United States of America v. $64,895.00 in United States Currency
Filing
50
MEMORANDUM AND ORDER granting 40 Motion for Summary Judgment. Court directs that the currency described in the complaint in this case be forefeited to plaintiff. Signed by District Judge Richard D. Rogers on 5/30/2013. (meh)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
UNITED STATES OF AMERICA,
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Plaintiff,
v.
$64,895.00 IN UNITED STATES
CURRENCY, more or less,
Defendant.
Case No. 10-1434-RDR
MEMORANDUM AND ORDER
This is a civil forfeiture action which is before the court
upon
plaintiff’s
motion
for
summary
judgment.
This
action
arises from the seizure of $64,895.00 in United States currency
on October 22, 2010 during a traffic stop on I-70 in Saline
County, Kansas.
Plaintiff contends that the money constitutes
drug proceeds and is forfeitable pursuant to 21 U.S.C. § 881
(a)(6).1
Claimant
legitimately
earned
Michael
and
Shaw
contends
intended
for
that
the
the
money
purchase
of
was
a
commercial welding rig.
Plaintiff’s burden of proof
Plaintiff has the burden of proof to establish that the
currency is properly subject to forfeiture by a preponderance of
the evidence.
18 U.S.C. § 983(c)(1).
Plaintiff must prove that
there is a substantial connection between the currency and drug
1
Section 881(a)(6) provides in part that: “The following shall be subject to
forfeiture to the United States . . . : All moneys . . . or other things of
value furnished or intended to be furnished by any person in exchange for a
controlled substance or listed chemical in violation of this subchapter, all
proceeds traceable to such an exchange, and all moneys . . . used or intended
to be used to facilitate any violation of this subchapter.”
trafficking.
U.S. v. $252,300.00 in U.S. Currency, 484 F.3d
1271, 1273 (10th Cir. 2007) Plaintiff is not required to connect
the currency in question to a particular drug transaction.
U.S.
v. $21,055.00 in U.S. Currency, 778 F.Supp.2d 1099, 1103 (D.Kan.
2011).
It is sufficient if plaintiff can establish that the
currency is the proceeds of drug trafficking generally.
Id. at
1104.
Uncontroverted facts
Plaintiff seeks to meet its burden with the following facts
which are undisputed by claimant.
Scott
Walker
stopped
a
1997
Kansas Highway Patrol Trooper
Mercury
Marquis
for
a
traffic
violation on I-70 in Salina County, Kansas on October 22, 2010.
Claimant Michael Shaw was the driver of the car; Forrest Jones
was a passenger in the car. Shaw told Trooper Walker that they
were driving from Davenport, Iowa to Phoenix, Arizona to attend
car races.
Trooper Walker could smell a strong odor of air
freshener from inside the car and he saw multiple cell phones.
Through
the
dispatcher,
Trooper
Walker
confirmed
that
Shaw’s
driver’s license was suspended or revoked and that he had a
marijuana conviction.
Trooper Walker also did a computer search
and discovered that the car races in Arizona were three weeks
away.
Shaw told Trooper Walker that he was carrying about fifty
thousand dollars in the trunk of the car because he was going to
purchase a commercial welding rig.
2
Shaw opened the trunk of the
car and stated there was about “sixty grand” in a bag.
Trooper
Walker saw seven bundles of vacuum sealed currency in a bag in
the trunk of the car.
The packaging of the money was consistent
with packaging associated with drug trafficking, according to
Trooper Walker.
Trooper Walker has training and experience in
drug investigations.
Trooper Walker seized the money which later was determined
to be $64,895.00.
Shaw was interviewed by DEA Special Agent
Greg Anderson and DEA Task Force Officer David Heim.
Shaw told
them that the money was around $65,000 and that he had saved the
money at his house over the last three or four years.
he
was
a
self-employed
$60,000 per year.
welder
and
made
between
Shaw said
$50,000
and
Shaw said he did not have any welding jobs
set up in the future; that he owned his own truck with a welding
rig in the truck; and that he did not have any leads about
trucks or rigs for sale in Phoenix.
A narcotics detection dog
alerted to the odor of controlled substances coming from the
currency,
which
officers
had
hidden
from
the
dog
under
an
overturned trash can.2
Approximately four months after the traffic stop in Saline
County,
Kansas,
on
March
10,
2011,
Shaw
was
arrested
another traffic stop in Lancaster County, Nebraska.
2
after
Nebraska
Shaw has not conceded that the dog was certified for drug detection because
at the time of his response to the summary judgment motion his attorney had
not received the certification records from plaintiff.
Plaintiff has since
served Shaw’s attorney with the certification records. Doc. No. 48. There
has been no further comment on Shaw’s behalf regarding the drug detection
dog.
3
State Patrol officers seized fifty-five pounds of marijuana from
Shaw’s vehicle.
Shaw told the officers that he had rented the
vehicle in Davenport, Iowa and driven it to Glendale, Arizona
where he received the marijuana.
vehicle with Shaw.
Forrest Jones was again in the
Shaw stated that he was going to pay Jones
$4,000.00 for driving because Shaw did not have a valid driver’s
license.
Shaw also stated that he expected to receive $26,000
to $30,000 for the marijuana in the car.
Shaw said he made the
trip to Arizona to buy marijuana every two months over the last
fifteen months for a total of seven to eight trips.
He further
told the Nebraska patrol officers that on his fifth trip to
Arizona to deliver money and pick up marijuana, he was stopped
in Kansas and officers seized $65,000.00.
Shaw described the
money seized in Kansas as drug proceeds which he intended to
exchange
for
marijuana
in
Arizona.
Shaw
was
arrested
and
convicted of possession of marijuana after the March 10, 2011
traffic stop in Nebraska.
Shaw’s W-2 forms show the following income in recent years:
2006 - $9,100.97; 2007 - $32,852.00; 2008 - $63,466.74; 2009 $8,736.00.
Shaw told the officers in Kansas that the $64,895 was money
he
had
saved
from
jobs
he
had
worked
and
that
he
had
the
currency packaged with a vacuum seal because it would look more
professional and that he was proud of his earned money.
4
Shaw’s evidence
Shaw
has
stated
in
an
affidavit
filed
in
response
to
plaintiff’s summary judgment motion that his statements to the
Nebraska law enforcement officers were false and coerced by the
promise that he would receive more lenient treatment on the
criminal drug charge.
Shaw has also stated in the affidavit
that the Kansas money was legitimately earned and saved for the
purpose of purchasing a commercial welding rig.
Summary judgment standards
Summary
judgment
is
proper
when
“there
is
no
genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.”
FED.R.CIV.P. 56(a).
The court
views “all of the facts in the light most favorable to the nonmovant and reasonable inferences from the record must be drawn
in favor of the non-moving party.”
1192, 1197 (10th Cir. 2007).
Piercy v. Maketa, 480 F.3d
From this viewpoint, the court
attempts to determine whether a reasonable jury could return a
verdict in favor of the non-moving party.
Bones v. Honeywell
Int’l, Inc., 366 F.3d 869, 875 (10th Cir. 2004).
“While we view
the record in the light most favorable to the non-moving party,
that
party
must
still
identify
sufficient
evidence
submission to the jury to survive summary judgment.”
480 F.3d at 1197.
requiring
Piercy,
Summary judgment should be granted where the
evidence is so one-sided that one party must prevail as a matter
5
of law.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52
(1986).
Reasons for granting summary judgment to plaintiff
The
court
has
determined
that
no
reasonable
jury
could
conclude upon the record before the court that the currency
found in claimant Shaw’s vehicle was something other than money
furnished
or
intended
to
be
furnished
in
exchange
for
a
controlled substance and therefore subject to forfeiture.
The major evidence connecting the currency in this case to
drug
trafficking
packaged
in
a
is
as
manner
follows.
First,
consistent
with
the
drug
currency
proceeds.
was
See
$252,300.00, 484 F.3d at 1275 (wrapping in cellophane is of
significant probative value); U.S. v. $ 84,615 in U.S. Currency,
379 F.3d 496, 502 (8th Cir. 2004)(money concealed in vacuumsealed bags described as a “common ploy to mask odors”); U.S. v.
$13,000.00
(D.Colo.
in
U.S.
Currency,
2012)(citing
858
cases
F.Supp.2d
involving
1194,
money
1199-1200
wrapped
in
cellophane or plastic); $21,055.00, 778 F.Supp.2d at 1104 (money
wrapped in cellophane).
Second, the amount of currency was
“’strong evidence that the money was furnished or intended to be
furnished in return for drugs.’”
$13,000.00, 898 F.Supp.2d at
1199 (quoting U.S. v. Currency, U.S. $42,500.00, 283 F.3d 977,
981 (9th Cir. 2002)(quoting U.S. v. $93,685.61 in U.S. Currency,
730 F.2d 571, 572 (9th Cir. 1984)); U.S. v. $149,442.43 in U.S.
Currency, 965 F.2d 868, 877 (10th Cir. 1992).
6
Third, a drug dog
alerted to the currency.
Fourth,
Shaw’s
tax
$21,055.00, 778 F.Supp.2d at 1105.
information
is
not
consistent
with
accumulating by legitimate means the amount of currency he was
carrying in the car.
More
or
Less,
(S.D.Ala.
in
Id. at 1105; see also, U.S. v. $52,000.00,
U.S.
2007)(the
Currency,
absence
of
508
an
F.Supp.2d
apparent,
1036,
1042
verifiable
or
legitimate source of substantial income is probative evidence of
a substantial connection to illegal activity).
Fifth, Shaw was
with Jones in a car driving through Nebraska four months after
the Saline County, Kansas traffic stop.
At that time, Shaw was
arrested and convicted of possessing a large amount of marijuana
which he had obtained from Arizona and was driving to Iowa.
This is evidence of Shaw’s intent and motivation at the time the
currency in this case was found by law enforcement.
See U.S. v.
Conway, 73 F.3d 975, 981 (10th Cir. 1995)(evidence of three prior
drug-related arrests under similar circumstances to a charged
crime may be admitted to prove intent).
Shaw relies upon a bare-bones, conclusory and self-serving
affidavit to create a genuine issue of material fact precluding
summary judgment.
Such affidavits have been held insufficient
and
to
unpersuasive
forfeiture
cases.
overcome
summary
$13,000.00,
858
judgment
in
other
F.Supp.2d
at
1200;
$21,055.00, 778 F.Supp.2d at 1102-03; U.S. v. $864,400.00 in
U.S.
Currency,
$223,178.00
in
2009
WL
2171249
U.S.
Currency,
*4
2008
7
(M.D.N.C.
WL
2009);
4735884
*6
U.S.
v.
(C.D.Cal.
2008); see also, U.S. v. $133,420.00 in U.S. Currency, 672 F.3d
629, 639 (9th Cir. 2012)(an assertion of an ownership interest at
the
summary
judgment
stage
requires
more
than
reasons,
the
court
a
conclusory,
self-serving affidavit).
Conclusion
For
the
plaintiff’s
above-stated
motion
for
summary
judgment
and
shall
direct
grant
that
the
currency described in the complaint in this case be forfeited to
plaintiff.
IT IS SO ORDERED.
Dated this 30th day of May, 2013, at Topeka, Kansas.
s/Richard D. Rogers
United States District Judge
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