The opinion of the court was delivered by: Spatt, District Judge.
In United States v. Monsanto, 924 F.2d 1186 (2d Cir.
1991) (en banc) ("Monsanto IV"), the Second
Circuit held that in the context of a criminal forfeiture
proceeding the Fifth and Sixth Amendments require an adversary,
post-restraint, pretrial hearing as to probable cause to
continue the restraint of assets needed to retain counsel of
choice. Less than six months later, this Court is faced with
the issue of whether the Monsanto IV safeguards are
equally applicable in a civil forfeiture proceeding when the
claimant is also the defendant in the related criminal action.
For the reasons that follow, this Court is of the view that
under the circumstances presented here, the rule enunciated in
Monsanto IV applies equally in this case.
Claimant Francisco A. Murillo ("Murillo"), moves pursuant to
Rule 12 of the Admiralty Rules of the United States District
Courts for the Southern and Eastern Districts of New York, as
well as the Fifth and Sixth Amendments of the Constitution, for
the release of $100,000 of funds previously attached by an
ex parte order, so he can retain private counsel of
his choice to defend him in the related ongoing criminal
The plaintiff United States of America ("the Government"),
cross-moves pursuant to Fed.R.Civ.P. 56(a), for summary
judgment, and also for a stay of this civil forfeiture
proceeding pending a disposition of the criminal action,
pursuant to 18 U.S.C. § 981(g) and 21 U.S.C. § 881(i).
In addition, Murillo cross-moves to dismiss the action as to
four of the six seized bank accounts, on the ground that they
are located outside of the Eastern District of New York, and
therefore the Court lacks subject matter jurisdiction over the
Oral argument was held by the Court on June 7, 1991 and June
14, 1991. On June 14, 1991, the Government waived any objection
to the conceded untimeliness of Murillo's cross-motion to
dismiss, relying solely on oral argument as to that issue.
By criminal complaint dated October 19, 1990, Murillo was
charged in the Eastern District of New York (CR-90-1336-M) with
knowingly and intentionally structuring financial transactions
with a domestic financial institution (see 31 U.S.C. § 5324;
18 U.S.C. § 3551). Specifically, Murillo is
charged with breaking down the amount of cash in excess of
$10,000 and making cash deposits in the Bank of New York,
Garden City, and other banks, such as Chemical Bank, of less
than $10,000 with the purpose of causing the bank not to file
a currency transaction report ("CTR") with respect to the
On or about May 16, 1991, a Grand Jury returned a 111-count
indictment charging Murillo with conspiracy to illegally
transfer funds out of the United States through structuring
financial transactions to avoid CTR requirements in violation
of 31 U.S.C. § 5313(a) and 5324(3). Murillo was arraigned
by this Court on the indictment on June 7, 1991, entering a
plea of not guilty.
In the interim, on December 3, 1990, the Government commenced
this civil action pursuant to 18 U.S.C. § 981 and 31 U.S.C. § 5324,
by filing a verified complaint in rem
seeking the forfeiture of all funds contained in numerous bank
accounts in the names of Murillo, his wife and his daughter.
The Government alleges that these funds have been involved in
or are the proceeds of Murillo's alleged criminal activities.
On that same day, this Court issued, ex parte, a
warrant for the arrest of the funds in rem, which
attached all funds on deposit in the banks, including the
following six accounts to which Murillo now asserts a
(2) Chemical Bank, 52 Broadway, New York, New
York, Account No. 016592387, in the name of
Francisco Murillo, in the amount of $8,409.87;
(3) Chemical Bank, 52 Broadway, New York, New
York, Account No. 001375814, in the name of
Francisco and Minerva Murillo, in the amount of
(4) Bank of New York, Stewart Avenue, Garden City,
New York, Account No. 403201552, in the name of
Francisco Murillo, in the amount of $3,829.21;
(5) Long Island Savings Bank, 1150 Franklin
Avenue, Garden City, New York, Account No.
02180413727, in the name of Francisco Murillo, in
the amount of $10,575.34; and,
(6) Merrill Lynch, 2 Broadway, New York, New York,
Account No. 84031253, in the name of Francisco and
Minerva Murillo, in the amount of $290,731.20.
Murillo now seeks to have the restraining order vacated to
the extent that he requests that $100,000 be released from the
seizure to enable him to retain private counsel of his ...