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UNITED STATES v. $ 288

December 2, 1993

UNITED STATES OF AMERICA, Plaintiff,
v.
$ 288,930.00 IN U.S. CURRENCY, Defendant. v. FU JUNG TAN, Claimant.


HOLDERMAN


The opinion of the court was delivered by: JAMES F. HOLDERMAN

JAMES F. HOLDERMAN, District Judge:

 The United States filed a complaint for forfeiture against defendant $ 288,930.00 in United States currency alleging that the currency constituted proceeds of narcotics trafficking and thus is subject to forfeiture pursuant to 21 U.S.C. § 881(a)(6). *fn1" The sole claimant to defendant currency is Fu Jung Tan ("claimant Tan"). Claimant Tan has moved to dismiss plaintiff's complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a valid claim upon which relief may be granted. For the reasons stated below, claimant's motion is denied.

 BACKGROUND

 The government alleges in its verified complaint that the following events occurred prior to its seizure of the defendant currency. During the course of an ongoing investigation into narcotics trafficking through Chicago's Union Station, an Amtrak employee approached two Chicago Police Department Drug Task Force agents and notified them that he had unloaded a gray Samsonite Oyster hardsided suitcase for passenger in a sleeper car on Amtrack train #49 from New York City to Chicago. The Amtrak employee advised the agents that the suitcase "was very heavy and appeared to have something other than clothing inside." *fn2" The government contends that the task force agents were aware that this particular piece of luggage is commonly used by narcotics couriers because of its gasket seal.

 The agents then asked questions about Tan's luggage including the Samsonite Oyster suitcase. Tan allegedly said that he was not carrying any packages for anyone else; he packed his own luggage; he was not carrying any packages of which he did not know the contents; and that he was not carrying any large amounts of currency. The government alleges that the agents then asked Tan if he would consent to the search of his luggage, and Tan responded that the officers could search his luggage.

 Upon opening the Samsonite Oyster suitcase, the agents found a locked, large, green gym bag. The agents allegedly asked Tan what was in the bag and Tan responded that it was money that his uncle, Peter Wong, gave him. The agents asked how much money was in the bag and Tan allegedly responded that the bag contained about $ 290,000.00, probably from his uncle's gambling and that his uncle was trying to send the money to Hong Kong without paying taxes on it.

 When questioned about his uncle (what he did for a living, his phone number, where he lived) Tan allegedly stated that Peter Wong was not really his uncle; that he met Wong for the first time one week ago; and that Wong asked him to take the currency to a man named Wilson Wong in California in exchange for a payment of $ 15,000. When asked if Peter Wong was involved in narcotics, Tan allegedly said that he did not know.

 The agents then asked it he would open the lock on the gym bag and Tan allegedly consented. The bag contained $ 288,930.00 in five, ten, and twenty dollar denominations, separated and bundled. After the money was counted, the government alleges that there was a positive alert by a certified narcotic detective dog for the presence of narcotics on the money.

 Based on the above allegations, the government contends that there is probable cause to believe that the defendant currency was furnished or intended to be furnished in exchange for a controlled substance, was proceeds of such an exchange, or was used or intended to be used to facilitate a violation of Title 21 of the United States Code.

 ANALYSIS

 In ruling on a motion for dismissal, the court must presume all of the well-pleaded allegations of the complaint to be true. Miree v. DeKalb County, 433 U.S. 25, 27 n.2, 97 S. Ct. 2490, 2492, 53 L. Ed. 2d 557 n.2 (1977). In addition, the court must view those allegations in the light most favorable to the plaintiff. Gomez v. Illinois State Bd. of Educ., 811 F.2d 1030, 1039 (7th Cir. 1987). Dismissal is proper only if it appears "beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99, 102, 2 L. Ed. 2d 80 (1957).

 In support of his motion to dismiss, claimant Tan argues, based on the United States Supreme Court's recent decision regarding civil forfeitures in Austin v. United States, 125 L. Ed. 2d 488, 113 S. Ct. 2801 (1993), that the government's complaint in this case should be dismissed because the complaint fails to allege any criminal act that is the basis of the forfeiture and the seizure of claimant's property was excessive as compared to the criminal act allegedly performed by claimant. Claimant Tan argues that after the Supreme Court's decision in Austin, "it is now clear that the government must show a nexus between the property seized and actual criminal activity in order to justify seizing the ...


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