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UNITED STATES v. $4

July 23, 1985

UNITED STATES OF AMERICA against $4,000 IN U.S. CURRENCY, Defendant


The opinion of the court was delivered by: KNAPP

MEMORANDUM & ORDER

WHITMAN KNAPP., D.J.

 This forfeiture proceeding is before us on the Government's motion for summary judgment. The Government's motion is opposed by the claimant, Frank David Bagguley, appearing pro se, from whom the $4,000 (defendant-in-rem) was seized by agents of the Drug Enforcement Agency ("DEA"). For the following reasons, we grant the Government's motion.

 FACTS

 In March of 1983 claimant Bagguley and an associate arranged for an unidentified individual to smuggle heroin from Thailand to the United States. Unbeknownst to Bagguley and his associate, the would-be smuggler was a confidential informant of the DEA. It was agreed that the informant, after smuggling a package of heroin into New York, would contact Bagguley at a certain telephone number, later determined to correspond to telephone service for apartment 2-F at 251 East 32nd Street in Manhattan (the "apartment").

 Bagguley gave the informant approximately $3,000 in Thai currency as partial payment for his smuggling services, and, immediately prior to his departure from Thailand, the informant received the package of heroin he was to smuggle. On his trip from Thailand to New York the informant was accompanied by a DEA agent, whom Bagguley and his associate believed was a savvy drug smuggler.

 After arriving in New York the agent contacted Bagguley at the pre-arranged phone number and arranged a meeting for the afternoon of March 25, 1983. During that meeting Bagguley explained he would be able to make final payment to the agent and informant after he collected proceeds from expected sales of narcotics, which other couriers were bringing later that day. The agent and the informant kept the package of heroin they had "smuggled" in anticipation of final payment for their services.

 Several phone calls on March 25, 1983 and during the next several days finally resulted in another meeting of Bagguley, the agent and the informant. The Government asserts that at this meeting, which took place the evening of March 29, 1983 at a Holiday Inn in Manhattan, the agent gave Bagguley a package of substituted heroin and received $1,000 in U.S. currency along with a promise of a final payment of $23,000 to be made later that day. Bagguley was arrested immediately following the meeting.

 At about the same time, the apartment on 32nd Street was searched, pursuant to a search warrant issued by the Honorable Leonard Bernikow, United States Magistrate. The Government claims that during the search DEA agents found $3,000 in U.S. currency inside a briefcase that also contained Bagguley's passport and birth certificate. The tenant of the apartment was present during the search and identified the briefcase as belonging to Bagguley.

 Bagguley disputes only certain aspects of the Government's scenario and, for the reasons discussed below, his alternative scenario does not raise material issues of fact that would defeat a motion for summary judgment. Bagguley contends that the entire $4,000 at issue in this case was seized at his arrest, and that an additional $700 was taken but later returned. Notably, Bagguley does not dispute the allegation that $1,000 was actually handed over to the agent, nor does he deny promising to make a substantial final payment.

 DISCUSSION

 Title 21 U.S.C. § 881(a) (6) provides, in relevant part for the forfeiture of all money

 
. . . furnished or intended to be furnished by any person in exchange for a controlled substance in violation of this subchapter, all proceeds traceable to such an exchange, and all moneys . . . used or intended to be used to facilitate any violation of this subchapter.

 The Government bears the initial burden of proving probable cause for seizure of the money at issue. 21 U.S.C. § 881(d); United States v. $2,500 in United States Currency (2d Cir. 1982) 689 F.2d 10, 12, cert. denied 465 U.S. 1099, 104 S. Ct. 1591, 80 L. Ed. 2d 123 (1984). After this showing has been made the burden shifts to the claimant to establish, by a preponderance of the evidence, that the money at issue is not so connected to a narcotics transaction ...


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