discover the alleged wrong, whichever occurs first." 487 F. Supp. at 77-8. While this Court is not bound by the decisions of a sister court of coordinate jurisdiction, the foregoing cases comport with this Court's understanding of the ordinary and usual sense of the language at issue.
Apparently aware that the ordinary meaning of the phrase "when the alleged offense was discovered," poses problems for its contention that the offense underlying the instant forfeiture action was not "discovered" at the time the property was seized, the government offers an argument distinguishing R.I.T.A. Organics as a decision based solely upon case law involving private fraud actions rather than governmental forfeiture.
In advancing this argument, the government contends that the R.I.T.A. Organics court was mistaken in its reliance upon case authority arising from private civil actions because the policies underlying the use of the discovery rule in such actions are inappropriate in governmental actions. This Court disagrees. Although the government correctly asserts that it is restricted by constitutional considerations when filing a forfeiture action, and that those considerations may prevent the government from filing a forfeiture claim during the course of criminal proceedings, the government's argument is misdirected. This claimant is not requesting dismissal because of a denial of due process like the claimant in United States v. Eight Thousand Eight Hundred & Fifty Dollars, 461 U.S. 555, 103 S. Ct. 2005, 76 L. Ed. 2d 143 (1983), this claimant is requesting dismissal because the government is out of time. This Court is unaware of any legal authority precluding the government from filing a forfeiture claim during a criminal proceeding and requesting a stay until the criminal proceeding is concluded.
The government next asserts that "until the government uncovers the facts which show the nexus between the specific currency seized and the gambling operation, the Section 1955(d) offense is not 'discovered' within the meaning of 19 U.S.C. § 1621." Gov't. Brief at 5. The government has confused the standard for succeeding in a criminal forfeiture action with the standard required to commence a civil forfeiture action.
Under 19 U.S.C. § 1615 the government must have probable cause to institute the forfeiture proceedings.
The government need not trace the cash to a specific transaction, or actually prove by a preponderance of the evidence a substantial connection to illegal gambling. The government must merely furnish probable cause, i.e. reasonable grounds to believe that a substantial connection exists between the money seized and the gambling operation. Cf. United States v. 55,518.05 in U.S. Currency, 728 F.2d 192, 196 (3d Cir. 1984) (government's burden under 19 U.S.C. § 1615 is probable cause to believe that the money was intended for illegal use). Furthermore, probable cause may be based wholly on circumstantial evidence and that evidence may include facts learned after the actual seizure of the currency. United States v. Brock, 241 U.S. App. D.C. 324, 747 F.2d 761 (D.C. Cir. 1984).
To accept the government's position that "discovery" under section 1621 does not occur until the government has facts sufficient to show a nexus between the specific currency seized and the gambling operation requires this Court to reach an absurd result. A fundamental canon of statutory construction is that one part of the statute may not be construed so as to render another part meaningless. Mountain States Tel. & Tel. v. Pueblo of Santa Ana, 472 U.S. 237, 249, 105 S. Ct. 2587, 2594, 86 L. Ed. 2d 168 (1985); see also United States v. Morton, 467 U.S. 822, 828, 104 S. Ct. 2769, 2773, 81 L. Ed. 2d 680 (1984) (and cases cited therein). Section 1615 clearly requires the government to demonstrate only probable cause for the institution of forfeiture proceedings. To claim that the government may institute forfeiture proceedings before gathering enough facts to "discover" the underlying offense and commence the statute of limitations period is to render section 1615 meaningless.
Furthermore, under the government's definition of "discovered" the statute of limitations for forfeitures would not commence until the government said so, that is, until the government declared that it had uncovered sufficient facts. Such a result would turn legislative judgment on its head. Statutes of limitation are statutes of repose representing "a pervasive legislative judgment that it is unjust to fail to put the adversary on notice to defend within a specified period of time and that the right to be free of stale claims in time comes to prevail over the right to prosecute them." United States v. Kubrick, 444 U.S. 111, 117, 100 S. Ct. 352, 356-57, 62 L. Ed. 2d 259 (1979) (citations omitted). Although, as Justice Holmes stated almost seventy years ago, "men must turn square corners when they deal with the Government," Rock Island, Arkansas & Louisiana Railroad Co. v. United States, 254 U.S. 141, 143, 41 S. Ct. 55, 56, 65 L. Ed. 188 (1920), the government has at least that same duty when it deals with the rights of its citizens. Here, the government secured a search warrant after asserting it had probable cause to believe that claimant would have "on his person, at his residence and in his automobile: U.S. currency . . . and other documents and items -- which are fruits, instrumentalities and evidence of violations of 18 U.S.C. §§ 1962 (c) and (d), 892-894 and 1955. . . ." After seizing the $ 116,000 pursuant to that search warrant issued upon probable cause the government cannot now claim that the probable cause held sufficient for seizure is suddenly insufficient to institute forfeiture proceedings and commence the statute of limitations.
For all the foregoing reasons, the Court finds the claimant is entitled to return of the amount of currency seized from 163 Sunrise Parkway, Mountainside, New Jersey on September 23, 1983 which the government asserts is subject to forfeiture. The government failed to file its forfeiture action within the statute of limitations as provided in 19 U.S.C. 1621. Claimant's motion to dismiss is granted.
An appropriate order is attached.
Dated: October 5, 1989
For the reasons set forth in an Opinion of the Court filed herewith,
It is on this 5th day of October, 1989, ORDERED that claimant's motion for dismissal is granted; and it is further
ORDERED that the currency seized on September 23, 1983 is to be returned to claimant Spagnola forthwith.