United States v. U. S. Currency

626 F.2d 11, 29 Fed. R. Serv. 2d 1451, 1980 U.S. App. LEXIS 15757
CourtCourt of Appeals for the Sixth Circuit
DecidedJuly 14, 1980
Docket78-1162
StatusPublished
Cited by83 cases

This text of 626 F.2d 11 (United States v. U. S. Currency) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. U. S. Currency, 626 F.2d 11, 29 Fed. R. Serv. 2d 1451, 1980 U.S. App. LEXIS 15757 (6th Cir. 1980).

Opinions

WEICK, Circuit Judge.

The United States has appealed from the judgment of the District Court which [12]*12granted the motion of the Defendants-Appellees Gregory, Banks and Garmon to dismiss the government’s proceeding brought under 18 U.S.C. § 1955 seeking forfeiture of certain currency and checks which were seized from them in a raid by the FBI, on the ground that it violated their Fifth Amendment privilege against self-incrimination.

The issue presented on appeal is, in essence, whether the forfeiture proceeding should have been summarily dismissed as ordered by the District Court without any trial, which would frustrate the government’s interest in effectuating the Congressional intent to pursue forfeiture of the currency, or whether a conflict between the Fifth Amendment privilege and the forfeiture proceeding can be averted by fashioning some other alternative, short of dismissal, which can harmoniously accommodate both interests. We believe that both interests can be accommodated and that the judgment of the District Court should be vacated and the cause remanded.

I

On December 16,1975, pursuant to search warrants issued based upon information partially obtained in a prior judicially-approved wiretap, agents of the Federal Bureau of Investigation conducted a raid and seized certain currency, records, and other paraphernalia used in illegal gambling, from the appellees, including: $38,401 from Gregory, $45,706.75 from Banks, and $5,900 from Garmon. No indictments have been returned and filed as a result of the raid. On September 7,1977, however, the United States filed the present forfeiture proceeding in the United States District Court for the Middle District of Tennessee, alleging that the items seized had been used in an illegal gambling business, in violation of 18 U.S.C. 1955. The Complaint alleged that the appellees and others had conducted a gambling business, in violation of Section 1955 and Tennessee law, from October 1, 1975, until December 16,1975. Accompanying the complaint were interrogatories, consisting of 63 questions (and subparts), which requested, inter alia, detailed information as to whether the appellees had participated in a gambling business, and as to the specifics of said participation.

The appellees then filed claims to the monies and property, and also tendered motions to dismiss on the ground that the forfeiture proceedings could not be maintained because of appellees’ Fifth Amendment privilege against self-incrimination. On February 3, 1978, District Judge Morton granted the motion to dismiss. The District Court found that the interrogatories were patently designed to elicit incriminating information under 18 U.S.C. § 1955, as well as under the Tennessee statutes. The court stated that “this case is controlled by the holding of the Supreme Court in United States v. United States Coin and Currency, 401 U.S. 715 [91 S.Ct. 1041, 28 L.Ed.2d 434]”, and concluded that “this case must be dismissed.” The court ordered that the seized currency and property be returned to the claimants, “to the extent that such items are not per se contraband.” Acknowledging, however, the possibility of “an ongoing criminal investigation arising out of the seizure of those items” in which the “items may be needed as evidence,” the District Court ordered the government “to file a certificate of fact with the court stating whether any criminal investigations arising out of the seizure are ongoing before determining whether to order the return of the property.” On February 22, 1978, the United States complied with the order by submitting a Certificate of Fact stating that:

There are presently ongoing criminal investigations arising out of the seizure of property and currency from Woodrow John Gregory, James Albert Banks, and George Sidney Garmon on December 16, 1975, and this property and currency will be needed as evidence in such proceedings.

It is from the District Court’s order of dismissal that the United States now appeals.

[13]*13II

The court is confronted with two interrelated questions: whether Coin and Currency does indeed control the case sub judice, and in fact mandates its dismissal; and whether the appellees’ Fifth Amendment privilege against self-incrimination compels dismissal of the action. The court is inclined to answer both questions in the negative, and to remand the second question to the District Court for further consideration consistent with our opinion.

First, the court concludes that the Supreme Court’s decision in United States v. United States Coin and Currency, 401 U.S. 715, 91 S.Ct. 1041, 28 L.Ed.2d 434 (1971) neither controls this matter nor mandates the dismissal of the government’s complaint. Coin and Currency was an action brought by the United States for the forfeiture of money in the possession of one Angelini when he was arrested for failure to register as a gambler and failure to pay the gambling tax required by Title 26, United States Code, Sections 4411, 4412, and 4901. The Supreme Court held that the Fifth Amendment privilege could properly be invoked because, “when the forfeiture statutes are viewed in their entirety, it is manifest that they are intended to impose a penalty only upon those who are significantly involved in a criminal enterprise.” 401 U.S. at 721-722, 91 S.Ct. at 1045. This court finds quite persuasive the government’s contention that there is “nothing to support the district judge’s order dismissing the forfeiture proceeding by drawing an analogy to Coin and Currency.” As the government has correctly explained, the Coin and Currency holding “flowed naturally” from the decisions in Marchetti v. United States, 390 U.S. 39, 88 S.Ct. 697, 19 L.Ed.2d 889 (1968), and Grosso v. United States, 390 U.S. 62, 88 S.Ct. 709, 19 L.Ed.2d 906 (1968), in which “the Supreme Court held that the federal wagering tax provisions, as then framed, unconstitutionally burdened the privilege against self-incrimination, since persons who failed to comply with the disclosure requirements of the statutory scheme were subject to ‘ “real and appreciable,” and not merely “imaginary and unsubstantial” hazards of self-incrimination’ stemming from the information disclosed.” Coin and Currency, the government accurately notes, “involved a forfeiture proceeding under the very same statutory scheme involved in Marchetti and Grosso.” Furthermore, the Coin and Currency Court expressed the same concerns voiced in the earlier cases, as demonstrated by the court’s statement, in referring to Marchetti and Grosso, that “it was only the method Congress had adopted in collecting the tax that raised the Fifth Amendment question.” 401 U.S. at 717, 91 S.Ct. at 1043.

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Bluebook (online)
626 F.2d 11, 29 Fed. R. Serv. 2d 1451, 1980 U.S. App. LEXIS 15757, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-u-s-currency-ca6-1980.