The opinion of the court was delivered by: ROBERT W. SWEET
Claimant Luis Freixas ("Freixas"), owner of the contents of account number 2033301 (the "Defendant-in-rem" or the "Miami Account"), has moved pursuant to rule 12(b), Fed. R. Civ. P. to dismiss the verified complaint ("Complaint") filed against the Account by the United States for lack of in rem jurisdiction, or, in the alternative, pursuant to 28 U.S.C. § 1404, transfer the action to the United States District Court for the Southern District of Florida. For the reasons set forth below, Freixas' motion is denied.
On February 10, 1993, the Government filed the Complaint seeking civil forfeiture of the Account pursuant to 18 U.S.C. § 981(a). According to the Complaint, in late 1990 and 1991, $ 260,000 in cash was deposited into two accounts at BPD International Bank (formerly the Dominican Bank) in New York City, and then, in late 1990 and 1991, transferred by check and wire transfer to the Miami Account. The transactions allegedly were structured in such a way as to avoid the reporting requirements of federal law for cash transfers over $ 10,000.
On June 18, 1992, the Honorable Linnea R. Johnson, United States Magistrate Judge for the Southern District of Florida, issued a seizure warrant for the Defendant-in-rem Account Number 2033301 in the name of Luis Freixas, in the amount of $ 16,911.52, located at Citibank International Bank in Miami, Florida. On June 23, 1992, the Internal Revenue Service ("IRS") seized the Account under the warrant pursuant to 18 U.S.C. § 981, based on its alleged involvement in or traceability to a violation of one of the federal anti-structuring statutes, 31 U.S.C. § 5324. Freixas, however, is not a defendant in the related criminal proceeding.
On April 15, 1993, Freixas filed a verified claim with respect to the contents of the Miami Account and filed a motion to dismiss the complaint, or, in the alternative, to transfer the action to the Southern District of Florida.
"A civil proceeding for the forfeiture of property may be prosecuted in any district where such property is found." 28 U.S.C. § 1395 (b). Previously, forfeiture cases turned upon the notion that venue for a civil forfeiture proceeding was only proper in the District in which the property was found. See e.g. U.S. v. U.S. Currency in the Amount of Twenty Three Thousand Four Hundred Eighty One Dollars, ($ 23,481), More or Less, 740 F. Supp. 950, 953 (E.D.N.Y. 1990) ("Since the currency was "found" in this district the only district where venue is proper in this civil in rem forfeiture action against the United States currency is the Eastern District of New York.") (citations omitted); U.S. v. Contents of Accounts Nos. 3034504504 and 144-07143 at Merrill, Lynch, Pierce, Fenner & Smith Inc., 971 F.2d 974, 983 (3d Cir. 1992), cert. denied sub nom Friko Corp. v. United States, U.S. , 113 S. Ct. 1580, 123 L. Ed. 2d 148, (1993) ("We realize that our result requires the government to file a second civil forfeiture action in the district court where the res is found if it wishes to affect any rights person who are not subject to the territorial jurisdiction of the district court in which the related criminal prosecution is pending may have in a related res."); U.S. v. $ 358,613.00, U.S. Currency, 703 F. Supp. 452, 453 (W.D.N.C. 1989) (granting transfer "the Government notes that it is at least arguable that Section 1395(b) of Title 28, United States Code, requires forfeiture actions to be prosecuted in the district where the property is first found or seized."); U.S. v. One 1974 Cessna Model 310R Aircraft, 432 F. Supp. 364, 369 (D.C.S.C. 1977) ("Therefore, having found that the provisions of 28 U.S.C. § 1395(b) are applicable in the case and that 21 U.S.C. § 881 (b) does not grant the Attorney General the power to affect jurisdiction or venue by transporting seized property. . .")
Apparently in reaction to government officials' oft frustrated attempts to seize property outside of the jurisdictions in which the property was found, Congress amended Title 28 U.S.C. § 1355 in the "Money Laundering Enforcement Improvements "Acts of 1992, P.L. 102-550, 106 Stat. 4063. Title XV, subtitle C, amended 28 U.S.C. § 1355 to broaden the jurisdictional basis for civil forfeiture proceedings:
(b)(1) A forfeiture action or proceeding may be brought in --
(A) the district court for the district in which any of the acts or omissions giving rise to the forfeiture occurred, or
(B) any other district where venue for the forfeiture action or proceeding is specifically provided for in section 1395 of ...