United States District Court, D. Massachusetts
FINDINGS OF FACT AND CONCLUSIONS OF LAW AFTER NON-JURY TRIAL
ROBERT B COLLINGS, Magistrate Judge.
On January 23, 2003, the United States filed a Complaint for Forfeiture in Rem (#1) seeking the forfeiture of $62, 552.00 which was seized at Logan International Airport on August 13, 2002. According to the Affidavit of Mark K. West (#1, Exh. A), the money was found in five envelopes in the carry-on luggage which the claimant, Delia J. Baez ("Baez" or "the claimant") and her companion, one Jose DelCarmen Geronimo ("Geronimo"), had with them as they attempted to pass through security to board an American Airlines flight to the Dominican Republic. The United States alleges that the "[c]urrency constitutes money furnished or intended to be furnished by a person in exchange for a controlled substance, in violation of Title 21, proceeds traceable to such an exchange, and/or money used or intended to be used to facilitate a violation of Title 21." (#1, pp. 1-2) As such, the Government avers that it is subject to forfeiture pursuant to 21 U.S.C. § 881(a)(6). Id. Baez has made claim to the funds. A non-jury trial was held on December 3, 2004.
II. Findings of Fact
First, the Court finds as fact those facts which are denoted as undisputed and are stipulated to as set forth in the Parties' Submission of Disputed and Undisputed Facts (#30). Second, with respect to those facts which are listed as not being subject to stipulation on pages 1 through 14 of the Parties' Submission (#30), the Court makes the following findings using the numeration in the submission:
12. I find that Ms. McKenna did so testify at a deposition, but I do not make any further finding on the subject matter of the paragraph. Ms. McKenna did not testify at trial, and the Court has no way of determining the source of her knowledge. For all the Court knows she may not have personal knowledge of the facts; rather they may be based on statements of others. In short, the Court finds that she so testified, but the Court does not give any weight to the testimony.
14.-18. The Court finds that the facts set forth in paragraphs 14 through 18 have been proven by the evidence at trial. The only objection is that the evidence is not relevant; the Court found at trial that the evidence was relevant on the issue of the claimant's credibility.
Third, the Court makes the following additional findings of fact:
1. On August 13, 2002, the claimant and Geronimo arrived at Logan International Airport, Boston, Massachusetts in order to board an American Airlines Flight to Santo Domingo, Dominican Republic. (Tr. 65, 79)
2. Baez checked bags but had two purses which she intended to carry on the plane. A larger one contained, inter alia, $62, 000 in cash; a smaller one contained $552.00 in cash. (Tr. 65) The cash was contained in five envelopes. (Exhs. 4 through 8) (Tr. 24, 65-66)
3. When Baez went through security, she asked for a form on which to declare that she was taking currency out of the country. (Tr. 79-82) She was told that she could get the form in a small room after she passed through security. (Tr. 81) Her two carry on bags went through the screening machine without incident. (Tr. 82)
4. When Baez reached the small room, she was given the form. Because she needed to count the money in order to get the precise amount she was carrying, she laid the money out on a table in the room and began counting it. (Tr. 82) The money was out on the table. (Tr. 84) The claimant had partially filled out the form. (Exh. 22)
5. While this was occurring, a State Police Officer Mark West ("Trooper West") appeared to question the claimant about the money. The claimant stated that the money was hers. (Tr. 83) After questioning the claimant, Trooper West seized the currency and gave the claimant a receipt. (Tr. 21-23) The claimant was told that the address she had given, i.e., 3383 Washington Street, Jamaica Plain, Massachusetts, was linked to drugs. (Tr. 86) The claimant denied that the address was linked to drugs after she either rented or owned it. (Tr. 86)
6. The claimant and Geronimo were allowed to depart on a later flight and, in fact, flew to Santo Domingo. (Tr. 85)
7. Trooper West worked with a drug-sniffing dog named Tracer who was trained to detect the odor of marijuana, cocaine, heroin and methamphetamine. (Tr. 15)
8. At the time, i.e., August 13, 2002, Tracer had been trained by Trooper West (Exh. 2) and had been certified for the four substances. (Exh. 3) (Tr. 17-19)
9. After the seizure, Trooper West put the five envelopes and cash in a manila envelope and placed it in a room with three other envelopes which contained shredded currency from the Federal Reserve Bank. (Tr. 23) When Tracer was let into the room, in a matter of seconds she reacted to the manila envelope in which the claimant's envelopes and cash were located. (Tr. 24) She did not react to the other three envelopes. (Tr. 27)
10. Since Tracer reacts to the odor of one or more of the four substances, and the odors dissipate over time, one or more of the envelopes and/or the currency which the claimant was carrying was exposed to one of the four substances within the recent past. (Tr. 35)
11. The Dominican Republic is a source for drugs, drug activity and money laundering of drug proceeds. (Tr. 22, 31) The same is true of other countries in ...