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United States v. $57

January 26, 2007

UNITED STATES OF AMERICA, PLAINTIFF, RICARDO PEREZ-LOPEZ, ET AL., CLAIMANTS,
v.
$57,790.00 IN U.S. CURRENCY, DEFENDANT.



The opinion of the court was delivered by: Hon. Barry Ted Moskowitz United States District Judge

ORDER DENYING PLAINTIFF'S AND CLAIMANTS' MOTIONS FOR SUMMARY JUDGMENT

Presently before the Court are cross motions for summary judgment filed by Plaintiff and Claimants in this civil forfeiture action brought under 21 U.S.C. § 881. For the reasons discussed below, both Plaintiff's motion and Claimant's motion are DENIED.

I. FACTUAL BACKGROUND

Claimant Ricardo Perez-Lopez, who along with his wife Edendina Peraza-Soto brings the current cross-motion, was stopped for a traffic violation by Chula Vista police officers on July 27, 2000. Mr. Lopez was the driver of a vehicle which had just left a residence in Chula Vista that was the subject of an ongoing surveillance relating to marijuana trafficking. Mr. Lopez consented to a search of his car and $57,790.00 in currency was discovered in the center console and behind the driver's seat.

Mr. Lopez then consented to a search of the surveilled residence and inspection by a narcotics-sniffing dog revealed several places within the house where the dog "alerted," or indicated that he detected narcotics. However, no drugs were actually found in the home, nor were either of the claimants ever charged with a crime in connection with this incident. The Government has alleged that, on three separate occasions in February 2000 (some 5 months before the incident in question), they searched claimants' garbage, disposed of either at the curb or in a landfill, and found cellophane wrapping often used for bundling marijuana with marijuana residue on it. In addition, claimant Lopez was arrested at the San Ysidro POE in June 1992 for smuggling 69 pounds of marijuana into the US from Mexico. He was also a passenger in a vehicle driven by his brother, which was found to contain 18 pounds of marijuana, in June 1998, though he was not arrested in connection with that incident. He was not convicted of any crime relating to either incident or any other offense.

When questioned about the large sum of cash that he was carrying, Mr. Lopez first indicated he was bringing it to Tijuana, Mexico but then recanted and explained that he wasn't taking it to Mexico because he could not take more than $10,000 across the border. Mr. Lopez explained that he received the money from a Mr. Eddie Pimentel in partial payment for the sale of his house, which had just occurred. His explanation for when he actually received the cash payments which comprised the approximately $58,000 was inconsistent with explanations given by his wife, though she claimed she was just recounting what her husband had told her regarding the sale of the house. Title to the house was ultimately transferred from Ms. Soto to the Pimentels (in Mrs. Pimentels name) pursuant to a grant deed dated August 14, 2000 and recorded on August 17, 2000.

The Drug Enforcement Administration ("DEA") seized the $57,790 in currency found in Mr. Lopez's car as monies furnished or intended to be furnished in exchange for a controlled substance or, alternatively, as proceeds traceable to such an exchange. 21 U.S.C. § 881(a)(6). On October 26, 2000, Mr. Lopez, through his counsel, filed a claim for the seized property, which was received by the DEA three days later. In the claim, Mr. Lopez identified the specific property being claimed by referencing the $57,790 in U.S. currency seized on July 27, 2000 in Chula Vista and then made the following statement under penalty of perjury:

Pursuant to Title 18, United States Code, Section 983, I, Ricardo Perez-Lopez, hereby make demand for the return and restitution of the seized U.S. currency, and claim the right to defend this action as an individual with an ownership interest in, and/or as an agent of persons or entities with an ownership interest in, and/or as a bailor/bailee of individuals or entities with an ownership interest in said U.S. currency. This claim is not frivolous.

Handwritten into the above-quoted text, which appeared in typeface, just above the words "bailee of individuals," Mr. Lopez had written the name Enedina Peraza Soto.

Mr. Lopez attached to the claim a copy of the August 14, 2000 grant deed by which his Chula Vista house was transferred from his wife, Ms. Soto, to Mrs. Pimentel, but he included no explanation for the relevance of this document to the claim. On November 27, 2000, the DEA sent a letter to Mr. Lopez's counsel which questioned the inclusion of the grant deed in the claim. The letter stated:

The Grant Deed you submitted, presumably as customary documentary evidence of your client's interest in the property, reflects a transaction occurring after the seizure between parties other than the claimant. Please identify your client's particular interest in the property and explain the relationship between the submitted documentary evidence and that interest, submit additional customary documentary evidence of such interest, or explain why such evidence is unavailable.

On December 6, 2000, counsel for Mr. Lopez responded to the DEA and explained that Ms. Soto was Mr. Lopez's wife, and that the money seized represented proceeds from the sale of the house referenced in the grant deed. This letter was apparently received by the DEA on December 13, 2000.

On March 9, 2001, 131 days after receipt of Mr. Lopez's original claim form, and 86 days after the DEA received Mr. Lopez's counsel's response to its further inquiry, the U.S. Attorney filed the instant complaint for forfeiture of the seized funds.

II. DISCUSSION

A. Timeliness of the Government's Complaint

Civil asset forfeiture proceedings are governed by 18 U.S.C. § 983, which was enacted in 2000 as part of the Civil Asset Forfeiture Reform Act ("CAFRA"). The law mandates a 90-day deadline for filing of a forfeiture complaint from the time a claim is filed. The statute states that if the Government does not file a complaint for forfeiture within 90 days of a claim being filed, it "shall promptly release the property . . .." 18 U.S.C. § 983(a)(3)(emphasis added).

The crux of the parties' dispute centers on whether the claim originally filed by Mr. Lopez on October 26, 2000 satisfied the claim requirements provided for in CAFRA. If that claim were valid, the Government's 90-day deadline for filing of a forfeiture complaint would have expired on January 27, 2001, approximately 41 days before the Government filed the instant complaint, and Claimants' motion for summary judgment should be granted. However, if the original claim did not meet the CAFRA requirements, then it was not a valid claim and, thus, the Government's 90-day period would not have begun until it received the clarifying letter from Claimant's counsel on December 13, 2000. Under this ...


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