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U.S. v. UNITED STATES CURRENCY

April 14, 2004.

UNITED STATES OF AMERICA, Plaintiff,
v.
UNITED STATES CURRENCY IN THE AMOUNT OF TWO HUNDRED FORTY-EIGHT THOUSAND FOUR HUNDRED THIRTY DOLLARS ($248,430), MORE OR LESS, AND ALL PROCEEDS TRACEABLE THERETO, Defendants.



The opinion of the court was delivered by: SANDRA J. FEUERSTEIN, District Judge

OPINION & ORDER

I. Introduction

The United States brought this action pursuant to 31 U.S.C. § 5317, 21 U.S.C. § 881, and 18 U.S.C. § 981 seeking the forfeiture of $248,430 in United States currency seized by United States Customs Service ("Customs") inspectors from claimant Jean Joseph Dufort ("claimant" or "Dufort") on February 3, 1999 at John F. Kennedy International Airport ("JFK Airport"). Dufort, who was boarding a flight to Haiti, failed to declare the funds as he attempted to transport them out of the United States in violation of 31 U.S.C. § 5316. Presently before this Court is plaintiff's motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. For the reasons set forth below, the motion is GRANTED. II. Background

  On May 23, 1996, law enforcement agents found carry-on luggage containing fifty kilograms of cocaine on a plane on which Dufort was a passenger. (Pl.'s Local Civ. R. 56.1 Statement at 9). Dufort was indicted on March 3, 1999 in the United States District Court for the Southern District of Florida for knowingly and intentionally conspiring with others to import cocaine into the United States in violation of 21 U.S.C. § 952(a) and 963. (Id.).

  On January 12, 2000, Dufort was arrested for the narcotics trafficking offenses. (Id. at 9). He pleaded guilty to those charges before Judge Donald L. Graham of the United States District Court for the Southern District of Florida on June 20, 2000. (Id. at 10). Prior to sentencing, Judge Graham denied Dufort's motion to withdraw his guilty plea. (Id. at 11). On August 31, 2000, Judge Graham sentenced Dufort to two-hundred and twelve (212) months imprisonment. (Id.).

  On February 3, 1999, Customs inspectors at JFK Airport selected American Airlines flight 657, destined for Port-au-Prince, Haiti, for an examination of checked luggage. (Id. at 4). Upon examination of two suitcases checked in Dufort's name, Customs inspectors found $245,495 in U.S. currency wrapped in aluminum foil and newspaper and covered with clothing. (Id. at 4-5). As he was boarding the plane, Dufort was approached by Customs inspectors and informed of the currency reporting requirements. (Id. at 5). Dufort declared $3,000 in U.S. currency and produced $2,935 for verification. (Id.). Although a search of Dufort failed to reveal any additional currency, claim tickets for the two suitcases containing currency were found in his possession. (Id. at 5-6). The inspectors arrested Dufort for failing to file an accurate currency and monetary instrument report, in violation of 31 U.S.C. § 5316, (id. at 7), and seized the suitcases and the currency taken from Dufort's person. (Miller Decl., exh. D).

  On July 26, 1999, before Judge A. Simon Chrein of this Court, Dufort pleaded guilty to failing to file an accurate report when knowingly transporting monetary instruments of more than $10,000 at one time out of the United States, in violation of 31 U.S.C. § 5316(a)(1)(A). (Pl.'s Local Civ. R. 56.1 Statement at 7).

  For his violation of 31 U.S.C. § 5316, Dufort was sentenced on December 15, 2000 by Judge Frederic Block to a prison term of eighteen (18) months plus two years supervised release to run concurrently with the sentence imposed in the Southern District of Florida. (Id. at 7). The government has moved for summary judgment. (Pl.'s Notice of Mot. for Summ. J.). Defendant has opposed the government's motion only as to the two thousand nine hundred and thirty-five dollars ($2,935.00) seized from his person. (Dufort's Mot. to Challenge at 1-3).

  III. Analysis

  A. Appointment of Counsel

  In his petition challenging the government's motion, Dufort requests the appointment of counsel. Cooper v. A. Sargenti Co., 877 F.2d 170 (2d Cir. 1989), articulates the factors the Court must consider before appointing counsel for an indigent litigant: (1) whether the indigent's position seems likely to be of substance, (2) the indigent's ability to investigate the crucial facts, (3) whether conflicting evidence implicating the need for cross-examination will be the major proof presented to the fact finder, (4) the indigent's ability to present the case or obtain private counsel, (5) the complexity of the legal issues, (6) the availability of counsel, and (7) special reasons why appointment of counsel would be likely to lead to a more just determination. Id. at 172.

  The Court emphasized that the apparent merits of the indigent's claim should be scrutinized to determine if it is likely to be of substance. Id. Only if the claim meets this "threshold requirement" should the other criteria be considered. Id. (quoting Hodge v. Police Officers, 802 F.2d 58 (2d Cir. 1986)). Since I find Dufort's claim to lack substance, his application for the appointment of counsel is denied.

  B. Summary Judgment Standard of Review

  Summary judgment should not be granted unless "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 judgment as a matter of law." Fed.R.Civ.P. 56(c). A fact is material "if it might affect the outcome of the suit under the governing law." Holtz v. Rockefeller & Co., 258 F.3d 62, 69 (2d Cir. 2001). An issue of fact is genuine only if a jury could reasonably find in favor of the nonmoving party based on that fact. Id. The moving party bears the initial burden of establishing the absence of any genuine issue of material fact, after which the burden shifts to the ...


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