USA v. $100120 US Currency
MEMORANDUM Opinion and Order Signed by the Honorable Elaine E. Bucklo on 10/4/2011:Mailed notice(mpj, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
UNITED STATES OF AMERICA
FUNDS IN THE AMOUNT OF ONE HUNDRED
THOUSAND AND ONE HUNDRED TWENTY
DOLLARS ($100,120 U.S.C.),
No. 03 C 3644
MEMORANDUM OPINION AND ORDER
§ 881(a)(6), in which the government seeks the forfeiture of funds
it claims were “furnished or intended to be furnished in exchange
for a controlled substance, are proceeds from the sale of a
controlled substance, or were monies used or intended to be used to
facilitate narcotics trafficking,” was filed in this court more
than eight years ago.
After a peripatetic journey in this court
and one stop in the court of appeals, it is now ripe for decision
on the government’s pending motion for summary judgment.
reasons that follow, I grant the motion.
On the morning of December 6, 2002, DEA Task Force Agent
Officer Romano searched the passenger manifest of an Amtrak train
scheduled to depart Chicago’s Union Station for Seattle later that
He discovered that a passenger named Vincent Fallon had
purchased a one-way, first class ticket with cash less than
seventy-two hours before the train’s scheduled departure, and he
concluded that these details fit the drug-courier profile. Shortly
The officers identified themselves, said they were
conducting a routine check, and asked whether they could ask Mr.
Fallon some questions. Mr. Fallon complied with their request, and
further agreed to show the officers his identification and ticket.
Mr. Fallon told the officers that he was traveling to Seattle to
visit a female friend, and that he planned to stay for about a
The officers asked whether Mr. Fallon was carrying any drugs,
weapons, or large sums of money, to which he replied that he was
Officer Romano noticed that Mr. Fallon was sweating.
officers then asked about the backpack and briefcase in Mr.
Mr. Fallon said that the items belonged to
him, that he had packed them, and that no one had given him
anything to carry.
Mr. Fallon consented to a search of the
backpack, which produced nothing untoward, but he declined to allow
the officers to search the briefcase.
Officer Romano reached into
Mr. Fallon’s compartment and picked up the briefcase.
locked, he asked Mr. Fallon about its contents. Mr. Fallon replied
that it contained “personal effects,” which he further stated were
“the entirety of the purpose that [he] was taking the train.”
Fallon stated that he did not have a key to the briefcase, and that
he used a knife to open it.
Upon further questioning, Mr. Fallon
admitted that the briefcase contained money, “about $50,000,” which
he said he planned to use to purchase a house in Seattle.
point, Agent Romano told Mr. Fallon that the briefcase and its
contents would be detained for further investigation and instructed
Mr. Fallon to accompany the officers inside the station.
Officer Romano then contacted the Chicago Police Department to
request that a drug detection dog be sent to Union Station. Inside
the station, Officer Romano used a knife to open the briefcase and
saw that it contained bundles of cash.
Officer Romano quickly
closed and latched the briefcase without removing its contents.
Shortly thereafter, Chicago Police Canine Officer Richard King
arrived at Union Station.
After a brief discussion with Officer
Romano, during which Officer King observed the briefcase containing
the money,1 Officer King left to retrieve his dog, “Deny,”2 while
Officer Romano hid the briefcase in a room known as the “roll call”
The roll call room contained a counter top extending along
the length of one wall, upon which sat a fax machine and a
computer, and beneath which were several storage cabinets with
The government seems to suggest-–without squarely
asserting–-that Officer King did not know what the briefcase
looked like prior to Deny’s alert to the briefcase. There is
evidence to support claimants’ contention that Officer King did
see the briefcase, so I assume that to be the case, although this
fact is ultimately insignificant to my analysis.
On the other side of the room was a table, a copy
machine, and several filing cabinets.
Officer Romano hid the
briefcase behind the closed door of one of the cabinets.3
After the briefcase had been hidden, Officer King entered the
roll call room with Deny and commanded him to search for drugs.
Whether Deny went straight to the cabinet containing the briefcase
or, instead, sniffed about the roll call room before proceeding to
the cabinet is in dispute. But the evidence is uncontroverted that
Deny “alerted” to the cabinet door by scratching and pulling at it,
then, after opening the cabinet door, alerted to the briefcase
itself by scratching and biting it.4
Deny did not alert to any
other area or item in the roll call room.
The government subsequently learned that contrary to Mr.
Fallon’s initial statements to the officers, neither the briefcase
nor its contents belonged to him.
In fact, Mr. Fallon picked up
the briefcase containing the money from claimant Nicolas Marrocco’s
house the day before Mr. Fallon was scheduled to travel to Seattle.
Mr. Fallon had agreed to deposit the money, which belonged to Mr.
Claimants purport to dispute “whether the briefcase was
hidden behind a closed cabinet door.” But claimants’ citation in
support of the putative dispute reads “See e.g., Exh. 6 at__.”
The cited exhibit is a portion of the deposition transcript of
Officer King (who did not know where the briefcase was hidden)
and does not support the existence of a dispute on this issue.
Claimants object to and purport to deny portions of this
statement, but I conclude that their objections are without merit
and their denials either unsupported (as discussed in the
previous footnote) or immaterial (whether Deny went straight to
where the briefcase was hidden, or instead made a systematic
search of the room before alerting to the briefcase).
Marrocco, in a safety-deposit box in Seattle.
Mr. Marrocco claims that he has never been in the business of
selling drugs, and that the money in the briefcase represents a
portion of his savings from lawful employment over the course of
his life. Mr. Marrocco testified that he kept his savings at home,
in a shoe box, because he had not had any bank accounts since at
least 1992. The documentary evidence of Mr. Marrocco’s income does
not cover the entire period during which he claims to have amassed
$100,120 in savings. But his 1999 federal income tax return states
an adjusted gross income of $40,500; his 2000 federal income tax
return states an adjusted gross income of $39,000; his 2001 W-2
form states that his gross pay for that year was $35,000; and
records from Bloomingdale’s Pizza (where Mr. Marrocco was employed
from 1999 until April of 2002), show that his gross pay for 2002
Mr. Marrocco was unemployed between April of 2002
and December of 2002, when the funds were seized.
testified that his monthly living expenses for the 2000-2003 period
estimate, claiming that his rent was sometimes lower than the
$1,400 he estimated as part of the $2,375 total, and further
asserting that his parents or his employer sometimes paid his rent
and other expenses).
Based on the foregoing evidence, the government calculates
federal, state, and FICA taxes from Mr. Marrocco’s gross earnings,
then adding back his tax refunds, and concludes that Mr. Marrocco’s
living expenses exceeded his lawful net income by over $20,000 for
the 1999-2002 period.
Claimants object to the government’s use of
its own calculations, and they further object that Mr. Marrocco’s
earnings and expense history over a longer period should be
But claimants do not offer any evidence of specific,
additional income for Mr. Marrocco for any time period, other than
Mr. Marrocco’s testimony that his parents gave him approximately
$40,000 (“a very general guesstimate”) during the 1999-2003 time
frame, and that he was working towards partnership in a pizza
franchise that “did” $1.6 to $1.8 million a year.
further state that Mr. Marrocco “moonlighted” at several jobs for
an unspecified time period after leaving college, but they offer no
evidence of what his income may have been during that time.
Claimants also point to Mr. Marrocco’s testimony that he lived
“rent free and virtually expense free” at his parents’ home from
Summary judgment is appropriate when “there is no genuine
issue as to any material fact and ... the moving party is entitled
to a judgment as a matter of law.” Fed.R.Civ.P. 56(c); Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986).
I must construe all
facts in the light most favorable to the claimants, but I am “not
required to draw every conceivable inference from the record.” U.S.
v. Funds in Amount of Thirty Thousand Six Hundred Seventy Dollars,
403 F.3d 448, 454 (7th Cir. 2005) (“$30,670") (quoting Bell v.
Duperrault, 367 F.3d 703, 707 (7th Cir. 2004).
To prevail on its claim of forfeiture, the government must
prove, by a preponderance of the evidence, that there was “a
substantial connection between” the seized funds and the commission
of a drug-related offense.
F.3d at 454.
18 U.S.C. § 881(a)(6); $30,670, 403
The Seventh Circuit has already concluded that Mr.
Fallon’s suspicious travel arrangements were consistent with the
drug courier profile, and that this profile, combined with Mr.
briefcases’s contents,”5 warranted a reasonable suspicion that the
briefcase contained contraband.
U.S. v. Marrocco, 578 F.3d 627,
633 (7th Cir. 2009)(“Marrocco”).
In addition, the government
argues 1) that Deny’s alert is reliable and persuasive evidence
that the money in the briefcase had recently been in contact with
a controlled substance; and 2) that the evidence does not support
claimants’ assertion that the money came from a lawful source.
Taken together, the government argues, these factors lead to only
I consider only those statements that Mr. Fallon made
before being taken into custody. See U.S. v. Funds in Amount of
One Hundred Thousand and One Hundred Dollars, 361 F.Supp.2d 757,
762, n. 1 (N.D. Ill. 2005) (government may not rely on Mr.
Fallon’s post-custody, non-Mirandized statements) (rev’d on other
grounds, U.S. v. Marrocco, 578 F.3d 627 (7th Cir. 2009)).
one reasonable conclusion: that the seized funds were substantially
connected to a narcotics-related offense, i.e., that they were
“furnished or intended to be furnished in exchange for a controlled
substance, are proceeds from the sale of a controlled substance, or
were monies used or intended to be used to facilitate narcotics
trafficking,” and are therefore subject to forfeit.
Claimants argue that Deny’s alert to the briefcase does not
support summary judgment because there are genuine factual disputes
discriminate between innocently contaminated currency and currency
that has been used in connection with a narcotics transaction; 2)
whether Deny alerted to the odor of methyl benzoate or instead to
cocaine; and 3) whether the methodology of the “sniff-search” in
this case adequately protected against cross-contamination or the
possibility of a false positive alert.
In addition to these
issues, claimants argue that Mr. Marrocco has “proven” that the
seized funds came from a lawful source.
On the issue of Deny’s training and certification, it is
undisputed that the dog (and his handler, Officer King) received
marijuana, cocaine, heroin, ecstasy, and methamphetamine, and was
certified by the Chicago Police Department Training Division as a
Police Utility Dog in July of 1998.6 Deny received annual recertifications every year until 2007.
According to Officer King,
the entries recorded in the “dog-log” appended to his affidavit of
training with Officer King, the pair conducted 116 sniff searches.
In each of these searches, Deny alerted to the presence of drugs
(114 times) or drug-tainted money (two times).
In each of the two
instances of a positive alert to currency, and in one further postcertification training exercise, Deny alerted to drug-tainted
currency but did not alert to untainted, circulated currency.
06/24/10 King Aff., ¶ 29; 12/21/10 King Aff., ¶¶ 5-7.
Claimants purport to dispute this evidence based on their
expert, Mr. Kroyer’s, own interpretation of the “dog log.”7
Mr. Kroyer has no personal knowledge of that document, and his
interpretation of it is insufficient to controvert the sworn
testimony of Officer King, who created the log and participated in
the events it records, and who affirmatively disputes Mr. Kroyer’s
The evidence is thus undisputed that on three
Deny received annual re-certifications every year until
2007, when he retired.
Claimants also make legal arguments in objection to these
factual statements (e.g., that the statements are vague,
irrelevant, compound, conclusory, etc.). But L.R. 56.1
statements are not the place for legal arguments. See Judson
Atkinson Candies, Inc. v. Latini–Hohberger Dhimantec, 529 F.3d
371, 382 n. 2 (7th Cir. 2008) (“It is inappropriate to make legal
arguments in a Rule 56.1 statement of facts.”) In any event, I
conclude that claimants’ objections are without merit.
separate occasions during his training, Deny alerted to currency
Between the time Deny was certified and the time of the sniff
search at issue, Deny performed approximately 309 sniff searches
(in training and in the field) and gave 259 positive alerts.8
fifty searches, Deny did not alert.
Of Deny’s 259 positive, post-
certification alerts, ninety-three were in training exercises.
Eighty-two of these revealed hidden drugs, and ten revealed drugscented currency.
As noted previously, Deny did not alert to
untainted currency in training on these occasions.
Deny also made 166 positive, post-certification alerts in the
field, forty-five of which revealed narcotics.
There is a dispute
over whether Deny made 113 or 115 positive alerts to currency in
Claimants object that the evidence discussed in this
paragraph is hearsay, as it is based directly on the “dog log”
itself, rather than on Officer King’s testimony. This objection
has some merit. The government should have had Officer King
attest to the factual underpinnings for the numbers it relies
upon as evidence of Deny’s reliability. Nevertheless, while the
issue is close, I conclude that Officer King’s affidavit
sufficiently attests to the meaning of the terms used in the log
(for example, he states that “pos” refers to a “positive” alert,
06/24/10 King Aff., ¶ 26, and that “references to ‘scented’ or
‘tainted’ currency are to currency that was placed in close
proximity to an illegal drug, thereby picking up the scent of
that drug,” id., ¶ 28) to support the government’s interpretation
of the log entries on which its calculations are based, see,
e.g., entries of 1/27/99, recording a “pos” result to “heroine
scented money,” and 02/17/99, recording a “pos” result to
“heroine tainted U.S.C.”), and that, as noted above, claimants
offer no competent evidence to support any alternative
the field, but this dispute is immaterial because even if Deny
alerted 115 times to currency (as claimants contend), and even if
nevertheless undisputed that drugs or currency known to be tainted
with the scent of drugs was found after 137 of his 259 positive,
post-certification alerts (ninety-two times in training and fortyfive times in the field), making his reliability no less than
This percentage already satisfies the more-likely-than-not
standard needed to prevail on a preponderance of the evidence, see
U.S. v. Limares, 269 F.3d 794, 798 (7th Cir. 2001), and if Deny’s
positive alerts during his pre-certification training are also
considered, his reliability jumps to 67.5%,9 surpassing the 62% the
Limares court specifically held to be sufficient.
climbs higher still if even a fraction of Deny’s field alerts to
currency is assumed to be a “true” alert to the scent of drugs on
money that was recently in close proximity with drugs.
Furthermore, Deny’s reliability is not materially challenged
by claimants’ putative experts.
David Kroyer, a dog trainer whose
Out of Deny’s 375 total positive alerts (pre- and postcertification), drugs or currency known to be scented with drugs
was found after 253 positive alerts, or 67.4% of the time. I
note, simply for the sake of precision, that this percentage is
marginally different the one the government offers, and but it
seems to me that the government erroneously counted 374 total
alerts, rather than 375, which is the total suggested by the
numbers the government elsewhere asserts: 116 positive alerts in
pre-certification training, plus 309 positive alerts in postcertification training and field work combined.
described in the first paragraph of his short affidavit,10 first
suggests that Deny’s certification by the Chicago Police Department
is deficient, opining that it is “normal” for dogs to be certified
by outside agencies.
Mr. Kroyer further opines that Deny’s
certification, or his handler’s affidavit, should reflect which
odors he is certified to detect, and the standards he is required
to meet for certification.11
Mr. Kroyer then opines that Deny’s
controverts the evidence of Deny’s reliability, however, which is
based not on his paper credentials, but on his actual performance
in training and in the field. As the Seventh Circuit has remarked,
the government “need not describe training methods or give the
dogs’ scores on their final exams.
It is enough if a dog is
“Owner, President, Certified Training and Behavior
Consultant, Master Trainer and Training Director of Canine
Headquarters Police K9 division. Eleven years training
experience. Placed green and finished K9 detection dogs for Law
Enforcement, Military, and Homeland Security/Border Patrol.
Trained and placed handlers for Law Enforcement, and Military.
One Hundred percent (100%) passing rate under NNDDA
certification. Conducted seminars and workshops nationally and
internationally on detection dog training. Assisted in
developing a program for mine detection rats at Bogota
University, Columbia (sic).” This recitation, which frankly
raises more questions than answers about Mr. Kroyer’s credentials
(“certified” by whom? “Canine Headquarters Police K9 division” of
what police force?), does little to establish whether he is
qualified to offer any of the opinions he expresses.
In fact, Officer King’s affidavit does state that Deny is
certified to detect marijuana, cocaine, heroin, ecstasy, and
reliable in the field.”
Limares, 269, F.3d at 798.
Kroyer’s opinion that Deny was inadequately trained, is based on
his own interpretation of the “dog log,” a document of which, as
noted above, Mr. Kroyer has no personal knowledge.
In short, Mr.
Kroyer’s opinions relating to Deny’s certification and training do
not controvert the government’s evidence of Deny’s reliability.
The same is true of Dr. Myers’ affidavit, which similarly
suggests that proof of Deny’s reliability requires something more
than evidence of his performance in the field.
See Myers Aff.,
And Dr. Myers’ opinion suffers from additional
flaws that do not require expert rebuttal to perceive.
example, Dr. Myers suggests that Deny’s ability to distinguish
contaminated currency from general circulation currency–-despite
having been established on three separate occasions in Deny’s preand post-certification training exercises--should be disregarded
because “[t]here is no evidence of numerous non-alerts by the
canine, Deny, to circulated U.S. currency.”
This suggests, of
course, that some number of non-alerts to circulated currency would
be enough to establish Deny’s ability to distinguish between
sufficiently “numerous,” how many times would be?
The Myers affidavit verily begs the question, but
then proceeds to its conclusion that Deny’s alert is unreliable
without even the hint of a response.
For the same reason, Dr.
Myers’ opinion regarding the need to “proof” a detector dog off
circulated currency–-even were it not in conflict with the court’s
holding in Limares (reliability based on “how dogs perform in
practice,” not “how they were trained and ‘proofed off’ currency”),
269 F.3d at 798, and based largely on the discredited “currency
contamination theory” (more on this below)--rings hollow on this
Nor does Dr. Myers’ discussion of scientific studies involving
“the potential for cuing” by a detector dog’s handler or other
individuals raise a genuine dispute over the reliability of Deny’s
alert in this case.
Whatever the validity of such studies, the
only bases Dr. Myers cites for his opinion that this particular
alert may have been a response to some “cue,” rather than to Deny’s
detection of the scent of narcotics, are that “the handler knew and
saw the object of the search,” and that the officer who had hidden
the briefcase was “visible in the doorway of the room in which it
had been placed.”
There is no dispute, however, that Deny’s
handler, Officer King, did not know where the briefcase was hidden,
and thus could not have “cued” Deny to alert to the cabinet door.
And, without any explanation of how Officer Romano might have
“cued” Deny from the next room (much less any evidence that the dog
actually saw the officer), the mere possibility that Officer Romano
may have been visible through the doorway is far too speculative a
basis for concluding that Deny’s alert was the result of the
officer’s improper influence, rather than the dog’s detection of
In short, the opinions in the Kroyer and Myers affidavit that
purport to challenge Deny’s training and certification simply do
Accordingly, though the government raises Daubert
challenges to both of these putative experts, I need not examine
their opinions through the Daubert lens at all.
I now turn to claimants’ argument that Deny may have alerted
to the scent of cocaine on innocently contaminated currency, rather
than to the scent of methyl benzoate on currency that was recently
in proximity to narcotics.
The government relies heavily on
$30,670 to rebut this argument, and for good reason: in that case,
whose facts are similar to those here in a number of respects, the
Seventh Circuit held that “a properly trained dog’s alert to
currency should be entitled to probative weight,” 403 F.3d at 459,
In $30,670, DEA agents who had previously reviewed a passenger
manifest and determined that the ticket purchase of an Antonio
Calhoun met the drug courier profile approached Mr. Calhoun at
Midway Airport just before his scheduled departure.
asked whether Mr. Calhoun was carrying narcotics or large amounts
of money. After receiving conflicting answers from an increasingly
nervous-seeming Mr. Calhoun and observing unusual bulges under Mr.
Calhoun’s clothing, the agents searched Mr. Calhoun’s person and
found him to be wearing a woman’s girdle stuffed with bundles of
The agents placed the cash in a plastic bag and hid the bag
inside one of several empty suitcases in a vacant DEA office.
agents met with an Officer Arrigo, the handler of a drug-detector
dog named “Bax,” and told him that confiscated currency had been
hidden somewhere in the room. Officer Arrigo then brought Bax into
the room and commanded him to search for the hidden drugs.
alerted positively to the suitcase containing the money seized from
Because the Seventh Circuit determined that “the crucial
threshold issue is whether Bax’s alert, which linked Calhoun’s cash
hoard to illegal drug activity, is entitled to any probative
weight,” id. at 455, it asked the parties to address, using
detection dogs “falsely alert to currency that is not demonstrably
related to the drug trade, but has been contaminated by prior
owners,” to test the validity of the “currency contamination
theory,” which Mr. Calhoun argued eviscerated the probative value
of Bax’s alert.
The court honed in on the issue of “whether dogs
alert only to cocaine itself or rather to the odor of a cocaine
byproduct, such as methyl benzoate” (which the court noted was “a
circulation is tainted with cocaine, but whether the cocaine itself
is what triggers dog alerts to currency.”
After weighing the
parties’ competing evidence, the court was persuaded by studies
showing that dogs alerted to the odor of methyl benzoate, rather
than to the odor of cocaine, and concluded that, because methyl
returned to general circulation “will quickly lose any detectable
odor of methyl benzoate.”
Accordingly, the court held that
positive dog alerts are indeed entitled to probative weight.
Claimants seek to reopen this debate with the affidavits of
their putative experts, all of whom opine that Deny’s alert may
previously held in this case, “$30,670.00 puts to rest any argument
that dog sniffs are universally unreliable based on the “currency
Order of March 11, 2011.
In that order,
I noted that while the government must present evidence that this
dog sniff is reliable to prevail on its claim, it need not
reestablish the validity of dog sniffs in general by debunking, for
Claimants rely primarily on the affidavit of Sanford
Angelos for this argument, but each of claimants’ experts appear
to incorporate this opinion. Myers Aff., ¶¶ 17-19; Kroyer Aff.,
a second time, the “currency contamination theory.”
Circuit has already weighed in on this issue, and it held that the
“currency contamination theory” does not eviscerate the probative
value of an alert to currency by a properly trained dog. $30,670,
403 F.3d at 459. Accordingly, claimants are not entitled to a jury
based on any putative dispute that Deny may have alerted to
innocently contaminated currency.
Claimants’ final argument relating to the dog sniff evidence
is that the record permits the reasonable conclusion that the
methodology of the search allowed for cross-contamination.
other words, Deny’s alert may have accurately detected the odor of
narcotics, but that the briefcase and currency seized from Mr.
Fallon became contaminated with that odor only after it was seized.
But this argument, like the previous one, is defused by the court’s
analysis in $30,670.
Claimants insist that “no steps were taken to ensure a ‘clean’
testing environment,” relying on the affidavits of Mr. Kroyer and
of Sanford Angelos, a DEA chemist.
But in $30,670, the Seventh
Circuit held that the failure to apply a particular methodology
does not invalidate a facially unobjectionable sniff search and
alert by a demonstrably reliable detector dog, particularly in the
absence of any positive indication that the area in which the
search was conducted was actually contaminated--such as an alert to
other objects or areas of the room.
See $30,670, 403 F.3d at 464.
Moreover, Mr. Angelos’s opinion, which posits “the possibility that
the currency or the case itself was contaminated in the Amtrak
Police Office,” explicitly acknowledges that this theory “would, of
course, require that the desk where [the briefcase] was opened had
traces of cocaine on it or that cocaine is floating in the
atmosphere in that general area.” Angelos Aff., ¶ 11. But there is
no evidence that either of these conditions obtained, placing
Angelos’s opinion squarely in the realm of speculation of the kind
rejected by the $30,670 court.
403 F.3d at 464 (“the mere
possibility of cross-contamination does not deprive Bax’s alert of
In sum, the government has proffered evidence of Deny’s
reliability in detecting the odor of currency that has recently
been in contact with significant amounts of narcotics, and the
opinions of claimants’ experts do not raise a raise a triable
dispute as to the reliability of Deny’s alert. Accordingly, Deny’s
alert to the briefcase supports the government’s claim of “a
substantial connection between” the seized funds and the commission
of a drug-related offense.
I further conclude that claimants have not controverted the
government’s evidence that Mr. Marrocco could not have accumulated
$100,120 through lawful means.
For the only period in which Mr.
Marrocco’s earnings are documented, his self-reported expenses
exceeded his lawful income by a substantial amount.
While it is
true that Mr. Marrocco’s affidavit makes reference to additional
sources of income (stating, for example, that he “moonlighted at a
successful sports bar franchise as a bartender”), Mr. Marrocco
“provided no evidence, such as receipts or bank statements, to
substantiate” his testimony, 403 F.3d at 452.
Marrocco’s testimony regarding his purported employment history
conspicuously lacks any details of the kind that would be necessary
to probe the veracity of his statements: in some cases, he does not
even name his putative employer or indicate the dates he was
allegedly employed, much less does he provide any estimate of the
income he claims to have earned.
As for Mr. Marrocco’s unsubstantiated “guesstimate” that he
received $40,000 from his parents over the course of several years,
and his claim to have lived “rent-free and virtually expense-free”
for a five-year period long before the events at issue, this
imprecise and self-serving testimony does not overcome the obvious
discrepancy between his documented lawful income and his selfreported
preceding the government’s seizure of the funds in the briefcase.
In sum, claimants’ evidence is insufficient to rebut the
government’s evidence that Mr. Marrocco could not have accumulated
$100,120 in savings through lawful means. See $30,670, 403 F.3d at
466, citing United States v. $174,206.00 in U.S. Currency, 320 F.3d
658, 662 (6th Cir. 2003)(“[E]vidence of legitimate income that is
insufficient to explain the large amount of property seized,
legitimate income or any evidence indicating innocent ownership,
satisfies the burden imposed by [§ 881(a)(6)].”) (emphasis in
Because the totality of the circumstances in this case leads
to only one reasonable conclusion--that the subject funds were
government is entitled to summary judgment of forfeiture.
Elaine E. Bucklo
United States District Judge
Dated: October 4, 2011
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