would be returned, and (3) the government had neglected to serve a notice of administrative forfeiture with respect to the $ 2,010 in United States currency, but that the Drug Enforcement Agency would reopen the matter and inform plaintiff as to how to challenge the forfeiture.
The government contends that because it has resolved or agreed to resolve all outstanding issues, Bautista's "petition" is moot. The magistrate judge issued a report recommending that plaintiff's claims be denied as moot.
The court respectfully declines to follow the recommendation of the magistrate judge.
The government has not yet offered evidence that it has returned the carry-on bag, briefcase and personal documents. Because claimants too frequently encounter difficulties in taking actual delivery of seized property still in government possession at Kennedy Airport, the court will not deem the controversy involving these items to be moot until the government provides evidence that it has returned them or until plaintiff withdraws his claim.
The government has offered no evidence, such as affidavits by the arresting officers and a copy of an inventory made pursuant to 41 C.F.R. § 128-50.101, that it did not seize the 30,000 Columbian pesos from Bautista. Moreover, Bautista was not advised by the magistrate judge to submit evidence, such as an affidavit, that the pesos were seized from him. Thus the court finds a genuine issue of material fact as to whether the government seized the Columbian pesos.
The matter of the missing pesos raises a further question. One would expect a passenger on a flight from Colombia to carry at least a small amount of Colombian currency. Under the current rate of exchange, 30,000 Colombian pesos would be worth $ 47.49. N.Y. Times, Feb. 7, 1993 at D23 (foreign exchange table). The court is puzzled as to why the government would exhibit such apparent indifference to the alleged missing pesos since Bautista's claim raises the unappealing inference that if the pesos are not found among Bautista's belongings, they may have been stolen from him.
Last, the government has not offered any explanation as to why the $ 2,010 in United States currency should be the subject of administrative forfeiture proceedings nor has it provided any evidence that such proceedings have commenced. If, as in Onwubiko v. United States of America, 969 F.2d 1392, 1399 (2d Cir. 1992), the government seized the United States currency simply because (1) Bautista was carrying a controlled substance, and (2) he was carrying the currency, Bautista ultimately may have a claim under the Tucker Act, 28 U.S.C. § 1346, and, perhaps, Bivens v. Six Unknown Named Agents, 403 U.S. 388, 29 L. Ed. 2d 619, 91 S. Ct. 1999 (1971). See Onwubiko, 969 F.2d at 1397-1400; Odoom v. United States of America, 1992 U.S. Dist. LEXIS 14451, No. CV 92-2543(EHN) (E.D.N.Y. Aug. 21, 1992).
Again, the court is troubled by the apparent lack of adequate controls over currency seized at Kennedy Airport from an arrested person, as evidenced by the government's failure timely to institute forfeiture proceedings.
Finding the legal issues raised in this case to be complex and the plaintiff unable to afford counsel, the court directs the clerk of the court to appoint counsel for Bautista, see id; Hodge v. Colon, 802 F.2d 58, 61 (2d Cir. 1986), so that Bautista may press his claims relating to (i) property acknowledged by the government to be in its possession, (ii) the 30,000 Columbian pesos which may not be in the government's possession, and (iii) the $ 2,010 in United States currency.
The court notes that the facts and issues raised in this case are like those raised in the many other return of property filed in these chambers and, one presumes, throughout the Eastern District of New York. An appointment of counsel in each such case would overwhelm the court's panel of pro bono counsel. Yet the failure to appoint counsel in many of these cases would lead to disparate and unfair results.
The court therefore directs plaintiff and his appointed counsel to consider whether to amend the complaint to bring a class action because "questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for a fair and efficient adjudication of the controversy." Fed. R. Civ. P. 22(b)(3).
By examining these cases as a group the court may be better able to discern common facts. For example, if the government rarely has a record that it seized foreign currency, other than coins which cannot be readily exchanged for United States currency, the inference of petty theft might be made. See, e.g., Gomez v. United States of America, No. CV 92-4647 (E.D.N.Y. Feb. 9, 1993)yy.
Plaintiff's counsel may consider whether an amended complaint should state claims under (i) the Tucker Act, 28 U.S.C. § 1346, (ii) the Federal Tort Claims Act, 28 U.S.C. § 2671 et seq., (iii) Bivens v. Six Unknown Named Agents, 403 U.S. 388, 29 L. Ed. 2d 619, 91 S. Ct. 1999 (1971), or (iv) civil equitable principles as ennuciated in Mora.
Any such class action might also address the government's practice or policy regarding the shipment of seized property, whether to the claimant directly or to a domestic or foreign addressee of claimant's choosing, if such practice or policy constitutes an unreasonable deprivation of property. See United States of America v. Nestor Ulloa, No. CR 92-1067 (E.D.N.Y. Feb. 9, 1992).
It would seem ludicrous for this court to review or intervene in the administrative procedures governing the taking, retention and return of property seized from persons arrested at Kennedy Airport. Such procedures are best left to the sound discretion of the United States Attorney and the heads of relevant agencies at the airport. But if, in the course of this litigation, the court finds a persisting pattern in which arrested persons are wrongfully denied the return of their property, the court would be compelled to issue appropriate remedial orders.
Plaintiff's counsel shall seek leave to file an amended complaint within 60 days of appointment unless directed otherwise by the court. This court will consider all future motions in the case, other than pre-trial discovery motions which shall be referred to Magistrate Judge Azrack for disposition.
Dated: Brooklyn, New York
February 9, 1993
Eugene H. Nickerson, U.S.D.J.
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