The opinion of the court was delivered by: CAROL E. HECKMAN
This case was referred to the undersigned by Hon. Richard J. Arcara to hear and report on dispositive motions pursuant to 28 U.S.C. § 636(b)(1)(B). Claimants have moved, and the government has cross-moved, for summary judgment. For the following reasons, it is recommended that claimants' motion for summary judgment be denied and that the government's motion for summary judgment be granted.
On November 20, 1991, Carl Hillstrom and Kim Frank attempted to enter the United States from Canada at the Rainbow Bridge in Niagara Falls, New York. Hillstrom and Frank were passengers in a taxi cab. During a primary inspection at the customs booth, Carl Hillstrom produced a New Mexico driver's license and a United States passport which identified him as Thomas Minor. Kim Frank produced her new, unsigned passport. The customs inspector referred Hillstrom and Frank to the customs office for secondary inspection.
During secondary inspection, United States Customs Inspector Michael H. Bartel conducted a computer search based on the identification materials presented. The computer search on Thomas Minor was negative. Hillstrom (a/k/a Minor) filled out customs declaration form 6059B indicating that he had $ 3,506.50 in U.S. currency and $ 14.00 in Canadian currency in his possession (Item 85, Ex. C).
The computer search on Kim Frank showed that she was wanted on an outstanding warrant and should be considered armed and dangerous (Frank Aff., Item 85, Exs. A, B). As a result of this information, Customs Inspector Patricia M. Janicki performed a "pat down" search for weapons on Frank. Janicki found no weapons, but discovered two packages concealed under Frank's bodysuit. The packages were removed and opened by customs officials. Each package contained $ 10,000.00 in U.S. currency. A search of Frank's bags revealed an additional $ 268.00 in U.S. currency and $ 90.10 in Canadian currency, as well as a passport issued to Carl Hillstrom bearing a photograph of the individual who identified himself as Thomas Minor.
A computer check on Carl Hillstrom revealed that he was wanted on an outstanding warrant for escape from a federal prison in Pennsylvania.
Customs officers seized $ 20,268.00 in U.S. currency and $ 106.00 in Canadian currency from Frank, and $ 3,500.00 in U.S. currency from Hillstrom,
pursuant to 31 U.S.C. §§ 5316 and 5317. Frank was arrested and charged with making a false statement to a U.S. customs official, in violation of 18 U.S.C. § 1001. Hillstrom was arrested and returned to a federal correctional facility to resume serving a 62 month sentence for a conviction in the Southern District of Florida on February 7, 1990.
On January 23, 1992, Kim Frank pled guilty to the false statement charge. On April 6, 1992, she was sentenced by Hon. Richard J. Arcara, United States District Judge, to three months probation and fined $ 250.00 (Item 32, Ex. D). At the plea allocution, the following colloquy took place:
THE COURT: Miss Frank, why don't you tell me in your own words what happened here.
THE COURT: Okay. You had $ 10,000 in one pocket?
THE DEFENDANT: Well, I had $ 10,000 in my pants and another $ 10,000 in my shirt.
THE COURT: Okay. And you had some -- you told them you had no money whatsoever?
THE COURT: And they asked you whether you had any money or any currency on you?
THE COURT: And they asked you how much money you had with you or did they ask you whether you had $ 10,000?
THE DEFENDANT: No, they said -- yeah, they said how much money do you have, and I said $ 300, or something like that.
THE COURT: All right. Let's go to -- let me ask you this, you understood what they were asking?
THE DEFENDANT: I understood what they were asking.
THE COURT: And you knew you were telling them --
THE DEFENDANT: A ...