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March 5, 1976

UNITED STATES of America, Plaintiff,
ONE 1964 MG, SERIAL NO. 64GHN3L34408, WASHINGTON LICENSE NO. DFY 260, its Tools and Accessories, and $17,883.00 in United States and Canadian Dollars, Defendants, Michael Leon Bronk and Charles L. Goldberg, Claimants

The opinion of the court was delivered by: SHARP

MORELL E. SHARP, District Judge.

 In this civil action, the United States seeks relief by way of forfeiture against a 1964 MG automobile and the sum of $17,883 in United States and Canadian currency under authority of 19 U.S.C.A. § 1595a and 31 U.S.C.A. § 1102. The claimants of the currency, Michael L. Bronk and Charles Goldberg, Bronk's attorney, raise affirmative defenses challenging the constitutionality of these statutes on their face and as applied in this case. By counterclaim, they seek return of the currency and damages. The owner of the 1964 MG has not appeared. The claimants of the currency and the Government now move for summary judgment.

 Because the issues raised in the answer and claimants' motion for summary judgment primarily concern the lapse of time between seizure and filing of this action, it is appropriate to establish a chronology of events which will also embrace the essential facts of this case.

 Michael Leon Bronk and Daniel Joseph Vallelunga arrived at the Blaine, Washington port of entry from Canada in a 1964 MG registered in Vallelunga's name at 6:10 p.m. on January 23, 1975. They appeared to be nervous and they were sent to a secondary inspection area. According to Customs reports, both men were asked if either possessed monetary instruments in excess of $5,000 and each answered negatively. The vehicle was searched and an envelope containing $16,800 was found in the back of a radio speaker. They were advised of their constitutional rights at 6:30 p.m. Vallelunga claimed the money belonged to Bronk, that he had not seen it until that morning when Bronk asked if there was a safe place in his car in which to hide it. Bronk confirmed that. The money found in the automobile and approximately $1,000 found on the person of each of the two men was seized, and Bronk and Vallelunga were arrested and charged in a complaint with failing to report importation of currency in excess of $5,000 as required by 31 U.S.C.A. § 1101, a violation of 31 U.S.C.A. § 1058. Vallelunga later claimed that the money in his possession, $1,002, was given to him by Bronk.

 On January 30, 1975, the matter was reported to the United States Attorney in Seattle for criminal prosecution.

 Bronk assigned his interest in $7,500 of the money seized in the automobile to his attorney, Charles Goldberg, on February 6, 1975.

 Notices of the right to petition for return of the currency were sent to attorneys for Bronk and Vallelunga on February 26, 1975, and the petitions were filed on March 31, 1975 and March 5, 1975, respectively. The Customs Service then began an investigation which would lead to an administrative decision on the petitions.

 Bronk pled guilty to a misdemeanor violation of 31 U.S.C.A. § 1101(a)(1) and was sentenced in the United States District Court for the Southern District of California to time served. Charges against Vallelunga were dismissed on May 6, 1975 because of his sentence to a one-year term of imprisonment by the Superior Court for Clark County, Washington for possession of a controlled substance.

 Customs completed its investigation and referred the matter to the United States Attorney on July 25, 1975. After further review by the United States Attorney, the complaint in this case was filed on September 24, 1975.

 Briefly stated, Bronk and Goldberg have four arguments against allowing forfeiture in this case: (1) That the Government did not immediately inquire into the facts of the case and did not forthwith institute court proceedings as required by 19 U.S.C.A. § 1602 et seq., (2) that application of those statutes amounts to a denial of Fifth Amendment due process because of the delay between the seizure and filing of the complaint, (3) that 19 U.S.C.A. § 1602 et seq. violates Fifth Amendment due process on its face, and (4) that the delay in filing this suit amounts to laches against the Government.

 The Court agrees with the Government that 19 U.S.C.A. § 1602 et seq. is inapplicable here because monetary instruments were seized under authority of 31 U.S.C.A. § 1102. In addition, these claimants have no standing upon which to object to forfeiture of the MG which was seized pursuant to § 1602 et seq. However, the Court believes that the claimants' contentions raised with respect to 19 U.S.C.A. § 1602 et seq. are generally applicable to 31 U.S.C.A. § 1102.

 Initially, the Court notes that claimants, in their answer to the complaint and in a later affidavit of Charles Goldberg, deny that Bronk transported unreported currency. This was alleged in paragraph III of the complaint and, of course, is the gravamen of this civil action.

 Bronk pled guilty to a charge of transporting unreported monetary instruments and that forecloses him from denying those same facts now. Claimant Goldberg was not in actual or constructive possession of the currency at the time it was seized. His interest flows from a later assignment made by Bronk. He, then, is also foreclosed from denying the facts stated in paragraph III of the complaint.

 There is nothing in § 1102 or the regulation promulgated thereunder at 31 C.F.R. 103.48 which suggests time limits or guidelines to be followed. But reasonable time limits must be read into the statute to save it from constitutional infirmity. This is the teaching of United States v. Thirty-Seven Photographs, 402 U.S. 363, 91 S. Ct. 1400, 28 L. Ed. 2d 822 (1971). While that case concerned the forfeiture of obscene photographs under 19 U.S.C.A. § 1305(a) and involved First Amendment claims, there can be no doubt that the Court will disfavor a forfeiture statute that permits undue delay between seizure and ...

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