Opinion
Civil No. 00-1990(JAG)
December 20, 2001
REPORT AND RECOMMENDATION
Above claimant's motion for summary judgment (D.E. #8) and the government's reply (D.E. #12) were referred to this Magistrate for report and recommendation. The supplemental memorandum and the response were also considered (D.E. #18, 19).
Claimant, who was convicted for drug trafficking offenses had served his ten year sentence and was released from federal prison in 1996. On April 15, 2000, law enforcement agents observed him exiting his girlfriend's house and delivering a black gym bag to his brother-in-law inside a vehicle. A consent to search was obtained and the bag was found to contain $100,000 in currency. A subsequent consented search of the house resulted in the agents finding additional $20,000. Claimant asserted no further details as to the source of the monies but agreed to arrange contacts with drug trafficking dealers resulting in the arrest of four persons and the seizure of two (2) kilos of cocaine. The government initiated forfeiture of the $122,000 in U.S. currency filing a verified complaint on August 4, 2000, claiming having probable cause to believe the monies are drug proceeds.
Claimant's Motion for Summary Judgment states that the In rem complaint was initiated by the government on August 28, 2000 and that the currency had been seized on March 16, 2000. It also stated claimant provided statements to the agents at that time that the currency had been generated before his conviction in 1988.
The entry of summary judgment is predicated on the offense for forfeiture dating back to over twelve (12) years from discovery of the currency, it is time barred for having been filed more than five (5) years after the offense. It also states that the complaint fails to meet the particularity requirements, that is, to recite the facts to support the government's claim of probable cause. Because not only there are factual matters in controversy that would preclude the entry of summary judgment but also that the record belies the date of filing claimed and as precludes the application of the Civil Assets Forfeiture Reform Act of 2000, ("CAFRA") the request for summary judgment should be denied.
Pub.L. No. 106-185, § 21, 114 Stat. 202, 225, codified in 18 U.S.C. § 983.
It is clearly established at the present that the provisions of CAFRA applies by its terms only to any forfeiture proceeding commenced on or after the date of 120 days after the enactment of the act, that would be, to cases commenced on or after August 23, 2000. United States v. Real Property Located at 221 Dana Avenue. Hyde Park, 261 F.3d 65 (1St Cir. 2001). A perusal of the record refutes claimant's assertion that the claim was filed on August 28, 2000, showing instead that the same was filed on August 4, 2000. Even if the date of commencement is considered to have been the date in which the first administrative notice of forfeiture relating to the seized property was sent, it would not benefit claimant as falling within the new provisions of CAFRA.
The new statute, the Civil Asset Forfeiture Reform Act of 2000, applies only to those forfeiture proceedings commenced on or after [August 23, 2000]." See Pub.L. No. 106-185, § 21, 114 Stat. 202, 225, 18 U.S.C. § 983, historical and statutory notes (U.S.C.A.Supp. 2000). 261 F.3d 65, n. 1. (The initial opinion issued under 239 F.3d 78 was withdrawn after a rehearing on the government's petition).
Insofar as the disguised claim of lack of particularity, more properly addressed to lack of probable cause for the forfeiture complaint, there is sufficient controversy of facts that would preclude summary judgment to be appropriate in the present action. There is a sworn affidavit in support of the complaint making reference to offenses for which claimant was convicted back in 1988, as well as his contemporaneous knowledge at the time of the forfeiture of drug trafficking activities that caused the arrest of other individuals in the year 2000. Claimant is the one asserting in his declaration that the currency had been generated by him before he was convicted and incarcerated. He is also the one claiming not having engaged in money laundering activities. These contentions are more properly to be assessed by presenting credible evidence before the adjudicator of facts at trial.
Summary Judgment is appropriate under Rule 56(c) of the Federal Rules of Civil Procedure when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law.
It is thus recommended that the motion for summary judgment BE DENIED.
The parties have ten (10) days to file any objections to this report and recommendation. Failure to file same within the specified time waives the right to appeal this order. Henley Drilling Co. v. McGee, 36 F.3d 143, 150-151 (1st Cir. 1994); United States v. Valencia, 792 F.2d 4 (1st Cir. 1986).