14‐1625‐cr
United States v. Cosme
In the
United States Court of Appeals
For the Second Circuit
________
AUGUST TERM, 2014
ARGUED: OCTOBER 24, 2014
DECIDED: AUGUST 10, 2015
No. 14‐1625‐cr
UNITED STATES OF AMERICA,
Appellee,
v.
WILLIAM R. COSME, also known as William R. Cosmo,
Defendant‐Appellant.
________
Appeal from the United States District Court
for the Southern District of New York.
No. 13‐cr‐43 – Harold Baer, Jr., Judge.
________
Before: WALKER, CABRANES, and CARNEY, Circuit Judges.
________
William R. Cosme challenges the government’s restraint of his
property during his prosecution on charges of wire fraud. Upon
Cosme’s arrest in 2012, the government seized several of his assets,
including his cars and two bank accounts. In August 2013, the
No. 14‐1625‐cr
district court issued an order allowing the government to hold the
seized property until the conclusion of its criminal case. Cosme then
unsuccessfully moved to vacate the order on the basis that it
violated his Fourth Amendment rights because the government
seized his assets without seeking a warrant. In addition, Cosme
argues on appeal that there has been no judicial finding as to
whether probable cause supports the forfeitability of the seized
assets. We find merit in both arguments and hereby hold that
exigent circumstances do not support the government’s indefinite
seizure in the absence of a warrant. We remand for the district court
to determine whether probable cause supports the forfeitability of
Cosme’s assets. Accordingly, we VACATE the district court’s denial
of Cosme’s motion to vacate the August 6, 2013 order and
REMAND for further proceedings consistent with this opinion.
________
JEFFREY E. ALBERTS, Pryor Cashman LLP, New
York, NY, for Defendant‐Appellant.
MARTIN S. BELL (Sarah E. Paul and Brian A.
Jacobs, on the brief), Assistant United States
Attorneys, for Preet Bharara, United States
Attorney for the Southern District of New York,
New York, NY, for Appellee.
________
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No. 14‐1625‐cr
JOHN M. WALKER, JR., Circuit Judge:
William R. Cosme challenges the government’s restraint of his
property during his prosecution on charges of wire fraud. Upon
arresting Cosme in 2012, the government seized several of his assets,
including his cars and two bank accounts. In August 2013, the
district court issued an order allowing the government to hold the
seized property until the conclusion of its criminal case. Cosme then
unsuccessfully moved to vacate the order on the basis that it
violated his Fourth Amendment rights because the government
seized his assets without seeking a warrant. In addition, Cosme
argues on appeal that there has been no judicial finding as to
whether probable cause supports the forfeitability of the seized
assets. We find merit in both arguments and hereby hold that
exigent circumstances do not support the government’s indefinite
seizure in the absence of a warrant. We remand for the district court
to determine whether probable cause supports the forfeitability of
Cosme’s assets. Accordingly, we VACATE the district court’s denial
of Cosme’s motion to vacate the August 6, 2013 order and
REMAND for further proceedings consistent with this opinion.
3
No. 14‐1625‐cr
BACKGROUND
Cosme’s Arrest
Cosme was arrested on December 19, 2012 on charges of wire
fraud. According to the criminal complaint supporting the arrest,
Cosme defrauded an international school in Korea of approximately
$5.5 million. The complaint alleges that Cosme represented that he
would invest the school’s money but instead used the money to
enrich himself.
On the day of Cosme’s arrest, the government seized several
of his assets, including a Cadillac that was parked in plain view in
his driveway, and a Lamborghini and a Ferrari in his garage that
were discovered during a protective sweep. During an inventory
search of the cars, officers found and seized a bag containing
$634,894 in currency.
That same day, the government delivered letters to Scottrade
and Sterling National Bank requesting that they freeze Cosme’s
accounts (the “bank accounts”), believed to contain proceeds of
unlawful activity, pursuant to civil forfeiture provisions 18 U.S.C.
§§ 981(a)(1)(A), 981(a)(1)(C), and 981(b)(2)(B)(ii). In its letters to the
financial institutions, the government stated that it had “probable
cause to believe that the . . . property is subject to seizure and
forfeiture.” App’x 161. The letters also stated that the government
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No. 14‐1625‐cr
was “in the process of obtaining a seizure warrant” from the court
for the accounts but that “exigent circumstances require that the
Subject Property be frozen immediately to prevent it from being
dissipated.” App’x 161. The government cited United States v.
Daccarett, 6 F.3d 37 (2d Cir. 1993), and 18 U.S.C. § 981(b)(2)(B)(ii) in
support of this last statement and noted that, upon the warrant’s
issuance, a copy of the warrant would be provided to the letters’
recipients. The government never sought a warrant for the seized
property.
On January 17, 2013, Cosme was indicted in the District Court
for the Southern District of New York. The indictment alleged that
the international school had transferred $5.5 million to Cosme upon
his promise to invest it. Instead, the indictment alleged, Cosme spent
the money on himself and otherwise misappropriated it. The
indictment listed a series of purchases made by Cosme using the
money, including a Cadillac Escalade, a Lamborghini Gallardo, a
Nissan Juke, and a Ferrari 458. In a section entitled “Forfeiture
Allegation,” the indictment stated that Cosme “shall forfeit” the
listed property, which included, in addition to the four automobiles,
funds held by Scottrade, Inc., Sterling National Bank, Chase
Investment Services, and JP Morgan Chase banks, as well as the
seized $634,894 in currency. App’x 34‐35. In its brief on appeal, the
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No. 14‐1625‐cr
government acknowledges for the first time that the indictment’s
forfeiture allegations were “merely notice provisions that were not
subject to a grand jury vote.” Appellee Br. 39. On July 5, 2013, the
government filed a Bill of Particulars that listed the same property as
subject to forfeiture.
The August 6, 2013 Order and the Stipulations
In July 2013, the government moved ex parte for a pretrial
restraining order applicable to the seized assets. At a conference on
August 6, 2013 before the district court (Harold Baer, Jr., Judge), the
parties discussed the proposed order, which Cosme and his attorney
had not seen prior to the conference. The district court reviewed the
property seized and attempted to determine its value. After
describing it on the record, the district court signed the pretrial
restraining order and provided a copy to Cosme, who offered no
objections to its entry. By its terms, the August 6, 2013 restraining
order permitted the government to “maintain custody” of the seized
assets “through the conclusion of the pending criminal case.” App’x
165‐66. As the government was by then seeking only criminal
forfeiture, the order relied on 21 U.S.C. § 853, a criminal forfeiture
statute, for its authority and stated that the property was “already in
the lawful custody of the Government.” App’x 72. The order also
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No. 14‐1625‐cr
cited 18 U.S.C. § 983(a)(3)(B)(ii)(II) to preserve the government’s
ability to later pursue civil forfeiture.
At the same conference, Cosme’s attorney asked to be relieved
because of the conflict between his position as a court‐appointed
lawyer and Cosme’s potential Monsanto hearing, the purpose of
which would be to obtain the release of seized funds in order to hire
a replacement lawyer.
On September 18, 2013, the parties appeared again before the
district court to discuss a stipulation (the “First Stipulation”), in
which the government agreed to release the seized currency in the
amount of $634,894 to enable Cosme to fund his defense. In
exchange, Cosme promised that “he [would] have access to
sufficient unrestrained assets to fund his defense throughout the
course of the [criminal] case, and that, as a result, he [would] not
seek a Monsanto hearing in this case with respect to any restrained
accounts, currency, or property, including but not limited to the
Accounts, Currency, and Property listed in the Bill of Particulars.”
App’x 92. He further agreed “not to raise on appeal any denial by
the Court of a Monsanto hearing.” Id. At the conference, the district
judge confirmed that Cosme understood the terms of the stipulation.
He told Cosme that he was waiving the right to “come back and ask
for more money,” App’x 79, and Cosme acknowledged that “the
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No. 14‐1625‐cr
stipulation does waive some due process” and includes “other
waivers which [he] accepted,” App’x 77‐78. The district court
signed the First Stipulation on September 25, 2013, and the following
day, Cosme’s sixth lawyer, Maurice Sercarz, entered an appearance.
On January 8, 2014, Cosme entered into another stipulation
(the “Second Stipulation”), in which the government agreed that
$407,000 held in an escrow account by attorney Sercarz could be
released to a new attorney, David Touger, who, with the court’s
approval, relieved attorney Sercarz. Cosme confirmed with
reference to these funds that he had “access to sufficient
unrestrained assets to fund his defense,” and he again agreed “not to
raise on appeal any denial by the Court of a Monsanto hearing in this
case.” App’x 97.
A few weeks later, on January 23, 2014, attorney Steven
Kessler (Cosme’s eighth lawyer) filed a notice of appearance.
Cosme’s Motion to Vacate the August 6, 2013 Order
On February 14, 2014, Cosme moved to vacate or modify the
district court’s August 6, 2013 order. Cosme argued, inter alia: (1)
that the seizure of his assets was unlawful pursuant to the Fourth
Amendment because the government had not obtained a warrant
and exigent circumstances did not justify the seizure; (2) that the
order violated his Fifth Amendment rights to due process because
8
No. 14‐1625‐cr
the government’s application was ex parte; and (3) that the order
violated his Sixth Amendment rights because he did not have
enough money to retain his counsel of choice.
On March 27, 2014, the district judge informed the parties at a
conference that he intended to deny Cosme’s motion but that he
would “permit a Monsanto hearing” in the “interest of justice” if
Cosme requested one. App’x 213. The next day, the district court
denied Cosme’s motion to vacate the order with respect to all of the
seized assets except the bank accounts, which might be subject to a
Monsanto hearing. On March 31, 2014, Cosme informed the district
court that he “intends to seek a Monsanto hearing.” App’x 242.
On April 21, 2014, the district court issued an opinion denying
without a hearing Cosme’s motion to vacate the August 6, 2013
order of seizure. The district court stated that “[t]he Government
made a sufficient showing of probable cause by virtue of the
Indictment, which included the forfeiture allegation,” citing Kaley v.
United States, 134 S. Ct. 1090, 1098 (2014), in support. App’x 250. The
district court’s opinion also denied Cosme’s request for a Monsanto
hearing on the basis that Cosme waived that right “both in writing
and orally,” App’x 253, and that Cosme failed to show that he did
9
No. 14‐1625‐cr
not have sufficient alternative assets to fund his defense as required
by United States v. Bonventre, 720 F.3d 126, 131 (2d Cir. 2013).
Cosme filed a timely notice of appeal.
DISCUSSION
I. Waiver
As a threshold matter, the government argues that Cosme
waived his right to appeal the restraints on his property by failing to
object during the August 6, 2013 conference and by entering into the
two stipulations.
A waiver requires the “intentional relinquishment or
abandonment of a known right.” United States v. Olano, 507 U.S. 725,
733 (1993) (quoting Johnson v. Zerbst, 304 U.S. 458, 464 (1938)). As a
corollary, if a “party consciously refrains from objecting as a tactical
matter, then that action constitutes a true ‘waiver,’ which will negate
even plain error review.” United States v. Yu‐Leung, 51 F.3d 1116,
1122 (2d Cir. 1995).
Cosme’s conduct at the August 6, 2013 conference does not
reveal intentional waiver of all rights to appeal the pretrial
restraining order. In that conference, Cosme challenged the
restraints on his property by raising objections to the seizures. He
protested, for example, that the seized assets “far exceed” the theft
amount alleged, App’x 56, and argued that the “[t]he burden is on
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No. 14‐1625‐cr
[the Government], right, of proving the money is tainted,” App’x 62.
He also timely sought to vacate the order before the district court.
Cf. Olano, 507 U.S. at 731 (noting that a right is forfeited through the
failure to timely object in the district court).
The stipulations present a closer question. However, we do
not read them as waiving the Fourth and Fifth Amendment claims
that Cosme brings here. In the First Stipulation, Cosme agreed that
“he will not seek a Monsanto hearing in this case with respect to any
restrained accounts, currency, or property, including but not limited
to the Accounts, Currency, and Property listed in the Bill of
Particulars.” App’x 92. He also agreed “not to raise on appeal any
denial by the Court of a Monsanto hearing in this case.” Id. The
relevant language of the Second Stipulation exactly mirrored that of
the First. App’x 97.
Both stipulations were narrowly phrased and specifically
addressed only Cosme’s right to a Monsanto hearing. Both
stipulations were intended, by their terms, to cover only Cosme’s
Sixth Amendment‐protected “access to sufficient unrestrained assets
to fund his defense.” App’x 92, 97. Neither stipulation referenced
Cosme’s Fourth or Fifth Amendment rights. Thus we conclude that
these stipulations did not effect a waiver of the Fourth and Fifth
Amendment claims that Cosme now asserts.
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No. 14‐1625‐cr
A Monsanto hearing vindicates a defendant’s Sixth
Amendment right to counsel by testing in an adversary hearing
whether seized assets are properly forfeitable in circumstances
where the defendant has insufficient assets from which to fund his
defense. United States v. Monsanto, 924 F.2d 1186, 1203 (2d Cir. 1991)
(en banc) (defining the required process as “an adversary, post‐
restraint, pretrial hearing as to probable cause that . . . the properties
specified as forfeitable in the indictment are properly forfeitable, to
continue a restraint of assets”), abrogated in part on other grounds by
Kaley v. United States, 134 S. Ct. 1090 (2014). Monsanto, however,
dealt specifically with the Sixth Amendment and, as incident to that,
the defendant’s Fifth Amendment right to a hearing on that
question. Id. at 1191 (holding that “a pre‐trial adversary hearing is
required where the question of attorney’s fees is implicated”
(internal quotation marks omitted)). Monsanto did not mention, let
alone discuss, a defendant’s rights under the Fourth Amendment
and it referenced the Fifth Amendment only as “taken in
combination” with the Sixth Amendment. Id. at 1192.
Because Cosme’s stipulations waived only his right to a
Monsanto hearing, they do not reach his Fourth Amendment claim or
his Fifth Amendment due process claim relating to the government’s
ex parte application for the order that was entered on August 6, 2013.
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No. 14‐1625‐cr
The government could have sought a broader waiver but did not do
so. Consequently, although Cosme waived the ability to contest the
seizure of his property based on the Sixth Amendment, he did not
waive his right to contest it under the Fourth and Fifth
Amendments.
Cosme is, however, limited in how he may challenge the
Fourth and Fifth Amendment implications of the seizure. This court
has instructed that Monsanto hearings are required only to protect a
defendant’s “constitutional right to use his or her own funds to
retain counsel of choice”—a right that is, however, “not implicated
unless the restraint actually affects the defendantʹs right to choose
counsel and present a defense.” Bonventre, 720 F.3d at 131. Indeed,
before a court will grant a Monsanto hearing, it demands a
“threshold showing” of insufficient assets to fund counsel of choice,
id., such that the hearing arises exclusively to vindicate Sixth
Amendment rights.1 Having explicitly confirmed his sufficient
access to funds for his defense and having expressly waived his
right to a Monsanto hearing and the related Sixth Amendment
challenges in the two stipulations, Cosme has no independent
1 Even if Cosme had not properly effected waiver of his right to a Monsanto
hearing, we see no reason, as a factual matter, to disturb the District Court’s
alternative rationale that Cosme “has not come close to making an adequate
showing of indigence” as required by Bonventre. App’x 254.
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No. 14‐1625‐cr
constitutional entitlement to an adversarial hearing on his Fourth
and Fifth Amendment challenges.2
Cosme’s Fifth Amendment claim, moreover, is easily rejected
and need not concern us further.3 With these principles in mind, we
now turn to Cosme’s Fourth Amendment claim.
II. Probable Cause Determination
Cosme argues that the restraining order issued on August 6,
2013 violates the Fourth Amendment because there was never a
judicial finding of probable cause. We review this question of law de
novo. See Bonventre, 720 F.3d at 128. After examining the record, we
2 We note also that several sister circuits have indicated that a pretrial, post‐
deprivation adversarial hearing is not required absent Sixth Amendment
concerns. See, e.g., United States v. Jones, 160 F.3d 641, 647 (10th Cir. 1998) (“If a
defendant fails to persuade the court [that he lacks unrestrained funds sufficient
to hire counsel of his choice], then the private interest of the Mathews [v. Eldridge,
424 U.S. 319 (1976),] calculus drops out of the picture, tipping the balance of
interests against a post‐restraint hearing”); United States v. Farmer, 274 F.3d 800,
804 (4th Cir. 2001) (“In sum, a defendant must show a bona fide need to utilize
seized assets to conduct his defense in order to be entitled to a hearing”
(alterations and internal quotation marks omitted)).
3 We find without merit Cosme’s argument that the government’s ex parte
application for the August 6, 2013 order violated his Fifth Amendment right to
due process. The motion may have been made ex parte, but the order was not
issued ex parte. Before it was signed, both parties discussed the order extensively
at the conference before the district judge on August 6, 2013. At the conference,
Cosme gave no indication that he wanted to review the order further, nor did he
object when the district judge signed it. Because Cosme had notice and an
opportunity to be heard before the order was issued, we find no due process
violation. See United States v. Premises & Real Prop. at 4492 S. Livonia Rd., Livonia,
N.Y., 889 F.2d 1258, 1263 (2d Cir. 1989) (“As a general rule, due process has been
held to require notice and an opportunity to be heard prior to the deprivation of
a property interest . . . .”).
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No. 14‐1625‐cr
agree that no proper finding of probable cause has occurred in this
case and, thus, we must remand the case to the district court to
determine whether probable cause supports the forfeitability of the
restrained property.
Government seizures of property in criminal cases must
comply with the Fourth Amendment. While “the government need
not obtain a judicial determination of probable cause prior to
seizure,” it must establish probable cause if a defendant protests
restraints on his property. Daccarett, 6 F.3d at 50 (stating that “the
fourth amendment mandates the existence of probable cause at the
time of seizure”).
The government’s switch from civil forfeiture to criminal
forfeiture in this case does not immunize it from having to
demonstrate probable cause. When it first seized Cosme’s property
in 2012, the government cited civil forfeiture provision 18 U.S.C.
§ 981(b)(2)(B)(ii).4 That provision allows the government to seize
4 18 U.S.C. § 981(b)(2)(B) states:
2) Seizures pursuant to this section shall be made pursuant to a
warrant obtained in the same manner as provided for a search
warrant under the Federal Rules of Criminal Procedure, except
that a seizure may be made without a warrant if‐‐ . . . (B) there is
probable cause to believe that the property is subject to forfeiture
and‐‐ (i) the seizure is made pursuant to a lawful arrest or search;
or (ii) another exception to the Fourth Amendment warrant
requirement would apply . . . .
15
No. 14‐1625‐cr
property without a warrant if “there is probable cause to believe that
the property is subject to forfeiture” and an “exception to the Fourth
Amendment warrant requirement would apply.” 18 U.S.C.
§ 981(b)(2)(B)(ii). At the August 6, 2013 hearing, the government, at
that point seeking only criminal forfeiture, relied on 21 U.S.C.
§ 853(e),5 which enables a court to “enter a restraining order or
injunction . . . or take any other action to preserve the availability of
property . . . upon the filing of an indictment or information
charging a violation . . . for which criminal forfeiture may be ordered
. . . .” See 18 U.S.C. § 983(a)(3)(C) (“If criminal forfeiture is the only
forfeiture proceeding commenced by the Government, the
Government’s right to continued possession of the property shall be
governed by the applicable criminal forfeiture statute.”). We identify
no inherent problem with the government’s pursuit of criminal
5 21 U.S.C. § 853(e)(1) states:
(e) Protective orders (1) Upon application of the United States, the
court may enter a restraining order or injunction, require the
execution of a satisfactory performance bond, or take any other
action to preserve the availability of property described in
subsection (a) of this section for forfeiture under this section‐‐
(A) upon the filing of an indictment or information charging a
violation of this subchapter or subchapter II of this chapter for
which criminal forfeiture may be ordered under this section and
alleging that the property with respect to which the order is
sought would, in the event of conviction, be subject to forfeiture
under this section . . . .
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No. 14‐1625‐cr
forfeiture after first initiating civil forfeiture proceedings,6 but this
tactic cannot serve as a tool for the government to seize assets
without ever showing probable cause. It is evident from the district
court’s April 21, 2014 opinion that, when making its probable cause
finding, the district court relied on a mistaken understanding of
what the grand jury voted on in the indictment. In particular, the
district court cited to Kaley v. United States, 134 S. Ct. 1090, 1098
(2014), which suggests to us that it believed that the grand jury had
voted on the forfeiture allegations. In Kaley, the Supreme Court held
that a judge could not “second‐guess[]” a grand jury’s finding of
probable cause. Id. (“If judicial review of the grand jury’s probable
cause determination is not warranted (as we have so often held) to
put a defendant on trial or place her in custody, then neither is it
needed to freeze her property.”). Here, however, as the government
concedes in its brief on appeal, the grand jury did not vote on the
forfeiture allegations, which were simply notice provisions not
subject to a grand jury vote. Accordingly, Kaley does not apply, and
the district court was required to make its own probable cause
finding where none had yet been made in the case.
6 See United States v. Candelaria‐Silva, 166 F.3d 19, 43 (1st Cir. 1999) (“[I]t is
perfectly proper to begin a forfeiture action with a civil seizure, and then to
convert the action to a criminal forfeiture once an indictment is returned.”
(internal quotation marks omitted)).
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No. 14‐1625‐cr
The government argues that this error is harmless, but we
disagree. Although the substantive allegations in the indictment
mention the assets in connection with the criminal conduct, at no
point in this case has the government had to demonstrate that it had
probable cause to restrain Cosme’s assets as required by the Fourth
Amendment.7 See Daccarett, 6 F.3d at 50. Cosme is thus entitled to a
proper judicial determination of whether probable cause existed at
the time of the seizure to support the forfeitability of his property—
although not necessarily to the adversarial hearing that often
precedes such a determination.
III. The Warrantless Seizure of Cosme’s Bank Accounts
Cosme also argues that the government’s seizure and
continued possession of his bank accounts violates the Fourth
Amendment. We agree.
18 U.S.C. § 981(b)(2)(B)(ii) allows the government to seize
property without a warrant where an “exception to the Fourth
Amendment warrant requirement would apply.” We have held that
the forfeiture statute does not “create a new exception to the fourth
amendment’s warrant requirement.” United States v. Lasanta, 978
7 The Government’s application for the August 6, 2013 order stated, without
justification or explanation, that Cosme’s property was “already in the lawful
custody of the Government.” App’x 72.
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No. 14‐1625‐cr
F.2d 1300, 1304 (2d Cir. 1992), abrogated on other grounds by Florida v.
White, 526 U.S. 559, 563 (1999). “To be valid, therefore, this
warrantless seizure must meet one of the recognized exceptions to
the fourth amendment’s warrant requirement.” Id. at 1305.
The government defends the warrantless seizure of Cosme’s
bank accounts by arguing that it was justified by the exigent
circumstances exception to the warrant requirement under Daccarett.
In Daccarett, we held that exigent circumstances existed where the
government sought to freeze bank accounts used to move drug
trafficking funds. 6 F.3d at 49. We stated that “[b]ecause the
property at issue was fungible and capable of rapid motion due to
modern technology, we are satisfied that exigent circumstances were
present [in that case].” Id.
Daccarett permitted the initial freezing of electronic accounts
because of their virtually instantaneous transfer capabilities—akin to
the police securing or restricting access to premises while a warrant
is obtained—but we do not read it to allow the perpetual restraint of
a defendant’s property without a warrant. Rather, the exigent
circumstances exception only permits a seizure to continue for as
long as reasonably necessary to secure a warrant, as the government
promised but then failed to do here. We are troubled that, in the
absence of a warrant, the government has retained custody of
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No. 14‐1625‐cr
Cosme’s bank accounts for over two years. See Lasanta, 978 F.2d at
1305 (noting that a warrant was necessary where it was not
“impractical” for agents to obtain one); cf. Mincey v. Arizona, 437 U.S.
385, 393 (1978) (“[A] warrantless search must be strictly
circumscribed by the exigencies which justify its initiation.” (internal
quotation marks omitted)).
Accordingly, the exigent circumstances exception does not
immunize the lengthy, warrantless seizure here. Because the
government has never set forth, either here or before the district
court, any alternative theory by which another exception to the
warrant requirement would apply, we conclude that the continued
seizure of Cosme’s accounts violated the Fourth Amendment.
Nevertheless, it is settled law that “even when the initial seizure is
found to be illegal, the seized property can still be forfeited.”
Daccarett, 6 F.3d at 46). Cosme is thus not entitled to the relief he
requests—i.e., the immediate return of his restrained assets. We
express no view as to whether he may be entitled to other relief in
the future, perhaps including suppression of certain evidence—an
issue that is not germane to this appeal.
However, for the reasons described above in Section II, Cosme
is entitled to a judicial determination of probable cause. If the
district court determines that probable cause existed at the time of
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No. 14‐1625‐cr
seizure to support forfeitability, Cosme’s request for the return of his
property must be denied even though the continuing seizure was
illegal, because “the illegal seizure of property . . . will not immunize
that property from forfeiture.”8 Premises & Real Prop. at 4492 S.
Livonia Rd., 889 F.2d at 1265. If, on the other hand, the district court
determines that no such probable cause existed, then and only then
would Cosme be able to seek a vacatur of the restraining order and
the return of his restrained assets.
CONCLUSION
For the reasons stated above, we VACATE the April 21, 2014
district court order and REMAND for proceedings consistent with
this opinion.
8
Our ruling is not intended to foreclose the government from presenting
evidence that there presently exists probable cause to believe the restrained
assets are subject to forfeiture, even if that evidence was not in the government’s
possession at the time of the initial seizure. See United States v. $37,780 In U.S.
Currency, 920 F.2d 159, 163 (2d Cir. 1990) (“[O]nce a forfeiture proceeding is
brought, if further evidence is legally obtained to justify the governmentʹs belief,
there is no persuasive reason to bar its use.” (internal quotation marks omitted)).
21