United States of America v. $209,815 in United States Currency

Filing 142

ORDER by Hon. Samuel Conti denying 104 Motion of Claimant for Summary Judgment and denying 115 Cross Motion of the United States for Summary Judgment. (sclc2, COURT STAFF) (Filed on 10/14/2015)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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) Case No. 3:14-cv-00780
)
) ORDER DENYING MOTIONS FOR
Plaintiff,
) SUMMARY JUDGMENT
)
v.
)
)
$209,815 IN UNITED STATES
)
CURRENCY,
)
)
Defendant.
__________________________________ )
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)
JULIO FIGUEROA,
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)
Claimant.
)
UNITED STATES OF AMERICA,

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For the Northern District of California

United States District Court

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I.

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INTRODUCTION
Now before the Court are a motion by Julio Figueroa

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("Claimant") for summary judgment and a cross-motion by Plaintiff

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United States ("the Government") for summary judgment.

ECF Nos.

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104 ("Mot."), 115 ("Opp'n and Cross Mot." or "OACM").

The motions

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are fully briefed1 and appropriate for consideration without oral

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argument under Civil Local Rule 7-1(b).

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below, the Court now DENIES both motions.

For the reasons set forth

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ECF Nos. 116 ("Reply and Cross Opp'n" or "RACO"); 126 ("Cross
Reply"); 133 ("Surreply"); 139 ("Response").

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II.

BACKGROUND
The facts of this case are well known to the parties, and are

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set forth in the Order of the Court dated December 8, 2014, ECF No.

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87 ("SJ Order").

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Order of the Court dated April 28, 2015, ECF No. 103.

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adopts the background sections thereof in their entirety and

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incorporates them as though set forth herein.

Additional procedural history is found in the
The Court

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By way of summary, on September 27, 2013, Julio Figueroa

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("Claimant") flew one way from John F. Kennedy Airport (JFK) to San

United States District Court

For the Northern District of California

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Francisco Airport (SFO).

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checked bags, and was stopped by law enforcement after collecting

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his bags but before he left SFO.

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(which the Court has previously determined was voluntary,

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consensual, and did not constitute a seizure under the Fourth

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Amendment), Claimant permitted the search of his two bags, each of

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which contained a backpack which in turn contained a combined total

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of 13,644 bills in primarily small denominations ($5, $10, and $20)

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with an aggregate value of $209,815.

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was seized by the United States in the belief it was connected to

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drug trafficking, and later caused a narcotics detection canine (or

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"drug dog") to alert to their presence.

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approximately 12:33 p.m., and the funds were deposited into an

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account at Bank of America approximately one hour later at 1:30

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p.m. the same day.

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1 at 6).

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Upon arrival, Claimant collected two

In the encounter that followed

This currency ("Defendant")

The seizure occurred at

Compl. ¶¶ 15, 18; RACO at 6 (citing ECF No. 51-

Procedurally, the Court has previously been asked to consider

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summary judgment on the grounds involved in the instant motion.

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relevant part, the Court stated:

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In

The remainder of the Government's motion seeks summary
judgment on the question of whether the Currency is
subject to forfeiture and on Figueroa's affirmative
defenses.
Under 21 U.S.C. Section 881(a)(6), seized
currency is subject to forfeiture if (1) it is
intended to be furnished in exchange for controlled
substances, (2) it is proceeds "traceable" to such
exchanges, or (3) it is otherwise used or meant to be
used to facilitate violation of the Controlled
Substances Act.
Here, the Government argues the
currency is either the proceeds of illegal drug sales
or is traceable to such sales.
As a result, the
Government must show a connection between the Currency
and illegal drug trafficking by a preponderance of the
evidence.
18 U.S.C. § 983(c)(1); United States v.
$493,850, 518 F.3d 1159, 1170 (9th Cir. 2008).

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United States District Court

For the Northern District of California

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The problem with this motion is that it is premature
. . .
Here, part of the basis for forfeitability is
the alert of the drug dog, Jackson.
As other cases
have recognized, the records of a drug-sniffing dog
and the testimony of the dog's handler are relevant to
the reliability of the dog's alert.
See, e.g.,
Florida v. Harris, 133 S. Ct. 1050, 1057-58 (2013);
United States v. $10,700, 258 F.3d 215, 230 & n.10 (3d
Cir. 2001).
Similarly, Figueroa disputes large
portions of the Agents' description of events.
At a
minimum, he suggests he should be permitted to obtain
discovery regarding the Agents and to depose them
prior to the Court addressing summary judgment.
ECF
No. 57-2 ("Burch 56(d) Decl.") at ¶¶ 4-5.
The
Government notes in its reply that it would not object
to the Court allowing discovery into these matters.

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SJ Order at 18-19.

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and now bring a highly similar motion that is no longer premature.2

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///

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///

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Parties have since taken discovery on point,

To clarify, parties may not actually have conducted the discovery
to produce all the facts that they need. See OACM at 18; RACO at
11 n.10, 17-23; Cross Reply at 5. However, the Court has provided
both direction that factual discovery is necessary and authorized
such discovery to be taken. Insofar as parties have nonetheless
still failed to conduct discovery prior to filing these motions for
summary judgment, it is to their own detriment.

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Based on the discovery permitted, conducted, and submitted for

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the Court's review, the Court considers as true additional facts.3

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However, the nature of these additional facts is limited by the

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additional evidence submitted by parties for the Court to review.

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This includes evidence submitted by both sides related generally to

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drug dogs and evidence primarily from the Government relating

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specifically to the Drug Dog Jackson.
As to the drug dogs generally, the Court factually finds that

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there may be some trace amount of drugs on many currency bills.

United States District Court

For the Northern District of California

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See ECF No. 104-1 Ex. A.

However, even if this trace amount

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exists, the general methods of training drug dogs are not

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problematic.

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at 1057-58; United States v. Gadson, 763 F.3d 1189, 1202 (9th Cir.

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Aug. 19, 2014) cert. denied sub nom. Wilson v. United States, 135

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S. Ct. 2350 (2015) and cert. denied, 135 S. Ct. 2350 (2015).

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Court reviewed evidence about a dog being signaled by its trainer

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to alert.

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reviewed other evidence to the contrary.

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The Court finds that there is some possibility that the odor from

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drugs may remain on bills long after two hours.

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("Woodford Decl."), ¶ 9.

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remain longer if the bills were not shredded or were kept bundled

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together.

See ECF No. 104-2 Ex. B; see also Harris, 133 S. Ct.

See, e.g., ECF No. 104-1 Exs. C-D.

Id. ¶ 12.

The

However, the Court

See ECF No. 114 Ex. 2.

See ECF No. 117

It is also possible that the odor would

However, just like whether handlers signaled

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Insofar as these findings contradict any of the Court's earlier
findings of fact, these findings shall control. Also, the Court
notes each side has a motion for summary judgment pending, and the
Court will be obligated to consider the facts in the light most
favorable toward that one side. Rather than list out two differing
versions of the facts here, the Court will clarify in its analysis
when an additional fact is being considered or otherwise changes to
provide the proper beneficial light to the appropriate party.

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their drug dogs, Claimant's information is disputed by Government

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experts whose testimony seems no less likely to be viable than that

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of Claimant's experts.

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("Kenney Decl.) Ex. 3-7.

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consideration of these matters later in its discussion section

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rather than here as accepted fact.

See ECF Nos. 112 ("Rose Decl.") ¶ 7, 114
Thus the Court will continue its

As to the drug dog Jackson specifically, the Court has

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received only some of the information about his training.

Jackson

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is a golden retriever who is regularly handled and trained by Task

United States District Court

For the Northern District of California

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Force Agent (TFA) O'Malley.

See ECF Nos. 38 ("O'Malley Decl."),

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113 ("O'Malley Supp. Decl."), 136 at 3 ("O'Malley 2d Supp. Decl.");

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see also ECF No. 37 ("Bondad Decl.") ¶ 17.

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routine, Jackson performs an off-leash search, at least twice every

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day, of an area approximately 130 feet long by 15 feet wide at SFO.

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O'Malley Supp. Decl. ¶¶ 3-5. Affidavits filed since permitting

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discovery show that Jackson is regularly part of a certification

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process that is accredited and standardized.

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7; O'Malley Supp. Decl. ¶ 1 (incorporating O'Malley Decl. by

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reference); O'Malley 2d Supp. Decl. ¶ 3-4.

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standards from the website was provided.

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Jackson's specific training records were not provided, based on the

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evidence before it and a dearth of evidence to the contrary, the

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Court concludes as a factual matter, for the limited purposes of

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this motion, that Jackson has been properly trained pursuant to

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those programs.4

As part of their daily

O'Malley Decl. ¶¶ 6-

A copy of those

See ECF No. 127.

While

On the day of the seizure, September 27, 2013, after Claimant

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was stopped and the Defendant currency seized, Special Agent (SA)

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This is subject to the Court's second additional ruling.

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Leo A. Bondad hid Defendant inside a fire extinguisher box within

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the area Jackson routinely searches.

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Supp. Decl. ¶ 6.

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when the drugs were hidden nor did TFA O'Malley know how many

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locations suspected drugs may have been placed (i.e., whether the

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suspected drugs were together in a single bag or hidden in many

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separate locations in multiple, separate bags).

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ultimately found the drugs, he did so approximately 30 feet away

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from TFA O'Malley, as part of an off-leash search where Jackson

Bondad Decl. ¶ 16; O'Malley

Neither Jackson nor TFA O'Malley were present

When Jackson

United States District Court

For the Northern District of California

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systematically searched through an area without being directed or

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in any way guided by his handler.

O'Malley Supp. Decl. ¶ 6.

Later that same day, the funds seized were deposited by the

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Government into an account at Bank of America, and a cashier's

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check was issued payable to the United States Marshalls.

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51-1 ("Report of Investigation" or "ROI") at 6, Bondad Decl. ¶ 18.
Claimant disputes certain facts.

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ECF Nos.

See ECF No. 57-1 ("Figueroa

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Decl.").

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through his work savings or via inheritance rather than from drug

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trafficking.

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Claimant asserts he went to New York to potentially invest the

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money in a new restaurant with an unspecified "close friend" but

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"the new venture did not come to fruition."

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Claimant states that his ambivalence about ownership of Defendant

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currency was actually a reflection of his desire to assert his

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right to remain silent rather than be "evasive."

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Claimant also explained any confusion regarding why it may seem he

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initially asserted that only some small portion of the money was

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his.

Id.

Claimant asserts he earned all of Defendant currency

Id. ¶¶ 2-3; see also ECF No. 68-1 at 6:11-16.

Figueroa Decl. ¶ 4.

Id. ¶ 5.

Finally, Claimant disavows all flights reflected in the

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attachment to the Bondad Decl. Ex. C (listing flights allegedly

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purchased and taken by Claimant).

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The Court has previously reviewed the Figueroa Declaration and

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other related facts in connection with its SJ Order at 5-7.

See,

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e.g., ECF No. 18-2 (an earlier declaration by Claimant presenting

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his recollection of the encounter on September 27, 2013).

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Court has received very little new evidence in support of the facts

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asserted in the Figueroa Declaration since it was filed on July 17,

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2014 from a source other than Claimant.

The

Interrogatory responses

United States District Court

For the Northern District of California

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include a limited number of pay stubs, reflecting the alleged

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source for less than $600 of Defendant currency ($209,815).

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ECF No. 68-1 (interrogatory responses) at 15, 18.

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interrogatories identified additional persons for whom Claimant

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allegedly worked or who were familiar with said work, but did not

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include further pay stubs or extrinsic evidence, and indicated

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Claimant did not keep records.

See

Supplemental

See ECF No. 100 at 12-17.

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III. LEGAL STANDARD

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A.

Summary Judgment

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Entry of summary judgment is proper "if the movant shows that

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there is no genuine dispute as to any material fact and the movant

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is entitled to judgment as a matter of law."

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56(a).

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require a directed verdict for the moving party.

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Liberty Lobby, Inc., 477 U.S. 242, 251 (1986).

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without the ultimate burden of persuasion at trial—- usually, but

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not always, a defendant —- has both the initial burden of

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production and the ultimate burden of persuasion on a motion for

Fed. R. Civ. P.

Summary judgment should be granted if the evidence would

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Anderson v.

"A moving party

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summary judgment."

Nissan Fire & Marine Ins. Co., Ltd. v. Fritz

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Cos., Inc., 210 F.3d 1099, 1102 (9th Cir. 2000).
"In order to carry its burden of production, the moving party

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must either produce evidence negating an essential element of the

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nonmoving party's claim or defense or show that the nonmoving party

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does not have enough evidence of an essential element to carry its

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ultimate burden of persuasion at trial."

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its ultimate burden of persuasion on the motion, the moving party

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must persuade the court that there is no genuine issue of material

"In order to carry

United States District Court

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For the Northern District of California

Id.

Id.

fact."

"Where the nonmoving party bears the burden of proving

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a claim, the moving party need only point out 'that there is an

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absence of evidence to support the nonmoving party's case.'"

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Devereaux v. Abbey, 263 F.3d 1070, 1076 (9th Cir. 2001) (quoting

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Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986)).

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of the nonmovant is to be believed, and all justifiable inferences

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are to be drawn in his favor."

See

"The evidence

Anderson, 477 U.S. at 255.

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B.

Civil Forfeiture

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Civil forfeiture may occur where the goods or currency seized

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were "in exchange for a controlled substance or listed chemical in

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violation of this subchapter, [including] all proceeds traceable to

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such an exchange."

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civil forfeiture of any property "if the Government's theory of

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forfeiture is that the property was used to commit or facilitate

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the commission of a criminal offense, or was involved in the

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commission of a criminal offense, [is that] the Government shall

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establish that there was a substantial connection between the

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property and the offense."

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///

21 U.S.C. § 881.

The burden of proof for the

18 U.S.C. § 983(c)(3).

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To initiate the civil forfeiture action, there must have been

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probable cause to believe the forfeiture proper at the time the

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forfeiture was initiated.

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Currency, 518 F.3d 1159, 1168-69 (9th Cir. 2008).

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this standard to parties, the Court quotes from the Ninth Circuit:

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The probable cause requirement is statutory. Pursuant
to 19 U.S.C. § 1615, which also assigns the burden of
proof in forfeiture proceedings, the government must
show that probable cause exists to institute its
action.
We recently held that this requirement
survived the enactment of the Civil Asset Forfeiture
Reform Act of 2000.[5] [$493,850.00], 518 F.3d at 1169.

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United States District Court

For the Northern District of California

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United States v. $493,850.00 in U.S.
To help clarify

"The government has probable cause to institute a
forfeiture action when it has reasonable grounds to
believe that the property was related to an illegal
drug transaction, supported by less than prima facie
proof but more than mere suspicion."
Id. (internal
quotation marks omitted).
Probable cause may be
supported only by facts "untainted" by any prior
illegality.
See United States v. Driver, 776 F.2d
807, 812 (9th Cir. 1985).
It may be based only upon
information gathered before the forfeiture action was
instituted. [$493,850.00], 518 F.3d at 1169.

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United States v. $186,416.00 in U.S. Currency, 590 F.3d 942, 949

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(9th Cir. 2010).

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preponderance of the evidence that there was a "substantial

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connection" to drugs for proof of the underlying case at trial, but

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to get in the courthouse door the Government need only show it had

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probable cause for the action at the time the complaint was filed.

Accordingly, the law requires proof by

Probable cause may be proven by any evidence the Court chooses

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to admit in an evidentiary hearing so long as it is not tainted by

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a Fourth Amendment violation.

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point, the Court again quotes from the Ninth Circuit:

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Id.

As parties seem unclear on this

"Determination of probable cause for forfeiture
based upon a 'totality of the circumstances'

is
or

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Commonly abbreviated as "CAFRA," the Act is Pub. L. No. 106-185
(2000), codified principally at 18 U.S.C. §§ 981-985.

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United States District Court

For the Northern District of California

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'aggregate of facts' test." $129,727.00 U.S. Currency,
129 F.3d at 489.
Accordingly, for the government to
meet its burden, it must demonstrate that it had
"reasonable grounds to believe that the [money] was
related to an illegal drug transaction, supported by
less than prima facie proof but more than mere
suspicion."
United States v. $22,474.00 in U.S.
Currency, 246 F.3d 1212, 1215–16 (9th Cir. 2001)
(alteration in original) (citation omitted). "To pass
the point of mere suspicion and to reach probable
cause, it is necessary to demonstrate by some credible
evidence the probability that the money was in fact
connected to drugs."
United States v. $30,060.00 in
United States Currency, 39 F.3d 1039, 1041 (9th Cir.
1994) (emphasis in original) (citation omitted).
Credible hearsay or circumstantial evidence can be
used to support probable cause. See United States v.
1982 Yukon Delta Houseboat, 774 F.2d 1432, 1434 (9th
Cir. 1985); United States v. 22249 Dolorosa St., 190
F.3d 977, 983 (9th Cir.1999).
We have held that
"[e]vidence of a prior drug conviction is probative of
probable cause" in drug trafficking cases. $22,474.00
in U.S. Currency, 246 F.3d at 1217.

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United States v. Approximately $1.67 Million (US) in Cash, Stock &

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Other Valuable Assets Held by or at 1) Total Aviation Ldt., 513

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F.3d 991, 999 (9th Cir. 2008).

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clarified that a "police officer has probable cause to conduct a

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search when the facts available to [him] would warrant a [person]

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of reasonable caution in the belief that contraband or evidence of

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a crime is present. . . . All we have required is the kind of fair

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probability on which reasonable and prudent [people,] not legal

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technicians, act."

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alterations in original).

The Supreme Court has since further

Harris, 133 S. Ct. at 1055 (citations omitted,

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C.

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The United States Supreme Court has considered the reliability

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Drug Dogs and Related Expert Testimony

of drug dogs and provided clear guidance on point:
[E]vidence of a dog's satisfactory performance in a
certification or training program can itself provide
sufficient reason to trust his alert.
If a bona
fide organization has certified a dog after testing
his reliability in a controlled setting, a court can

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presume
(subject
to
any
conflicting
evidence
offered) that the dog's alert provides probable
cause to search.
The same is true, even in the
absence of formal certification, if the dog has
recently and successfully completed a training
program that evaluated his proficiency in locating
drugs.
A defendant, however, must have an
opportunity to challenge such evidence of a dog's
reliability,
whether
by
cross-examining
the
testifying officer or by introducing his own fact or
expert witnesses.
The defendant, for example, may
contest the adequacy of a certification or training
program, perhaps asserting that its standards are
too lax or its methods faulty. . . . And even
assuming a dog is generally reliable, circumstances
surrounding a particular alert may undermine the
case for probable cause—if, say, the officer cued
the dog (consciously or not), or if the team was
working under unfamiliar conditions. . . . If the
State has produced proof from controlled settings
that a dog performs reliably in detecting drugs, and
the defendant has not contested that showing, then
the court should find probable cause. If, in
contrast, the defendant has challenged the State's
case (by disputing the reliability of the dog
overall or of a particular alert), then the court
should weigh the competing evidence. . . . The
question--similar to every inquiry into probable
cause--is whether all the facts surrounding a dog's
alert, viewed through the lens of common sense,
would make a reasonably prudent person think that a
search would reveal contraband or evidence of a
crime.
A sniff is up to snuff when it meets that
test.

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United States District Court

For the Northern District of California

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Harris, 133 S. Ct. at 1057-58.
Both Government and Claimant cite and could be read to request

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review of expert testimony related to the drug dog in this case

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under the standards of Daubert v. Merrell Dow Pharmaceuticals,

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Inc., 509 U.S. 579 (1993).

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earlier citation to Celotex, normally, the proponent has the burden

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to prove admissibility of a proffered testimony even on summary

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judgment where a defendant need not other produce evidence.

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By & Through Lust v. Merrell Dow Pharm., Inc., 89 F.3d 594, 597

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(9th Cir. 1996).

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///

Per Daubert and in spite of the Court's

Lust

However, per the Supreme Court and Ninth Circuit,

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dog sniffs do not necessarily trigger the expert
disclosure requirements of Federal Rule of Criminal
Procedure 16 or require the district court to conduct
a
reliability
inquiry
under
Daubert
[citation
omitted].
See Florida v. Harris, ––– U.S. ––––, 133
S.Ct. 1050, 1057-58 (2013) (rejecting any requirement
for a detailed checklist of proof of reliability or
special procedures for dog sniffs in probable cause
hearings); Illinois v. Caballes, 543 U.S. 405, 409
(2005) (discussing trial courts' general ability to
assess the reliability of dog sniffs).

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United States v. Herrera-Osornio, 521 F. App'x 582, 586 (9th Cir.

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2013) (internal parallel citations omitted).

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United States District Court

For the Northern District of California

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IV.

DISCUSSION
Claimant argues that the Government must prove it had probable

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cause for forfeiture at the time it filed its complaint.

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claimant, applying Fed. R. Civ. P. 56, argues that the Government

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fails to show that there was probable cause that Defendant currency

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was substantially connected to illegal drug sales.

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881(A)(6); 18 U.S.C. § 983(c)(3).

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"drug courier profile" is insufficient, challenges the totality of

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the circumstances, and argues against the use of drug dogs (citing

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pre-Harris cases).

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the facts (and admissibility thereof) as set forth by the

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Government, requests the Court not consider any drug dog evidence

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as a spoliation sanction, and argues that even absent such a

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sanction the facts and circumstances do not connect the Defendant

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currency to drug sales.

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attempts to rebut the Government's expert and reasserts its

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spoliation argument.

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The

See 21 U.S.C. §

Claimant argues evidence of a

See Mot. at 9-13.

The Claimant later disputes

See generally RACO.

Finally, Claimant

The Government argues that it had probable cause to bring this
action, citing both law and facts to support that a totality of

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circumstances are in its favor.

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later argues Claimant's expert testimony is inadmissible, asserts

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Claimant failed to take discovery, and attempts to answer

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challenges to its burden and totality of the circumstances

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arguments.

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rebuts objections to its own experts and reiterates why it believes

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spoliation sanctions are not appropriate.

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See OACM at 5-20.

See generally Cross Reply.

The Government

Finally, the Government

See generally Response.

In considering the motions for summary judgment and crossmotion for summary judgment, the Court first begins with the

United States District Court

For the Northern District of California

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applicable burden.

The Court will next consider the spoliation

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issue.

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threshold-like matters, the Court will then review the totality of

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the circumstances.

Based on the Court's findings with respect to those

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A.

Burden of Proof

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The Court clarifies several matters with respect to the proper

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burden.

First, parties seem to take some time to agree on

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precisely the summary judgment standard as applied to civil

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forfeiture.

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Court's law section.

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to which probable cause is the applicable standard, and when this

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standard must be met.

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is preponderance of the evidence that Defendant was substantially

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connected to drug sales, but the proper standard for this motion is

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whether there was probable cause to find a connection between

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Defendant currency and drug trafficking at the time the complaint

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was filed.

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totality of the circumstances.

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whether only admissible evidence may be used in proving probable

The proper standard is set out at length in the
Second, the parties disagree as to the degree

The proper standard for the case as a whole

This in turn requires the Court to consider the
Finally, the parties disagree

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cause.

The Court will not consider evidence obtained in violation

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of the Fourth Amendment, but as this is a probable cause

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determination the Court may and will consider other evidence (such

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as hearsay) which may not normally be admissible.

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notes that even were it to limit itself to admissible evidence, the

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Court would provide parties a chance to cure any simple deficiency,

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making it highly likely that the Government would produce

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affidavits from the proper federal agents involved with this case.

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The Court also notes that " a dog's alert that meets such

The Court also

United States District Court

For the Northern District of California

10

requirements [i.e., makes a reasonably prudent person think that a

11

search would reveal contraband or evidence of a crime] is also

12

sufficiently reliable to be admissible under Rule 702."

13

763 F.3d at 1202-03.

Gadson,

14

B.

Spoliation

15

A district court has the inherent power to levy sanctions for

16

spoliation of evidence.

Leon v. IDX Sys. Corp., 464 F.3d 951, 958

17

(9th Cir. 2006); Tetsuo Akaosugi v. Benihana Nat. Corp., No. C 11-

18

01272 WHA, 2012 WL 929672, at *3 (N.D. Cal. Mar. 19, 2012).

19

party requesting sanctions bears the burden of proving, by a

20

preponderance of the evidence, that spoliation took place.

21

v. United States, 938 F.2d 158 (9th Cir. 1991).

22

that the offending party had notice that the spoliated evidence was

23

potentially relevant to the litigation before imposing sanctions.

24

Leon, 464 F.3d at 959.

25

notice of the evidence's potential relevance, [a party] destroys

26

the evidence according to its policy or in the normal course of its

27

business."

28

752, 758 (9th Cir. 2009), cert. denied, 558 U.S. 895 (2009).

The

Akiona

A court must find

There is no spoliation "when, without

United States v. $40,955.00 in U.S. Currency, 554 F.3d

14

The Complaint in this case was originally filed in February of

1
2

2014.

ECF No. 1 ("Compl.").

The Government seized the Defendant

3

currency on September 27, 2013.

4

The seizure occurred at approximately 12:33 p.m., and the funds

5

were deposited into an account at Bank of America approximately one

6

hour later at 1:30 p.m. the same day.

7

(citing ECF No. 51-1 at 6).

8

67 days later, on December 2, 2013.

9

disputes these factual claims.

ECF No. 124 ("Rashid Decl."), ¶ 5.

Compl. ¶¶ 15, 18; RACO at 6

Claimant filed an administrative claim
Compl. at 5.

No party

United States District Court

For the Northern District of California

10

Therefore, the Court looks to the regular policy of the

11

Government in depositing the bills with the Bank of America.

12

policies appear to be from the Department of Justice (DOJ) and the

13

Drug Enforcement Agency.

14

requires that "seized cash, except where it is to be used as

15

evidence, is to be deposited promptly . . . pending forfeiture" and

16

must be transferred to the United States Marshall "within sixty

17

(60) days of seizure or ten (10) days of indictment."

18

¶ 2.

19

Executive Office for Asset Forfeiture for "extraordinary

20

circumstances."

21

Policy Manual, with respect to the above policy, requires "all cash

22

seized for purposes of forfeiture . . . must be delivered to the

23

USMS for deposit in the USMS Seized Asset Fund either within 60

24

days after the seizure or 10 days after indictment, whichever

25

occurs first."

26

the seized cash should be taken for later use in court as evidence"

27

the policy does not require saving any of the currency for testing.

28

Id.

The

The DOJ's policy per the Attorney General

Rashid Decl.

Exceptions may only be granted by the Director of the

Id. (emphasis in original).

Id. ¶ 3.

The Asset Forfeiture

While "[p]hotographs and videotapes of

The DEA's policy is even more stringent, requiring that

15

1

currency "seized for forfeiture and not retained as evidence" by

2

the Government must be deposited with a financial institution

3

"within five business days" of being seized.

4

(excerpting the DEA Agent Manual).

5

requires that cash in excess of $5,000 can only be kept for

6

evidentiary purposes upon high-up authorization within DOJ, namely

7

the Chief, DOJ/AFMLS.

8
9

Rashid Decl. Ex. A

Moreover, the same DEA Policy

Id.

There is no dispute that the Government complied with its
policy insofar as it was required to deposit Defendant currency in

United States District Court

For the Northern District of California

10

a timely fashion.

The question is rather whether the Government,

11

in its haste to respect its need for a timely deposit, failed to

12

comply with its policy insofar as the policy contemplates keeping

13

currency which is to be used as evidence.

14

Government was on notice that the bills were potentially relevant

15

to the litigation before the bills were destroyed.

16

(citing Leon, 464 at 959 (9th Cir. 2006)).

17

thereafter cites $40,955, 554 F.3d 758 (9th Cir. 2009), but fails

18

to note that $40,955 is a civil forfeiture case decided after Leon

19

and that $40,955 expressly finds that destruction of bills was not

20

grounds for spoliation sanctions.

21

seizure of bills believed to be used in connection with drugs,

22

claimant told police at the time of the search that the currency

23

seized was his and that he earned it long ago.

24

at 758.

25

money or preserve the serial numbers.

26

expressly request the bills be preserved until nearly a year after

27

the search and the "marginal relevance" of the currency, the panel

28

upheld that no spoliation sanction was necessary.

Claimant urges that the

Surreply at 5

Claimant immediately

There, in another case involving

$40,955, 554 F.3d

Yet this did not constitute notice to police to keep the

16

Id.

As claimant did not

Id. at 758-59.

Here, the facts are similar to $40,955 in that there was not

1
2

sufficient notice to the Government that the bills were to be used

3

as evidence.

4

earliest) 67 days after the forfeiture, beyond the 60 day window of

5

the Attorney General and well beyond the five business day window

6

of the DEA.

7

of lab testing the bills themselves until Claimant raised his

8

spoliation claims, 21 months after the seizure.

9

argument for spoliation where a Claimant notifies the Government of

Claimant did not assert the money was his until (at

So far as the Court is aware, there was no discussion

There may be an

United States District Court

For the Northern District of California

10

its desire to test bills seized -- or at least proceed to trial in

11

a case related to such seizure -- within the 60 day window of the

12

DOJ's policy.

13

it will destroy evidence that it needed to preserve when it acts

14

too hastily.

15

Here, even if the Government's disposal prior to a full 60 days was

16

error, the error is harmless because by the end of those 60 days

17

there was still no indication by the Claimant that he would seek

18

recovery of the Defendant currency.

Thus the DEA assumes a certain amount of risk that

But such a case is not presently before the Court.

C.f. id.

19

The Court is not persuaded by Claimant's citation to non-

20

mandatory authorities which have imposed a spoliation sanction

21

based on the law in other circuits.

22

1.

23

Feb. 11, 2015), ECF No. 116-1, here the Government did not seek to

24

rely on a need to generate interest on the money.

25

presented a reasonable justification linked to a need to control a

26

very large amount of cash seized.

27

$7.3 million in cash was seized in the 2014 fiscal year just at

28

SFO, and from 2003 to date over $114 million in cash has been

See RACO at 6, 140 Ex. at 1 n.

Unlike in U.S. v. $100,120.00, No. 1:03-cv-03644 (N.D. Ill.

17

Rather, it

See Rashid Decl. ¶¶ 8-9.

Over

1

seized in 3,576 actions by the DEA's San Francisco Division alone.

2

Id. ¶ 9.

3

retained as evidence, and both were never processed and the cash

4

was returned to claimants.

5

in this case not four full evidence bags worth of bills and thus

6

difficult to securely store, the DEA's record underscores the

7

reasonable need of the Government to have a clear policy in place

8

with few exceptions to safely store and manage such a large

9

quantity of cash.

In that time, the Government only cites two cash seizures

Id.

Even were the Defendant currency

As the Government has provided the Court a

United States District Court

For the Northern District of California

10

rational basis for the chosen policy, the Court declines to set the

11

policy aside on the facts of this case.

See 5 U.S.C. § 706(2)(A).

12

In further support of its denial of sanctions, the Court notes

13

the unlikelihood that any evidence could be attained from the bills

14

at the time Claimant first indicated an express desire to test the

15

bills, which was 21 months after the seizure.

16

expressed desire to test the bills the day he noticed the DEA he

17

would seek recovery of the seized currency, 67 days would still

18

have passed.

19

debates the length of time an odor could remain on a bill.

20

competing expert for each side suggests radically differing timing

21

-- the Government's expert suggests approximately 1.5 hours for the

22

odor to dissipate, whereas Claimant's expert suggests many hours,

23

days, weeks, maybe even years could pass before the odor would be

24

undetectable.

25

Yet even assuming that Claimant's expert is admissible and

26

scientifically reliable,6 67 days is on the higher end of

27

6

28

Even had Claimant

The expert testimony before the Court in this motion
The

Compare ECF No. 125 ¶¶ 9-10 with Woodford Decl. ¶ 9.

This assumption is made strictly for the limited purposes of this
discussion. The Court will discuss the admissibility and
reliability of these experts later.

18

1

Claimant's expert's assertions for how long a residual odor may

2

linger, 21 months is on the highest end of that same timetable, and

3

insofar as any odor did linger for that time, more of it would have

4

dissipated.

5

See ECF No. 125 ¶¶ 9-10; Woodford Decl. ¶ 9.

Moreover, the Court is not clear what type of testing would be

6

likely to provide Claimant reliable, relevant results.

For

7

example, it is unlikely that a comparison test -- comparing the

8

residual odor on the Defendant bills to other bills whose history

9

was known -- would provide any reliable, relevant results.

This is

United States District Court

For the Northern District of California

10

so because there is no evidence as to the specific nature or

11

quantity of drug(s) near which the Defendant bills were placed.

12

Therefore, there is no basis for comparison of "clean" bills or

13

bills intentionally placed near certain quantities and types of

14

drugs for set lengths of time to the results (if any) that may have

15

been obtained from Defendant currency had it been preserved.

16

the likelihood of Claimant to have actually gotten the evidence he

17

seeks when he first sought such evidence (at 67 days or 21 months)

18

is substantially lower than was the case in $40,955.

19

serial numbers would certainly have remained on the bills, yet the

20

Ninth Circuit still found no spoliation sanction appropriate due to

21

Claimant's lack of notice.

22

appropriate here, where the evidence sought might reasonably not

23

even be possible to attain or use in a manner helpful to Claimant

24

had the bills been kept.

25

Thus

There, the

How much more so is no sanction

Accordingly, the Court DENIES the spoliation sanction

26

requested by Claimant to suppress evidence of the dog sniff and its

27

results.

28

to have been proper at best, harmless error at worst.

The Court FINDS the destruction of the bills in this case

19

1

C.

Totality of the Circumstances

2

In light of the Court's rulings above, the Court now turns to

3

its evaluation of the totality of the circumstances.

4

will consider the drug profile, the expert analysis, and the

5

evidence relating to drug dogs -- both drug dogs generally and the

6

drug dog Jackson specifically -- before finally balancing all the

7

involved circumstances to draw its final conclusions.
1.

8

The Court

Drug Profile

The Court can and does accept evidence that Claimant fit a

9

United States District Court

For the Northern District of California

10

"drug profile" to help determine whether there was probable cause

11

to believe the Defendant currency was involved in drug trafficking.

12

In doing so, the Court recognizes that a drug profile alone is not

13

necessarily dispositive.

14

746, 748 (9th Cir. 2013) ("[G]overnment agents or similar persons

15

may testify as to the general practices of criminals to establish

16

the defendants' modus operandi.") (citations omitted); United

17

States v. Ortiz-Hernandez, 427 F.3d 567, 573 (9th Cir. 2005);

18

United States v. $22,474.00 in U.S. Currency, 246 F.3d 1212, 1216

19

(9th Cir. 2001) ("While drug courier profiling alone is

20

insufficient to establish probable cause, courts have used it as a

21

factor in considering the totality of the circumstances.) (citing

22

United States v. $129,727, 129 F.3d 486, 491 (9th Cir. 1997));

23

United States v. $49,576.00 U.S. Currency, 116 F.3d 425, 427-28

24

(9th Cir. 1997).7

25

7

26
27
28

See United States v. Dimas, 532 F. App'x

Moreover, not all portions of the profile here

The Court limits it reliance on $49,576.00, cited by Claimant,
see Mot. at 10, as it is unclear whether the case remains good law.
Claimant urges the Court to accept that "[i]n the Fourth Amendment
context, however, a drug courier profile can, at most, provide
grounds for reasonable suspicion; it cannot establish probable
cause. . . . the fact that appellant's actions matched a drug
courier profile cannot establish probable cause to justify

20

1

are dispositive.

2

city known as a place to purchase drugs to a city known as a

3

location to sell drugs, that alone is not dispositive.

4

Decl. ¶ 21; RACO at 19; United States v. Currency, U.S. $42,500.00,

5

283 F.3d 977, 981-82 (9th Cir. 2002) (certain facts alone, such as

6

cross-country travel without hotel reservations, does not create

7

probable cause); but see $22,474, 242 F.3d 1212, 1216 (9th Cir.

8

2001) (considering one-way, same day travel purchased with cash as

9

a relevant factor).

United States District Court

For the Northern District of California

10
11

For example, even though Claimant traveled from a

See Bondad

The question is whether the facts on balance

favor a finding of probable cause.
To help answer this question, the Court notes that the facts

12

of this case are highly reminiscent of United States v. $132,245.00

13

in U.S. Currency, 764 F.3d 1055, 1058-59 (9th Cir. Aug. 21, 2014).

14

There, a panel affirmed a district court's finding that seized

15

currency was probably connected to drug trafficking.

16

concluding, the panel found that "a large amount of cash is strong

17

evidence that the money was furnished or intended to be furnished

18

in return for drugs," and that a drug detection dog's alert to a

19

large sum of money is "strong evidence" of "a connection to drug

20

trafficking."

21

inconsistent statements about the origin of the money, was highly

22

nervous, and when ultimately arrested was found to have a text

23

message on his phone discussing the transfer of the money.

Id. (citations omitted).

Id.

In so

There claimant gave

24
25
26
27
28

forfeiture." $49,576.00, 116 F.3d at 427-28. However, $49,576.00
was decided before CAFRA, and expressly refused to credit dog
sniffs due to widespread contamination of currency, rulings
contrary to Harris. Id. Moreover, the facts involved a Claimant
who was charged with but never convicted of a drug crime, vice here
where Claimant who was convicted -- albeit some while ago.

21

Here, the Court has almost identical facts except it lacks any

1
2

text message.

The amount of money in this case is almost double

3

that of $132,245.00, so clearly must be a sufficiently large amount

4

of cash to reach the threshold of "strong evidence that the money

5

was furnished or intended to be furnished in return for drugs."

6

Id.

7

U.S. Currency, 730 F.2d 571, 572 (9th Cir. 1984)); but see $191,910

8

in U.S. Currency, 16 F.3d at 1072 (probable cause cannot be

9

established by a large amount of money standing alone).

See also $42,500.00, 283 F.3d 981-82 (citing $93,685.61 in

Moreover,

United States District Court

For the Northern District of California

10

a drug dog alerted to the large sum of Defendant currency, again

11

providing a strong link to drug trafficking.

12

F.3d at 1058-59 (decided after Harris).8

C.f. $132,245.00, 764

Also here, similar to $132,245.00, Claimant gave ultimately

13
14

inconsistent statements about the origin of the money (he initially

15

was at best unclear as to who owned the money) and appeared nervous

16

during the encounter.

17

Decl.

18

were rejected because they came almost a full year after the

19

government seized the money and lacked "even the most basic

20

details."

21

negligible, it was not sufficient to persuade the appellate court's

22

panel that the district court had erred.

23

Court here finds that the affidavit of Claimant submitted almost 10

24

months after the seizure is not negligible but is not sufficiently

25

credible to cause the Court to reject the far more likely

26

///

27

///

28

8

Compare generally Figueroa Decl. with Bondad

In $132,245.00, the affidavits of Claimant and his friends

764 F.3d at 1058-59.

While the evidence was not

In a similar manner, the

The Court will discuss the admissibility of the drug dog below.

22

1

explanation that the money was not from inheritance and largely

2

undocumented, unverified work but rather connected to drug sales.9
In reviewing the totality of circumstances, the Court

3
4

expressly considers that the evidence before it may suffer from the

5

concern that the evidence points to some criminal activity in

6

general but fails to expressly connect to drug trafficking.

7

116 F.3d 425, 428.

8

factor to draw this connection.

9

messages indicated identity and timing of transfer of the money,

See

In many similar cases, there is some extra
See, e.g., $132,245.00 (text

United States District Court

For the Northern District of California

10

whereas here no such text was produced); $42,500.00 (money was

11

wrapped in cellophane to prevent the scent from being detected by

12

dogs, whereas here it was merely wrapped in plastic); United States

13

v. $79,010 in U.S. Currency, 550 F. App'x 462 (9th Cir. 2013)

14

(collecting cases with distinctive features).

15

there are no indicia of drug trafficking here.

16

is a prior drug arrest in this case, albeit quite old.

17

7 (Claimant was arrested in March of 2000 for Marijuana Possession

18

and Drug Equipment Possession); but see $49,576.00, 116 F.3d at

19

427-28 (being previously detained but not charged was not enough of

20

a link to drug trafficking); see also United States v. $22,474.00

21

in U.S. Currency, 246 F.3d 1212, 1216–17 (9th Cir. 2001)

22

(claimant's conflicting statements and inability to answer simple

23

questions supported an inference that the money was drug-related,

24

and a prior conviction for drug trafficking provided the necessary

25

link between the incriminating circumstances and illegal drugs).

26

However, evidence from the drug dog resolves any concern connecting

This is not to say
For example, there

27
28

9

This finding is limited to the Court's probable cause
determination as required for this motion.

23

See ROI at

1

Defendant currency to drug trafficking.

2

now to the expert opinions and drug dog evidence.
2.

3
4

Therefore, the Court turns

Experts

Parties seem to ask the Court to apply Daubert standards to

5

testimony by allegedly "expert" witnesses.

The Court declines.

6

See Herrera-Osornio, 521 F. App'x at 586 ("dog sniffs do not

7

necessarily . . . require the district court to conduct a

8

reliability inquiry under Daubert [citation omitted]").

9

is satisfied that the experts put forward by parties provide

The Court

United States District Court

For the Northern District of California

10

information helpful for the Court's consideration and that their

11

knowledge is beyond that of an ordinary person, and so finds their

12

opinions admissible in the limited context of this motion to the

13

limited degree they offer information that is not preempted by the

14

rulings of mandatory authority (e.g., Harris).

15

Court will consider lack of field experience, inconsistencies, and

16

other detrimental factors pointed out by parties in weighing the

17

likelihood of any assertion made by any purported expert put

18

forward by any party.
3.

19
20

That said, the

Drug Dogs

The Defendant has provided little or no evidence to "dispute

21

the reliability of the dog overall or of [the] particular alert" by

22

Jackson.

23

Government (affidavits by TFA O'Malley describing Jackson's

24

training) is not ideal but is nonetheless sufficient for now to

25

satisfy the Court that Jackson was properly trained in a

26

certification program.

27

Decl. ¶¶ 3-5; O'Malley 2d Supp. Decl ¶¶ 3-4.

28

appears to have parameters that are sufficiently standardized to be

See Harris, 133 S. Ct. at 1058.

The evidence from the

See O'Malley Decl. ¶¶ 4-7; O'Malley Supp.

24

Moreover, the program

1

encompassed within the mandatory authority of Harris.

See ECF No.

2

127 Ex. A.

3

certification or training program can itself provide sufficient

4

reason to trust his alert."

5

that Jackson is known to not alert to residue on currency in

6

general circulation is a significant factor weighing in favor of

7

crediting his sniff.

8

18; $132,245.00, 764 F.3d at 1058-59 (9th Cir. 2014).

9

the Court has both sufficient and significant reason to find in

"[E]vidence of a dog's satisfactory performance in a

Harris, 133 S. Ct. at 1057.

Moreover,

See O'Malley 2d. Supp. Decl. ¶¶ 3-4; RACO at
Therefore,

United States District Court

For the Northern District of California

10

favor of the Government.

Insofar as Claimant submits evidence that

11

drug dogs are generally unreliable, Harris considered this issue

12

and has already made a binding, contrary determination.10

13

Court holds accordingly and rejects Claimant's arguments.

The

Where the Government's evidence does fail to entirely resolve

14
15

the issue is whether Jackson was signaled.

16

is generally reliable, circumstances surrounding a particular alert

17

may undermine the case for probable cause—if, say, the officer cued

18

the dog (consciously or not), or if the team was working under

19

unfamiliar conditions.

20

O'Malley were working under familiar circumstances, Jackson had

21

conducted the entire search of the familiar area while off leash,

22

and Jackson was approximately 30 feet away from his handler when

23

Jackson alerted.

Here, Jackson and TFA

See O'Malley Supp Decl. ¶¶ 4-6.

The procedural posture drives some difference, but it is not

24
25

Id. at 1057.

"[E]ven assuming a dog

dispositive.

In the light most favorable to the Government

26
27
28

10

The literature in the evidence submitted by Claimant is largely
from before Harris. Insofar as points made therein were considered
and rejected by the Supreme Court in Harris, the Court will not
here reconsider what the Supreme Court has already decided.

25

1

(required when considering Claimant's motion for summary judgment),

2

the facts are clear that there was no signaling by the handler from

3

30 feet away.

4

controlled settings that a dog performs reliably in detecting

5

drugs, and the [Claimant] has not contested that showing, [] the

6

court should find probable cause."

7

The Court therefore finds probable cause, and Claimants' summary

8

judgment motion fails.

Thus, as "the [Government] has produced proof from

Harris, 133 S. Ct. at 1058.

However, in the light most favorable to Claimant (required

9

United States District Court

For the Northern District of California

10

when considering the Government's cross-motion for summary

11

judgment), it may be possible that a handler can unconsciously

12

signal his dog when the dog first directed to search or by a motion

13

at a distance.

14

whatever approved methodology they happen to use,11 their

15

discussion will be targeted at a factual question, namely: was

16

Jackson signaled in this specific case?

17

thus ultimately a factual question whose result is highly material

18

-- if not outright dispositive -- to the value of the otherwise

19

reliable dog sniff.

20

limited current evidence (the dearth of which the Court will

21

discuss below), the Court cannot negate either the possibility that

22

Jackson was or that he was not signaled by operation of law.

23

Therefore, this is a matter properly decided by a trier of fact at

24

///

25

///

26

11

27
28

While experts can debate the likelihoods based upon

The determination here is

In the current procedural posture and with the

Parties have not filed Daubert motions or motions to strike,
though their motions seem to desire that the Court take up such an
analysis. The Court declines, and will address such motions only
if necessary in the wake of this Order, in light of HerreraOsornio, 521 F. App'x at 586.

26

1

trial.

Accordingly, because the Government's cross-motion contains

2

a dispute over a genuine issue of material fact, it, too, fails.12
4.

3

Balancing

Given the totality of the circumstances and the Court's

4
5

findings with respect to drug dogs, a preponderance of the evidence

6

supports a finding that there was probable cause for the seizure if

7

the drug dog evidence can be used.

8

summary judgment motions,13 this question resolves against each

9

moving party in turn due to the clear evidence or lack thereof as

Given the shifting light of the

United States District Court

For the Northern District of California

10

to the ability of a handler to signal a dog upon release or at a

11

distance.

12

and the Government's cross-motion for summary judgment are DENIED.
5.

13

Additional Rulings

The Court now makes two additional rulings, one on discovery

14
15

Therefore, both Claimant's motion for summary judgment

in general and one on discovery on a specific issue.
The Court earlier noted that parties were permitted to seek

16
17

discovery but may not have completed discovery prior to filing this

18

motion.

19

The Court previously made clear that discovery was necessary on

20

certain matters for this case to go forward.

21

file a motion for summary judgment without having taken that

22

discovery, but then rushes to point out the need for discovery in

23

reply to the Government's cross-motion.

24

12

25
26
27
28

See OACM at 18; RACO at 11 n.10, 17-23; Cross Reply at 5.

Claimant chose to

The Court is not impressed

Even if the Court were inclined to grant summary judgment for
the Government, it would not do so prior to completion of discovery
or resolution of the Court's second "additional ruling" below.
13
A similar shifting of burdens may or may not be relevant to
disputed facts about the origin of the Defendant currency, meaning
of Claimant's responses, or flights Claimant previously did or did
not take. However, the Court need not reach this issue, as the
Supreme Court has made it clear that the Court satisfies the
totality of the circumstances test upon a reliable drug dog sniff.

27

1

with this tactic, and continuing in this manner is likely to

2

needlessly lengthen this litigation.

Therefore, decisions herein

3

are deemed to be made WITH PREJUDICE.

Said another way, parties

4

are expressly DENIED permission to refile for summary judgment on

5

any ground considered within this motion except as permitted by the

6

Court -– either herein or by a separate order issued upon a proper

7

administrative motion by either party justifying the exception.

8

The Court earlier stated that the Government's evidence

9

regarding Jackson's training is "not ideal" but is "sufficient for

United States District Court

For the Northern District of California

10

now to satisfy the Court that Jackson was properly trained."

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term "for now" references this second additional ruling.

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The

The Court has been given no indication whether the Government

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has produced unredacted training records for Jackson.

These

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records are required for a proper determination of probable cause.

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See United States v. Salazar, 598 F. App'x 490, 491-92 (9th Cir.

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Jan. 16, 2015) ("The district court also lacked the benefit of

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United States v. Thomas, 726 F.3d 1086, 1096–97 (9th Cir. 2013),

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cert. denied, ––– U.S. ––––, 134 S.Ct. 2154 (2014), where this

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court concluded that redacted canine training records were

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inadequate to demonstrate a canine's reliability for a probable

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cause finding to justify a subsequent search.").

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Admittedly, this is a civil proceeding rather than a criminal

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proceeding, and thus the due process rights of a Claimant are less

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than those of a criminal defendant.

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found that the probable cause remains the standard even after the

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passage of the Civil Asset Forfeiture Reform Act. See $186,416.00,

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590 F.3d at 949; see also Cross Reply at 17-18.

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probable cause is a test primarily understood within a criminal

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However, the Ninth Circuit has

Therefore, as

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context and the core of this case revolves around suspected

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criminal activity, the Court finds that here the requirement of

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Thomas applies.
The Court therefore ORDERS the Government to provide Claimant

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an unredacted copy of Jackson's training records within ten (10)

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days of the date of this Order, and to simultaneously provide a

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copy of said discovery to the Court (as, per Salazar, the Court may

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have an independent duty to review these records).

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granted leave to file for reconsideration within forty (40) days of

Claimant is

United States District Court

For the Northern District of California

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the date of this Order on the strict condition that such a motion

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is limited to challenges of the training records so produced.

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Court ORDERS Claimant to file a notice with the Court if it decides

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at any earlier point that it will not file such a motion.

The

Leave for Claimant to file for reconsideration provided herein

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is immediately voided if the Government shows the Court that the

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Government provided an unredacted copy of Jackson's training

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records to Claimant prior to the submission of Claimant's Combined

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Reply (ECF No. 116).

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Claimant has already had an opportunity to bring the type of

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challenge Thomas seeks to provide and tactically chose to waive it.

This caveat protects the Government if

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V.

CONCLUSION
Claimant's motion and the Government's cross-motion for

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summary judgment are both DENIED.

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training must be provided to Claimant and the Court within 10 days

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of this order, and leave is hereby granted to file a motion for

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reconsideration on the strictly limited basis thereof may be

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requested within 40 days of the date of this Order.

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Unredacted records of Jackson's

This leave to

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file for reconsideration is void if the Government shows it

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previously provided said records prior to the filing of ECF No 116.

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IT IS SO ORDERED.

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Dated: October 14, 2015
United States District Judge

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United States District Court

For the Northern District of California

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