Opinion
No. INDICTMENT 107886
August 4, 2000
This is the Commonwealth's Motion for Forfeiture "pursuant to G.L.c. 94C, § 47(a)(5) and 47(b), that the Court ordered the sum of $100,000 to be forfeited to the office of the District Attorney and authorized a law enforcement agency for distribution in accordance with G.L.c. 94C, § 47(d)."
The Commonwealth alleges that the monies in question are proceeds of illegal narcotic sales in violation of G.L.c. 94C and/or that the "drug-money nexus exists necessary for forfeiture." (Commonwealth's Motion for Forfeiture, p. 1)
There have been two claimants identified in motions to intervene: one is Carlos Dominguez, an attorney for Alonso Osorio, the defendant herein. The other is Liliana Osorio, the sister of the defendant.
PROCEDURAL HISTORY
The defendant was arrested for trafficking in cocaine in amounts exceeding 200 grams on August 14, 1999 and brought before the district court. Bail was set, but not posted in the district court. He was indicted in October, 1999. He was arraigned on October 13, 1999 and bail was set at $250,000 cash, without prejudice. On October 28, defendant's bail was reduced to $100,000 cash. Mr Dominguez represents the defendant in the criminal matter.
On March 16, 2,000 bail was posted. According to Mr. Dominguez's affidavit, he was provided $100,000 by Liliana Osorio on March 15, 2000. In her affidavit she related that the money belonged to her family. The money was to be used as bail for her brother.
The $100,000 was furnished to Mr. Dominguez by Ms. Osorio in U.S. currency.
Mr. Dominguez obtained a cashier's check or bank check for $100,000 payable to the Dedham Superior Court. This check was made out to the clerk of court for Norfolk county and given to a bail commissioner in order to secure the release of the defendant.
Mr. Osorio listed himself as his own surety. The bail receipt was assigned by Mr. Osorio to Mr. Dominguez as security for Mr. Dominguez's legal fee.
Mr. Osorio was never released from custody after posting the $100,000 cash bail. Instead, he was taken into custody by the Immigration and Naturalization Service and deported.
The parties agree that, as a result of his deportation, Mr. Osorio is not in default and that the funds posted as his bail should be either returned to him or his assignee or be forfeited to the Commonwealth. But for the question of forfeiture the surety is entitled to the funds. The parties agree that the defendant is not in default as a result of his deportation and that the indictment will not proceed because defendant cannot lawfully enter the country to respond to the indictment. The District Attorney has opposed the release of the funds to Mr. Dominguez or Ms. Osorio and filed this motion for forfeiture as described above.
In support of its motion, the Commonwealth has furnished the affidavit of Trooper Timothy Curtin. At the hearing on this motion further testimony was taken from Lt. Paul Hayes of the Massachusetts State Police. The Court has also the affidavits of Ms. Osorio and Attorney Dominguez before it.
Procedural Issues
G.L.c. 94C, § 47(b) authorizes the district attorney to present a motion to the court which has jurisdiction over "any related criminal proceeding" brought under G.L.c. 94C or by any court having jurisdiction over "said property". The statute also provides for a civil action in rem under G.L.c. 94C, § 47(d). Although this is a motion under G.L.c. 94C, § 47 (b) in a criminal case, not a petition in rem brought under G.L.c. 94C, § 47(d), it is "outside the scope of the criminal matter and constitutes a civil proceeding". Commonwealth v. Brown, 426 Mass. 475, 480 (1998). The provisions of § 47(d) relating to "probable cause to institute the action" still govern. Id. at p. 477-479. No questions of adequacy of notice have been raised. Cf, Brown at p. 480.
The claimants have standing to contest the forfeiture. Attorney Dominguez is the assignee of the surety in this case, the defendant. Ms. Osorio, by implication, claims not that a gift was made by her or her family to the defendant but that money was furnished for his benefit with an implied obligation to return such amounts as were not needed for his bail or defense. In any event, but for the claims of the Commonwealth, the clerk of court would be obliged to return the bail money to Mr. Dominguez as the assignee of the bail receipt.
The Court will infer that Mr. Dominguez is still acting as attorney for Alonso Osorio in this criminal indictment. No dispute has been brought to the Court's attention relating to the assignment by Mr. Osorio to Mr. Dominguez. Thus, the Court will infer that Mr. Dominguez is asserting the rights of Mr. Osorio in this matter and that he has an obligation to account for the bail money to Mr. Osorio and his sister, with due consideration to his rights to secure his legal fee.
If the money is released and no longer held by the court as security for the appearance of Mr. Osorio in this matter, the focus shifts then to the conflicting claims of the Commonwealth and all others. Thus for the purpose of moving forward, the Court will assume that if the bail money is released to anyone, it would be., at least temporarily released, to Mr. Dominguez as the holder of an assignment from Mr. Osorio. The issues which the parties before the Court wish to focus on are who, under the forfeiture statute, is entitled to claim the funds constructively in the possession of Mr. Dominguez.
Probable Cause
The Commonwealth has the burden of establishing probable cause that the money in question is subject to forfeit under G.L.c. 94C. Money which is "furnished or intended to be furnished by any person in exchange for a controlled substance, or is proceeds traceable to such an exchange, or is money used or intended to be used to facilitate a violation of a provision of" various sections of G.L.c. 94C is subject to forfeit. The Commonwealth has the initial burden to establish probable cause to institute an action under G.L.c. 94C, § 47(d). See Commonwealth v.$14,200, 421 Mass. 1, 8-9 (1995).
The standard of probable cause is similar to the burden on the Commonwealth when it seeks an indictment, and less than its burden at a probable cause hearing to determine whether someone should be held for trial. Id. At the probable cause stage, the Commonwealth must prove probable cause to proceed in the form of a "sound reason to believe that a money-drug nexus exists." id. If the Commonwealth establishes probable cause, then the burden shifts to claimants who have the burden of proving that the property in question is not forfeitable. Id.
The Court at the hearing on this matter considered only the probable cause aspect of the case. The claimants took the position that the Commonwealth had not established the requisite probable cause and declined to present evidence.
In fairness, the Court will consider this matter as a bifurcated, matter since the Court declined to rule on probable cause at the first hearing and invited further briefing from all parties. If the Court concludes that the Commonwealth has established probable cause, the hearing will continue, at which time the claimants will be permitted to offer evidence to meet its burden.
Facts
The facts leading up to the defendant's arrest which are relevant to the issue of probable cause are as follows. The Court notes that various forms of hearsay were admissible and were considered by the Court solely on the issue of probable cause and not for the truth or falsity of such matters. Thus, such reference will be made to facts brought to the Court's attention which were in the hands of the Commonwealth and upon which the Commonwealth relies to establish probable cause.
Defendant argues that facts must be examined as of the time the action was instituted. This would be the time the motion was filed.
The defendant Alonso Osorio was arrested while he was the operator of a motor vehicle under the following circumstances. Based upon reliable information detailed in the affidavit of Timothy Curtin of the Massachusetts State Police, the State Police became aware of a contemplated drug transaction in which one Barrientos would be transporting seven kilograms of cocaine from Jackson Heights, New York to Chelsea, Massachusetts. A transaction was arranged in which Barrientos would sell 2 kilograms of cocaine for $40,000 to a confidential informant The sale was to take place in Quincy.
The state police had 62 Chester Avenue, Chelsea under surveillance, which was the location identified as the place where Barrientos was staying. Police observed an Hispanic male driving a tan Nissan with Massachusetts registration 7215GN stop at 62 Chester Avenue and another Hispanic male exit that building and enter the Nissan. The person entering the vehicle from 62Chester Avenue had a package with him which was not inconsistent with 2 kilograms of cocaine.
At 7 o'clock, Barrientos called the confidential informant saying that he was lost at a Stop and Shop parking lot in Quincy on Newport Avenue and telling the confidential informant that he had the package with him. The confidential informant was to go to the parking lot to meet Barrientos.
At that time, surveillance officers approached Barrientos who had gotten out of the Nissan, and also approached the driver of the Nissan identified as Alonso Osorio, the defendant in this case. A narcotics dog was alerted to the presence of narcotics inside the vehicle. Subsequently, a hidden compartment was found which contained 3 kilograms of cocaine. Osorio, the defendant herein, was arrested and charged with trafficking.
A forfeiture action regarding the tan Nissan was commenced. The registered own, Marguerita Tavares, at 116 Havre Street, Apt. 2, East Boston, MA did not appear. Furthermore, the address was incorrect and no one named Marguerita Tavares or any other person claiming ownership contacted the state police or the district attorney's office.
Defendant in this name also goes by the name Carlos Osorio, Jesus Lopera and William Osorio. For various identities he has different dates of birth. He is listed as being born in Venezuela as well as in Colombia and has no Social Security number.
Mr. Osorio was charged in the West Roxbury District Court with conspiracy with regard to class B controlled substance, possession with intent to distribute Class B, possession of a Class B substance in a school zone violations and distribution of Class B. He defaulted in 1996. He also defaulted in 4 charges in 1997 in the Roxbury District Court: conspiracy, possession with intent to distribute Class B, and 2 counts of manufacturing Class B controlled substance. The West Roxbury defaults were removed in January, 2000 and the Roxbury defaults were removed in March 2000.
The claimants in this matter have declined to provide any information to the Commonwealth regarding the basis of their claim other than the fact that the money was supplied allegedly by the defendant's sister and that the money came from defendant's family.
The Commonwealth points to the following facts to support probable cause. The defendant's presence during the major drug transaction involving $40,000 worth of cocaine; his operation of a motor vehicle in which there was a hidden compartment containing cocaine; his failure to respond to the forfeiture of the vehicle; the failure of anyone to respond to the forfeiture proceedings relating to the vehicle; and his lack of social security number and various aliases, addresses, dates of birth and places of birth.
The Commonwealth also relies upon defendant's failure to provide any information as to the source of the money and lack of any apparent means of raising $100,000. They also point to his arrests and defaults in other narcotics matters.
The defendant points out the following: bail money was not posted until nearly 5 months after the arrest in question. There was no currency found, or seized, at the time of the drug transaction in question. The defendant has never been convicted of a drug transaction. The defendant himself was not the subject of the investigation which led to the arrest of Barrientos. The defendant was not involved in any of the negotiations leading up to Barrientos agreement to sell the cocaine to the informant.
Analysis
Probable Cause Standard
The probable cause which the government must show is that which is required to support an indictment by a grand jury, but less than is required to make out a prima facie case. Commonwealth v. $14,200, 421 Mass. 1, 8-9 (1995). This means that the Commonwealth must establish "a sound reason to believe that the drug-money nexus exists." id. There must be more than mere suspicion. U.S. v. $405,029 U.S. Currency, 122 F.3d 1285, 1289 (9th Cir. 1997) (collecting authorities)
Our court has noted that the federal forfeiture statutes are identical in many respect to our state statute and that federal decisions are helpful authority in these matters. See Brown at p. 478.
In considering the question of probable cause the aggregation of the facts controls, not one single factor. U.S. v. $405,029 U.S. Currency, 122 F.3d 1285, 1289 (9th Cir. 1997)
To support forfeiture in this case there must be a nexus to conduct prohibited by G.L.c. 94C. Money is not forfeitable on the grounds that there is a nexus between the money and some other illegal activity. See U.S. v. $405,029 U.S. Currency, 122 F.3d 1285, 1289 (9th Cir. 1997). The nexus need not be to the particular transaction involved in the criminal case, nor to any particular drug transaction. Brown, at p. 479. But the evidence must show that the money was probably derived from illegal drug transactions. id. Furthermore, the evidence must show substantial connection between the targeted money and illegal drug activity. U.S. v. Property in Greene and Tuscaloosa County, 893 F.2d 1245, 1250 (11th Cir. 1990)
Factors in this case
The evidence cited above provides a sound reason to believe that the defendant was engaged in a drug transaction on the occasion of his arrest. Although the circumstances of his prior arrests were not brought to the court's attention they do supply some probative evidence at the probable cause level to believe that he was engaged in illegal drug activity in 1996. One could even conclude there was sound reason to believe that the defendant has had a substantial involvement in the dealing of drugs over some period of time.
The fact that the defendant's family had the financial resources to finance his bail is not particularly probative of a money-drug nexus. It would be unfair and unwarranted to assume that the family of a drug dealer was also involved in illegal drug activity. Nor would it be reasonable to assume that a family's financial resources came from a family member who was involved in drug dealing. The unstated hypothesis in this argument is that the money did not really come from the family at all and that the sister is acting as a straw for her brother who himself or through his criminal associates has furnished the funds. That reasoning is speculation, not a "sound reason".
The use of a large quantity of currency by his family to finance his bail is probative of the inference that the family is or was engaged in some kind of illegal activity. See, e.g. U.S. v. $121,000 in U.S. Currency, 999 F.2d 1503, 1507 (11th Cir. 1993) and cases cited. But there is nothing in the record other than the defendant's own activities to support the further inference that the currency or funds behind the currency supplied by Ms. Osorio for the defendant's bail were obtained as a result of illegal drug activity or used as a means to facilitate such activity. See U.S. v. $405,029 U.S. Currency, 122 F.3d 1285, 1289 (9th Cir. 1997). There is no evidence as there was in U.S. v. $250,000 in Unites States Currency, 808 F.2d 895, 899 (1st Cir. 1987) relating to the collection of currency in suspicious circumstances or in a physical condition that suggests a connection to drug activity.
It should be noted that the currency in question did not come from the scene of the defendant's arrest nor from his person or possession nor from any person about whom there was any information linking him or her to a drug transaction. Furthermore a substantial time elapsed between the defendant's arrest and the appearance of his sister with cash for his attorney.
It is true that Columbia is a nation with which significant drug trafficking is associated. It may even be reasonable to infer that the defendant's family has Columbian ties or origins. But this fact does not add much weight to the scales to get from speculation to sound reasoning.
The decision of defendant's counsel to not provide information about the source of the funds would, in appropriate situations, be probative on the question of the a drug-money connection. But where there is a statutory threshold of probable cause to meet before claimant has any obligation to provide such information the probative value of the refusal to provide it disappears. Cf. U.S. v. $250,000 in Unites States Currency, 808 F.2d 895, 899 (1st Cir. 1987) where suspicious evidence was given in a so called Nebbia hearing where the government is permitted to inquire into the sources of bail money before releasing the defendant, not for the purpose of confiscating it but to determine if defendant is likely to appear in court.
Conclusion
On the facts before the court the Commonwealth must rely on little more than the fact that a large quantity of cash was supplied by the family of probable drug dealer for his bail to support its argument that there are sound reasons to believe that the funds are connected to drug dealing. The other facts before the court do not lend support to this argument.
The court finds that the Commonwealth has not shown probable cause that the money used to provide bail for the defendant was obtained from activity made unlawful under G.L.c. 94C or to facilitate such activity.
ORDER
The Commonwealth's motion to forfeit the funds posted as bail for the defendant is Denied . It is Further Ordered that, upon production of the bail receipt and assignment thereof to Attorney Carlos Dominguez that Attorney Dominguez is the appropriate person to receive the return of the funds deposited on behalf of Antonio Osorio, the defendant and surety herein.
By the Court
_______________________________________ Gordon L, Doerfer Associate Justice of the Superior Court