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

Filing 87

ORDER by Judge Samuel Conti denying 56 Motion for Summary Judgment; denying 59 Motion to Strike; denying 18 Motion to Suppress. Figueroa is ORDERED to serve supplemental answers to special interrogatories numbers 3, 4, and 10 within fourteen (14) days. (sclc2, COURT STAFF) (Filed on 12/8/2014)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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United States District Court

For the Northern District of California

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UNITED STATES OF AMERICA
Plaintiff,

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v.
$209,815 IN UNITED STATES
CURRENCY,
Defendant.

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JULIO FIGUEROA,
Claimant.

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Case No. C 14-0780 SC
ORDER DENYING MOTIONS TO
SUPPRESS, STRIKE, AND FOR
SUMMARY JUDGMENT

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I. INTRODUCTION
Now before the Court are several motions in this civil

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forfeiture case.

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evidence seized during his interaction with Drug Enforcement Agency

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("DEA") Agents at the San Francisco International Airport ("SFO").

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ECF No. 18 ("Mot. to Suppress").

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summary judgment, alleging Figueroa, "will be unable to adduce

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sufficient evidence to establish any affirmative defense," and,

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alternatively, lacks standing to contest the forfeiture.

First, Claimant Julio Figueroa moves to suppress

Second, the Government moves for

ECF No.

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56 ("SJ Mot.").

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claim and for entry of default judgment for Figueroa's failure

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adequately to respond to special interrogatories.

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("Mot. to Strike"), as amended ECF No. 62 ("Am. Mot. to Strike).

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These motions are fully briefed.1

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evidentiary hearing on the motion to suppress and heard oral

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argument on the motion.

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motions are appropriate for resolution without oral argument under

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Civil Local Rule 7-1(b).

United States District Court

For the Northern District of California

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Finally, the Government moves to strike Figueroa's

ECF No. 59

The Court conducted an

ECF No. 78 ("Hr'g Tr.").

The remaining

As explained below the motions are all

DENIED.

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II. BACKGROUND

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A.

Findings of Fact on Motion to Suppress

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The Court finds the following facts after the testimony of

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three witnesses at the evidentiary hearing: DEA Special Agents Leo

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Bondad and Paul Harris (collectively, "the Agents"), and Figueroa,

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as well as exhibits received at that hearing and other documents

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submitted in support of the motion.
This is a civil forfeiture case arising out of $209,815 in

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United States currency ("the Currency") seized from Claimant's

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checked luggage at the SFO.

The currency was uncovered during the

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ECF Nos. 39 ("Suppress Opp'n"), 42 ("Suppress Reply"), 57 ("SJ
Opp'n"), 64 ("SJ Reply"), 69 ("Strike Opp'n"), 75 ("Strike Reply").
After the Government filed its motion to strike, Figueroa served
supplemental answers to interrogatories and filed notice that he
intended to rely on those answers at the hearing on the motion for
summary judgment. See ECF No. 68 ("Notice"). Finding no oral
argument necessary, the Court vacated the motion hearing under
Civil Local Rule 7-1(b). Nevertheless, the Court ordered
supplemental briefing to address what impact, if any, Figueroa's
supplemental answers would have on the then-fully briefed summary
judgment motion. ECF Nos. 76 ("Figueroa Supp. Br."), 80 ("Gov't
Supp. Br.").

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course of a DEA interdiction involving Figueroa, a DEA Confidential

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Source, and five DEA Agents: Bondad, Harris, Boston Special Agent

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David O'Neill, San Francisco Group Supervisor Aaron Jenkins, and

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Task Force Agent Kevin O'Malley.
The investigation began with a tip by a confidential source

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that Figueroa had purchased a one-way ticket from New York's John

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F. Kennedy International Airport ("JFK") to SFO that night, and

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that Figueroa would arrive in SFO the next day with two checked

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bags.

Further investigation revealed that the phone number used to

United States District Court

For the Northern District of California

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book the ticket was connected in the DEA's Narcotics and Dangerous

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Drugs Information System ("NADDIS") to multiple marijuana

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trafficking investigations and that Figueroa had a prior arrest for

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narcotics possession.

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his flight, the Agents reviewed the photo associated with his

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California ID Card.

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In order to identify Figueroa after leaving

Before Figueroa's flight arrived, the Agents, dressed in

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street clothes, began surveillance of the gate.

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deplaned, the Agents surreptitiously followed him and observed him

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remove two large suitcases from the baggage carousel and begin

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walking toward the elevator.

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second floor near where Figueroa would exit the elevator.

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agent, Bondad, stood to the side of the elevator doors while the

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other, Harris, stood approximately 15 feet away from the elevators

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across an area of high pedestrian traffic.

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position blocked Figueroa's most direct path to the terminal exit.

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After Figueroa

The Agents took the escalator to the
One

Neither Agent's

After Figueroa stepped off the elevator, Agent Bondad called

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out "Julio?"

Figueroa turned, but did not respond immediately and

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continued walking toward the exit.

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Agent Bondad repeated "Are you

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Julio?" and, in the same motion, showed his DEA credentials.

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Figueroa stopped and responded "No."

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Figueroa had identification, and Figueroa gave Agent Bondad his

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California ID card.

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fact, Julio, Bondad said "You are Julio.

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your name?" and returned the ID card.

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said "no" because he did not recognize Agent Bondad.

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explained that he was a DEA agent, and told Figueroa he "wasn't in

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trouble" and was free to leave.

Agent Bondad asked if

Seeing that Figueroa's first name was, in
Why did you lie about

Figueroa responded that he
Bondad then

Bondad stated that they were

United States District Court

For the Northern District of California

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looking for people trafficking "dope" and asked Figueroa if he was

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carrying any narcotics or contraband with him.

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no, Bondad asked, pointing out Agent Harris (who also displayed his

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DEA credentials), "would you mind if we search your bags?"

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Figueroa agreed, and Harris moved closer as Figueroa handed him one

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of the bags.

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terminal roughly 10 feet away with less pedestrian traffic.

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kneeling down next to the bags, Harris noticed they were locked and

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asked Figueroa for the combination to unlock the bags.

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gave the agents the combination, and upon unlocking the bags and

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searching the contents, the Agents discovered and seized the

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Currency, which was bundled in two backpacks inside each of

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Figueroa's bags.

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After Figueroa said

Harris moved the bag to another public area of the
After

Figueroa

At no time during the encounter was Figueroa advised of his

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right to decline consent to search.

He was, however, told at the

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beginning of the encounter that he was free to leave.

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did not advise Figueroa that they would seek a warrant if he

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declined consent.

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Agents remained calm throughout the encounter, no guns were drawn,

The Agents

It was uncontroverted that Figueroa and the

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Figueroa was never told he was under arrest, and no Miranda

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warnings were given.

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B.

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The remaining facts come from the parties' submissions and in

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Additional Background

some cases remain in dispute.

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After seizing the Currency, the Agents questioned Figueroa.

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Both parties agree Figueroa said "we can cut the chit chat now,"

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and that "I didn't say [the Currency] was mine" but also that "I

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didn't say that [the Currency] wasn't mine," although they disagree

United States District Court

For the Northern District of California

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about what Figueroa meant to communicate by these statements.

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Compare ECF No. 57-1 ("Figueroa Decl.") at ¶ 5, with SJ Mot. at 3,

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¶ 9.

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during the search, Figueroa only asserted ownership over a bundle

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of a few thousand dollars wrapped in a deposit slip.

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Figueroa Decl. at ¶ 6, with SJ Mot. at 3, ¶ 9.

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Similarly, the parties disagree about the Agents' claim that

Compare

Following the seizure of the currency, obtaining the

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Figueroa's contact information, and explaining the civil forfeiture

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process, the Figueroa left the airport.

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the Currency consisted of 13,644 bills, 13,554 of which were in

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denominations of $20 or less.

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evidence bags and hiding it in an inconspicuous location, a trained

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narcotics dog, Jackson, altered that the Currency smelled of

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illegal drugs.

The Agents determined that

After placing the Currency in

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Subsequently, the Government filed a complaint for civil

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forfeiture under 21 U.S.C. Section 983 arguing that the Currency is

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forfeitable as "proceeds traceable" to the sale of illegal drugs.

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21 U.S.C. § 881(a)(6).

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claim and answer required under the statute and asserting "an

Figueroa intervened, filing a verified

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ownership and possessory interest in, and the right to exercise

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dominion and control over, all the defendant property."

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11 ("Claim"), 14 ("Answer").

ECF Nos.

Shortly thereafter, the Government served special

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interrogatories under the Supplemental Rules for Admiralty or

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Maritime Claims and Asset Forfeiture Actions ("Supplemental Rules")

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"to gather information that bears on the claimant's standing."

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Advisory Committee Note to Subd. 6 of Supp. R. G; see also Supp. R.

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G(6).

Figueroa objected to the scope of these interrogatories, and

United States District Court

For the Northern District of California

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the Government filed a motion to compel, which the Court granted.

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ECF No. 48 ("Mot. to Compel Order").

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Circuit's decision in United States v. $133,420, 672 F.3d 629 (9th

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Cir. 2012), the Court found that Figueroa's objections were

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unfounded, and his responses were insufficient, and ordered

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supplemental answers.

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Relying chiefly on the Ninth

After Figueroa supplemented his answers, the Government moved

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to strike Figueroa's verified claim for failure to adequately

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respond to interrogatories.

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G(8)(c)(i)(A) (authorizing motions to strike for failure to answer

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special interrogatories).

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strike, Figueroa once again supplemented his answers, although the

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Government argues they are still insufficient.

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the motion, reiterating his contention that the interrogatories

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exceed the scope permitted by the Supplemental Rules and arguing

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that, in any event, they are sufficient.

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Mot. to Strike at 1; see also Supp. R.

Following the Government's motion to

Figueroa opposes

Finally, the Government has also moved for summary judgment on

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the forfeitability of the currency, the sufficiency of Figueroa's

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affirmative defenses, and Figueroa's alleged inability to show

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standing to contest the forfeiture.

Figueroa opposes.

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III. LEGAL STANDARD

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A.

Motion to Suppress

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The Fourth Amendment ordinarily bars the admission of evidence

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seized as fruit of an illegal search.

Nix v. Williams, 467 U.S.

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431, 441-42 (1984).

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proceedings.

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693, (1965); United States v. $186,416, 590 F.3d 942, 949 (9th Cir.

This rule also applies in civil forfeiture

See One 1958 Plymouth Sedan v. Pennsylvania, 380 U.S.

United States District Court

For the Northern District of California

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2010) ("The Fourth Amendment exclusionary rule applies to civil

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forfeiture proceedings.").

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Supplemental Rules for Admiralty or Maritime Claims and Asset

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Forfeiture Actions ("Supplemental Rules") permits a claimant to

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move to suppress the use of the property seized as evidence

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provided that party has "standing to contest the lawfulness of the

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seizure . . . ."

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1.

Further, Rule G(8)(a) of the

Fourth Amendment Seizure

The Fourth Amendment "protects two types of expectations, one

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involving 'searches,' and the other 'seizures.'"

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Jacobsen, 466 U.S. 109, 121 (1984).

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within the meaning of the Fourth Amendment if an officer uses

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physical force or a "show of authority" to restrain an individual.

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Brendlin v. California, 551 U.S. 249, 254 (2007).

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of officers to restrain an individual is ambiguous, we look to

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whether "in view of all the circumstances surrounding the incident,

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a reasonable person would have believed he was not free to leave."

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Id. at 255 (quoting United States v. Mendenhall, 446 U.S. 544, 554

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(1980)); see also California v. Hodari D., 499 U.S. 621, 628

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United States v.

A person may be "seized"

When the intent

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(1991).
The Ninth Circuit has enumerated several factors to guide the

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analysis of whether an encounter with police constitutes a seizure.

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Specifically, Courts should look to the number of officers, whether

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weapons were drawn, the location in which the encounter occurred,

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the officers' tone or manner, and whether the officers informed the

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person he could terminate the encounter.

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Washington, 490 F.3d 765, 771-72 (9th Cir. 2007).
2.

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United States District Court

For the Northern District of California

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United States v.

Consent to Search

Similarly, the Fourth Amendment protects individual

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expectations of privacy from unreasonable searches.

Nonetheless,

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"[a]n individual may waive his Fourth Amendment rights by giving

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voluntary and intelligent consent to a warrantless search of

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person, property, or premises."

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83 F.3d 1123, 1130 (9th Cir. 1996).

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the totality of the circumstances.

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U.S. 218, 227 (1973).

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voluntariness analysis is driven by five factors, none of which is

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dispositive.

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2009).

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custody; (2) whether officers had their guns drawn; (3) if Miranda

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warnings were given; (4) if officers informed the individual that

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they had a right to decline consent; and (5) whether officers told

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the individual that a search warrant could be obtained.

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also United States v. Ortiz-Flores, 462 F. App'x 759, 760 (9th Cir.

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2011).

United States v. Torres-Sanchez,
Voluntariness is determined by
Schneckloth v. Bustamonte, 412

In the Ninth Circuit, the Court's

United States v. Brown, 563 F.3d 410, 415 (9th Cir.

These factors are: (1) whether the individual was in

Id.; see

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B.

Motion for 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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bears the initial burdens of production and persuasion.

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Fire & Marine Ins. Co., Ltd. v. Fritz Cos., Inc., 210 F.3d 1099,

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1102 (9th Cir. 2000).

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United States District Court

For the Northern District of California

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Fed. R. Civ. P.

Summary judgment should be granted if the evidence would

C.

Anderson v.

The moving party
Nissan

Motion to Strike

The Supplemental Rules permit the Government to file a motion

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to strike a verified claim "at any time before trial . . . for

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failing to" answer special interrogatories or for lack of standing.

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Supp. R. G(8)(c)(i)(A), (B).

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Supplemental Rules is "'something like a motion to dismiss where we

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can look to matters outside the pleadings, and where appropriate,

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allow for the possibility of conversion to summary judgment.'"

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United States v. $671,160.00, 730 F.3d 1051, 1055 (9th Cir. 2013)

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(quoting United States v. $6,976,934.65 Plus Interest, 478 F. Supp.

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2d 30, 38 (D.D.C. 2007)) (internal alterations omitted).

A motion to strike under the

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III. DISCUSSION

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A.

Motion to Suppress

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In support of his motion to suppress, Figueroa makes two

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arguments.

First, he contends that his encounter with the Agents

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constituted an illegal seizure within the meaning of the Fourth

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Amendment, thus rendering the subsequent search unlawful.

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Alternatively, Figueroa argues that even if he was not seized, his

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consent to search was involuntary.

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Accordingly, Figueroa asks that

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the currency be suppressed.

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does not contest, that he has standing to bring the motion to

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suppress.
1.

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Figueroa asserts, and the Government

Seizure

Figueroa contends that he was seized within the meaning of the

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Fourth Amendment because the Agents lacked reasonable suspicion to

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detain him, and Agent Bondad's actions constituted a "show of

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official authority" which a reasonable person would not feel free

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to refuse.

Mot. at 8.

Specifically, Figueroa states that Bondad

United States District Court

For the Northern District of California

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repeatedly calling out his name and displaying his badge would make

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"clear to any reasonable person in Figueroa's shoes[] not only that

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he was not free to leave, but that he, specifically, was the

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subject of an investigation."

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contend that the Agents had reasonable suspicion to detain

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Figueroa, instead arguing that because the encounter was

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consensual, Figueroa was never seized within the meaning of the

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Fourth Amendment.

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The Government is right.

Id. at 9.

The Government does not

No unlawful seizure took place in

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this case.

Generally speaking, law enforcement officers are free

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approach individuals in a public place and ask them questions.

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Florida v. Royer, 460 U.S. 491, 497 (1983); United States v. Woods,

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720 F.2d 1022, 1026 (9th Cir. 1983).

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identifies himself as a police officer does not convert the

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encounter into a seizure requiring some level of objective

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justification."

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question is whether, "in view of all the circumstances surrounding

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the incident, a reasonable person would have believed that he was

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not free to leave."

"The fact that the officer

Woods, 720 F.2d at 1026.

Instead, the key

Mendenhall, 446 U.S. at 554.

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See

Weighing the

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totality of the circumstances, the Court concludes that a

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reasonable person would have believed he was free to leave.
Numerous facts weigh in favor of finding that a reasonable

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person would feel free to leave.

First, and most compellingly,

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Figueroa was specifically told by Agent Bondad that he was not in

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trouble and was free to leave.

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and the agents happened in public and remained calm throughout.

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The Agents were dressed in plain clothes and, although they were

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armed, their weapons were never displayed.

The conversation between Figueroa

The Agents never

United States District Court

For the Northern District of California

10

touched Figueroa or otherwise blocked his path to the exit, and

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they remained a reasonable distance away at all times.

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characterization in Figueroa's briefing that he was "ordered" to

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produce identification, the testimony at the evidentiary hearing

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supports the Court's finding that Agent Bondad simply asked if

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Figueroa had identification -- a request to which Figueroa

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responded by handing over his ID card.

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identity, Bondad immediately returned Figueroa's identification to

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him.

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Despite the

After confirming his

Figueroa argues that two facts constitute a show of authority

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sufficient to render this encounter a seizure.

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displaying his badge, Agent Bondad called out "Julio," to which

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Figueroa turned, but did not respond and continued walking.

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after repeating his statement and simultaneously displaying his

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badge did Figueroa stop and respond to Bondad.

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out to Figueroa, Bondad used Figueroa's first name, indicating

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prior knowledge of his identity and communicating at least the

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inference that Figueroa was the target of a criminal investigation.

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Figueroa argues that as a result, (1) the Agents ignored his

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First, before

Only

Second, in calling

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intention to decline the encounter and leave the airport, and (2)

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by using his name, the Agents communicated that Figueroa,

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"specifically, was the subject of an investigation."

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for Figueroa, neither the cases he cites nor the weight of the

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relevant facts are in his favor.

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Unfortunately

First, the fact that Figueroa did not respond to Agent

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Bondad's initial attempt to get his attention does not render this

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encounter a seizure.

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"Julio?", turning, but continuing to walk toward the exit, did not

Figueroa's response to Bondad's initial

United States District Court

For the Northern District of California

10

constitute an "unequivocal unwillingness to engage in further

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conversation . . . ."

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1406 (9th Cir. 1994) (quoting United States v. Wilson, 953 F.2d

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116, 123 (4th Cir. 1991)).

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Court is persuaded that repeating "[a]re you Julio?" was

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reasonable.

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force was used, the Agents did not block Figueroa's exit or show

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their weapons, and remained calm and conversational throughout.

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Moreover, at the time Figueroa allegedly intended to decline the

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encounter -- after Agent Bondad initially said "Julio?" -- Bondad

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had not yet displayed his DEA credentials.

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could not have known he was speaking to law enforcement, let alone

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unequivocally declined to speak with them.

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United States v. Hernandez, 27 F.3d 1403,

Instead, under these circumstances, the

The encounter happened in a public place, no physical

As a result, Figueroa

Furthermore, the fact that Bondad displayed his identification

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and used Figueroa's name (rather than some other generic greeting)

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does not alter this conclusion.

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officer identifies himself as a police officer does not convert the

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encounter into a seizure requiring some level of objective

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justification."

First, "[t]he fact that the

Woods, 720 F.2d at 1026.

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Furthermore, as at least

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one other court has found, using an individual's name in initiating

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a consensual encounter does not render that encounter a seizure.

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See United States v. Sealey, 30 F.3d 7, 10 (1st Cir. 1994) (finding

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a defendant was not seized when an officer approached him and

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called out "Hey Stephen, what's up?").

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In short the Court is persuaded that under these circumstances

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a reasonable person would have felt free to leave.

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encounter was not a seizure.
2.

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United States District Court

For the Northern District of California

10

Hence, this

Consent

Having found that Figueroa was not seized within the meaning

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of the Fourth Amendment, the only remaining issue on the motion to

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suppress is whether Figueroa voluntarily consented to the search of

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his luggage.

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Court's voluntariness analysis is driven by five factors, none of

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which is dispositive.

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(9th Cir. 2009).

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in custody; (2) whether officers had their guns drawn; (3) if

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Miranda warnings were given; (4) if officers informed the

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individual that they had a right to decline consent; and (5)

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whether officers told the individual that a search warrant could be

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obtained.

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App'x 759, 760 (9th Cir. 2011).

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As discussed earlier, in the Ninth Circuit, the

United States v. Brown, 563 F.3d 410, 415

These factors are: (1) whether the individual was

Id.; see also United States v. Ortiz-Flores, 462 F.

Here, these factors favors weigh in favor of voluntariness.

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Having earlier found that Figueroa was not seized, he cannot be

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deemed to have been in custody.

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custody, "Miranda warnings [are] inapposite." Brown, 563 F.3d at

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416 (quoting United States v. Patayan Soriano, 361 F.3d 494, 501

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(9th Cir. 2004)).

Because Figueroa was not in

Furthermore, it is undisputed that the officers

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1

were dressed in plain clothes, and their weapons were concealed

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throughout the encounter.

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of his right to decline consent to search, "this factor is not an

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absolute requirement for a finding of voluntariness," and in any

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event he was earlier advised that he was not in trouble and was

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free to leave.

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Finally, while testimony differed on whether the Agents told

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Figueroa that a search warrant could be obtained if he declined

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consent, the Court finds Bondad and Harris' testimony on that point

While the Agents did not inform Figueroa

Id. (citing Schneckloth, 412 U.S. 248-49).

United States District Court

For the Northern District of California

10

more convincing and concludes that the Agents never advised

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Figueroa that they would obtain a search warrant if he declined

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consent.
At the hearing on the motion to suppress, Claimant's counsel

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14

made much of the fact that the Agents had a consent form that could

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have been used to obtain a written waiver of Figueroa's Fourth

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Amendment rights, but nonetheless chose not to use it.

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extensively questioned the Agents regarding various DEA policies

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and guidelines, insinuating that these guidelines also encourage

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officers to obtain a signed consent form under circumstances like

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this.

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inapposite.

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unassailable type of consent to search does not change the Court's

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conclusion that the consent they actually did obtain was voluntary.

He also

While this may be true, the Court finds it is nonetheless
The fact that officers could have obtained a more

As a result, the Court finds that Figueroa voluntarily

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consented to the search of his luggage.

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was also not seized within the meaning of the Fourth Amendment, the

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motion to suppress is DENIED.

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///

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Having found that Figueroa

1

B.

Motion for Summary Judgment and Alternative Motion to
Strike

2
3

Next, the Government moves for summary judgment on three

4

issues.

First, the Government argues that the Court should grant

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summary judgment on the issue of the forfeitability of the currency

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at issue.

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the remaining issues is appropriate because Figueroa will not be

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able to provide sufficient evidence to establish any of his

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affirmative defenses.

Second, the Government contends that summary judgment on

Third, and in the alternative, the

United States District Court

For the Northern District of California

10

Government moves to strike Figueroa's claim on the grounds that he

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has failed to establish standing to contest the forfeiture.

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Because standing is a "threshold matter," the Court will address

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the alternative motion based on standing first.

14

v. 5208 Los Franciscos Way, 385 F.3d 1187, 1191 (9th Cir. 2004).

See United States

15

The Ninth Circuit has yet to identify the burden on the issue

16

of a forfeiture claimant's standing at the summary judgment stage.

17

$133,420, 672 F.3d at 638.

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articulated some applicable general principles.

19

claimant may not rely on mere allegations, but must instead "'set

20

forth' by affidavit or other evidence 'specific facts . . . '"

21

demonstrating his standing.

22

whether "'a fair minded jury' could find that the claimant has

23

standing on the evidence presented."

24

477 U.S. at 252).

25

is insufficient -- instead there must be sufficient evidence for

26

the jury to find for plaintiff on the issue.

27
28

Nevertheless, the Ninth Circuit has

Id.

First, the

Second, the Court must ask itself

Id. (quoting Liberty Lobby,

In doing so, the existence of minimal evidence

Id.

The Government urges the Court to fill in any blanks left by
the Ninth Circuit in this area with cases and principles derived

15

1

from Federal Rule of Civil Procedure 12(b)(1), which governs

2

motions to dismiss for lack of subject-matter jurisdiction.

3

appears to be a novel argument, but because the general principles

4

articulated by the Ninth Circuit in $133,420 resolve the issue in

5

Figueroa's favor, there is no need to decide to what extent

6

principles derived from the Rule 12(b)(1) context are applicable

7

here.

8
9

This

First, as the Ninth Circuit has suggested, "[t]he fact that
the property was seized from the claimant's possession, for

United States District Court

For the Northern District of California

10

example, may be sufficient evidence, when coupled with a claim of

11

ownership, to establish standing at the summary judgment stage."

12

Id. at 639 (citing United States v. $148,840.00, 521 F.3d 1268,

13

1277 (10th Cir. 2008)); see also United States v. $167,070, No.

14

3:13-CV-00324-LRH-VPC, 2014 WL 3697252, at *4 (D. Nev. July 23,

15

2014).

16

Figueroa's verified claim asserts and ownership interest in the

17

Currency, and the Currency was undisputedly seized directly from

18

his possession.

19

establish standing, Figueroa has responded to the Government's

20

motion with an affidavit explaining that the Currency is his life

21

savings, accumulated partially through legitimate employment as a

22

freelance graphic designer and youth advocate on immigration

23

issues, and partially through a cash inheritance from his

24

grandmother.

25

Additionally, Figueroa explained that he was travelling with the

26

Currency because he planned to invest it in a restaurant during a

27

trip to New York, however, for unexplained reasons the deal did not

28

come about and he returned home to San Francisco with the money.

That is precisely the circumstance at issue here.

Nevertheless, even if this is not enough to

ECF No. 57-1 ("Figueroa Decl.") ¶¶ 2-3.

16

1

Id. at ¶ 4.
The Government objects to this declaration, arguing that it is

2
3

simply a "conclusory, self-serving affidavit, lacking detailed

4

facts and any evidence," and therefore it is insufficient to create

5

a genuine issue of material fact.

6

(quoting FTC v. Publ'g Clearing House, Inc., 104 F.3d 1168, 1171

7

(9th Cir. 1997)).

8

the "[u]nexplained naked possession of a cash hoard," United States

9

v. $42,500, 283 F.3d 977, 983 (9th Cir. 2002) (quoting United

See $133,420, 672 F.3d at 638

The Court disagrees.

This case does not involve

United States District Court

For the Northern District of California

10

States v. $321,470, 874 F.2d 298, 304 (5th Cir. 1989)), an

11

equivocal statement that the claimant has an "ownership and/or a

12

possessory interest" in the currency, $133,420, 672 F.3d at 640, or

13

the use of the Fifth Amendment as a sword and shield.

14

41.

15

ownership and possessory interest in the Currency, and explains

16

both the circumstances by which he acquired the Currency and why he

17

possessed it when it was seized.

18

the Currency was seized directly from Figueroa's possession is

19

enough to persuade the Court that, at this point, the record

20

supports the conclusion that Figueroa has standing to contest the

21

forfeiture.

22

Id. at 640-

On the contrary, the declaration reiterates Figueroa's

This, coupled with the fact that

Nevertheless, the Government contests Figueroa's declaration

23

further, arguing that the Court should disregard it because

24

Figueroa has resisted the Government's discovery requests and

25

because his declaration contradicts statements he allegedly made to

26

the Agents following the search of his luggage.

27

first point is raised in the parallel motion to strike for failure

28

to adequately respond to special interrogatories, and the Court

17

The Government's

1

will address it there.

The second point, that the declaration

2

contradicts the Agent's version of events after the currency was

3

seized, is irrelevant.

4

the evidence of his standing is undisputed or prove standing by a

5

preponderance of the evidence at the summary judgment stage.

6

Instead, the claimant must, as Figueroa has here, set forth

7

specific facts, "which for the purposes of the summary judgment

8

motion will be taken as true" to show that a reasonable jury could

9

find the claimant has standing.

A forfeiture claimant need not show that

$133,420, 672 F.3d at 638

United States District Court

For the Northern District of California

10

(emphasis added).

11

motion is DENIED as to standing.

12

Because Figueroa has done that, the Government's

The remainder of the Government's motion seeks summary

13

judgment on the question of whether the Currency is subject to

14

forfeiture and on Figueroa's affirmative defenses.

15

Section 881(a)(6), seized currency is subject to forfeiture if (1)

16

it is intended to be furnished in exchange for controlled

17

substances, (2) it is proceeds "traceable" to such exchanges, or

18

(3) it is otherwise used or meant to be used to facilitate

19

violation of the Controlled Substances Act.

20

argues the currency is either the proceeds of illegal drug sales or

21

is traceable to such sales.

22

a connection between the Currency and illegal drug trafficking by a

23

preponderance of the evidence.

24

States v. $493,850, 518 F.3d 1159, 1170 (9th Cir. 2008).

Under 21 U.S.C.

Here, the Government

As a result, the Government must show

18 U.S.C. § 983(c)(1); United

25

The problem with this motion is that it is premature.

26

the Government filed this and its other motions so early in the

27

case, there has not been a case management conference.

28

result, Figueroa is currently barred from taking any discovery.

18

Because

As a

1

See Civ. L.R. 16-7.

"Generally where a party has had no previous

2

opportunity to develop evidence, and the evidence is crucial to

3

material issues in the case, discovery should be allowed before the

4

trial court rules on a motion for summary judgment."

5

Eng'g, Inc. v. Triangle Pubs., Inc., 634 F.2d 1188, 1193 (9th Cir.

6

1980).

7

the drug dog, Jackson.

8

of a drug-sniffing dog and the testimony of the dog's handler are

9

relevant to the reliability of the dog's alert.

Program

Here, part of the basis for forfeitability is the alert of
As other cases have recognized, the records

See, e.g., Florida

United States District Court

For the Northern District of California

10

v. Harris, 133 S. Ct. 1050, 1057-58 (2013); United States v.

11

$10,700, 258 F.3d 215, 230 & n.10 (3d Cir. 2001).

12

Figueroa disputes large portions of the Agents' description of

13

events.

14

discovery regarding the Agents and to depose them prior to the

15

Court addressing summary judgment.

16

Decl.") at ¶¶ 4-5.

17

not object to the Court allowing discovery into these matters.

18

Reply at 3.

19

Similarly,

At a minimum, he suggests he should be permitted to obtain

ECF No. 57-2 ("Burch 56(d)

The Government notes in its reply that it would

As a result, the Court finds that the Government's summary

20

judgment motion is premature, and that the motion should be DENIED

21

WITHOUT PREJUDICE.

22

instead schedule a case management conference at which the parties

23

and the Court can determine how best to proceed with discovery.

Fed. R. Civ. P. 56(d)(1).

The Court will

24

C.

Motion to Strike

25

Finally, the Government has moved to strike Figueroa's claim

26

on the grounds that he has failed to provide adequate answers to

27

the Government's special interrogatories.

28

forfeiture proceedings, Supplemental Rule G(6) permits the

19

In the context of civil

1

government to serve special interrogatories that "broadly allow the

2

government to collect information regarding the claimant's

3

relationship to the defendant property . . ."

4

$133,420, 672 F.3d 629, 642 (9th Cir. 2012).

5

a verified claim for failure to respond to special interrogatories.

6

Supp. R. G(8)(c)(i)(A).

7

United States v.
The Court may strike

The Court previously granted a motion to compel Figueroa to

8

respond to the Government's special interrogatories.

9

("Order").

ECF No. 49

In that order, the Court rejected Figueroa's argument

United States District Court

For the Northern District of California

10

that because his verified claim and limited responses to the

11

Government's special interrogatories were sufficient to establish

12

his standing to contest forfeiture, no further responses could be

13

compelled.

14

ECF No. 82-1 ("Chart").

Subsequently Figueroa twice supplemented his answers.

15

The Government's chief complaints at this stage are threefold.

16

First, Figueroa continues to assert numerous boilerplate objections

17

despite the Court's order to the contrary.

18

second supplemental answers were untimely and unauthorized.

19

his answers to most of the special interrogatories are

20

insufficient.

21

arguing that the Court should reconsider its prior order because

22

the Court misinterpreted the Supplemental Rules and the Ninth

23

Circuit's decision in $133,420 in granting the Government's motion

24

to compel.

25

to satisfy both the requirements of the Supplemental Rules and the

26

Court's prior order, and that striking his claim would be an

27

inappropriately severe sanction at this stage.

28

Second, Figueroa's
Third,

Figueroa disagrees with these arguments, instead

Figueroa also asserts that his answers are sufficient

As a preliminary matter, the Court declines to reconsider the

20

1

order on the motion to compel.

Figueroa's chief objection to the

2

order granting the motion to compel is that because Figueroa is

3

asserting an ownership interest in the Currency, his standing to

4

contest the forfeiture is clear.

5

Figueroa has provided sufficient detail to show his standing at

6

this time.

7

subsequent discovery, seek to rebut that evidence.

8

States v. $574,840, 719 F.3d 648, 652-53 (7th Cir. 2013).

9

Court's reading of the Supplemental Rules and applicable precedent,

As the Court found above,

That said the Government may, on the basis of
See United
By the

United States District Court

For the Northern District of California

10

that does not relieve Figueroa of the obligation to respond to

11

special interrogatories.

12

the argument that "because a claimant can establish standing merely

13

by asserting an interest in the property, and because the advisory

14

committee's note to Supplemental Rule G(6) limits the

15

interrogatories to questions 'bearing on a claimant's standing' it

16

follows that Rule G(6) allows only questions regarding the identity

17

of the claimant and the type of legal interest asserted.").

18

Figueroa clearly disagrees, but disagreement with the Court's

19

orders is not a basis for reconsideration.

20

(c).

21

See $133,420, 672 F.3d at 642 (rejecting

See Civ. L.R. 7-9(b)-

As to the Government's first point, the Court agrees.

The

22

Court has little patience for the unjustified (but puzzlingly

23

pervasive) practice of asserting numerous, often frivolous

24

boilerplate objections with any discovery response.

25

States v. $333,806.93, No. CV 05-2556 DOC (ANx), 2010 WL 3733932,

26

at *2 (C.D. Cal. Aug. 30, 2010) ("In addition to being

27

substantively incorrect, [Claimant's] stated objections to

28

the . . . special interrogatories constitute cursory

21

See United

1

boilerplate."); see also Sec. Nat'l Bank v. Abbott Labs., 299

2

F.R.D. 595, 596 (N.D. Iowa 2014) ("Today's 'litigators' . . . often

3

object using boilerplate language containing every objection

4

imaginable, despite the fact that courts have resoundingly

5

disapproved of such boilerplate objections.") (footnote omitted).

6

This is further underscored by the fact that the Court already

7

overruled these objections in granting the Government's motion to

8

compel.

9

objections seems especially striking . . . given the Court's

See $333,806.93, at *2 ("The insufficiency of boilerplate

United States District Court

For the Northern District of California

10

previous order specifically instructing [Claimant] to respond to

11

the special interrogatories . . . .").
Despite that, Figueroa is correct in arguing that he has fully

12
13

responded to some of the Government's interrogatories.

14

Specifically, the Court finds that Figueroa has adequately answered

15

interrogatories number 1, 2, and 5-9.

16

some.

17

the circumstances under which Figueroa acquired the Currency, and

18

if acquired at different times, the circumstances under which each

19

interest was acquired.

20

acquired roughly half the Currency from a cash inheritance and the

21

remainder from his employment, the Court finds this satisfactorily

22

explains the "circumstances" by which he acquired the Currency.

23

Explaining the "circumstances" of acquiring the Currency does not

24

require, as it seems the Government believes, Figueroa to go

25

through each specific instance during which he performed some

26

freelance graphic design or consulting work and explain the project

27

and identify the amount of money he received.

28

reads this request and others like it, for example number 5, as

This is a close question on

For example, interrogatory number 2 seeks a description of

While Figueroa has simply stated he

22

Instead, the Court

1

only requiring a general description of the circumstances.

2

Similarly, in his response to interrogatory number 6, Figueroa

3

states that he obtained a small amount of the Currency in paychecks

4

from a prior employer, Instituto Familiar de la Raza, and provided

5

two paystubs.

6

Government's issue with Figueroa's response is somewhat unclear.

7

The Government states Figueroa's answer is "incomplete" because

8

Figueroa said "he obtained 'most of the defendant property in cash'

9

and 'some small portion' in checks from Instituto Familiar,"

ECF No. 68-1 ("Supplemental Answers") at 16.

The

United States District Court

For the Northern District of California

10

without offering more detail about the exact problem with this

11

answer.

12

Answers") at 18).

13

Government's issue is that Figueroa responded without

14

"identify[ing] the payor and payee of the check(s), the amount of

15

the check(s), and the approximate date of the check(s)," as

16

requested.

17

problems with the Government's view.

18

identified the payor (Instituto Familiar), the payee (himself), and

19

the approximate dates during which he received the relevant checks

20

(2007-2009).

21

he received from Instituto Familiar or given the exact amount of

22

those checks, "[o]n motion or on its own," the Court must weigh the

23

burden of proposed discovery against its likely benefit.

24

Civ. P. 26(b)(2)(C)(iii).

25

life savings and that any checks form only a small portion of the

26

Currency.

27

about the payor, payee, and approximate dates of any relevant

28

checks.

Strike Reply at 7 (quoting ECF No. 68-1 ("Supplemental
As best as the Court can discern, the

Supplemental Answers at 16.

However there are several

First, Figueroa has

Second, even if Figueroa has not listed every check

Fed. R.

Figueroa claims that the Currency is his

Furthermore, Figueroa has already provided information

Given those facts, the Court finds that the burden of

23

1

providing additional detail regarding checks that are in some cases

2

as much as seven years old would be unduly burdensome in light of

3

the relatively small probative value of such information.

4

Accordingly the Court finds this response is also sufficient.

5

the Government can articulate some reason why the benefits of this

6

information outweigh the burden then it may simply seek this

7

information in the ordinary course of discovery.

8
9

If

At the same time, the Government is right that Figueroa's
answers to some of the special interrogatories remain deficient in

United States District Court

For the Northern District of California

10

several respects.

Specifically the Court finds Figueroa's answers

11

to interrogatories numbers 3, 4, and 10 are insufficient.

12

argues interrogatories 3 and 10 need not be answered with anything

13

but objections because they either (1) seek production of

14

documents, and (2) exceed the scope of the Supplemental Rules

15

because they seek information that does not bear on the claimant's

16

standing.

17

identify any records or documents he has with specificity.

18

Supplemental Answers at 6.

19

"[i]dentifying 'any' documents that you have 'with specificity' is

20

asking for the production of documents."

21

obviously mistaken, and the Court has previously rejected any

22

suggestion that the Government's interrogatories are actually

23

requests for production.

24

number 10 asks Figueroa to identify people with information

25

relating to his claims of ownership and possession of the Currency.

26

While Figueroa contends this has no bearing on his standing, that

27

is not the test.

28

interrogatories to probe the claimant's "relationship to the

Not so.

Figueroa

First, request number 3 asks Figueroa to

While Figueroa argues that

See Order at 5.

Opp'n at 17.

This is

Similarly, interrogatory

Instead, the Supplemental Rules permit

24

1

defendant property . . . ."

Supp. R. G(6).

As the Ninth Circuit

2

found, while endorsing a special interrogatory seeking, among other

3

things, "the names, address and telephone numbers of the persons

4

from whom the currency was obtained," and "witnesses, including the

5

names addresses, and telephone numbers of such witnesses, to any of

6

the transactions by which the defendant currency was obtained,"

7

such questions are "well within the scope of the rule."

8

672 F.3d at 636 & n.5.

9

response to interrogatory number 4 is insufficiently detailed.

$133,420,

Finally, the Court finds Figueroa's

United States District Court

For the Northern District of California

10

Interrogatory number 4 seeks a list of sources of the Currency,

11

including a list of persons from which the Currency was obtained

12

and dates on which that occurred.

13

he works as a "freelance consult[ant] and graphic design[er]," with

14

"Art-based organizations," his response to interrogatory number 4

15

fails to identify those organizations or any other clients he may

16

have had as a freelance graphic designer and how much, if known, he

17

obtained from each source.

18

more detail, the Court cannot conclude that Figueroa has adequately

19

answered these interrogatories.

20

While Figueroa has stated that

Supplemental Answers at 12.

Without

Nevertheless, the Court is not persuaded that the Government's

21

suggested remedy -- striking Figueroa's claim as a sanction for

22

failure to comply with the Supplemental Rules -- is appropriate at

23

this time.

24

Rules point out, "[n]ot every failure to respond to subdivision (6)

25

interrogatories warrants an order striking the claim."

26

Furthermore, this is not a case in which the claimant has

27

completely failed to respond to special interrogatories, see United

28

States v. $24,700, No. 2:10-cv-03118-GEB-DAD, 2012 WL 458412, at

As the advisory committee notes to the Supplemental

25

1

*2-3 (E.D. Cal. Feb. 10, 2012), missed the deadline to respond by

2

an unreasonable period of time, see United States v. $67,900, No.

3

2:13-cv-01173 JAM-AC, 2013 WL 6440211, at *2 (E.D. Cal. Dec. 9,

4

2013), or failed to respond after seemingly abandoning the

5

litigation.

6

2013 WL 5314890, at *4-5 (E.D. Cal. Sept. 20, 2013).

7

contrary, Figueroa's answers, while inadequate in places, evince

8

candor and effort.

See United States v. $10,000, No. 1:11-cv-01845-SKO,
On the

United States District Court

Rather than strike Figueroa's claim at this point, the Court

10
For the Northern District of California

9

DENIES the motion to strike without prejudice and ORDERS Figueroa

11

to serve supplemental answers to special interrogatories numbers 3,

12

4, and 10 within fourteen (14) days from the signature date of this

13

order.

14

supplementation, the Government may re-file its motion to strike.

If Figueroa's answers remain insufficient after

15
16
17

V.

CONCLUSION
For the reasons set forth above, the Court ORDERS as follows:

18



Figueroa's motion to suppress is DENIED.

19



The Government's Motion for Summary Judgment is DENIED

20

WITHOUT PREJUDICE.

21

for summary judgment after the parties have had an

22

opportunity to conduct more discovery.

23

P. 56(d).

24



The Government may re-file a motion

See Fed. R. Civ.

The Government's motion to strike for failure to provide

25

adequate responses to special interrogatories is DENIED

26

WITHOUT PREJUDICE.

27
28



Figueroa is ORDERED to file supplemental answers to
special interrogatories number 3, 4, and 10 within

26

1

fourteen (14) days. If he does not do so, or his answers

2

remain insufficient after supplementation, the Government

3

may re-file its motion to strike.

4
5

IT IS SO ORDERED.

6
7
8

Dated: December 8, 2014
UNITED STATES DISTRICT JUDGE

9

United States District Court

For the Northern District of California

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

27