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UNITED STATES v. U.S. CURRENCY IN THE AMOUNT OF $

March 20, 1992

UNITED STATES OF AMERICA, Plaintiff,
v.
U.S. CURRENCY IN THE AMOUNT OF $ 41,807, More or Less, etc., Defendant.


SIFTON


The opinion of the court was delivered by: SIFTON

SIFTON, District Judge

 This is a motion pursuant to Federal Rules of Civil Procedure 60(b) to vacate a decree of forfeiture and order of delivery and to grant leave for certain individuals to file claims against the defendant United States Currency.

 The following facts, except where expressly noted, are not disputed. Five claimants request this Court to vacate the decree of forfeiture and order of delivery ("the in rem order") and allow them to file claims asserting ownership of the defendant currency.

 Plaintiff, the United States, opposes this request on the ground that the claimants have no standing since they did not comply with Rule C(6) of the Supplemental Rules for Certain Admiralty and Maritime Claims of the Federal Rules of Civil Procedure and have also failed to show an excusable basis for their neglect which would allow vacatur under Rule 60(b).

 In May 1990, Cheng Zhong Lin was stopped by the United States Customs Service ("Customs") in John F. Kennedy International Airport. He was carrying a sum of money in United States currency and travelers checks ("the currency") totaling approximately $ 50,000. On July 30, 1990, he pled guilty to a violation of 31 U.S.C. 5316(b) (failure to file a report when departing the United States when carrying over $ 10,000).

 On November 21, 1990, pursuant to 31 U.S.C. ยง 5317, an arrest warrant was issued against the currency. The currency was seized and arrested on January 7, 1991, by Customs. Also on January 7, 1991, Customs mailed notice to Cheng Zong Lin at the address of his attorney. Public notice of the arrest was also made in Newsday.

 No claim against the defendant currency was filed within the ten-day limit proscribed by Rule C(6) of the Supplemental Rules for Certain Admiralty and Maritime Claims of the Federal Rules of Civil Procedure.

 On November 21, 1991, a verified complaint in rem was filed against the currency. United States v. United States Currency in the Amount of $ 41,807, more or less, and Travelers Checks in the Amount of $ 9,000, more or less, CV-90-4026. On February 9, 1991, this Court issued a decree of forfeiture and order of delivery against the in rem defendant.

 Cheng Zhong Lin now asserts that he did not receive actual notice of the in rem action because he had left for China. He further asserts that the currency and travelers checks involved were lawfully earned money belonging to himself and five friends which he was taking to the People's Republic of China to give to the owners' relatives. Supporting affidavits are filed by three of these individuals and the attorney representing all the current claimants.

 Plaintiff, the United States, forwards to this Court a copy of a letter to Customs dated July 24, 1990, from Cheng Zhong Lin's attorney in the criminal matter stating that his client wished to assert a claim against the currency. Declaration of Christopher G. Lehmann, Exh. B. Respondent also forwards a $ 5,000 claim and cost bond signed July 31, 1990, by Cheng Zhong Lin. Id., Exh. C.

 Plaintiff declares that a search of the litigation file of the in rem action has found no other documents from any of the movants or their counsel. He further alleges that at his arrest Cheng Zhong Lin stated he was not carrying funds for other persons.

 DISCUSSION

 The first issue is the claimants' standing to bring this motion. Plaintiff contends that they lack standing to challenge the in rem order because they did not file timely notices of claim pursuant to Rule C(6).

 This position was rejected in United States v. Property at 4492 S. Livonia Rd., 889 F.2d 1258, 1262 (2d Cir. 1989). Livonia also involved a motion to vacate a default judgment in an in rem forfeiture proceeding by a person who had failed to comply with Rule C(6). The Court of Appeals distinguished between Article III standing and statutory standing.

 
"When, as here, a claimant has made a sufficient showing of interest in the property through filing with the court a motion and accompanying affidavits, technical noncompliance with the procedural ...

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