United States of America v. $7,679.00 United States Currency
Filing
93
DECISION AND ORDER adopting Magistrate Judge Hugh B. Scott's Report and Recommendations 61 74 83 in their entirety. A Status Conference is set for 10/17/2018 at 12:30 PM before Hon. Richard J. Arcara. A copy of the Decision and Order has been mailed to Andrew D. Fitch, 9276 Ridge Road, Middleport, NY 14105. SO ORDERED. Signed by Hon. Richard J. Arcara on 9/28/2018. (LAS)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
UNITED STATES OF AMERICA,
Plaintiff,
DECISION AND ORDER
13-CV-727-A
v.
$7,679.00 UNITED STATES
CURRENCY,
Defendant.
This civil action is brought pursuant to 21 U.S.C. § 881(a)(6) to forfeit to the
United States the defendant $7,679.00 as property that was allegedly involved in
marijuana trafficking. An innocent-owner claim to the currency was filed by Andrew
Fitch, who is appearing pro se.
The action was referred to Magistrate Judge Hugh B. Scott pursuant to 28
U.S.C. § 636(b)(1) for the conduct of pretrial proceedings. Before the Court are
three Reports and Recommendations. Dkt. Nos. 61, 74, and 83. The United States
objects to the Magistrate Judge’s recommended denial of its motion for summary
judgment. Dkt. No. 61. Claimant Fitch objects to the Magistrate Judge’s
recommended denials of his cross motion for summary judgment, his motions to
dismiss, and his motion to suppress. Dkt. Nos. 74, and 83, respectively.
Pursuant to 28 U.S.C. §636(b)(1), the Court makes a de novo
determination of those portions of a report and recommendation to which specific
objections have been made, and otherwise reviews for clear error. The Court
assumes the parties’ familiarity with the prior proceedings and the issues under
review. The Court construes Fitch’s pro se filings to raise the strongest arguments
that they suggest. See Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 477 (2d
Cir. 2006). Upon de novo and clear error review, and after considering the
submissions from the parties, the Court hereby adopts the Magistrate Judge’s
recommended findings and conclusions, Dkt. Nos. 61, 74, and 83, to resolve the
pending motions.
The United States has objected, in part, that the Magistrate Judge failed to
adequately consider a positive canine alert as part of the totality of the evidence that
supports forfeiture of the defendant currency. While a positive canine alert is
relevant as part of the totality of the evidence, see, e.g., United States v. $60,020.00
U.S. Currency, 41 F. Supp. 3d 277, 289 (W.D.N.Y. 2011), Fitch has made a meager,
but sufficient showing that factual disputes exist and that credibility determinations
must be made to resolve his claim. Under these circumstances, summary judgment
must be denied.
In any event, a positive canine alert, standing alone, is not sufficient to
establish substantial connection to drug trafficking by a preponderance of the
evidence. See United States v. $7,877.61 U.S. Currency, No. 09-CV-6306P, 2015
WL 5719811, at *8 (W.D.N.Y. Sept. 30, 2015) (denying summary judgment where
evidence included positive canine alert, and observing that “courts throughout the
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country differ as to the relative weight to be accorded a positive canine alert on
currency.”) (citations omitted). The weight to be afforded a positive canine alert
must be assessed in the context of all the evidence, and factual issues preclude
summary judgment.
The Court has considered the parties’ remaining arguments and concludes
they merit no discussion. A status conference is scheduled for October 17, 2018, at
12:30 p.m., to schedule further proceedings and to address the status of the related
cases.
IT IS SO ORDERED.
____Richard J. Arcara____________
HONORABLE RICHARD J. ARCARA
UNITED STATES DISTRICT COURT
Dated: September 28, 2018
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