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U.S.A. v. $175

July 16, 1990

U.S.A., PLAINTIFF,
v.
$175,260, DEFENDANT.



The opinion of the court was delivered by: Platt, Chief Judge.

AMENDED MEMORANDUM AND ORDER

This forfeiture proceeding stems from the DEA seizure of $175,000 in U.S. currency from claimant Steven J. Cohen while he was travelling in John F. Kennedy Airport on December 1, 1985. A non-jury trial was held before this Court on the issue of whether the Government has satisfied the probable cause requirement and may obtain the forfeiture of the defendant-in-rem $175,260, pursuant to Title 21 U.S.C. § 881(a)(6). We hold that it may.

FINDINGS OF FACT

On December 1, 1985 at John F. Kennedy Airport, the claimant purchased, for cash, a one-way ticket to Lubbock, Texas on American Airlines under the assumed name of Jay Harris. (Pre-Trial Order, Stipulated Fact 1, r. 18)

Claimant carried with him a single carry-on bag and a shopping bag. (PTO, Stip. 2, r. 13) Each bag contained a gift-wrapped box of U.S. currency which together totalled $175,000. (r. 14) He had no checked luggage. (r. 14, 118)

When claimant's luggage pased through the pre-flight screening monitor, a large quantity of U.S. currency was discovered. (r. 12) Port Authority police notified the United States Drug Enforcement Administration. (r. 10) DEA Special Agents Mark Thornton and Peter Mittesser introduced themselves to the claimant and said that they were interested in clarifying the status of the money. (r. 13, 14) Claimant was detained from his flight and Thornton questioned him. (r. 101)

During the interview, claimant told the agents that he was going to Texas to meet a brother-in-law named Jay in Texas to invest in a business venture. (r. 14, 15) However, he did not know Jay's last name, his address, or what kind of business Jay had. (r. 14, 15) At trial, claimant stated that he took the money intending to leave his family. (r. 118) However, he did not call ahead to make any hotel reservation, he did not let anyone know he was coming, he does not have any friends in Lubbock, Texas, and all he took were clothes for a few nights. (r. 145) In addition, six months earlier he had bought a new house with his wife. (r. 145)

Claimant added that his wife was aware of the trip and the money. (r. 16) A telephone call to claimant's wife revealed that she was aware of her husband's departure, but she was unaware of the money. (r. 16) Claimant then told the DEA agents that his wife did not know about the currency because he had kept it hidden in a Pampers disposable diaper box in their home. (r. 17) Claimant further stated that he kept the money hidden because he did not trust banks, and he did not want the money to be known. (r. 17, 128, 130) At trial, however, he admitted he had an account at the Crossland Savings Bank and a mortgage on his home with the Dime Savings Bank. (r. 133)

Claimant's travel bag was placed on a baggage carousel and subjected to canine detection. (r. 21) After bypassing at least ten pieces of luggage, a U.S. Customs Service detector dog gave a strong positive alert indicating the presence of narcotics residue by biting claimant's bag. (r. 21) Detective Thornton had worked with this particular dog on several prior occasions, and the dog had never given an inaccurate alert. (r. 23, 24) The agents advised claimant that DEA was seizing the currency pursuant the 21 U.S.C. § 881(a)(6) and gave him a receipt. (r. 25) They counted the money and found that most of it was in five, ten and twenty-dollar denominations. (r. 27, 28) The actual total was $175,000, consisting of more than seven thousand bills. (r. 29)

Claimant then told the DEA agents the first of several stories of how he acquired the currency. He first claimed the money represented the collection of debts repaid by various borrowers. (r. 17, 106) At least $100,000 of this had come from under-the table payments he had received as a restaurant consultant. (r. 18) However, claimant refused to name any of his debtors or restaurant clients stating he didn't want to implicate them. (r. 18, 19)

On March 4, 1986, claimant submitted a Petition for Remission in which he swore that the currency constituted savings accumulated over many years. (r. 147) However, at trial, claimant admitted he had lied to the DEA agents. (r. 124, 147) Instead, he testified that his homosexual lover had given claimant the currency in March 1983. (r. 124, 126) Supposedly, claimant never asked how his lover, a chemical engineer employed by the City of New York, got this large amount of money. (r. 115, 126) Nor did he ever count the money or receive any form of a receipt. (r. 127). The lover supposedly gave claimant this unusual gift because he "just wanted (claimant) to be happy." (r. 115) This allegedly occurred toward the end of their three-month relationship, and subsequently the lover died of cancer and/or AIDS. (r. 114)

Prior to 1980, claimant worked as a cab driver, as an employee with Ultrasonic Instruments, and as a restaurant manager. (r. 122) Claimant did not work full-time from 1980 to 1984. (r. 111) After the DEA seizure, claimant testified to declaring the money on his income tax return for the year 1985, as income from self-employment and personal services. (r. 139) Claimant did not declare the money by filing a donee gift tax return. (r. 136) However, the IRS has no record for federal tax returns filed by claimant for the tax year 1985. (r. 167, 168) Similarly, there are no records of his filing federal tax returns for the years 1975 through 1986. (r. 167, 168)

DISCUSSION

In a civil forfeiture action, the government bears the burden of demonstrating the existence of probable cause for a belief that a substantial connection exists between the property to be forfeited and proceeds from a drug transaction in violation of 21 U.S.C. § 881.*fn1 United States v. Four Million Two Hundred Fifty-Five Thousand, 762 F.2d 895, 903 (11th Cir. 1985). The government does not need to charge the individual with a specific drug violation. U.S. v. $29,500, 677 F. Supp. 1181 (N.D.Ga. 1988). Nor does the government need to specify to which particular drug transaction the propery was connected. United States v. Four Million Two Hundred Fifty-Five Thousand, 762 F.2d at 904. The government ...


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