USCA1 Opinion
June 13, 1995 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 94-2228
UNITED STATES OF AMERICA,
Plaintiff, Appellee,
v.
$200,226.00 IN UNITED STATES CURRENCY,
Defendant.
__________
GLORIA ISABEL ECHEVERRY BERRIO BUENO MONSALVE,
Claimant, Appellant.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jose Antonio Fuste, U.S. District Judge] ___________________
____________________
Before
Selya, Boudin and Lynch,
Circuit Judges. ______________
____________________
Jon May and Charmain Williams with whom Ronald I. Strauss was on _______ _________________ __________________
briefs for claimant, appellant.
Jose Vazquez, Assistant United States Attorney, with whom ______________
Guillermo Gil, United States Attorney, was on briefs for the United ______________
States.
____________________
____________________
Per Curiam. On September 9, 1993, after a one-night __________
stay in San Juan, Puerto Rico, the claimant Gloria Echeverry
passed through the security checkpoint at the Luis Munoz
Marin International Airport on her way to board a flight to
Miami, Florida. A private security guard viewed the first of
Echeverry's two carry-on bags as it passed through the X-ray
machine. The guard's suspicion was aroused by a mysterious
shape in the first bag; the guard asked Echeverry whether the
bag was hers, and Echeverry replied in the affirmative.
The guard opened the first carry-on bag and discovered
large amounts of cash wrapped in four towels. The guard then
summoned a Puerto Rico police officer, who in turn eventually
called DEA agents to the scene. The second carry-on bag was
also searched and found to contain cash wrapped in towels;
together the bags contained $200,226.00. The cash was
retained by the DEA, and Echeverry was allowed to leave with
a receipt for the money.
Virtually everything else that occurred at the airport
is disputed. Pertinently, the government claims that
Echeverry consented to a search of both bags. The government
also says that Echeverry voluntarily provided police with a
remarkable story about the source of the money: according to
the prosecutors, she stated that the $200,000 was a gift out
of the blue from her wealthy Italian boyfriend, whose
address, telephone number and occupation were unknown to her,
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and was delivered to her in a brown paper bag by a stranger.
On the other hand, Echeverry denies ever consenting to a
search of her bags and says she was detained, isolated,
interrogated, and that prior to her alleged detention she
made no statement whatever about the origin of the cash. She
says that she was told by the police of their general policy
to detain persons carrying cash and that she was ordered to
remain in a separate location until the DEA arrived to
interrogate her.
On January 20, 1994, the United States filed a civil
forfeiture complaint against the money in the district court,
alleging that the cash was the proceeds of or was used in
connection with drug trafficking. See 21 U.S.C. 881(a)(6). ___
On February 25, 1994, Echeverry filed a claim to the seized
cash. On March 8, 1994, she filed a motion to dismiss. She
subsequently filed a motion, and supporting affidavit, to
suppress much of the evidence on the ground that the law
enforcement agents had obtained her statements and physical
evidence in violation of the Fourth Amendment.
On July 12, 1994, the district judge issued an opinion
and order denying the claimant's motions to dismiss and to
suppress and directing Echeverry to show cause why summary
judgment should not be entered for the government. In
response to the court's sua sponte order, the government __________
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moved for entry of forfeiture judgment on July 14, 1994.
Echeverry filed her response on August 4, 1994. The district
court entered an order on September 23, 1994, again denying
the claimant's dismissal and suppression motions, granting
summary judgment for the United States and ordering
forfeiture of the money. This appeal followed.
The chief issue in this appeal is the district court's
resolution of contested factual disputes on summary judgment
without an evidentiary hearing. In deciding that the search
and resulting statements at the airport were legal, the
district judge relied explicitly on the government's version
of the facts. Pertinently, the opinion stated without
qualification that Echeverry provided the boyfriend story
voluntarily and that she "was never detained by the security
personnel, local police officer [sic] or DEA agents" and "was
free to leave at her will." Then, in ruling that there was
probable cause to believe that the cash was linked to drug
trafficking, the district judge relied on Echeverry's
explanation of how she received the cash.
In concluding that Echeverry was never detained, the
district court cited to the affidavits of three officers or
agents. Acknowledging that Echeverry had filed an affidavit
"contradicting" those of the government, the district court
said that Echeverry's affidavit was "self-serving" and did
"not create an issue of fact so as to defeat summary
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judgment." Her affidavit is certainly self-serving, as most
litigation affidavits are, but it goes somewhat beyond mere
conclusion and is undeniably at odds with the government's
version. Her affidavit said in part:
[After the luggage was opened] Officer Carreras
told me that I would be detained pending the
arrival of the DEA. Officer Carreras stated that
it was their policy to detain anyone who came
through the airport carrying money. Upon being
told that I would be detained, Officer Carreras
picked up my two pieces of luggage and ordered me
to follow him to a small room where I was held
until the arrival of the DEA. Prior to being
detained, I made no statement concerning the origin
of the money in my possession.
A determination of whose version of events should be
believed clearly cannot be made without an evidentiary
hearing of some kind. Neither of the versions of what
happened at the airport was inherently incredible;
Echeverry's version was squarely supported by her sworn
affidavit. Under these circumstances, we do not see how the
district court could determine that the factual issues could
be resolved in the government's favor without hearing from
live witnesses and giving Echeverry the opportunity to
testify in open court. See, e.g., United States v. Taylor, ___ ____ _____________ ______
13 F.3d 786 (4th Cir. 1994); United States v. Berkowitz, 927 _____________ _________
F.2d 1376, 1385 (7th Cir. 1991), cert. denied, 113 S. Ct. ____________
1059 (1993).
If Echeverry was in fact detained involuntarily by the
police, held in isolation for a substantial period, given no
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Miranda warning, and then made statements that are _______
potentially quite damaging, there are at least colorable
issues raised as to whether the statements could be used in
the forfeiture proceeding. See One 1958 Plymouth Sedan v. ___ ________________________
Pennsylvania, 380 U.S. 693, 696 (1965). Further, the use of ____________
Echeverry's unusual account of how she received the funds,
and her professed ignorance of information about her alleged
boyfriend, played an important role in the district court's
determination that the property was subject to forfeit.
The judgment of the district court is vacated and the _______
matter is remanded for further proceedings. Without seeking ________
to prescribe the course of the proceedings on remand, we
think that the district court might be well advised in due
course to hold an evidentiary hearing to determine whose
version of the airport events is correct before attempting to
resolve either the suppression or the forfeiture issues.
It is so ordered. ________________
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