The opinion of the court was delivered by: Sifton, Senior District Judge.
This is a civil forfeiture action brought by the United States
to recover $119,984 that claimant Cesar Castro attempted to take
out of the country without properly declaring it. Presently
before this Court is the motion of claimants Castro and Maria
Ansueto to dismiss the complaint pursuant to Rule 12(b)(6) of
the Federal Rules of Civil Procedure. Alternatively, their
motion seeks judgment on the pleadings pursuant to Rule 12(c) of
the Federal Rules of Civil Procedure or summary judgment
pursuant to Rule 56 of the Federal Rules of Civil Procedure. The
United States seeks production of documents used by the Court's
probation department in preparing the presentence report in
Castro's related criminal case, CR-96-1079.
For the reasons set forth below, claimants' motion for summary
judgment is granted. The relief requested by the United States
The following facts are taken from the submissions of the
parties in connection with the instant motions and are
undisputed unless otherwise noted. On November 22, 1996,
claimant Cesar Castro was stopped by a customs inspector while
attempting to board a flight bound for the Dominican Republic at
Kennedy Airport. The customs inspector advised Castro orally of
the requirement that he declare any United States currency on
his person in excess of $10,000 and gave him a Spanish-language
form to the same effect. Although Castro stated that he had only
$2,000, a subsequent search revealed $119,984 in currency in his
On March 11, 1997, after conducting an investigation into the
details of Castro's case, the probation department issued a
presentence report ("PSR"). After finding that the base offense
level of Castro's violation of the currency reporting laws would
be 12 points but that "[t]he defendant has provided proof that
the funds were the proceeds of lawful activity, and they were to
be used for a lawful purpose. Pursuant to [USSG §] 2S1.3(b)(2),
the offense level is decreased to level 6." (PSR ¶ 13.) The PSR
reported that Castro explained that the currency was a loan from
Maria Ansueto, the mother-in-law of his ex-wife, to allow him to
purchase a house in Santo Domingo for his children. The PSR
further stated that Castro provided documentary evidence that
"seem[s] to support the fact that it was possible for Ms.
Ansueto to be in possession of funds in the amount allegedly
loaned to the defendant." (PSR ¶¶ 10-11.)
On March 27, 1997, Castro was sentenced by the Court. During
the sentencing, the Court inquired whether the money was going
to be forfeited. Castro's attorney informed the Court that the
forfeiture proceedings were in abeyance pending the completion
of the criminal case and that her client would likely commence a
civil proceeding seeking the return of the money. The government
stated that it had no position on forfeiture at that time.
During the sentencing proceedings, the following colloquy ensued
between the Court and Simone Monasebian, counsel for Castro in
the criminal case against him:
THE COURT: [D]id you have something else you
wanted to say?
MS. MONASEBIAN: Just that the defendant provided
the proof that the funds were the proceeds of
lawful activity and they were used for lawful
purpose, and that is indicated on page 5 of the
THE COURT: Well, I'm not making a finding on that.
I will not prejudge the issue.
MS. MONASEBIAN: I understand, your Honor.
THE COURT: I mean, I don't have enough evidence
here to find that the funds were the proceeds of
or are to be used for any illegal purpose.