IN THE SUPREME COURT OF FLORIDA

IN THE SUPREME COURT OF FLORIDA CASE NO. SC10-980 (Third DCA Case No. 3D09-3360) (Eleventh Judicial Circuit No. 09-81373 CA 09) MIAMI-DADE COUNTY, Petitioner, vs. ELBA CARBAJAL, FORFEITURE OF U.S. CURRENCY $75,781.00 Respondent. ON PETITION FOR DISCRETIONARY REVIEW FROM A DECISION OF THE THIRD DISTRICT COURT OF APPEAL JURISDICTIONAL BRIEF OF PETITIONER Luis M. Fusté, Esq. Robert Knabe, Esq. Fla. Bar No. 34750 Fla. Bar No. 650900 Police Legal Advisors Miami-Dade Police Department Attorneys for Petitioner Miami-Dade County 73 W. Flagler St., Suite 2201 Miami, FL 33130 Tel: 305-349-7530 Fax: 305-349-7528

TABLE OF CONTENTS Page TABLE OF CITATIONS.... ii STATEMENT OF THE CASE AND FACTS.... 1-2 JURISDICTIONAL STATEMENT... 2-3 SUMMARY OF THE ARGUMENT... 3-5 ARGUMENT The decision of the Third District in Carbajal v. Forfeiture of: U.S. Currency $75,781.00, expressly and directly conflicts with the decision of the Fifth District in Department of Highway Safety and Motor Vehicles v. Rife... 5-10 CONCLUSION... 9-10 CERTIFICATE OF SERVICE... 10 CERTIFICATE OF COMPLIANCE... 11 APPENDIX (DECISION OF THE THIRD DISTRICT IN CARBAJAL v. FORFEITURE OF U.S. CURRENCY $75, 781.00)....App. 1-5 i

TABLE OF CITATIONS CASES: Page(s) United States v. Bajakajian, 524 U.S. 321 (1998).... 1, passim Aravena v. Miami-Dade County, 928 So.2d 1163 (Fla. 2006)... 3 City of Hollywood v. Mulligan, 934 So.2d 1238 (Fla. 2006)... 9 City of Indian Harbour Beach v. Damron, 465 So.2d 1382 (Fla. 5th DCA 1985).....8 Department of Highway Safety and Motor Vehicles v. Rife, 950 So.2d 1288 (Fla. 5th DCA 2007).... 2, passim Pheil v. Griffin, 469 So.2d 492 (Fla. 5th DCA 1985).... 8 STATUTES AND RULES: 932.701(2)(a)(5), Fla. Stat. (2009)... 1,6 896.104(3), Fla. Stat. (2009).... 1,7 Fla. R. App. P. 9.3030(a)(2)(A)(iv).... 3 ii

STATEMENT OF THE CASE AND FACTS Miami-Dade County ( Petitioner ) filed an in rem civil forfeiture action pursuant to the Florida Contraband Forfeiture Act, 932.701-707, Fla. Stat. (2009) (hereinafter the Forfeiture Act ), alleging that the property seized for forfeiture by the Miami-Dade Police Department ($75,781.00 in U.S. currency) was used as an instrumentality in, or in aiding or abetting in, the commission of a felony in violation of section 896.104(3), Fla. Stat. (2009). The trial court held an adversarial preliminary hearing and found probable cause to support forfeiture. Ms. Carbajal ( Respondent ) filed an appeal with the Third District. Respondent argued that the property seized did not meet the definition of contraband article in the Forfeiture Act in light of the definition of instrumentality contained in United States v. Bajakajian, 524 U.S. 321 (1998). On April 21, 2010, the Third District Court of Appeal issued its opinion. In its opinion, relying entirely on the definition of instrumentality contained in footnotes 8 and 9 in Bajakajian, the Third District found that the currency seized in this case was not an instrumentality and therefore not a contraband article as defined by section 932.701(2)(a)(5), Fla. Stat. (2009). App. at 4-5. The facts are straightforward and undisputed. On October 22, 2009, U.S. Customs and Border Protection officers detained Respondent Elba Carbajal on arrival from Venezuela at Miami International Airport. Carbajal signed Customs 1

Form 6059B, indicating that she was not carrying more than $10,000 in U.S. currency. (Appellant s 3 rd DCA Appendix to Initial Brief, App. 1 at p. 2). During a routine inspection, Carbajal told Customs officers that she was transporting $5,000. Id. During a secondary inspection, Carbajal declared that she was transporting $8,000. Id. Carbajal then completed FinCEN Form 105 and declared in writing that she was transporting $40,000. Id. Carbajal was thereafter told to remove all currency from her handbag, at which time she produced four envelopes containing a total of $40,000. Id. Upon a further search, Customs Officers discovered another two envelopes in her handbag containing an additional $34,781. Id. Appellant not only lied four times, but on the fourth occasion she used the $40,000 in the four envelopes as a means to conceal the existence of or divert attention from the remaining $34,781 in her handbag. Moreover, at the adversarial preliminary hearing, additional evidence was presented that Carbajal had lied a fifth time to Customs Officers when she told Customs Officers that she owned the money, when in fact she subsequently admitted to the State Attorney s Office that she did not. (Appellant s 3 rd DCA Appendix 1 to Initial Brief, at p. 7). JURISDICTIONAL STATEMENT Pursuant to Rule 9.030(a)92)(iv) of the Florida Rules of Appellate Procedure, this Court has discretionary jurisdiction to review district court decisions that expressly and directly conflict with the decision of another district court. Here, 2

this Court has jurisdiction over this matter because the decision of the Third District Court of Appeal in Carbajal v. Forfeiture of U.S. Currency $75,781.00: Miami-Dade Police Department expressly and directly conflicts on the same issue of law with the Fifth District Court of Appeal s decision in Dept. of Highway Safety and Motor Vehicles v. Rife, 950 So.2d 1288 (Fla. 5th DCA 2007). This Court has found that one test of direct and express conflict is whether interdistrict decisions are irreconcilable with each other. Aravena v. Miami-Dade County, 928 So.2d 1163, 1166-1167 (Fla. 2006); Crossley v. State, 596 So.2d 447, 449 (Fla. 1992); J.C. v. State, 988 So.2d 1202, 1203 (Fla. 3d DCA 2008). The conflict issue is whether the Florida Contraband Forfeiture Act unequivocally allows for the forfeiture of the elements of a felony used in furtherance of the felony. Rife allows for such an interpretation, Carbajal does not. The decisions are therefore irreconcilable. SUMMARY OF ARGUMENT The decision in Carbajal is in direct and express conflict with the Fifth District Court of Appeal in Dept. of Highway Safety and Motor Vehicles v. Rife, 950 So.2d 1288, 1289 (Fla. 5th DCA 2007). Rife based its holding on a simple quote of the complete definition of contraband article in the Forfeiture Act, and thereupon found that a vehicle used in the commission of felony DUI is subject to forfeiture. Rife thus allowed for the forfeiture of an element of a felony used in 3

furtherance of the felony utilizing the plain and unambiguous definition of contraband article in the Forfeiture Act. Carbajal did not. A vehicle being driven while under the influence of alcohol in furtherance of the crime of felony DUI is unquestionably an element of the crime and in no way different than the transportation of the money in Carbajal, also unquestionably an element of a felony and used in furtherance of that felony. The Third District Court of Appeal in Carbajal disapproved the seizure of money being illegally transported across the border in violation of Florida s currency reporting statutes. The court s decision was based solely on the adoption of the federal definition of instrumentality contained in dicta in U.S. v. Bajakajian, and failed to take into consideration the complete definition of contraband article as defined in the Florida Contraband Forfeiture Act. The Bajakajian definition, dealing exclusively with Eighth Amendment issues, only includes items used to facilitate a crime, and specifically excludes items which are the subject of the crime. Id. at note 9. By applying the Bajakajian definition of instrumentality, Carbajal creates an anomaly which incorrectly excludes from the Florida definition of contraband article the elements of a crime used in furtherance of a felony. The money in Carbajal was not only the subject of the crime, but clearly an element of the crime essential to the "actus reus" or the completion of the criminal 4

act. However, under Carbajal the money was excluded from seizure in direct contradiction to the plain language of the Forfeiture Act. The Act allows for the seizure of any personal property used as either an instrumentality in the commission of, or any personal property used in aiding or abetting in the commission of, any felony, whether or not comprising an element of the felony. See 932.701(2)(a)(5), Fla. Stat. (2009). To aid or abet means to facilitate, promote, or further, and therefore, the elements of a crime used in furtherance of the crime are clearly permitted by the Act to be seized and forfeited. Supra at 6. Petitioner cannot contemplate a case wherein an element of a crime is not used in furtherance of the crime. There is no meaningful way to distinguish the role that the vehicle in Rife played in furtherance of its felony from the role that the money in Carbajal played in furtherance of its felony. Neither crime could have been committed "but for" the property. Both properties were elements of their respective crimes. The two decisions are therefore irreconciable. This Court must resolve the conflict in order to allow law enforcement agencies to uniformly apply the law throughout the State and allow the Act to be enforced as the Legislature intended. ARGUMENT The Third District s Decision in Carbajal v. Forfeiture of: U.S. Currency $75,781.00, Expressly and Directly Conflicts with the Fifth District s Decision in Dept. of Highway Safety and Motor Vehicles v. Rife. 5

In 1992, the Forfeiture Act was amended and expanded the definition of contraband article to include the elements of a felony: a) Contraband article means Any personal property, including, but not limited to, any vessel, aircraft, item object, tool substance, device, weapon, machine, vehicle of any kind, money, securities, books, records, research, negotiable instruments, or currency, which was used or attempted to be used, as an instrumentality in the commission of, or in aiding and abetting in the commission of, any felony, whether or not comprising an element of the felony, or which is acquired by proceeds obtained as a result of a violation of the Florida Contraband Forfeiture Act. 932.701(2)(a)(5), Fla. Stat. (2009) (emphasis added). The Act therefore allows for the seizure of either personal property used as an instrumentality in the commission of, or personal property used to aid or abet in the commission of, any felony, including property that comprises an element of the felony. According to Black s Law Dictionary, to aid or abet means to facilitate or promote. According to the American Heritage College Dictionary, to promote means, inter alia, to further. 1 Therefore, the elements of a felony used in furtherance of the felony are clearly permitted by the Act to be seized and forfeited. The use of the words included in the provision whether or not comprising an element of the felony demonstrates an overall intent to include within the definition of contraband article the elements of a felony. Black s Law Dictionary defines 1 To define aid or abet as facilitate would duplicate the facilitation aspect inherent in the definition of instrumentality, and render the aid or abet language without effect in violation of statutory construction. (Supra footnote 4). 6

elements of a crime as the constituent parts of a crime, including the actus reus and mens rea. 2 There cannot be a case where a tangible element of a felony is not used in furtherance of the crime in which it is an element. 3 In Department of Highway Safety and Motor Vehicles v. Rife, Rife was arrested for driving under the influence (DUI) in violation of section 316.193 of the Florida Statutes. Department of Highway Safety and Motor Vehicles v. Rife, 950 So.2d 1288, 1288 (Fla. 5th DCA 2007). Because it was Rife s third violation in ten years, his driving became a felony pursuant to section 316.193(2)(b)1 of the Florida Statutes, and the police seized his vehicle for forfeiture. Id. The Fifth District, following the plain and unambiguous language of the Forfeiture Act, held that the vehicle was subject to forfeiture because it fit within the definition of using a contraband article in the commission of a felony. Id. Although the vehicle was unquestionably an element of the crime, the Fifth District did not expound on its decision, but instead simply quoted the current definition of contraband article as contained in the Forfeiture Act and found the vehicle subject to forfeiture. Rife 2 Black s Law Dictionary further defines actus reus as the physical components of a crime. Certainly, the money being transported in furtherance of the crime in Carbajal was a physical component of the crime and therefore an element. 3 The Florida inclusion of the elements of a crime alone distinguishes the definition of a contraband article from the narrower definition of instrumentality in Bajakajian. 524 U.S. at 334, note 9 (commenting that property which is the subject of the crime could never be an instrument in the crime itself). Bajakajian, therefore, does not contemplate the elements of a crime to fit under its definition of instrumentality. 7

therefore stands for the proposition that an element of a felony used in furtherance of the felony is a contraband article pursuant to the Forfeiture Act. Carbajal, on the other hand, stands for the proposition that an element of a felony used in furtherance of the felony is not a contraband article. Carbajal was illegally transporting $75,781.00 across the border in violation of 896.104(3), which makes it a felony to fail to report or misrepresent in a report the transportation of currency across the border in excess of $10,000.00. App. at 2. The police seized the money as contraband. The Third District held that the money was not subject to forfeiture because the money was not an instrumentality of the offense charged, i.e. failure to report. App. at 5. The Third District relied entirely on the definition of instrumentality found in Bajakajian. Notably, however, the Third District did not analyze whatsoever the definition of contraband article in 932.701(2)(a)(5) of the Forfeiture Act, which expressly allows for the forfeiture of the elements of a crime. Thus, while Rife found that the use of the motor vehicle in furtherance of the crime charged, and unquestionably an element of the crime, to fit within the definition of contraband article, Carbajal, on the other hand, found that the use of the money in furtherance of the crime charged, and also unquestionably an element of the crime, did not. In essence, but for the use of the property, the criminal acts 8

in either case would never have occurred; nonetheless, both cases reach different results. The history of the Forfeiture Act highlights the conflict. Prior to the 1992 amendments to the Forfeiture Act, the Fifth District in City of Indian Harbour Beach v. Damron, 465 So.2d 1382 (Fla. 5th DCA 1985) and Pheil v. Griffin, 469 So.2d 942 (Fla. 5th DCA 1985), and the Third District in Cabrera v. Department of Natural Resources, 478 So.2d 454 (Fla. 3d DCA 1985), were in agreement and held that in order to qualify as a contraband article under section 932.701(2)(e) [the predecessor to section 932.701(2)(a)(5)], the property being seized must be ancillary to the commission of the offense rather than an element of the offense, and have assisted in the commission of another, different felony. Damron at 1383. The Fifth District s post-1992 decision in Rife recognizes the significance of the legislative change in adding the elements of a crime. The Third District s current interpretation of contraband article, however, is identical to what it was before the 1992 amendments. By adopting the definition of instrumentality under Bajakajian, the Third District ignored the plain language of the Legislature s amendments to the Florida Contraband Forfeiture Act which was unquestionably accepted by the Fifth District in Rife. 4 4 See also, City of Hollywood v. Mulligan, 934 So.2d 1238 (Fla. 2006) (in determining that section 932.701(2)(a)(5) defines contraband articles as those articles that are connected with the commission of felony charges, the Court 9

CONCLUSION The holdings in Carbajal and Rife are irreconcilable and therefore in direct and express conflict with each other. This Court should therefore accept jurisdiction to reconcile their holdings. Law enforcement agencies throughout Florida use forfeiture and currency reporting statutes to detect and prevent crimes that rely on the movement of cash, as the unreported movement of cash plays a major role in the operation of criminal enterprises and the globalization of crime; the non-reporting of currency is a favored device of drug traffickers, money launderers, tax evaders and persons financing terrorist operations. 5 It is essential, if not critical, to maintain a consistent interpretation of the Forfeiture Contraband Forfeiture Act in order to effectively combat such criminal activity. looked to the plain language of the statute and acknowledged that all parts of a statute must be read together to accord full effect to all statutory provisions and construe related statutory provisions in harmony with one another ). Id. at 1245 (emphasis added). 5 See Title III of the USA Patriot Act, Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, Pub. L. No. 107-56, 371, 115 Stat. 272, 336-39 (2001). 10 Respectfully submitted, By: By: Luis M. Fusté, Esq. Robert Knabe, Esq. Fla. Bar No. 34750 Fla. Bar No. 650900 Attorneys for Petitioner Miami-Dade County 73 W. Flagler St., Suite 2201 Miami, FL 33130

CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy was served by U.S. Mail, this day of August, 2010 to the Florida Supreme Court and to counsel for Respondent, Marshall Dore Louis, Esq., Sinclair, Louis, Heath, Nussbaum & Zavertnik, P.A., 169 East Flagler Street, Suite 1125, Miami, FL 33131. By: Robert Knabe, Esq. CERTIFICATE OF COMPLIANCE Undersigned counsel certifies that this brief has been generated in Times New Roman 14-point font and complies with the font requirements of Rule 9.210(a) of the Florida Rules of Appellate Procedure as well as Administrative Order AO04-84 regarding Mandatory Submission of Electronic Copies of Documents, this day of August, 2010. By: Robert Knabe, Esq. 11