquired any ownership or possessory interest in the currency, asserting that such testimony would tend to incriminate him. The Ninth Circuit Court of Appeals, on facts similar to these, has held that an attorney's affirmation in support of a claim is hearsay, and as such is inadequate to meet the requirement that the claimant has an ownership or possessory interest in the property. The Court said in pertinent part on this point:
The affidavit submitted in support of her claim was that of her counsel who stated that appellant had informed him that she was the owner of the currency and that he was alleging the same in reliance on those statements. [Citation omitted] We view this hearsay statement of appellant's counsel as insufficient to satisfy the requirement of the ...