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December 7, 1995

One 1990 Mercedes Benz.

The opinion of the court was delivered by: SCULLIN


 This action involves a civil forfeiture of property that is directly traceable to the funds involved in a currency structuring scheme that was the subject of U.S. v. Roy L. Rogers, 94-CR-138 (N.D.N.Y.), a related criminal proceeding. Presently before the Court is a motion to dismiss this action filed by Edith Griffin, a claimant in the above-entitled matter.

 While Ms. Griffin is a claimant in the present civil forfeiture action, she was also a defendant in the earlier criminal action. At the conclusion of that trial, Ms. Griffin was acquitted of the currency structuring charges against her. *fn1" Based upon her acquittal in the related criminal action, Ms. Griffin claims that the present civil forfeiture action should be dismissed because it is barred by the double jeopardy clause of the Fifth Amendment to the United States Constitution.


 In March 1992, Roy Rogers, Ms. Griffin's brother, decided to purchase the 1990 Mercedes Benz Sedan that is the subject of the present action. The price for the vehicle was $ 23,000, and Mr. Rogers advised the seller that he intended to pay for it in cash. Following his discussion with the seller, Mr. Rogers borrowed $ 12,000 of the purchase price from Ms. Griffin. *fn2" As a result of the seller's desire to be paid by check, however, Mr. Rogers was forced to recruit three individuals to help him convert $ 23,265 in currency into three cashier's checks which could be used to buy the vehicle. With the assistance of those three individuals, Mr. Rogers was ultimately able to obtain three cashier's checks in the amount of $ 7,755, each made out to the seller of the Mercedes Benz.

 On April 4, 1992, Mr. Rogers and Ms. Griffin consummated the purchase of the vehicle, with Ms. Griffin taking title to the vehicle and Mr. Rogers registering it in his name. In August 1992, the Internal Revenue Service, Criminal Investigation Division ("IRS-CID") began to investigate various currency transactions involving Mr. Rogers and other parties. On September 18, 1992, the IRS-CID seized the Mercedes Benz purchased by Mr. Rogers and Ms. Griffin, pursuant to a civil seizure warrant issued by Magistrate Judge DiBianco. Subsequently, on February 2, 1993, the United States filed a civil complaint seeking forfeiture of the Mercedes Benz pursuant to 18 U.S.C. § 981(a)(1)(A), based on a currency structuring violation of 31 U.S.C. § 5324(3). *fn3" Soon thereafter, on February 22, 1993, the first criminal Indictment was filed against Roy Rogers and Edith Griffin.

 On March 24, 1993, a federal grand jury returned a Superseding Indictment charging Roy Rogers and Edith Griffin with conspiracy and structuring cash transactions to evade currency reporting requirements. The civil forfeiture action was stayed pending the resolution of the criminal charges. Following a jury trial, Mr. Rogers was convicted on the conspiracy and structuring charges while Ms. Griffin was acquitted on those charges. *fn4" In July 1994, Mr. Rogers was retried on the same charges and again found to be guilty.

 On August 9, 1994, this Court issued a Preliminary Order of Forfeiture in Criminal Action No. 94-CR-138, as to the 1990 Mercedes Benz, based on the special verdict returned by the jury in Mr. Rogers' retrial. Ms. Griffin then filed a petition alleging a claim to the vehicle, which triggered the need for the Court to conduct an ancillary hearing. That hearing was consolidated with the civil forfeiture action and scheduled to be heard at the time that the present motion was filed.


 As stated above, Ms. Griffin argues that her acquittal on the structuring charges in the earlier criminal trial creates a double jeopardy defense to the present action. She argues that the forfeiture action constitutes additional punishment for the same offense that she was previously acquitted of committing. In support of this motion, Ms. Griffin mistakenly places great reliance on the Ninth Circuit's interpretation of recent Supreme Court cases concerning the issue of double jeopardy. See U.S. v. $ 405,089.23 U.S. Currency, 33 F.3d 1210 (9th Cir. 1994), amended by 56 F.3d 41 (9th Cir. 1995).

 In $ 405,089.23 U.S. Currency, the Ninth Circuit held that the double jeopardy clause barred a civil forfeiture action following a criminal prosecution involving the same underlying conduct. In so holding, the court acknowledged the fact that both the Second and Eleventh Circuits had previously held that as long as the civil and criminal prosecutions were part of a "single, coordinated prosecution," there were no double jeopardy implications. See U.S. v. One Single Family Residence, 13 F.3d 1493 (11th Cir. 1994); U.S. v. Millan, 2 F.3d 17 (2d Cir. 1993), cert. denied, 127 L. Ed. 2d 215, 114 S. Ct. 922 (1994). In response to these holdings, the Ninth Circuit stated that it "believed that the position adopted by the Second and Eleventh Circuits contradicts controlling Supreme Court precedent as well as common sense." $ 405,089.23 U.S. Currency, 33 F.3d at 1216.

 While the decision in $ 405,089.23 U.S. Currency supports Ms. Griffin's double jeopardy argument, this Court is not bound by the Ninth Circuit's interpretation of the law. This is especially true where, as here, the Second Circuit has specifically addressed the issue before the Court. Accordingly, the Court is bound to follow Millan and the other Second Circuit cases addressing this issue, notwithstanding the fact that the Ninth Circuit may disagree with their correctness.

 In U.S. v. Millan, the defendants were arrested and their property seized following an investigation of heroin distribution activity. The defendants were indicted on criminal drug charges on August 14, 1991. *fn5" It was not until December 26, 1991, however, that the government filed the civil forfeiture complaint against the property that had been seized on the date of the initial arrests. Following the filing of a superseding indictment on October 5, 1992, the parties entered into a stipulation whereby the defendant agreed to forfeit ...

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