United States of America v. $25,180.00 in United States Currency

Filing 68

ORDER - The Magistrate Judge's Findings, Recommendation, and Order (filing 56 ) are adopted. The claimant's Statement of Objections to Magistrate Judge's Findings, Recommendation, and Order (filing 67 ) is overruled. The claiman t's motion for summary judgment (filing 23 ) is denied. The parties are instructed, pursuant to the Magistrate Judge's order of August 5, 2014 (filing 66 ) to contact the Magistrate Judge's chambers on or before October 6, 2014, to discuss final case progression deadlines. Ordered by Judge John M. Gerrard. (GJG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
UNITED STATES OF AMERICA,
Plaintiff,

4:13-CV-3103

vs.
ORDER
$25,180.00 IN UNITED STATES
CURRENCY,
Defendant.
This matter is before the Court on the motion for summary judgment
(filing 23) of the claimant, John Anderson; the Magistrate Judge's Findings,
Recommendation, and Order (filing 56) recommending that the motion be
denied; and the claimant's Statement of Objections to Magistrate Judge's
Findings, Recommendation, and Order (filing 67). The Court will overrule the
objection, adopt the findings and recommendation, and deny the motion for
summary judgment.
Summary judgment is proper if the movant shows that there is no
genuine dispute as to any material fact and that the movant is entitled to
judgment as a matter of law. See Fed. R. Civ. P. 56(a). The movant bears the
initial responsibility of informing the Court of the basis for the motion, and
must identify those portions of the record which the movant believes
demonstrate the absence of a genuine issue of material fact. Torgerson v. City
of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011) (en banc). If the movant
does so, the nonmovant must respond by submitting evidentiary materials
that set out specific facts showing that there is a genuine issue for trial. Id.
On a motion for summary judgment, facts must be viewed in the light most
favorable to the nonmoving party only if there is a genuine dispute as to
those facts. Id. Credibility determinations, the weighing of the evidence, and
the drawing of legitimate inferences from the evidence are jury functions, not
those of a judge. Id. And this Court conducts a de novo review of any part of
the Magistrate Judge's findings and recommendations to which an objection
has been made. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3).
The claimant first contends that the Magistrate Judge erred in not
recommending that the Court grant summary judgment because, according to
the claimant, the evidence is insufficient as a matter of law to show that the
property is substantially connected to drug trafficking. See, 21 U.S.C. §

881(a)(6); United States v. $124,700, 458 F.3d 822, 825 (8th Cir. 2006). The
claimant offers several arguments that he says undercut the weight of the
government's evidence: that his untruthful statements to law enforcement
are insufficient absent evidence of a specific drug transaction; that the drug
detection dog's "alert" was of little probative value; that the amount of
currency found in this case does not particularly suggest drug trafficking; and
that items usually involved with drug trafficking were not found in this case.
Filing 67 at 6-14.
The claimant relies heavily on the Eighth Circuit's recent decision in
United States v. $48,100, 756 F.3d 650 (8th Cir. 2014), in which the Court of
Appeals reversed the Magistrate Judge's order of forfeiture for insufficient
evidence. The Court agrees that the Eighth Circuit's decision provides
guidance pertinent to this case. But there is more evidence in this case to
support the government's position than was present in $48,100. In particular,
in this case, the claimant had initially denied possessing a large amount of
cash. Filing 53 at 40. The claimant's subsequent explanation for his
possession of the property may have carried more weight had it been stated
in the first place.
And, as the Magistrate Judge noted, there are also substantial reasons
to question the claimant's account of when, where, and why he was traveling.
Filing 56 at 9-10. The claimant's explanation for why he wasn't completely
truthful with law enforcement, and the source and purpose of the money he
concealed, may (or may not) prove persuasive—but those explanations will
have to be weighed by the trier of fact. When all the evidence is considered,
there is enough—if taken in the light most favorable to the government—to
support a government verdict. Compare, e.g., $124,700, 458 F.3d 822; United
States v. $117,920, 413 F.3d 826 (8th Cir. 2005).
The claimant also contends that the Court should have suppressed the
search of his vehicle, based on the same arguments about the weight and
persuasiveness of the evidence. Filing 67 at 16. And the claimant asserts in
particular that the drug detection dog's "alert" to the vehicle was
unpersuasive. Filing 67 at 16-17. The claimant points out that a dog's
manifestation of "interest," short of a positive alert, does not establish
probable cause for a search. United States v. Heir, 107 F. Supp. 2d 1088, 1096
(D. Neb. 2000) (citing United States v. Jacobs, 986 F.2d 1231 (8th Cir. 1993)).
According to the claimant, the video recording of the sniff shows that the
dog's activity was ambiguous. Filing 67 at 16-17.
But the Court is not particularly equipped to interpret the dog's
behavior, and the only evidence in the record to assist the Court is the
testimony of the dog's handler. And that officer testified at length about his
dog's training, standard procedures, and the particulars of his sniff of the
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claimant's vehicle. Filing 54 at 125-82; filing 55 at 198-225. The officer
testified that what was seen on the video recording was the dog clearly
making a positive indication on the door of the claimant's vehicle. Filing 54 at
167-68. This correlates with the Court's own observation—the dog clearly
gets very excited about something. Compare Heir, 107 F. Supp. 2d at 1096.
The claimant also argues that the dog may have been responding to a cue
from the officer. Filing 67 at 16-17. But there is no evidence to that effect.
Compare Heir, 107 F. Supp. 2d at 1096 (defendant's expert witnesses
interpreted dog's interest as being cued by handler). Simply put, there is
nothing in the record at this point to contradict the handling officer's
testimony that his dog positively alerted.
In sum, the Court finds that while there is some weight to the
claimant's argument and evidence, there remain genuine issues of material
fact that must be resolved by a trier of fact. Therefore, the Court will adopt
the Magistrate Judge's findings and recommendation, overrule the claimant's
objection, and deny the claimant's motion for summary judgment.
IT IS ORDERED:
1.

The Magistrate Judge's Findings, Recommendation, and
Order (filing 56) are adopted.

2.

The claimant's Statement of Objections to Magistrate
Judge's Findings, Recommendation, and Order (filing 67) is
overruled.

3.

The claimant's motion for summary judgment (filing 23) is
denied.

4.

The parties are instructed, pursuant to the Magistrate
Judge's order of August 5, 2014 (filing 66) to contact the
Magistrate Judge's chambers on or before October 6, 2014,
to discuss final case progression deadlines.

Dated this 24th day of September, 2014.
BY THE COURT:

John M. Gerrard
United States District Judge
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