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U.S. v. $1

May 13, 2003


The opinion of the court was delivered by: Sylvia H. Rambo, United States District Judge


Before the court are the following motions: (1) Plaintiff's motion for sanctions for failure of party to attend his own deposition; (2) Plaintiff's motion for summary judgment; and (3) Claimant's motion to suppress any and all evidence seized as a result of the unlawful stop, detention, arrest and subsequent search of Jose Montelongo on December 29, 2000. The parties have briefed the issues, and the motions are ripe for disposition.

I. Background

A. Facts

The captioned action is an in rem forfeiture action brought by Plaintiff, the United States of America, against the Defendant, $1,790,021.00 in United States currency. On June 19, 2001, Plaintiff filed a verified complaint which alleges the following undisputed facts:*fn1 On December 28, 2000, troopers of the Pennsylvania State Police conducted a traffic stop of a tractor-trailer bearing a Texas license plate. The tractor-trailer was traveling south on Interstate 81 near Grantville, Pennsylvania at a high rate of speed. The flatbed trailer was loaded with "three very beat up pickup trucks, which were in poor condition." (Compl. at ¶ 5(b).) The driver of the tractor-trailer, Jose Montelongo, informed Trooper Jeff Allar that he had traveled from Texas to New York to transport the three pickup trucks to Mexico for resale. Based on his training and experience, Trooper Allar knew that the transport of three pickup trucks in such poor condition from New York to Mexico was not an effective or profitable means of transport.

Trooper Allar requested and received written consent from Montelongo to search the tractor-trailer. Trooper Allar summoned another trooper and his trained drug detection dog, "Dakota." Dakota alerted, or reacted, to several areas of the trailer, including its passenger side, the area underneath the front-most pickup truck being hauled, the outside rail of the trailer, and the interior of the tractor cab. The Pennsylvania State Police ("PSP") recovered a bag containing a vegetable substance, from an outside compartment of the tractor. At the time, the PSP believed the vegetable substance to be marijuana.*fn2 Based upon the discovery of the suspected marijuana, Montelongo was taken into custody and transported to the PSP's barracks in Harrisburg, Pennsylvania.

Based on the aforementioned information, the PSP applied for and received a search warrant for the tractor-trailer and its contents. During the course of the search, the PSP discovered a cardboard box containing $424,335.00 in United States currency concealed behind the rear seat of one of the pickup trucks. The currency was divided into twenty bundles sealed in plastic bags and wrapped in duct tape. The PSP also found $1,265,686.00 in a metal compartment concealed under the wood planks which made up the deck of the trailer. This currency was divided into forty-one bundles and wrapped in the same manner as the first cache of currency. The PSP turned over these two sums of currency to the United States Drug Enforcement Agency. Collectively, the sums amount to $1,790,021.00 and make up the res of the captioned forfeiture action.

When questioned following the seizure of the currency. Montelongo disclaimed any knowledge of its presence and informed the PSP that the trailer had been loaded by other persons in a vacant lot in Newburgh, New York. Montelongo also stated that after the trailer was loaded and hitched to his tractor, he headed south and was advised by his dispatcher to proceed to Laredo, Texas. Montelongo was not charged by either the PSP or the United States. He and the tractor-trailer were released.

Laredo, Texas is both a major point of entry for illicit drugs from Mexico into the United States and a major point of exit for drug proceeds from the United States into Mexico. The Government, in an uncontested statement of material facts, states "[e]ither Montelongo or such person or persons as caused or attempted to cause him to transport the defendant currency to Mexico without filing a report required by 31 U.S.C. § 5316,*fn3 committed an offense under 31 U.S.C. § 5324 (b) and (c).*fn4" (Govt. St. Mat. Facts at ¶ 21.) Moreover, Defendant currency is property involved in a transaction or an attempted transaction in violation of 31 U.S.C. § 5316 and 5324(b) and (c), or is property traceable to such property, or is a monetary instrument with respect to which a report has not been filed or property traceable thereto, subject to forfeiture under 31 U.S.C. § 5317 (c)*fn5. Defendant currency was involved in violations of 18 U.S.C. § 1956*fn6 as a sum of money involved in money laundering transactions or attempted transactions, and was furnished or intended to be furnished in exchange for controlled substances or intended to be used to facilitate violations of 21 U.S.C. § 841 and 846,*fn7 or traceable to such property.

B. Procedural Background

On July 25, 2001, Claimant, Alejandro Martinez-Lopez, filed a claim which asserts, without elaboration, that he is the true owner of the Defendant currency, and that he obtained the currency in the regular course of his money exchange and auto purchasing and sales business. On August 8, 2001, Claimant filed an answer wherein he denies without elaboration, that Defendant currency is subject to forfeiture. The answer also denies that the tractor-trailer was traveling at a high rate of speed.

On November 26, 2002, Plaintiff served upon Claimant's attorney, notice of deposition upon oral examination of Claimant Imrsuant to Rules 26(a)(5) and 30 of the Federal Rules of Civil Procedure. That deposition was scheduled to take place on December 17, 2002 in the United States Attorney's office in Harrisburg, Pennsylvania. On December 11, 2002, Claimant's attorney contacted Plaintiff's counsel and stated that he was uncertain that he would be able to locate Claimant, a Mexican national, in Mexico, and that counsel himself had a schedule conflict with the date set for the deposition. Plaintiff's counsel indicated his willingness to reschedule the deposition so long as Claimant's counsel could represent that Claimant would attend the rescheduled deposition. Plaintiff's counsel memorialized the December 11, 2002 telephone conversation in a letter dated December 12, 2002. (See Pl. Ex. C. in Supp. of Mot. for Sum. J.)

On February 4, 2003, Plaintiff filed the instant motion for sanctions toy failure of party to attend his own deposition. Claimant never responded to said motion and on February 23, 2003, the court issued a show cause order upon Claimant why the requested sanctions should not be granted. On March 13, 2003, Claimant filed a response to the court's February 23, 2003 order and a document titled "Dispositive Motion to Suppress Any and All Evidence Seized as Result of the Unlawful stop, Detention, Arrest and Subsequent Search ...

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