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IN RE WILLIAMS

February 19, 1986

IN THE MATTER OF THE APPLICATION OF DAVID WILLIAMS and MICHAEL ARNOLD for an order directing the release of $53,040 in U.S. Currency or in the alternative, directing that forfeiture proceedings be instituted


The opinion of the court was delivered by: WEINSTEIN

WEINSTEIN, Ch. J.:

David Williams and Michael Arnold bring this petition to compel the release of $53,040 seized at LaGuardia Airport. The United States had not instituted a forfeiture proceeding because, in its view, petitioners failed to comply with the bond requirements established by the Drug Enforcement Administration. The government now moves to dismiss the petition on the ground that this court lacks subject matter jurisdiction.

 FACTS

 David Williams was stopped by DEA agents on April 1, 1985, while waiting to board a flight from LaGuardia Airport in New York to Miami. The parties dispute the reason for the stop. Williams contends that the stop was unauthorized. The government's position is that Williams was detained on a marijuana charge even though, according to Williams, the agents did not mention marijuana until hours after the stop and a search of Williams' luggage.

 The DEA agents arrested Williams. A search of his luggage revealed $53,040 in cash. It was seized. In the ensuing weeks Williams' and Arnold's attorney attempted to have the DEA commence forfeiture proceedings. On May 22, the DEA informed Williams' and Arnold's attorney that his clients would have to file a claim, together with either a 10% cost bond of $5,304 or an in forma pauperis petition. On June 19, the DEA received a notice of claim from David Williams as owner of $15,040 and Michael Arnold as owner of the balance, $38,000, with pauper's affidavits from both men.

 The affidavits reflected modest assets. Williams claimed a salary of $1000 per month, $900 in a bank account, and a house valued at $14,800 on which he owed $11,000 in taxes. Arnold claimed $300 per week in salary, $14,440 a year in rent payments, $3400 in a bank account, and a $90,000 house, approximately two-thirds owned free and clear. Both men claimed four dependents each.

 Five weeks after receiving the claim, the DEA rejected the paupers' affidavits as lacking in merit. Shortly thereafter, Williams and Arnold sued to obtain the release of the $53,040.

 LAW

 The Drug Enforcement Administration may seize money that is "furnished or intended to be furnished by any person in exchange for a controlled substance...." 21 U.S.C. § 881(a)(6). Process is governed by United States Customs Service laws. 21 U.S.C. § 881(d).

 When it seizes property valued at $100,000 or less, the DEA must publish, for at least three weeks, notice of the seizure and its intention to have the property forfeited. 19 U.S.C. § 1607. Within 20 days of the first publication of the notice, a person claiming an interest in the property must file a notice of claim and a bond of $2500 or ten percent of the claimed property, whichever is less:

 Any person claiming such [property] may at any time within twenty days from the date of the first publication of the notice of seizure file with the appropriate customs officer a claim stating his interest therein. Upon the filing of such claim, and the giving of a bond to the United States in the penal sum of $2,500 or 10 percent of the value of the claimed property, whichever is lower, but not less than $250, with sureties to be approved by such customs office ... such customs officer shall transmit such claim and bond ... to the United States attorney for the district in which seizure was made, who shall proceed to a condemnation of the merchandise or other property in the manner prescribed by law.

 19 U.S.C. § 1608.

 DEA regulations concerning claimed property do not provide for in forma pauperis petitions. 21 C.F.R. 1316.71-1316.81. The Customs Service regulations control. 21 U.S.C. § 881(d). "Upon satisfactory proof of financial inability to post the bond, the district director shall waive the bond requirement for any person who claims an interest in the seized property." 19 C.F.R. 162.47(e).

 As a result of the combination of statutes and regulations, if a bond or a pauper's affidavit, together with a notice of claim is presented to the DEA agency, formal condemnation proceedings must be commenced by the government. 19 U.S.C. § 1608. Due process then requires a determination of the ownership of seized property within a reasonable period of time after the seizure. See United States v. Von Neumann, slip. op. 84-1144 ...


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