United States of America v. $35,890.00 in United States Currency

Filing 31

MEMORANDUM AND ORDER - The Claimant has failed to meet his burden of showing by a preponderance of the evidence that he is an innocent owner of the defendant currency. Accordingly,1) The claim of Terry Anderson, (Filing No. 10 ), is denied and dismissed.2) Judgment will be entered in accordance with this memorandum and order. Ordered by Magistrate Judge Cheryl R. Zwart. (JAB)

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

8:14CV404

vs.
MEMORANDUM AND ORDER
$35,890.00 IN UNITED STATES
CURRENCY,
Defendant.
This matter is before the court for a final decision on the government’s complaint
for forfeiture of $35,890. The defendant currency was seized during a traffic stop
conducted in Omaha, Nebraska on June 14, 2014. Douglas County Deputy Sheriff Dave
Wintle initiated the traffic stop. Eliyah Bell was driving the stopped vehicle; Derrick
Anderson was a passenger. The vehicle, a Hyundai Sonata, had been rented by Derrick
Anderson’s fiancé, Giacoma Telich, who was not in the vehicle at the time of the stop.

The government claims the seized currency is proceeds from, or was being used in
furtherance of, illegal drug trafficking activity. Claimant Terry Anderson is the brother
of passenger Derrick Anderson. Terry Anderson claims he is an innocent owner of the
seized money, having saved money since the ‘90s, and supplementing that savings with a
$10,000 workers compensation settlement received from a past employer and a $10,000
gift received from Zenith Anderson, his sister.

For the reasons discussed below, the court finds the defendant currency was
derived from illegal drug activity, Claimant Terry Anderson is not the innocent owner of
that money, and the money will be forfeited to the United States.

FACTUAL ANALYSIS

1.

Government’s Trial Evidence.

On June 14, 2014, Deputy Wintle, accompanied by his canine partner, Kubo, was
patrolling the traffic on Interstate 80 in Omaha, Nebraska. At approximately 10:00 a.m.,
he observed a westbound Hyundai Sonata change lanes from the inside left lane to the
middle lane of the interstate, swerving into the far right lane as he did so. The driver did
not signal the lane change. Deputy Wintle initiated a traffic stop by activating his
overhead lights. The vehicle promptly pulled over and stopped. See Ex. 1 (in-car camera
video recording).

Deputy Wintle approached the front passenger side of the vehicle and asked for
vehicle information and Bell’s driver’s license. Bell produced an Ohio identification
card, but he did not have a driver’s license, and he could not produce the vehicle rental
agreement.
Bell was seated in Wintle’s patrol vehicle. Deputy Wintle returned to the rental
vehicle and spoke with Derrick Anderson. He then returned to the patrol vehicle, advised
Bell of the reason for the stop, and contacted dispatch to gather vehicle information, and
any criminal history and pending warrant information on both Bell and Derrick
Anderson. While waiting for information from dispatch and completing a warning ticket,
Deputy Wintle asked Bell about the origin, purpose, and destination of his trip. Bell
stated he was heading for vacation, but did not know the destination; perhaps Las Vegas.
During the traffic stop, Bell stated he had been on the road for “a couple of hours,” (Ex.
1, at 10:14:20-27), but based on the trial testimony, Bell and Derrick Anderson had left
Cincinnati, Ohio that morning. Cincinnati is over 700 miles from Omaha, Nebraska.

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Dispatch contacted Deputy Wintle and stated Bell’s driver’s license was
suspended and that Bell appeared to be the subject of a pending arrest warrant. But
dispatch needed to contact Florida to confirm that the warrant was still valid and
determine whether Florida was willing to extradite Bell.

While waiting for this additional information, Deputy Wintle asked Bell if he
possessed any weapons, drugs, or substantial amounts of cash. Bell answered “No.”
Based on Bell’s inability to state his own vacation destination, along with the initial
report of a potential pending warrant, Deputy Wintle suspected Bell may be engaged in
illegal activity. He asked for permission to search the vehicle. Bell responded that the
officer needed to ask Derrick Anderson for consent.

Deputy Wintle approached the passenger side of the stopped vehicle and spoke to
Derrick Anderson. Derrick Anderson explained his fiancé had rented the vehicle, but he
could not produce the rental agreement. In response to the officer’s questions, Derrick
Anderson stated he and Bell were en route to Los Angeles and planned to spend a couple
of days there before returning home. Deputy Wintle asked for consent to search the
vehicle, but Derrick Anderson refused.

Approximately 20 minutes after initiating the traffic stop, and while still awaiting
further information from dispatch regarding the validity of the reported arrest warrant,1
Deputy Wintle removed Kubo from his patrol vehicle to perform a canine sniff of the
stopped vehicle.

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Dispatch was unable to confirm the warrant until after the stop was complete and the
rental vehicle had been towed to the Sheriff’s facility. The warrant was valid and Florida
was willing to extradite. Bell was arrested, booked as a fugitive from justice, and
extradited to Florida to face his pending charges. He did not testify at the trial for this
case.

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Deputy Wintle and Kubo were trained as a canine team in 2006. That training
included teaching Kubo to detect, alert, and indicate to the odor of marijuana, cocaine,
methamphetamine, and heroine, including detection of these odors on currency. Kubo
was not trained to respond to the odor of currency alone. In July of 2006, Deputy Wintle
and Kubo became a certified drug-detection canine team.

They were re-certified

annually and between those annual re-certifications, they continued to train. In addition
to re-certification testing, approximately once a year, Kubo was further tested to see if he
would respond to the odor of circulated currency withdrawn from a local bank. Kubo
passed all certification and re-certification testing, and he never alerted or indicated to
either circulated or uncirculated currency alone.
Kubo’s method of alerting Deputy Wintle to the odor of illegal drugs began with
behavior changes such as deep breathing. Kubo would then continue to search for the
source location, and once he found it, Kubo indicated the source by sitting and staring.

Deputy Wintle commanded Kubo to begin a sniff of the Hyundai Sonata, starting
with the trunk and moving counter-clockwise. As he walked around the vehicle, Kubo
sniffed harder and louder on the driver’s side. He indicated to the odor of illegal drugs by
sitting and staring at the vehicle’s trunk.
After returning Kubo to Deputy Wintle’s vehicle, Bell and Derrick Anderson were
patted down. Nothing was found. Deputy Wintle, now joined by another officer, began a
search of the vehicle, starting with the vehicle’s trunk. Inside the trunk, they saw a
CityGear plastic bag inside a duffel bag, luggage, and a Seal-a-Meal vacuum food sealer.
(Exs. 6-8, 12). Within the CityGear bag, the officers found a gray plastic sack, and
within that sack, another gray plastic sack containing 18 bundles of cash, $2000 per
bundle, for a total later confirmed to be $35,890. (Exs. 9-11, 16). During a further

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search of the vehicle, he found an unopened air sanitizer in a driver’s side door
compartment. (Exs. 13-14).

Deputy Wintle, an experienced law enforcement officer with extensive drug
interdiction training, believed the wrapping and bundling of this cash was consistent with
drug trafficking, he suspected the vacuum food sealer was being used to package drugs
for sale, and he considered the unopened air sanitizer—an unusual thing to find in a rental
vehicle—consistent with planning to later use that vehicle for transporting illegal drugs.

Deputy Wintle returned to his patrol vehicle and asked Bell and Derrick Anderson
about the money. Both denied ownership; Derrick Anderson signed the form disclaiming
any ownership or right to recover the cash. (Exs. 4-5).

Deputy Wintle called Zenith Anderson and Giacoma Telich to locate the owner of
the money. Zenith Anderson stated the money belonged to Terry Anderson, who was
planning to use it for an upcoming surgery. She did not know how much cash was
present or how it was packaged, and stated some of the money was hers but she did not
know how much. She explained that Terry Anderson put the money in the rental vehicle
trunk when she was not present.

Giacoma Telich stated she rented the car so Derrick Anderson and Bell could
travel to Los Angeles and buy property. Initially she stated she knew nothing about any
money in the vehicle. In the same conversation, she also acknowledged there was money
in the trunk, but she did not know how much money or how it was packaged.

After towing the rental vehicle to the station, Deputy Wintle and Kubo performed
a discretionary sniff of the currency. Kubo was deployed in a room with several lockers,
none of which contained anything with the odor of drugs. Kubo did not alert or indicate

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and was removed from the room. An officer then hid the currency removed from the
rental vehicle in one of the lockers. Kubo was again deployed to search the room. He
alerted to the odor of drugs, and indicated it was emanating from the locker which now
contained the hidden currency.

Bell and Derrick Anderson were placed in interview rooms.

Bell requested

counsel and was not interviewed. Derrick Anderson was advised of his Miranda rights
and agreed to answer questions. During that interview, Derrick Anderson explained that
he is a car detailer who makes about $30,000 a year. Derrick Anderson stated the money
in the trunk was not his, and he did not know how the money got into the trunk or how
much money was there. But the money in the vehicle may belong to his brother, Terry
Anderson, who was saving for a surgery.

The currency was seized, Derrick Anderson was released, Bell was booked as a
fugitive from justice, and the rental car was photographed and impounded.

Deputy Wintle spoke with Terry Anderson four days later, on June 18, 2014.
Terry Anderson stated the money in the vehicle was his, he was saving money for a
surgery, and approximately $11,000 of the money was loaned to him by his sister, Zenith
Anderson. Terry Anderson stated he earns approximately $35,000 per year as an overthe-road trucker. He explained he placed the money in the trunk of the rental vehicle and
forgot to remove it before Derrick Anderson and Bell left on their trip.

2.

Claimant’s Trial Evidence.

Derrick, Zenith, and Terry Anderson provided trial testimony in support of Terry
Anderson’s claim.

Derrick Anderson has a prior felony conviction for trafficking

marijuana, and after spending two years in jail, was released in 2011. He testified that

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the vehicle stopped on June 14, 2014 was rented by Telich, his fiancé, two days before
the traffic stop. Derrick Anderson explained that at the time of the stop, he did not own a
vehicle. He testified that Telich rented the vehicle so Bell and Derrick Anderson could
go on a planned vacation.

Derrick Anderson testified that before leaving Cincinnati, he used the rental car to
pick up a nephew and some friends and drive to Zenith Anderson’s home for dinner. He
arrived at Zenith’s home in daylight, but left after dark. Although he had not driven
Terry Anderson to their sister’s home, when he left, Derrick Anderson gave Terry
Anderson and Bell a ride home. He then went home himself, went to bed, and woke up
when it was still dark to begin driving to Las Vegas to gamble. Derrick Anderson
testified that he had never been to Las Vegas before and he intended to stay there a few
days, but he had no lodging reservations. He could not state when the vehicle was
supposed to be returned to the rental company or how long he had possessed it before
beginning the trip.

Derrick Anderson testified that he did not place the vacuum food sealer in the
vehicle trunk. Although he claimed Terry Anderson owned the money in the trunk, he
also stated he was not aware Terry Anderson kept large amounts of cash.

Zenith Anderson testified that she gave $10,000 to Terry Anderson, who was
saving money for weight reduction surgery. She said Terry Anderson was paranoid about
banks so he kept large amounts of money in his home. She stated Derrick and Terry
Anderson were at her home the day before the traffic stop, and while they were there,
Terry Anderson did his laundry. She could not recall if anyone else was present that day.

Claimant Terry Anderson testified that he has worked as a commercial truck driver
since 2005, earning $35,000 to $45,000 per year. (Exs. 102-110). He explained the

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money in the trunk was his: He had accumulated by saving money for more than two
decades, augmenting that total with the $10,000 received as a worker’s compensation
settlement, and a $10,000 gift from his sister, Zenith Anderson. (Ex. 101). Terry
Anderson testified that he has a bank account. The worker’s compensation settlement
was deposited into the bank and then withdrawn in cash, and his wages are directly
deposited and then withdrawn. Terry Anderson testified that he bundles and bands the
withdrawn cash it so it’s easier to count, and places it in his bedroom closet.

Terry Anderson owned a vehicle in June of 2014. However, he testified that on
the day prior to the traffic stop, Derrick Anderson picked up Terry Anderson with the
rental car and drove first to a laundromat so Terry Anderson could do his laundry, and
then to Zenith Anderson’s home. Terry Anderson testified that when he was picked up at
his house, he placed a bag with a partial load of laundry and the money from his bedroom
closet into the trunk of the rental vehicle. He testified that he intended to move the
money to Zenith Anderson’s house because a robbery had recently occurred at his
apartment building. Terry Anderson testified that the money must have come out of the
bag while it was in the trunk, he forgot it was there, and he never brought it into his
sister’s home. He claims he tried to call Derrick Anderson about the money the next day,
but his brother did not answer the phone.

LEGAL ANALYSIS

The United States alleges that the Currency is subject to forfeiture under 21 U.S.C.
§ 881(a)(6), which states:
The following property shall be subject to forfeiture to the United States
and no property right shall exist in them: . . . (6) All moneys, . . . furnished
or intended to be furnished by any person in exchange for a controlled
substance . . ., all proceeds traceable to such an exchange, and all moneys, .

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. . used or intended to be used to facilitate any violation of [the Drug Abuse
Prevention and Control Act].
21 U.S.C. § 881(a)(6).

In a forfeiture action, the government has the burden of

establishing by a preponderance of the evidence that the seized property is substantially
connected to drug trafficking. 18 U.S.C. § 983(c)(1) & (3). Circumstantial evidence can
establish that burden of proof. United States v. $84,615 in U.S. Currency, 379 F.3d 496,
501 (8th Cir. 2004). The government does not necessarily have to show a connection
between the seized property and a specific drug transaction.

United States v.

$150,660.00 in U.S. Currency, 980 F.2d 1200, 1205 (8th Cir. 1992).

The defendant currency totaled nearly $36,000, was banded in $2000 bundles, and
was found double-bagged in plastic within a duffel bag. Eighth Circuit has “adopted the
common-sense view that bundling and concealment of large amounts of currency,
combined with other suspicious circumstances, supports a connection between money
and drug trafficking.” United States v. 124,7000 in U.S. Currency, 458 F.3d 822, 826
(2006) (internal citations omitted); see also United States v. $117,920.00 in U.S.
Currency, 413 F.3d 826 (8th Cir. 2005) (seized money hidden beneath clothing, wrapped
in a plastic sack, and in a piece of luggage and evidence of concealment by the claimant);
United States v. $12,390.00 in U.S. Currency, 956 F.2d 801 (8th Cir. 1992) (noting that
currency wrapped in rubber bands was characteristic of the way drug money is stored).
Kubo, a reliable and certified drug detection canine, indicated to the odor of illegal drugs
at the trunk of the rental car, and then independently to the money itself, which strongly
supports a connection between the currency and drug trade. See United States v. $84,615
in U.S. Currency, 379 F.3d 496, 502 (8th Cir. 2004). The fact that Telich, who rented the
vehicle, was not in the vehicle, and an unopened air freshener was located in the rental
car, further supports a finding that the vehicle itself was being used for illegal drug
trafficking. See $124,700 in U.S. Currency, 458 F.3d at 826. At the time of the stop,
Bell and Derrick Anderson provided inconsistent stories about where they were going.
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At the time of the stop, Bell stated they had been driving for “a couple of hours” before
the traffic stop. But based on the trial testimony, they had driven 700 miles and through
the night before being stopped in Nebraska. Bell was the subject of a Florida arrest
warrant, and Derrick Anderson was previously convicted on felony charges of
distributing marijuana.

Based on the totality of the evidence presented, the court finds the government has
proved, by a preponderance of the evidence, that the seized currency located in the trunk
of the rental vehicle is substantially connected to illegal drug trafficking.

If the government meets its burden, the claimant may nonetheless prevail if he
proves, by a preponderance of the evidence, that he is an “innocent owner” of the seized
currency. 18 U.S.C. § 983(d)(1). To qualify as an innocent owner, the claimant must
prove he has an ownership interest as defined in the statute. Under the civil forfeiture
statute, the term “owner” includes “a person with an ownership interest in the specific
property sought to be forfeited,” and excludes “a nominee who exercises no dominion or
control over the property.” 18 U.S.C. § 983(d)(6)(A) and (B); United States v. One
Lincoln Navigator, 328 F.3d 1011, 1014 (8th Cir.2003). An “innocent owner” is “an
owner who (i) did not know the conduct giving rise to the forfeiture; or (ii) upon learning
of the conduct giving rise to the forfeiture, did all that reasonably could be expected
under the circumstances to terminate such use of the property. 18 U.S.C. § 983(d)(2)(A).
A claimant bears the burden of proving he was an innocent owner by a preponderance of
the evidence. United States v. One 1989 Jeep Wagoneer, 976 F.2d 1172, 1174 (8th Cir.
1992).

Terry Anderson claims he placed his life savings—money he was saving for a
surgical procedure—in plastic bags within a duffel bag, tossed the duffel bag with his
laundry in the trunk of his brother’s rental car, and forgot it there.

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This story is

implausible and not credible, particularly coming from someone so conscientious about
protecting his money that he refused to keep it in his closet following a robbery in his
apartment building, or to keep it in the bank where he had an account. As to the money
itself, depending on who was talking and when the statements were made, Terry
Anderson’s intended purpose for the money was to either buy some property or to pay for
surgery, the money from Zenith Anderson was either a gift or a loan, Telich owned either
some or none of the money, and Zenith Anderson owned either some or none of the
money.
The witnesses’ stories about the events preceding the trip, and how the money
managed to get into the rental vehicle trunk, were likewise inconsistent. Terry Anderson
claims he placed the cash in the trunk when Derrick Anderson gave him a ride to Zenith
Anderson’s house: Derrick Anderson claims he did not pick up Terry Anderson that day.
Terry Anderson claims Derrick Anderson drove him to the laundromat; Derrick
Anderson states he picked up a nephew and some friends (but not Terry Anderson) and
drove to Zenith Anderson’s house; and Zenith Anderson states Terry Anderson did his
laundry at her house. And perhaps most importantly, there is no evidence explaining why
Terry Anderson’s cash, which he allegedly withdrew from his bank account for storage in
his closet, had an odor of illegal drugs when, in all other testing, Kubo did not detect an
odor of drugs on circulated cash.
Having personally observed and listened to the witnesses as they testified,2 the
court finds the testimony of Derrick, Terry, and Zenith Anderson was not credible. Terry
Anderson has failed to prove he owns the defendant currency. And even if the court
assumes he is the owner, Terry Anderson has failed to prove that he did not know the
money was being used for illegal drug trafficking, or that, upon learning it was being

2

The claimant and his witnesses appeared by videoconference. The court was
able to clearly see them while they testified.
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used for that purpose, he did everything he reasonably could to prohibit that use of his
money. The Claimant has failed to meet his burden of showing by a preponderance of
the evidence that he is an innocent owner of the defendant currency.
Accordingly,
IT IS ORDERED:
1)

The claim of Terry Anderson, (Filing No. 10), is denied and dismissed.

2)

Judgment will be entered in accordance with this memorandum and order.

February 22, 2016
BY THE COURT:
s/ Cheryl R. Zwart
United States Magistrate Judge

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