In re Two Hundred Seven Thousand Five Hundred Twenty-Three Dollars & Forty-Six Cents in United States Currency

536 A.2d 1270, 130 N.H. 202, 1987 N.H. LEXIS 300
CourtSupreme Court of New Hampshire
DecidedDecember 31, 1987
DocketNo. 86-143
StatusPublished
Cited by6 cases

This text of 536 A.2d 1270 (In re Two Hundred Seven Thousand Five Hundred Twenty-Three Dollars & Forty-Six Cents in United States Currency) is published on Counsel Stack Legal Research, covering Supreme Court of New Hampshire primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Two Hundred Seven Thousand Five Hundred Twenty-Three Dollars & Forty-Six Cents in United States Currency, 536 A.2d 1270, 130 N.H. 202, 1987 N.H. LEXIS 300 (N.H. 1987).

Opinions

Souter, J.

The party in interest, Stephen Young, brings this appeal from a decree of the Superior Court {Gray, J.) ordering the captioned moneys forfeited to the State under RSA 318-B:17-b, on grounds of their use or intended use in furthering violations of the controlled drug act. Young claims that the evidence was insufficient to prove all elements necessary for forfeiture, and argues that the proceeding was barred both by the statute of limitations and by legal and constitutional standards requiring prospective application of the forfeiture statute. We affirm.

The case reaches us as a companion to State v. Valenzuela & a., decided today, and we refer to our opinion in the criminal case for the facts linking Young to his co-defendants, Valenzuela and DiMatteo, in a sophisticated scheme to distribute controlled drugs in violation of RSA chapter 318-B. Here we pay particular attention to the evidence seized in the January, 1984, searches of the three defendants’ dwellings.

Valenzuela’s house yielded a number of firearms, thirty pounds of cocaine, and some nineteen hundred pounds of marijuana. A ledger found on Valenzuela’s person accounted for the marijuana, and an identical ledger was found at Young’s house.

The search of DiMatteo’s house produced another thirty five pounds of cocaine and detailed notebooks accounting for the prior distribution of thirty-eight and one-half kilograms of cocaine. Entries in these records and in ledgers in Young’s possession were readily subject to cross reference.

[204]*204In searching Young’s house, the police found implements used to prepare cocaine for sale and consumption, a small quantity of the drug itself, and nineteen pounds of marijuana, later determined to have come from the shipment found at Valenzuela’s house nearby. Young’s ledgers revealed the information to which we have already referred and further disclosed sales of at least 49,564 grams of cocaine to sixteen different buyers, at prices totalling $3,195,210. Notes hidden with the ledgers indicated that the cocaine supplied to Valenzuela, DiMatteo, and Young came from one “Cuchaco,” who had sent them at least one hundred forty pounds of it at $28,000 per kilogram. The notes referred to a payment by Young to Cuchaco of $500,000 on November 1, 1983, against a balance of $1,764,000 then owed.

The search ef Young’s premises also yielded the moneys subject to this in rem proceeding: $35,020 in cash hidden in a brown paper bag in the bathroom; $3,960 in cash in an envelope on a bureau in Young’s bedroom; another $4,000 in cash on top of the same bureau; $93,900 in cash located in a hidden compartment between the kitchen and dining room; 45 individually wrapped gold coins in Young’s office over the garage; 577 silver dollars and 18 silver half dollars in a box in a second office over the garage; two jars of mixed coins totalling $190.50 in a wine vault; 1,956 pre-1964 silver quarters in three canisters over the garage; and in a safe buried underground near Young’s house, $67,400 in currency, $184.55 in mixed coins, $49.66 in United States mint proof sets, $5.00 in silver dollar sets, $100 in silver dollars, and a total of $2597.75 in Susan B. Anthony dollars. (How dollar coins can yield a fractional total of .75 is beyond us; but so the record reads.) Finally, the police seized 35 Franklin half dollars from Young’s safe deposit box.

On February 13, 1984, the attorney general petitioned the superior court on the State’s behalf for an order that the moneys be forfeited as having been knowingly used or intended for use in the procurement, delivery or distribution of a controlled drug in felonious violation of RSA chapter 318-B. See RSA 318-B:17-b, 1(c) and IV. The petition recited the circumstances under which the moneys had been seized, and it alleged that the search of Young’s premises also turned up books instructing how money could be laundered by conversion into old coins and other collectible objects.

Young responded by raising a series of defenses which proved to be of no avail. This appeal incorporates by reference Young’s challenges to the constitutionality of the search, which we have resolved favorably to the State in the companion case. See Plymouth [205]*205Sedan v. Pennsylvania, 380 U.S. 693 (1965) (derivative contraband may not be forfeited if seized in violation of fourth amendment, since proceeding is penal and quasi-criminal in nature); cf. United States v. $250,000 in United States Currency, 808 F.2d 895, 900 (1st Cir. 1987) (for purposes other than fourth and fifth amendments, such forfeiture proceedings are treated as civil). We deal now with the remaining issues going to the elements necessary for forfeiture, the statute of limitations, and the legal and constitutional prohibitions against ex post facto laws.

Young’s principal argument, challenging the sufficiency of the State’s proof, raises a question about the interpretation of RSA 318-B:17-b, 1(c). He starts with the assumption that the provision for forfeiture of “moneys used or intended for use” in felonious violation of the controlled drug act requires proof “connecting the [money to be forfeited] with [a] particular narcotics transaction” (Young’s brief at p. 15), and in support of such a requirement, he cites Hudson County Board of Chosen Freeholders v. Morales, 581 F.2d 379 (3d Cir. 1978), and State of New Jersey v. Kaiser, 476 F.2d 610 (3d Cir. 1973). He then argues that the State’s evidence was inadequate to establish any such connection, without which the order of forfeiture was erroneously issued.

We will assume that Young is correct about the state of the evidence. He is wrong, however, about the state of the law. His first mistake is in citing Hudson County and Kaiser as establishing a general rule for the third circuit that money is not subject to forfeiture unless it can be tied to a specific illegal transaction. Neither case so holds.

Hudson County adjudicated the federal government’s demand to enforce a tax lien against certain money that the State of New Jersey claimed by antecedent right of forfeiture. The State’s claim rested on the common law doctrine that a defendant may not retain the fruits of a specific crime that he has committed. See State v. Sherry, 46 N.J. 172, 176, 215 A.2d 536, 538 (1965). Because the State could not connect the money in question with a specific crime, the State lost under its own rule. Hudson County, supra at 384.

Kaiser similarly decided competing claims of the federal government and the State of New Jersey, the one to enforce a tax lien and the other to a forfeiture of the same money. The State claimed that the money was forfeitable as derived from gambling operations. The State lost because of the court’s reliance on an earlier New Jersey case, which held that a statute providing for the forfeiture of a gambling “device” was inapplicable to money, unless the State proved that the money had been “segregated and [206]

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Bluebook (online)
536 A.2d 1270, 130 N.H. 202, 1987 N.H. LEXIS 300, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-two-hundred-seven-thousand-five-hundred-twenty-three-dollars-nh-1987.