of Currency or Monetary Instrument Report ("CMIR"). The parties, pursuant to 28 U.S.C. § 636(c), have consented to having me decide claimant's motion for summary judgment.
The facts material to determination of this motion are undisputed. On April 7, 1993, claimant Faustino Chaves delivered a crate to the American Airlines cargo terminal at John F. Kennedy ("JFK") Airport for shipment on a space available basis to Myriam Chaves in Cali, Colombia. Airline officials assigned the crate to flight 575, which was scheduled to depart JFK at 11:58 a.m. and arrive in Colombia that same day. The flight had a short scheduled stopover in Miami International Airport before proceeding to Colombia.
Prior to the flight's departure for Miami, U.S. customs officers conducted a random inspection of the American Airlines terminal. Because the crate appeared to have an unusually thick bottom, the customs officers x-rayed the crate and found that it had a false bottom containing $ 170,000 in U.S. currency. The officers later seized the crate pursuant to 31 U.S.C. § 5316, which requires that a Custom's form 4790 (that is, a CMIR) be completed when an individual transports or attempts to transport more than $ 10,000 from the United States to a place outside the United States. The claimant did not file a CMIR on April 7, 1993 or at any time thereafter.
On April 29, 1993, an American Airlines official telephoned Chaves and advised him to go to JFK Airport to file an insurance claim because the crate had been damaged. Chaves did not go to the airport and made no inquiry until May 6, 1993. On June 10, 1993, the U.S. Customs Service sent claimant a notice of seizure letter and subsequently commenced this forfeiture action.
Summary judgment is appropriate pursuant to Fed. P. Civ. P. 56 when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Citizens Bank of Clearwater v. Hunt, 927 F.2d 707, 710 (2d Cir. 1991) (citations omitted). The moving party bears the initial burden of demonstrating an absence of material facts and once it has done so, the burden shifts to the non-moving party. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). In determining whether there is a genuine issue of material fact, the court must resolve ambiguities and draw inferences in favor of the non-moving party. Celotex, 477 U.S. at 322-323 (1986); Capital Imaging Associates, P.C. v. Mohawk Valley Medical Associates, Inc., 996 F.2d 537, 542 (2d Cir.), cert. denied, 126 L. Ed. 2d 337, 114 S. Ct. 388 (1993).
A party opposing summary judgment must present "significant probative supporting evidence" that a factual dispute exists. Fed. R. Civ. P. 56(e); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). In addition, Fed. P. Civ. P. 56(c) "mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex. 477 U.S. at 322.
The central issue in this case is whether the claimant violated any currency reporting statute which would trigger the Government's right to seize and forfeit the currency. The claimant argues that he was never required to file a CMIR because no "departure" occurred as required by applicable regulations.
Forfeiture of currency seized in the course of being transported out of the United States involves the interplay of three statutes. See United States v. $ 500,000, 62 F.3d 59 (2d Cir. 1995). Section 5316(a) of Title 31 requires the filing of a CMIR by any person who knowingly "transports, is about to transport, or has transported, monetary instruments of more than $ 10,000" from the United States to any place outside. 31 U.S.C. § 5316(a)(1) (1983 & 1995 Supp.). This provision further empowers the Secretary of the Treasury to prescribe the "time and place" for filing a report. Section 5324(b)(1) makes unlawful the failure "to file a report required by Section 5316" as well as conduct which "cause[s] or attempt[s] to cause a person to fail to file such report."
Section 5317(c) authorizes forfeiture of "any property, real or personal, involved in a transaction or attempted transaction in violation of section 5324(b)...." It also specifies that, for purposes of the subsection, a monetary instrument "is being transported" from:
the time the instrument is delivered to the United States Postal Service, common carrier, messenger, or bailee through the time it is delivered to the addressee, intended recipient, or agent of the addressee or intended recipient without being transported further in, or taken out of, the United States.
Id. (1995 Supp.). This provision is dispositive of the instant motion, since it expressly permits forfeiture once the monetary instrument is delivered to a common carrier for transportation abroad. It is the conduct of the claimant in conveying the currency to the airline, rather than the transfer of the currency aboard an international flight, that is determinative of when the duty to file arises. Such an approach makes sense given that a person consigning a package for delivery by a carrier or the postal service generally has no control over the exact mode of transportation or actual flight to be utilized in conveyance.
The regulations promulgated by the Secretary of the Treasurer implementing 31 U.S.C. § 5316 also make clear that delivery to a common carrier triggers the requirement to file a CMIR.
Specifically, 31 C.F.R. § 103.23(a) requires that:
Each person who physically transports, mails, or ships, or causes to be physically transported, mailed, or shipped, or attempts to physically transport, mail or ship, or attempts to cause to be physically transported, mailed, or shipped, currency or other monetary instruments in an aggregate amount exceeding $ 10,000 at one time from the United States to any place outside the United States .... shall make a report thereof. A person is deemed to have caused such transportation, mailing or shipping when he aids, abets, counsels, commands, procures, or requests it to be done by a financial institution or any other person. (Emphasis added).