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UNITED STATES v. ALL MONIES

May 6, 1985

UNITED STATES OF AMERICA, plaintiff,
v.
All Monies and Other Property Contained in Any and All Accounts and Certificates in the Names of Banco Cafetero International, Banco Cafetero Panama, Banco Cafetero Panama 9A, Banco Cafetero Bogota, Banco Cafetero Colon, Banco Cafetero Caribe Ltd., including But Not Limited to Checking Account Nos. 8033066547, 8033269898, and 8026003335, up to the amount of $31,000,000 United States Currency and All Monies and Other Property Contained in checking account no. 8033270500, up to an Unlimited Amount of United States Currency, Maintained At Various Branches of Irving Trust Company, Defendants-in-rem UNITED STATES OF AMERICA, Plaintiff, v. Account No. 000400054817 At Chemical Bank, Defendant-in-rem. UNITED STATES OF AMERICA, Plaintiff, v. Account No. 00019236021 at Philadelphia International Bank, defendant-in-rem. UNITED STATES OF AMERICA, Plaintiff, v. Account No. 000000030465 at Marine Midland Bank NA, Defendant-in-rem UNITED STATES OF AMERICA, Plaintiff, v. Account No. 000001011892 at First Chicago International Banking Co., Defendant-in-rem.



The opinion of the court was delivered by: GOETTEL

GOETTEL, D.J.

This action arises out of the government's attempt to prevent laundering of money from illegal narcotics transactions. On March 8, 1985, the United States filed eight complaints in forfeiture against moneys located in various bank accounts in New York City. The government then applied for and obtained warrants for arrest of the defendants-in-rem, which were served upon the custodial banks.

The defendants-in-rem are, mostly, moneys and other property in the accounts of Banco Cafetero International, Banco Cafetero Panama, Banco Cafetero Bogota, and Banco Cafetero Colon (collectively referred to as the "expropriated banks"), maintained at Irving Trust Company, Chemical Bank, First Chicago International Banking Co., Marine Midland Bank NA, and Philadelphia International Bank. On March 13, 1985, by an order to show cause, the expropriated banks moved to vacate the warrants of arrest pursuant to Rule 12 of the Admiralty and Maritime Claims Rules of the United States District Courts for the Southern and Eastern Districts of New York. Rule 12 provides that,

 
[w]here property is arrested or attached, any person claiming an interest in the property arrested or attached, may upon a showing of any improper practice or a manifest want of equity on the part of the plaintiff be entitled to an order requiring the plaintiff to show cause why the arrest or attachment should not be vacated or other relief granted consistent with these rules or the Supplemental Rules.

 Rule 12. For the following reasons, we deny the expropriated banks' motion to vacate the warrants at this time.

 BACKGROUND

 In their papers, the parties set forth the "facts" outlining the events and transactions at issue. In order to understand the events leading up to the instant controversy, we will set forth the claims, recognizing that many of the "facts" are in dispute, or, at least, are not conceded to be true.

 On January 30, 1984, officers of the Burbank, California, Police Department discovered approximately $690,000 in United States currency in small denominations in the apartment of Franciso Arredando and Magley Belasic. They also discovered a bag containing torn-up cashier's check receipts totalling approximately $1,100,000 in United States currency. It was suspected that the inhabitants of the apartment were part of a large illegal narcotics money-laundering scheme. Therefore, federal agents commenced an investigation.

 The investigation revealed that all of the checks were for amounts less than $10,000 and were purchased at various banks with cash, largely, if not entirely, in small bills. The investigation further revealed that these cashier checks had been deposited to an account in the name of the First Interamericas Bank of Panama, S.A. ("FIB"), maintained at the Continental National Bank of Miami, Florida ("CNB"). Handwriting analysis revealed that many of the endorsements on the checks were made by the same individual, even though the signatures were in different names.

 Surveillance of CNB during March and April 1984, disclosed significant daily cash or cashier's check deposits into FIB's account. These were delivered by carriers unable to identify the individuals responsible for the deposits. From November 1984 to December 1984, $4,000,000 was deposited into FIB's account. An FIB account representative appeared at the time of the arrival to verify the count for deposit.

 CNB advised federal agents that money had been removed from the FIB account either by cash withdrawals by authorized FIB representatives, all of whom were Colombian or Panamanian, or by wire transfers to banks in New York City. Most of the wire transfers went to Irving Trust Company, into the account of Banco Cafetero Panama, Account Number 803-3270-500 (the "500 account"). From March 1983 to the present, CNB records revealed that approximately $27 million had been wire transferred from the FIB account to the 500 account. This account, however, also received funds of other customers of Banco Cafetero Panama.

 Investigations by federal agents also revealed that FIB moneys have continued to flow out of FIB's account at CNB and into accounts in New York. At least $1,200,000 was deposited into the 500 account at Irving Trust between February 1, 1985, and March 1, 1985.

 An examination of the documents received by federal agents as of March 8, 1985, revealed that certain funds in the 500 account, attributable to FIB, were transferred to other Banco Cafetero Panama accounts maintained at Marine Midland, Chemical Bank, Philadelphia International Bank of New York, and First Chicago International Banking Co., and into accounts of Banco Cafetero Colon and Banco Cafetero International maintained at Irving Trust. In addition, numerous transfers occurred bank and forth between Banco Cafetero Panamas's various accounts and the accounts of Banco Cafetero Bogota, Banco Cafetero Colon, and Banco Cafetero International.

 In or about March 1984, federal agents also learned through a review of CTR (IRS Form 4789) reports that large cash transactions were being deposited into an FIB account at Tower Bank in Hialeh Gardens, Florida ("Tower"). From March 1983 to the present, Irving Trust Company records show that approximately $4 million has been wire transferred from the FIB account at Tower to an Banco Cafetero account in New York.

 The FIB headquarters in Panama is a small residential house with bars on the windows and a small sign. Its president, Gilbert Rodriguez, was indicted in Los Angeles in August 1982, for violation of the federal narcotics laws. He has also been indicted in the Eastern District of New York for violating narcotics laws. Based on these indictments, he was arrested in Madrid, Spain, and is currently facing extradition to the United States. FIB was recently nationalized by the Government of Panama, allegedly due to its well-known connection with narcotics operations.

 Banco Cafetero Bogota is a banking corporation organized and existing under the laws of the Republic of Colombia with its head office in Bogota. It is the largest state-owned bank in Bogota, Colombia. The account it maintains with Irving Trust Company in New York is a demand or checking account. Banco Cafetero Panama is a banking corporation formed under the laws of Panama and is a wholly-owned subsidiary of Banco Cafetero Bogota. The accounts that it maintains at the various banks are demand accounts. Banco Cafetero Colon is a branch bank of Banco Cafetero Panama in Colon, Panama, and it maintains a demand account at Irving Trust. Banco Cafetero International is an Edge Act bank organized under the laws of the United States. It main office is Located in New York and it too is a wholly-owned subsidiary of Banco Cafetero Bogota. Likewise, its account at Irving Trust is a demand account.

 On March 8, 1985, the government filed eight complaints in forfeiture against the eight bank accounts, alleging that the defendants-in-rem are subject to forfeiture pursuant to 21 U.S.C. ยง 881 because they were furnished or intended to be furnished in exchange for a controlled substance in violation of Title 21 of the United States Code, constitute proceeds traceable to an exchange of a controlled substance in violation of Title 21, and/or were used to facilitate a violation of Title 21.

 The government obtained warrants for the arrest of the defendants-in-rem seeking to seize all of the moneys and property in the accounts. They subsequently amended the warrants so that they seized only moneys in the accounts attributable to FIB. *fn1"

 The exact amount of moneys presently under seizure is unclear. According to the most recent papers submitted by the government, the following amounts are presently under arrest: $2,552,000 in Banco Cafetero Panama's account at Marine Midland; $299,729.68 in Banco Cafetero Panama's account at First Chicago; $54,585 in Banco Cafetero Panama's account at Chemical Bank; and $323,000 in Banco Cafetero Colon's account at Irving Trust. Two other restrained accounts have a negative balance: Banco Cafetero Panama's account at Philadelphia National Bank and Banco Cafetero International's account at Irving Trust. The last account, Banco Cafetero Bogota's account at Irving Trust, was unrestrained upon the government's consent.

 DISCUSSION

 The expropriated banks set forth several arguments to vacate the warrants of arrest. These arguments fall into four main categories: the inadequacy of the complaints; the failure to seize a forfeitable res; the failure to show probable cause; and the unconstitutional application of the seizure procedures. Although we will deal with each argument one at a time, we note that many of the issues are interrelated.

 Section 881 of Title 21, which provides for the forfeiture of property connected to illicit drug traffic, states in relevant part as follows:

 
(a) The following shall be subject to forfeiture to the United States and no property ...

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