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U.S. v. $37

May 7, 1990

UNITED STATES OF AMERICA, PLAINTIFF,
v.
$37,590.00, DEFENDANT IN-REM.



The opinion of the court was delivered by: Haight, District Judge:

MEMORANDUM OPINION AND ORDER

The United States of America has brought this action seeking the forfeiture of $37,590.00 seized from Bennett Masel on June 2, 1987. Masel, the claimant, now moves to dismiss the complaint.

Background

On or about June 2, 1987, two plain-clothed law enforcement officers, police officer Jeffrey McCormick and DEA agent James Mueller, were waiting to execute a search of the second floor apartment at 9 Bleeker Street, New York City. Mueller Aff. ¶ 7; McCormick Aff. ¶ 5. The resident of the second floor apartment, Irwin Dana Beal, had been arrested that day for selling an unspecified amount of marijuana and/or hashish. Guerriere Aff. ¶ 7. Beal had allegedly made statements to an undercover officer about large quantities of marijuana he had for sale in his apartment. Id. at ¶ 8. On the basis of those statements, several law enforcement agents applied for a search warrant of his apartment while the above-named officers, McCormick and Mueller, secured the premises "to prevent anyone from moving evidence in or out of the building while [they] waited for a search warrant to arrive. Mueller Aff. ¶ 5.

9 Bleeker Street is a three story building. The first floor is the office, headquarters and meeting room of the Youth International Party ("YIP"). The second floor is Beal's private residence. It is accessible solely through a door off the second floor landing. The printing operations of YIP are located on the third floor. It is there that the organization publishes its newspaper, a book entitled "Blacklisted News," and various other periodicals and leaflets. Torbush Aff. ¶ 1-3.

While officers McCormick and Mueller were securing the premises, Bennett Masel walked up to 9 Bleeker Street and knocked repeatedly on the front door. Mueller Aff. ¶ 8. According to officer Mueller, "Masel did not appear to have a key . . .; however, it was clear from the way he was looking up to the windows on the upper floor of the building that he had some connection with the premises." Mueller Aff. ¶ 8.

The two officers approached Masel. They identified themselves as police officers and told Masel they wanted to talk to him. Officer McCormick immediately displayed his police identification and his gun. McCormick Aff. ¶ 17. Officer Mueller had a DEA badge around his waist and a gun on his hip. Mueller Aff. ¶ 17. The officers first advised Masel that no one could go in or out of the building until after the warrant had arrived. McCormick Aff. ¶ 7. Then, they began asking Masel repeatedly to identify himself and to state his business. McCormick Aff. ¶ 8. According to the officers, Masel "became verbally abusive and refused to answer [any] questions. He used many profanities and drew attention to himself and the scene around [them]." Mueller Aff. ¶ 10. Masel began yelling: "The police are going to hurt me." McCormick Aff. ¶ 8.

After repeated questioning, Masel finally responded that he sometimes lived at 9 Bleeker Street, that he has his mail delivered there, and that the people who lived there were his friends. McCormick Aff. ¶ 9.

The officers state that Masel was visibly nervous. He was carrying two bags, a blue nylon book bag and a shoulder bag. According to Mueller, Masel was in fact "clutching tightly" his bags. Mueller Aff. ¶ 12. The officers asked him what he had in his bags. Masel refused to answer. According to McCormick, "[a]fter Masel refused to respond to our inquiries as to what he had in his bags, I pull [sic] the bags forcefully from him and put them on the ground as if they contained explosives. While Mueller restrained Masel from fleeing, I opened the bag. . ." McCormick Aff. ¶ 12. According to Mueller, Masel "started to go into his shoulder bag" just before the officers removed and searched his bags. Mueller Aff. ¶ 12.

Inside the bags, McCormick found (1) a petition, with approximately 4,000 signatures, calling for the impeachment of President Reagan, Vice-President Bush and Attorney General Meese for their involvement in the Iran/Contra affair, (2) $37,590.00 in currency, and (3) about 10 seeds in a small plastic bag. Mueller Aff. ¶ 15; Neufeld Aff. ¶ 6.

The officers believed that the seeds were marijuana seeds. They arrested Masel for violating the narcotics laws. They seized the seeds and the money, but not the petition. Mueller Aff. ¶ 16.

Masel began "yelling" that his arrest was a political conspiracy and that the police were "going to hurt him." Mueller Aff. ¶ 16; McCormick Aff. ¶ 8. Masel told the officers that the money he was carrying "was for political advertising and had been collected all over the United States." Stadnyk Aff. ¶ 8; McCormick Aff. ¶ 13 ("collected from donations he had received that day").

The police obtained the search warrant at approximately 7:45 p.m. and carried out the search of the second floor apartment of 9 Bleeker Street. The police seized marijuana and peyote mushrooms from the second floor apartment. Guerriere Aff. ¶ 12-13. The police also discovered two pieces of identification belonging to Masel during the search. It is not clear from the affidavits, however, whether the identification was found in the second floor apartment or elsewhere on the premises of 9 Bleeker Street. Complaint ¶ 11; Guerriere Aff. ¶ 14.

On October 29, 1987, the charge against Masel for possession of marijuana was dismissed by the New York County District Attorney for lack of prosecutorial merit. Neufeld Aff. ¶ 6; Guerriere Aff. ¶ 16. The alleged marijuana seeds were not tested and thus never determined to be marijuana. Despite the dismissal of the charge, however, the money was not returned to Masel. Instead, the government instituted these forfeiture proceedings under 21 U.S.C. § 881(a). Meanwhile, the Impeachment Campaign borrowed money and placed a 1/6 page advertisement in the New York Times calling for the impeachment of the President. Rubin Letter, page 3.

Discussion

Masel petitions this Court to dismiss the forfeiture action and to direct the government to return the $37,590. Masel argues first that the complaint fails to state a claim because it does not make any factual allegation regarding a nexus between the money seized and any past or future narcotics transaction. Second, he contends that he is entitled to summary judgement because the undisputed facts do not support a finding of probable cause that the money was intended to be used for narcotics transactions. ...


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