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