USA v. 85668 Dollars in US Currency, No. 2:2009cv00029 - Document 60 (D. Utah 2010)
Court Description: MEMORANDUM DECISION AND ORDER-denying 51 Motion for Summary Judgment. Signed by Judge David Sam on 9/30/10. (jmr)
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Rule G, mention “probable cause” or that it must be established at the institution of the litigation. The plain language of 19 U.S.C. § 1615, that “the burden of proof shall lie upon [the] claimant ...[p]rovided, [t]hat probable cause shall be first shown”, reflects that a showing of probable cause is relevant, only if, it shifts the burden to the claimant. Under current statutory procedures and rules, the Government retains the burden of proof and probable cause is irrelevant. Significantly, CAFRA expressly states that “[n]o complaint may be dismissed on the ground that the Government did not have adequate evidence at the time the complaint was filed to establish the forfeitability of the property”. 18 U.S.C. § 983(a)(3)(D). CAFRA also provides that “the Government may use evidence gathered after the filing of a complaint for forfeiture to establish, by a preponderance forfeiture”. of 18 the evidence, U.S.C. § that property 983(c)(2). These is subject provisions to are inconsistent with the requirement of 19 U.S.C. § 1615 that the Government have probable cause for forfeiture before institution of the suit, and that statute has no application to current law governing civil forfeiture actions as noted above. The Court, therefore, agrees with the United States, and other courts that have considered the issue, that CAFRA supercedes 18 U.S.C. § 983(C)(1). See e.g. United States v. Lopez-Burgos, 435 4 F.3d 1, 2 (1st Cir. 2006)(concluding that because CAFRA states that “no civil forfeiture complaint may be dismissed because the government lacked sufficient evidence of forfeitability at the time of filing”, and because it permits the government to “use evidence gathered after filing to meet its burden of proof”, the pleading requirement of 19 U.S.C. § 1615 no longer applies); United States v. Mondragon, 313 F.3d 862, 865 (4th Cir. 2002)(noting that in light of CAFRA’s change in the burden of proof, it would now be “awkward” to say the complaint must “allege facts sufficient to support a reasonable belief that the government can establish probable cause for forfeiture at trial” and concluding that the enactment of CAFRA superceded the probable cause pleading requirement of 19 U.S.C. § 1615); United States v. $557,933.89, More or less, in U.S. Funds, 287 F. 3d 66, 77 (2d Cir. 2002)(citing “19 U.S.C. § 1615(2000)([as having been] superseded with respect to civil forfeitures by 18 U.S.C. § 983(c)(2000)”); United States v. $200,255.00 in U.S. Currency, More or Less, No. 7:05cv27, 2006 WL 1687774 (M.D. Ga. June 16, 2006)(agreeing with the First Circuit in Lopez-Burgos that probable cause pleading requirement no longer applies); United States v. $9,950.00 in U.S. Currency, No. 07-2067, 2007 WL 3224535, at *4, (W.D. Ark. Oct. 29, 2007 (noting that CAFRA eliminated probable cause burden and “[a]t the time of filing, the Government’s allegations must be sufficient to allow the Claimant to commence an investigation and frame a response); United States 5 v. $22,173.00 in U.S. Currency, ___F. Supp.2d ____, No. 08civ.1993, 2010 WL 1257601, at *3 (S.D. N.Y. March 31, 2010)(noting that CAFRA significantly altered the burden of proof and that “[i]t is sufficient for the Government to simply plead enough facts for the claimant to understand the theory of forfeiture, to file a responsive pleading, and to undertake an adequate investigation”); United States v. $40,000.00 in U.S. Currency, No 1;09cv383, 2010 WL 2330353 (W.D. N.C. May 11, 2010)(accord), Report and Recommendation Adopted, 2010 WL 2330352 (W.D. N.C. June 7, 2010); and, United States v. 4323 Bellwood Circle, Atlanta Ga. 30349, 680 F. Supp.2d 1370, 1373 (N.D. Ga. 2010)(accord). The Court is not persuaded by the analysis of the Ninth Circuit in United States v. $493,850.00 in U.S. Currency, 518 F.3d 1159 (9th Cir. 2008), cert. denied, 129 S. Ct. 1308 (2009), and rejects Mr. Wiley’s position based on the analysis of that case, that the probable cause requirement of 19 U.S.C. § 1615 remains viable for purposes of civil forfeitures after the passage of CAFRA. 6 III. CONCLUSION For the reasons stated, as well as generally for those set forth by the United States in its responsive pleading, Mr. Wiley’s Motion for Summary Judgment (Doc. #51), so far as it relates to the legal issue, that the United States was required to have probable cause at the time the complaint was filed that the currency at issue was subject to forfeiture, is denied. IT IS SO ORDERED. DATED this 30th day of September, 2010. BY THE COURT: DAVID SAM SENIOR JUDGE UNITED STATES DISTRICT COURT 7
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