
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          June 13, 1995         [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                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,                                         -2-                                         -2-            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                                       __________                                         -3-                                         -3-            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                                         -4-                                         -4-            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                                         -5-                                         -5-            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.                 ________________                                         -6-                                         -6-
