Government must establish a reasonable belief that the seized property constitutes property involved in and/or traceable to the illegal activity." Rogers, 1996 U.S. Dist. LEXIS 6500, 1996 WL 252659, at *4 (citing Daccarett, 6 F.3d at 56). In signing the warrant of arrest and the amended warrant of arrest, this Court found probable cause to believe that the defendant funds so described in the warrants constituted property involved in transactions or attempted transactions in violation of 18 U.S.C. §§ 981, 984, 1956 and 1957, and property traceable to violations of 21 U.S.C. § 841 et. seq. (Warrant of Arrest at 2 and Amended Warrant of Arrest at 2).
Claimants argue that contrary to the specific pleading requirements set forth in the Supplemental Rules for Certain Admiralty and Maritime Claims, the complaint lacks sufficiently particular factual allegations to justify forfeiture. Perusa claims that the complaint contains a totally conclusory allegation, without any factual detail or support with respect to most of the defendant funds.
Civil forfeiture is governed by the Supplemental Rules for Certain Admiralty and Maritime Claims. Supplemental Rule E(2)(a) requires that a complaint "state the circumstances from which the claim arises with such particularity that the defendant or claimant will be able, without moving for a more definite statement, to commence an investigation of the facts and to frame a responsive pleading." Daccarett, 6 F.3d at 47. Rule E(2)(a) requires a higher standard of particularity than normal. It is therefore necessary that the pleadings allege sufficient facts to provide a reasonable inference that the government had probable cause to believe that the defendant funds so described in the warrants constituted property involved in transactions or attempted transactions in violation of 18 U.S.C. §§ 981, 984, 1956 and 1957, and property traceable to violations of 21 U.S.C. § 841 et. seq.
The amended complaint describes the money remittance business including the process by which money is remitted; defines the term "structuring"; and sets forth numerous instances of structuring of money remittances, including the deposit into claimants' accounts of proceeds traceable to the structuring. (Amended Complaint at PP 3-153). Further, the complaint provides identifying information such as the approximate date and amount of each deposit into the defendant accounts. (Complaint at PP 25-152). Claimants allege that paragraphs 23(a) and (b) lack particularity as required by Rule E(2)(a). "In determining whether a complaint satisfies rule E(2)(a), a court may also consider supporting affidavits that may cure a lack of particularity in the complaint itself." Daccarett, 6 F.3d at 47 (citing United States v. 4492 South Livonia Rd., 889 F.2d at 1266). Any lack of particularity in the complaint is cured by the declaration of Special Agent John Ellwanger which specifies the date of, the number of and the total amount of certain remittances that were deposited into the Perusa account and the Pan American Express Account at Ponce de Leon.
On a motion to dismiss, the Court does not assess the admissibility or weight that should be afforded to evidence. Instead, the Court accepts the truth of the factual allegations pled and construes those facts most favorable to the plaintiff. United States v. All Right, Title and Interest in Five Parcels, 830 F. Supp. 750, 756 (S.D.N.Y. 1993). "Hearsay reports can be considered, but only if they are found reliable." All Right Title and Interest, 830 F. Supp. at 756 (citing United States v. Pole No. 3172, 852 F.2d 636, 639 (1st Cir. 1988)); see Daccarett, 6 F.3d at 56 ("A finding of probable cause may be based on hearsay, even hearsay from confidential informants"). The Court finds that under the circumstances presented here, the information provided by the Confidential Informant is reliable and corroborated by law enforcement agents and is therefore sufficient to support a forfeiture claim.
The Court finds that the Government has met its initial burden of establishing probable cause for the seizure of the defendant accounts. The motions to dismiss under Rule 12(b)(6) are therefore denied.
The standard for determining a summary judgment motion was recently reiterated by the Second Circuit in Samuels v. Mockry, 77 F.3d 34, 35 (2d Cir. 1996), in which the Court held that "summary judgment is proper if, viewing all facts of record in a light most favorable to the non-moving party, no genuine issue of material fact remains for adjudication." See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 2509-10, 91 L. Ed. 2d 202. (1986); see also Fed. R. Civ. P. 56(c) (summary judgment standard). "The non-movant may defeat summary judgment only by producing specific facts showing that there is a genuine issue of material fact for trial." Samuels, 77 F.3d at 36; see Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 2552, 91 L. Ed. 2d 265 (1986) see also Fed. R. Civ. P. 56(e). All ambiguities and all reasonable inferences must, however, be resolved in the light most favorable to the party opposing the motion. See United National Ins. Co. v. The Tunnel, Inc., 988 F.2d 351, 355 (2d Cir. 1993); Quaratino v. Tiffany & Co., 71 F.3d 58, 64 (2d Cir. 1995). A genuine issue of material facts exists if "a reasonable jury could return a verdict for the nonmoving party." Liberty Lobby, 477 U.S. at 248, 106 S. Ct. at 2510; see Vann v. City of New York, 72 F.3d 1040, 1049 (2d Cir. 1995). "Only when reasonable minds could not differ as to the import of the evidence is summary judgment proper." Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir.), cert. denied, 502 U.S. 849, 112 S. Ct. 152, 116 L. Ed. 2d 117 (1991).
Mere conclusory allegations, speculation or conjecture will not avail a party resisting summary judgment. See Western World Ins. Co. v. Stack Oil, Inc., 922 F.2d 118, 121 (2d Cir. 1990). If there is evidence in the record as to any material fact from which an inference could be drawn in favor of the non-movant, summary judgment is unavailable.
The Court's function in considering a motion for summary judgment is not to weigh the evidence to determine the truth of the matter. Instead, the Court determines whether there is a genuine issue for trial. Anderson, 477 U.S. at 248, 106 S. Ct. at 2511. Perusa and Pan American, as the moving parties, bear the burden of proof on their motions. The Government contends that, as the party opposing the summary judgment motion, it cannot for reasons stated present by affidavit facts essential to justify such opposition and that the Court may refuse the application for judgment or may order a continuance to permit discovery to proceed. See Fed. R. Civ. P. 56(f). The Court finds, however, that there are genuine issues of material fact to be decided and at this point denies the government's request to proceed under subsection (f).
Perusa and Pan American seek summary judgment dismissing the government's claims under 18 U.S.C. §§ 881 and 981 on the sole factual ground that the funds allegedly laundered through the seized accounts through structuring were no longer there when the warrants of arrest were obtained by the government. Perusa and Pan American claim that the government had no right to seize any other funds in the accounts, under 18 U.S.C. §§ 881 or 981 because any such other funds were not the guilty (defendant) funds or traceable thereto. Perusa and Pan American further claim that 18 U.S.C. § 984 is not applicable because the seized accounts are not the accounts of the alleged money launderer or drug dealer. Perusa and Pan American contend that to be "identical property in the same place or account" within the meaning of § 984, the property must be owned by or under the control of the same person who put the property into the place or the account and that same person must be able to remove the "identical (replacement) property." (Tatarian Reply Aff. at P 20; Merle Letter dated July 24, 1996 at 2-3). Claimants, offer no support for this contention.
18 U.S.C. § 984 provides in pertinent part:
(a) This section shall apply to any action for forfeiture brought by the Government in connection with any offense under section 1956, 1957, or 1960 of this title or section 5322 or 5324 of title 31, United States Code.