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United States v. United States Currency in the Amount of Six Hundred Thousand Three Hundred and Forty One Dollars and no Cents


March 5, 2007


The opinion of the court was delivered by: GLASSER,United States District Judge


The United States commenced this civil in rem forfeiture action on June 4, 2004, seeking forfeiture of United States currency totaling $600,341.00 (the "defendant property") as property traceable to and/or involved in money laundering and narcotics violations, pursuant to 21 U.S.C. § 881 and 18 U.S.C. §§ 981 and 983. Claimant Rafael Erasmo Marmol filed an Answer and a Verified Claim in opposition to the government's complaint. The government has filed an unopposed motion to dismiss Mr. Marmol's claim for failure to comply with discovery orders and failure to prosecute his claim, pursuant to Fed. R. Civ. P. 37 ("Rule 37") and 41 ("Rule 41"). For the reasons stated below, the court grants the government's motion pursuant to Rule 37, denies the motion pursuant to Rule 41, and dismisses Mr. Marmol's claim.


Relevant Factual History

The verified complaint in rem alleges that on or about January 6, 2004, in the vicinity of Northern Boulevard and 95th Street, in East Elmhurst, New York, during the course of conducting an ongoing money laundering and narcotics trafficking investigation, special agents of the El Dorado Task Force observed Marmol exit a black Volkswagen Beetle (the "Marmol vehicle") empty-handed, walk several blocks, and enter a white Ford Explorer. The agents observed that Marmol had a brief conversation with the driver inside the white Ford Explorer and the driver then drove to 95th Street and pulled alongside the Marmol vehicle, where Marmol exited the white Ford Explorer with two bulging shopping bags in his hands and placed the bags inside the Marmol vehicle. The agents then observed the Marmol vehicle driving in circles for a few blocks in an apparent attempt to elude anyone that may be following him and then drove towards 99th Street and 23rd Avenue.

The government's complaint alleges that later that night, Marmol committed a traffic infraction while driving the Marmol vehicle and was stopped by special agents of the El Dorado Task Force. The agents asked Marmol for permission to search the Marmol vehicle and Marmol consented. As a result of the consent search of the Marmol vehicle, agents found two shopping bags inside the car, filled with bundles of small denominations of United States currency. Agents also conducted a pat-down search of Marmol, which revealed that he was carrying $1,500.00 in $100 bills in United States currency on his person. Law enforcement agents thereafter seized all the currency, totaling $179,970.00. During the consent search of the Marmol vehicle, agents found a credit card statement addressed to "Rafel Tejada, 98-05 23rd Avenue, East Elmhurst, New York." When questioned about the currency, Marmol told the agents that he was visiting New York, lived in the Dominican Republic, and that the money was not his but belonged to his friend "Juan", whose last name Marmol claimed not to know.

Later that night, agents escorted Marmol, on consent, to the address listed on the credit card statement. Marmol used a set of keys to open the basement apartment door. Upon entry, a person who identified himself as Rafael Tejada,*fn2 the tenant of the basement apartment, emerged. Tejada stated that Marmol had been staying with him for the past two weeks. Tejada then consented, in writing, to the search of the basement apartment (the "Tejada residence"). While searching the Tejada residence, the agents found a suitcase in the bathtub. At the request of the agents, Tejada opened the suitcase, wherein the agents found multiple, thick bundles of $20 bills and other small denominations of United States currency, which were covered with garlic powder, and individually wrapped in clear plastic tape. In another room, the agents also found a shopping bag that contained multiple thick bundles of United States currency. Additionally, in a different room of the Tejada residence, the agents found notebooks and miscellaneous documents which the agents, based on their training and experience, believed to be related to narcotics activities and illegal gambling operations.

The total amount of cash seized from the Tejada residence totaled $420,371.00 in United States currency. Following the discovery of the cash at the Tejada residence, Tejada stated that the money did not belong to him, that he had never seen it or the suitcase before, and believed that Marmol brought it into the Tejada residence when he was not home since Marmol had his own set of keys to the Tejada residence. Samples of the currency seized from the Marmol vehicle and the Tejada residence were subjected to ion scanning and tested positive for a high presence of cocaine.

Procedural History

On June 4, 2004, the day that this action was commenced, the government served its first interrogatories on Marmol, to which Marmol responded in August 2004. From June 2004 through March 2005, the government's memorandum of law indicates that the parties were actively involved with discovery, including the exchange of interrogatories and the scheduling of depositions. On March 23, 2005, Magistrate Judge Pollak issued a Notice of Impending Dismissal For Failure to Prosecute, in which she observed that "[n]o action has been taken by any party in this case since July 29, 2004," and warned that "[a] Report and Recommendation will issue, recommending that the case be dismissed for lack of prosecution, if within thirty (30) days of the date of this Notice no further proceedings have been commenced by any party or if no explanation for the lack of proceedings has been filed and approved by the Court." In response to Magistrate Pollak's order, the government filed a Status Report on April 4, 2005, in which it recounted the parties' ongoing discovery efforts and requested that the case not be dismissed for failure to prosecute. In response to the government's request, on April 21, 2005, Magistrate Pollak entered an order directing depositions in this case to be completed by May 13, 2005, and scheduling a status conference for May 25, 2005. During that conference, Magistrate Pollak instructed Marmol's attorney to provide the plaintiff outstanding document requests within thirty days and ordered Marmol to appear for settlement discussions.*fn3

Approximately one month later, on June 28, 2005, another status conference was held, at which Magistrate Pollak granted the government's request for a stay of discovery pursuant to 18 U.S.C. § 981(g). This stay was extended several times at the government's request, until terminated by Magistrate Pollak on May 31, 2006. During the status conference at which the stay was lifted, Magistrate Pollak instructed Marmol's attorney to respond to the government's discovery requests by July 7, 2006, and that Marmol be deposed before the next status conference on September 14, 2006. The government's memorandum of law alleges that Marmol failed to comply with both orders.

On June 8, 2006, the government submitted a status report to the court, informing it that Mr. Marmol had been indicted in the Northern District of Georgia on March 15, 2006, on charges relating to drug trafficking and money laundering. It appears that Marmol became a fugitive from justice at some point in the summer of 2006; during a status conference on August 28, 2006, Magistrate Pollak granted a stay of discovery for thirty days in order for Marmol's attorney, Mr. Rosenblatt, to attempt to locate his client.*fn4 In a letter dated September 18, 2006, Mr. Rosenblatt informed the court that, after due diligence, he had been unable to contact his client.*fn5

During a status conference on December 14, 2006, Marmol was given until January 12, 2007, to respond to the government's discovery requests. The government's memorandum of law states that Marmol's counsel informed Magistrate Pollak that he could not find his client and did not know where he was. Magistrate Pollak informed Marmol's counsel that if no discovery responses were received by the deadline, the government would be allowed to seek dismissal of Marmol's claim for failure to prosecute. Mr. Marmol failed to comply with Magistrate Pollak's order to supply responses to the government's requests by January 12, 2007, and the government filed this motion to dismiss Marmol's Answer and Verified Claim on February 15, 2007. Mr. Rosenblatt did not respond in opposition to this motion; the court is informed by the government that Mr. Marmol remains a fugitive and Mr. Rosenblatt is unaware of his current location and is unable to contact him.


Dismissal for Failure to Comply with Discovery Orders Under Rule 37 When a party*fn6 has failed to comply with a discovery order, Rule 37(b)(2)(c) permits the court, inter alia, to enter "[a]n order striking out pleadings or parts thereof... or dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party." Dismissal for failure to comply with discovery orders is "a severe sanction that should not be lightly imposed," Friends of Animals Inc. v. United States Surgical Corp., 131 F.3d 332, 334 (2d Cir. 1997), but may be warranted where "the requisite element of willfulness or conscious disregard for the discovery process... justifies the sanction of dismissal." Founding Church of Scientology of Washington, D.C., Inc. v. Webster, 802 F.2d 1448, 1458 (D.C. Cir. 1986) (citations omitted); see also Minotti v. Lensink, 895 F.2d 100, 103 (2d Cir. 1990) (quoting Webster). The court is satisfied that Mr. Marmol's repeated failures to comply with Magistrate Pollak's discovery orders, despite the numerous extensions and stays granted to both parties, and especially his current status as a fugitive from justice, indicate an "element of willfulness or conscious disregard for the discovery process" such that dismissal of his Answer and Verified Claim is warranted under Rule 37. This portion of the government's motion is therefore granted.

Dismissal for Failure to Prosecute Under Rule 41(b)

The government also seeks dismissal of Marmol's claim for failure to prosecute pursuant to Rule 41(b), which provides that "[f]or failure of the plaintiff to prosecute or to comply with these rules or any order of the court, a defendant may move for dismissal of an action or of any claim against the defendant" (emphasis added). In support of its Rule 41 motion, the government relies principally on Dosunmu v. United States, 361 F. Supp. 2d 93 (E.D.N.Y. 2005), in which Judge Trager granted the government's motion to dismiss a civil action seeking the return of administratively forfeited property for failure to prosecute. The court notes, however, that Dosunmu, unlike this case, was an in personam civil action in which the "claimant" occupied the role of civil plaintiff, so that the authority of the court to grant the requested relief under Rule 41(b) could not reasonably be doubted. By contrast, this case is an action in rem in which Marmol, as claimant to the defendant property, "stands in the shoes of a defendant in an in personam civil action." United States v. $242,484.00, 389 F.3d 1149, 1168 n.1 (11th Cir. 2004) (Tjoflat, J., concurring). Although the court has found virtually no legal or scholarly authority on this question,*fn7 the plain text of Rule 41(b) limits the application of that rule to "plaintiff[s]," which would appear to exclude in rem claimants who are neither plaintiffs nor defendants, but whose position is most analogous to an in personam defendant. Moreover, the court notes that Rule 41(c) states that "[t]he provisions of this rule apply to the dismissal of any counterclaim, cross-claim, or third-party claim," but makes no mention of in rem claims, thus further suggesting that Rule 41(b) does not permit motions to dismiss in rem claims for failure to prosecute.

Although this court might reasonably exercise its "inherent authority," which the Supreme Court has held extends beyond a strict literal reading of Rule 41,*fn8 in order to dismiss Marmol's Verified Claim for failure to prosecute, in an abundance of caution, it declines to do so in this case, where the authority to grant the relief sought by the government is expressly available to the court pursuant to Rule 37. The government's motion to dismiss the Verified Claim for failure to prosecute, pursuant to Rule 41, is therefore denied.


For the reasons herein stated, the government's motion to dismiss this action for failure to comply with discovery orders pursuant to Federal Rule of Civil Procedure 37(b)(2)(C) is hereby GRANTED. The government's motion to dismiss for failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b) is hereby DENIED.


I. Leo Glasser United States Senior District Judge

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