UNITED STATES OF AMERICA v. CURRENCY, $15,795.00 IN U.S.
Filing
32
MEMORANDUM OPINION AND ORDER. Signed by JUDGE N. C. TILLEY, JR. on 6/15/2016, that Plaintiff's Motion for Summary Judgment (Doc. # 18 ) is GRANTED.(Daniel, J)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
UNITED STATES OF AMERICA,
Plaintiff,
v.
$15,795.00 in U.S. CURRENCY,
Defendant.
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1:15CV614
MEMORANDUM OPINION AND ORDER
This matter is before the Court on Plaintiff’s Motion for Summary Judgment
[Doc. #18]. Plaintiff United States of America (“the Government”) argues that
Claimant Michael Anthony Shontia Howze cannot controvert its case nor carry his
burden of showing that he is an innocent owner of the defendant currency (Mem.
in Supp. of Gov’t’s Mot. for Summ. J. at 2 [Doc. #19]). For the reasons explained
herein, the Government’s Motion is granted.
I.
A.
The following facts are undisputed. On January 7, 2015, at approximately
10:59 a.m., while traveling north on I-85 in Davidson County, North Carolina and
conducting preventive patrol duties, North Carolina State Trooper Marcus J. Ward
noticed a Nissan Maxima initially decrease speed to below the posted speed limit
and thereafter leave its lane briefly and follow another car at a distance of two car
lengths while traveling at 70 mph. (Decl. Marcus J. Ward ¶¶ 3, 4 (Apr. 13, 2016)
[Doc. #19-2].) Ward stopped the Nissan for failing to maintain lane control and
following too closely. (Id. ¶¶ 5, 6.)
The vehicle was registered to Howze, the driver, who was able to provide
his license and registration to Ward. (Id. ¶¶ 5-7.) After conducting a consensual
search for weapons and finding none, Ward requested that Howze sit in the front
passenger seat of his patrol car while he ran an intelligence check. (Id. ¶¶ 7, 8.)
During casual conversation with Ward, Howze appeared nervous, gave short
answers, yawned, and bounced his leg, and his hands were shaking. (Id. ¶ 8.)
Howze said that he was on his way from Charlotte, North Carolina to Greensboro,
North Carolina to see his girlfriend to “make a deposit” but was going back to
Charlotte for work at 4:30 p.m. (Id.) For assistance, Ward contacted North
Carolina State Troopers B.P. Daniels and S.L. Williamson who were responding to a
separate incident on I-85. (Id. ¶ 9.)
After he issued Howze a warning ticket, Ward asked Howze if he had any
questions; Howze said no and grabbed the door handle to leave. (Id. ¶ 10.) Ward
then asked Howze if there were any reason he would be nervous; he said no. (Id.)
Ward then asked if there was anything illegal like marijuana or cocaine in the
vehicle, and Howze said no. (Id.) However, when Ward asked if there were large
amounts of money in the vehicle, Howze paused and, in a low voice, said “um,
yeah.” (Id.) After prompted further, he said, “15 . . . 15 . . . $15,775”1 and
1
Eventually, the currency was taken to the State Employees Credit Union where it
was counted and determined to be $15,795.00. (Decl. Ward ¶ 23.)
2
explained that the money was his and that he was going to use it to purchase a
vehicle. (Id.) After Ward asked Howze if there were any weapons,
methamphetamine, or medication in his vehicle, to which Howze responded “no”,
Howze consented to a search of the vehicle. (Id.) He told Ward that the money
was in a bag in the back of the vehicle. (Id.)
By this time, Daniels and Canine Cappers had responded to Ward’s request
for assistance. (See id. ¶ 11.) Daniels is a canine handler assigned to the North
Carolina State Highway Patrol Central Criminal Interdiction Unit and paired with
Cappers, an eight-year old2 Labrador – according to Daniels, a breed specifically
selected for its keen senses and ability to be trained to detect the odor of
controlled substances. (Decl. B.P. Daniels ¶¶ 1, 2 (Apr. 13, 2016) [Doc. #19-3].)
Daniels has successfully completed the Basic Narcotic Canine Course at the
Virginia State Police Academy and attended numerous seminars and training
sessions which exposed him to basic and advanced police canine tactics, training,
and animal behavior. (Id. ¶¶ 1. 2.) He and Cappers have completed thirteen weeks
and approximately 455 hours of basic Canine Handler training with the Virginia
State Police Canine Training Program, and, at the time of the traffic stop at issue
here, Cappers was certified through the Virginia State Police. (Id. ¶¶ 2, 3.)
Specifically, Cappers is trained to detect the presence of the odor of narcotics,
2
At the time of the traffic stop and ensuing canine sniff, Cappers was not yet
eight years old. (See Decl. David D. Peterson ¶ 13 (July 24, 2015) [Doc. #19-1]
(describing Cappers as a seven-year old Labrador).)
3
including marijuana, hashish, heroin, methamphetamine, ecstasy, and powder and
crack cocaine and has reliably detected large amounts of narcotics and United
States currency concealed inside automobiles and elsewhere since being placed
into service. (Id. ¶ 3.)
At Daniels’ direction, Cappers conducted an outside sniff of the vehicle and
displayed a positive alert to the presence of an odor of narcotics. (Id. ¶ 6.) Daniels
and Cappers then returned to Ward’s patrol car while Ward and Williamson
searched the vehicle. (Id.; Decl. Ward ¶ 11.) Ward located a white Abercrombie
and Fitch bag on the right rear floor behind the passenger seat which contained a
plastic bag with a large amount of United States currency in a mixture of small and
large denominations separated in fifteen bundles held by rubber bands. (Decl. Ward
¶ 11.) Ward and Williamson then placed the Abercrombie and Fitch bag along
with three other bags found in the Nissan’s trunk in a line formation on the
roadside. (Id. ¶ 12.) Cappers displayed a noticeable and articulable change of
behavior while passing the first bag and alerted by turning his head and body
quickly back to the bag and sitting in final response by that bag. (Decl. Daniels ¶
7.) The wind current and direction were northward, so after being praised off the
first bag, Cappers traced the odor to its source at the third bag in the formation,
the Abercrombie and Fitch bag containing the currency, and sat in final response
with both ears perked and his tail wagging quickly, an alert to the presence of an
odor of narcotics. (Id.)
4
At some point during the traffic stop,3 Howze told Ward that he bought a
2005 E320 Mercedes-Benz about two weeks earlier and sold it at an auction on
January 2, 2015 with the help of MJ whose telephone number Howze provided.
(Decl. Ward ¶ 13.) Ward called MJ who did not know the amount of money for
which the Mercedes-Benz had sold and was told to confirm the sale of the
Mercedes-Benz with Ward as soon as possible. (Id.) Howze told Ward that he did
not like to use banks and did not want to put his “flip” money in the bank.4 (Id. at
14.) He further explained, because he did not feel safe keeping his money at his
residence that he shares with his nephew and his nephew’s girlfriend, that he was
3
It is unclear from the materials before the Court precisely when in the course of
the traffic stop Howze revealed the details of the vehicle purchase and sale.
Howze’s statements are presented in the order in which they are provided in
Ward’s Declaration, the only evidence of first-hand knowledge of these statements
being made.
4
Ward also says that “[d]uring the search of the Nissan Maxima[,] information
from a bank account was found in the name of HOWZE with approximately a
balance of $47,000.00 in the account[,]” information that Ward shared with
Howze at which point Howze responded that he did not want to put the “flip”
money in the bank. (Decl. Ward ¶ 14.) Although the government has provided
copies of Howze’s Bank of America checking and savings accounts from January
2013 through January 2015, neither account has or has had anywhere close to
$47,000.00 in it. (See Bank of Am. Checking Statements [Docs. #19-5 to 19-7] &
Bank of Am. Savings Statements [Doc. #19-12]). Howze responded to an
interrogatory requesting the identity of every financial account he held or used
since January 2009 by stating that his only financial account is the one with Bank
of America for which he provided statements. (See Answer to Pl.’s Interrog. 6
[Doc. #19-4].) The Government has not provided the “information from a bank
account” that was found during the vehicle search, and the Government has not
otherwise used this information as part of its argument. Therefore, it is determined
that this information is provided in Ward’s Declaration simply to support the
contradictory nature of Howze’s explanations.
5
taking the money to his girlfriend’s house until he could buy another vehicle at
auction. (Id. ¶ 15.)
In the meantime, Ward gave the telephone numbers for MJ and Howze’s
girlfriend to David D. Peterson, Task Force Officer with the Drug Enforcement
Agency in Greensboro in order to investigate and verify Howze’s statements. (Id. ¶
16; Decl. David D. Peterson ¶ 20 (July 24, 2015) [Doc. #19-1].) At approximately
11.36 a.m., Peterson contacted the “girlfriend” who initially stated only that
Howze’s name sounded familiar, but that she could not recall him. (Decl. Peterson
¶ 21.) After thinking about his name, though, she remembered him, but stated
that she did not know him very well. (Id.) She had not spoken with him since the
summer of 2014, was not expecting him or anyone else that day, and had never
kept property for him. (Id.) Later that afternoon, at approximately 4:25 p.m.,
Peterson spoke with MJ who said he did not want to get involved and had not
seen or spoken to Howze for a few months. (Id. ¶ 22.)
Howze was unable to provide bank statements, texts, emails, or bills of
sale.5 (Id. ¶ 23.) He explained that his cell phone would not show recent calls to
his girlfriend, because he called her on a prepaid phone he had left at his residence,
and he could not provide the number for the prepaid phone. (Id.) According to
5
It is unclear when or precisely who asked Howze for this information; however,
Ward stated that Howze was unable to provide these requested items to “TFO
Peterson”, (Decl. Ward ¶ 18).
6
Peterson6, Howze continued to stumble with his words after being confronted with
these discrepancies. (Id.)
Howze was not arrested, and no other purported contraband was found.
(Decl. Ward ¶ 19.) The currency was taken to the Criminal Interdiction Unit Office
in Winston-Salem, North Carolina where a post-seizure canine sniff of the currency
was performed. (Id. ¶ 20; Decl. Daniels ¶ 8.) Outside the presence of Daniels,
Ward set up five manila envelopes, one of which contained the currency, in a line
formation. (Decl. Ward ¶ 21.) Daniels then deployed Cappers over the envelopes
off lead. (Id. ¶ 22; Decl. Daniels ¶ 10.) As he did at the roadside with the
currency in the Abercrombie and Fitch shopping bag, Cappers displayed a
noticeable and articulable change of behavior as he passed by the envelope that
contained the defendant currency and alerted to the odor of narcotics by quickly
turning his head and body toward the envelope containing the currency and sitting
in final response with both ears perked and his tail wagging quickly. (Decl. Ward ¶
22; Decl. Daniels ¶ 10.) According to Daniels, Cappers’ noticeable and articulable
change of behavior was consistent with an alert to the presence of the odor of
narcotics. (Decl. Daniels ¶ 10.)
6
Although only Peterson makes this observation, it is not clear that Howze was
actually in Peterson’s presence or speaking with Peterson over the telephone. It is
difficult to know if this observation is based on Peterson’s first-hand knowledge.
7
B.
Howze does not dispute the events of January 7, 2015 as Ward, Daniels,
and Peterson described them. But, he now presents a completely different
explanation of the source of the currency and his intentions for the currency. He
argues that the sources of the $15,795 in cash are savings from his employment,
inheritance, and a tax refund and that his family has a practice of keeping cash on
hand.
According to Howze, after being released from the custody of the Federal
Bureau of Prisons on December 11, 2012 for conspiracy to sell and distribute
cocaine, an offense to which he pled guilty in March 2003, he quickly obtained
full-time employment. (Answer to Pl.’s Interrogs. 1, 2, 14 [Docs. #19-4, #25-4].)
In January 2013, he began work as a machine operator at Wilbert Plastics in
Belmont, North Carolina and worked hard to save money. (Answer to Pl.’s Interrog.
2.) His weekly paychecks from January 11, 2013 through the date of the traffic
stop were direct deposited into his Bank of America checking account in varying
amounts from several hundred dollars to, on occasion, over four hundred dollars
each. (See Bank of Am. Checking Statements Jan. 11, 2013 – Jan. 23, 2015
[Docs. #19-5 to 19-7].)
It was Howze’s practice to keep only enough money in his checking account
to cover his basic expenses like gas, telephone, and food and entertainment.
(Answer to Pl.’s Interrog. 2.) He lived with his sister and their grandmother and
made neither rent nor mortgage payments. (Answer to Pl.’s Interrog. 8.) Monthly,
8
he contributed approximately $95 towards electricity and $100 towards water and
spent approximately $80 to $100 a week on food and entertainment. (Id.) From
October 2013 to July 2014, he made monthly payments of about $531 for a 2013
BMW X5. (Answer to Pl.’s Interrog. 7.) However, neither his checking nor his
savings account reflects these payments having been made. (See Bank of Am.
Checking Statements & Bank of Am. Savings Statements.) From July 2014 to at
least January 2016, he owned the 2014 Nissan Maxima that he was driving on
January 7, 2015 for which monthly payments were approximately $730 and for
which he made a $1,282 down payment. (Answer to Pl.’s Interrog. 7; Bank of Am.
Account Transaction History [Doc. #19-11]; E. Charlotte Nissan Purchase Option
Contract [Doc. #19-8].) Although there is no apparent evidence of his having
made payments on the BMW, he has made regular payments on the Nissan,
beginning in September 2014, according to his loan statement. (See Bank of Am.
Account Transaction History.) On September 9, 2014, $727.30 was transferred
from his savings account to his car loan (Bank of Am. Savings Statement June 11,
2014 – Sept. 10, 2014), and, on October 31, 2014, $250.80 was transferred
from his checking account to his car loan (Bank of Am. Checking Statement Oct.
25, 2014 – Nov. 20, 2014). However, there is no record of the other sources of
his Nissan loan payments.
Because many members of his family had bank accounts frozen, according
to both Howze and his sister, he and his family members kept their money
primarily in cash. (Answer to Pl.’s Interrog. 2; Decl. Shontell D. Howze ¶ 4 (May
9
23, 2016) [Doc. #25-5] (explaining that she and her brother “were taught that it
was important to keep cash on hand” because, among other things, “[a]ccess to
credit and loans were difficult for many African American families” and that
“[e]ven today, [she] keep[s] cash on hand for emergencies and to avoid potential
difficulties with banks”).) Indeed, for the first six months of 2013, Howze
regularly withdrew hundreds of dollars in cash the same day he was paid, but,
thereafter, he withdrew cash only every so often and, instead, used his debit card
much more frequently. (See Bank of Am. Checking Statements Jan. 18, 2013 –
June 7, 2013 & June 21, 2013 – Oct. 31, 2014.) He explained that he usually
pays, presumably with his debit card, for friends and family when he is out with
them and then they pay him back with cash. (Answer to Pl.’s Interrog. 2.)
In addition to saving approximately $4,000 in cash from his employment,
Howze received $8,000 in cash when his grandmother died in October 2014. (Id.)
His grandmother had saved approximately $17,000 or $18,000 in cash at her
home by the time she died. (Id. (explaining that his grandmother had “saved about
$17,000 in cash”); Decl. S. Howze ¶ 5 (noting that their grandmother had “left
more than $18,000 in cash”).) The family spent approximately $5,000 on her final
expenses and debts before Howze and his sister split the remainder of the money.
(See Answer to Pl.’s Interrog. 2; Decl. S. Howze ¶ 5.) Howze received
10
approximately $8,000, while his sister received approximately $6,000.7 (See
Answer to Pl.’s Interrog. 2; Decl. S. Howze ¶ 5.)
According to Howze, he “combined that $8000 with other money [he] was
saving including the $3,207 [he] had received as a refund from [his] 2013 tax
refund in March 2014 along with the approximately $4000 [he] had saved since
beginning work at Wilbert Plastics in 2013.” (Answer to Pl.’s Interrog. 2.) He
deposited his 2013 tax refund into his checking account on March 19, 2014 and,
on that same day, transferred $1,000 to his savings account. (See Bank of Am.
Checking Statement Feb. 22, 2014 – Mar. 24, 2014; Bank of Am. Savings
Statement Mar. 12, 2014 – June 10, 2014 [Doc. #19-12].)
Howze had been keeping the cash he had saved from his job and tax return,
along with his inheritance, in a box under his bed. (Answer to Pl.’s Interrog. 16.)
However, during the weekend of January 4, 2015, he noticed that it looked as
though someone had tampered with his money. (Id.) Concerned the money was
not safe there any longer, he took it to an old friend’s house and put it in the trunk
of her car in her garage, unbeknownst to her. (Id.) Howze did not want to keep
the money there, so, on January 5, he called his friend Erica Hicks8 in Greensboro.
(Id.) Due to their conflicting work schedules, he did not go to see her until January
7
Howze’s sister’s estimate of their grandmother’s savings would have to be more
accurate than Howze’s estimate if the two split approximately $14,000 after
spending approximately $5,000 on expenses and debt.
8
Because the officers’ declarations do not refer to Howze’s girlfriend by name, it is
unclear if Erica Hicks is the same woman with whom Peterson spoke on January 7.
11
7. (Id.) He also did not tell her he was coming, “but it was because [he] wanted
her to keep [his] money safe since [he] was starting to feel that it wasn’t safe at
[his] house any longer.” (Id.) When he was pulled over on January 7, he was on
his way to Hicks’ place of employment, a hospital in Greensboro. (Id.)
II.
A.
On July 27, 2015, the Government filed the instant action for forfeiture of
the defendant currency (a) pursuant to 21 U.S.C. § 881(a)(6), alleging that it was
furnished or intended to be furnished in exchange for a controlled substance,
represents proceeds traceable to such an exchange, or was used or intended to be
used to facilitate any violation of the Controlled Substances Act and (b) pursuant
to 18 U.S.C. § 981(a)(1)(C), alleging that it constitutes or was derived from
proceeds traceable to an offense constituting specified unlawful activity, as
defined in 18 U.S.C. § 1956(c)(7), or a conspiracy to commit such an offense,
specifically the exchange of a controlled substance in violation of state or federal
law. (V. Compl. of Forfeiture ¶¶ 1, 2 [Doc. #1].)
Summary judgment can be appropriate in civil forfeiture cases. See, e.g.,
United States v. $864,400.00 in U.S. Currency, 405 F. App’x 717 (4th Cir. 2010)
(unpublished) (affirming the grant of summary judgment in a civil forfeiture action).
Summary judgment is appropriate “if the movant shows that 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). A dispute is genuine if a reasonable jury, based on
12
the evidence, could find in favor of the non-moving party. See United States v.
$147,900.00 in U.S. Currency, 450 F. App’x 261, 264 (4th Cir. 2011)
(unpublished) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986)). The materiality of a fact depends on whether the existence of the fact
could cause a jury to reach different outcomes. See Anderson, 477 U.S. at 248. A
court considering a summary judgment motion must view the facts and draw
reasonable inferences from the evidence before it in the light most favorable to the
non-moving party. See id. at 255.
Pursuant to the Civil Asset Forfeiture Reform Act of 2000 (“CAFRA”), the
government bears the initial burden of establishing, by a preponderance of the
evidence, that the defendant property is forfeitable. 18 U.S.C. § 983(c)(1). Here,
for summary judgment purposes, the Government contends that the defendant
currency is forfeitable pursuant to 21 U.S.C. § 881(a)(6) and 18 U.S.C. §
981(a)(1)(C) because it is proceeds from the exchange of a controlled substance or
other specified unlawful activity or was used or intended to be used to facilitate
the commission of a violation of the Controlled Substances Act.9 (Mem. in Supp. of
Gov’t’s Mot. for Summ. J. at 12.) To establish its burden, the government may
use evidence it acquired after filing its complaint for forfeiture. 18 U.S.C. §
9
The Government is proceeding at summary judgment with these two theories,
although in its Verified Complaint for Forfeiture, it also alleged that the currency
was “furnished or intended to be furnished in exchange for a controlled substance
in violation” pursuant to 21 U.S.C. § 881(a)(6). Compare V. Compl. for Forfeiture
¶ 1 with Mem. in Supp. of Gov’t’s Mot. for Summ. J. at 12.
13
983(c)(2). The court “should not view each piece of evidence in isolation, but
rather consider the totality of the evidence as a whole and in the appropriate
context.” $147,900.00, 450 F. App’x at 263.
If the government meets its burden, the burden shifts to the claimant to
show, by a preponderance of the evidence, that he is an “innocent owner” of the
defendant property. 18 U.S.C. § 983(d); $864,400.00, 405 F. App’x at 718.
What the claimant must establish depends on when his interest in the property
arose. While in his Answer [Doc. #9] and his Brief in Response and Opposition to
Plaintiff’s Motion for Summary Judgment [Doc. #25] Howze generally asserts that
he is an innocent owner pursuant to 18 U.S.C. § 983(d)(1), he does not specify
whether he is an innocent owner whose interest in the property existed “at the
time of the illegal conduct giving rise to the forfeiture”, 18 U.S.C. § 983(d)(2), or
whose interest was “acquired after the conduct giving rise to the forfeiture has
occurred”, 18 U.S.C. § 983(d)(3). Because Howze argues that his money was
derived from legitimate sources, it is determined that he is claiming that his interest
in the cash to which Cappers alerted as having the odor of narcotics was acquired
after it would have come in contact with narcotics. Therefore, relevant to this
case, a claimant who acquired his interest in the property “after the conduct giving
rise to the forfeiture has taken place” must establish that he “was a bona fide
purchaser” and “did not know and was reasonably without cause to believe that
the property was subject to forfeiture.” 18 U.S.C. § 983(d)(3)(A).
14
B.
Here, the Government has met its burden of establishing by a preponderance
of the evidence that the defendant currency is proceeds from the exchange of a
controlled substance pursuant to 21 U.S.C. § 881(a)(6). The Government also
alleged and argued that the currency was used or intended to be used to facilitate
a violation of the Controlled Substance Act pursuant to 21 U.S.C. § 881(a)(6).
However, “[i]f the government’s theory is that the property was used in or
facilitated the commission of a criminal offense, . . . the government must also
prove that there was a substantial connection between the property and the
offense.” United States v. Munson, 477 F. App’x 57, 65 (4th Cir. 2012)
(unpublished) (citing 18 U.S.C. § 983(c)(3)); see also Asset Forfeiture Policy
Manual 71 (U.S. Dep’t of Justice 2016) (explaining the purpose and importance of
the Department of Justice’s policy regarding civil forfeiture actions against
“facilitating property” by distinguishing it from property that is proceeds of a
crime), https://www.justice.gov/criminal-afmls/file/839521/download.10 Here, the
Government has not argued or proffered evidence of a substantial connection
between the defendant currency and the underlying criminal activity; however,
10
In some cases, even when the government is not pursuing the theory that the
defendant currency facilitated the commission of a crime, courts use the
substantial connection test, yet cite cases in support of the application of that test
in which the government is arguing that the defendant property facilitated the
commission of a crime. An analysis of the law leads this Court to apply the
substantial connection test only to the Government’s theory that the defendant
currency was used to facilitate the commission of a crime, not to its theory that
the defendant currency is proceeds of a crime.
15
because it has met its burden of establishing that the currency is proceeds of
criminal activity, it need not also meet its burden with respect to its argument that
the defendant currency is facilitating property.
On the one hand, this case differs from other civil forfeiture actions involving
defendant currency discovered as part of a traffic stop in that (a) Howze was
driving his car – properly registered to him, and not a rental car, (b) the
Government has not argued that his departure and destination locations were
known drug trafficking hubs, (c) Howze did not deny the presence of the currency,
but instead admitted to its presence and stated its amount, and (d) Howze did not
attempt to hide the currency either from the officers or within the body of his car,
but instead told Ward that the money was in a bag in the back of his vehicle. See,
e.g., United States v. $119,030.00 in U.S. Currency, 955 F. Supp. 2d 569 (W.D.
Va. 2013) (involving circumstances in which one claimant was driving a rented
vehicle when he denied the presence of, among other things, a large amount of
currency before the officers found $119,030 behind the door panel that, together
with other facts, sufficiently supported the government’s burden); United States v.
$864,400.00 in U.S. Currency, No. 1:05CV919, 2009 WL 2171249 (M.D.N.C.
2009), aff’d, 405 F. App’x 717 (involving circumstances in which the claimant and
his driver were traveling in a rental car between a known drug destination and a
major drug trafficking hub with $864,400 in United States currency hidden in the
passenger door panel that, together with other facts, sufficiently supported the
government’s burden).
16
However, the totality of the circumstances here favor the Government. The
currency was contained in a plastic bag within the Abercrombie and Fitch shopping
bag in fifteen bundles held by rubber bands. Cappers, about whose training,
certification, skills, and reliability Daniels has attested, alerted three separate times
to the odor of narcotics. First, during an outside sniff of the vehicle, he alerted to
the presence of an odor of narcotics. Then, at the roadside, after alerting to the
odor of narcotics while passing the first bag in the formation, he traced the source
of the odor to the Abercrombie and Fitch bag holding the currency. Finally, at the
Criminal Interdiction Unit Office, he alerted to the odor of narcotics at the one
envelope that contained the defendant currency. In addition, Howze has a history
of having violated the Controlled Substances Act, as he pled guilty to conspiracy
to sell and distribute cocaine in March 2003 for which he served over nine years in
federal prison. Perhaps most important, though, is Howze’s knowingly false
statements to Ward about the source of and his intentions with the currency.
Instead of explaining to Ward that the currency included cash from his job, tax
refund, and inheritance that he was saving and keeping on hand because his family
has a practice of doing so – as he now does, he told Ward that he and MJ recently
purchased a Mercedes-Benz that they then sold at auction and that he was holding
on to the cash to buy another vehicle at auction, an explanation that MJ did not
corroborate. Furthermore, Howze has now silently disavowed that story in pursuit
of his present explanation, although not denying that he made those statements to
Ward.
17
The totality of these circumstances makes it more likely true than not that
the defendant currency is subject to forfeiture as proceeds of a drug offense. See,
e.g., $147,900.00, 450 F. App’x at 264 (noting, among the evidence that some
of the defendant currency was connected to drug activities, the claimant’s “history
of involvement with illegal drugs” when they were found on his property four years
prior to and the same year as the traffic stop that led to the discovery of the
defendant currency); United States v. $14,800.00 in U.S. Currency, No. ELH-11CV-3165, 2012 WL 4521371, *7 (D. Md. Sept. 28, 2012) (listing factors
“probative of whether currency is substantially connected to a violation of the
CSA” as “the amount and denomination of the property; the packaging of the
currency; the behavior of the individual in possession of the currency, including the
individual’s explanation for possessing the currency, whether the individual denied
possessing the currency, and whether the individual appeared nervous or changed
stories; whether a trained narcotics dog alerted to the currency or the location in
which the currency was discovered; and whether the claimant has a lawful source
of income”); $864,400.00, 2009 WL 2171249 at *3 (finding the government met
its burden where the claimant and driver carried a large amount of cash bundled in
a particular way hidden in the door panel of their rental car, lied to the officer in an
attempt to conceal the presence of the cash, exhibited nervousness, gave a vague
and highly implausible explanation of the cash, and traveled from a known drug
destination to a major drug trafficking hub and two separate trained canines alerted
to the odor of narcotics on the car).
18
While the Government has met its burden, Howze has not.11 There is
evidence that Howze is employed full-time, has his weekly paycheck regularly
deposited into his checking account, received a $3,207 tax refund in March 2014,
withdrew large sums of cash regularly until June 2013 when he began using his
debit card more often – presumably for some purchases for his friends and family
in return for which they gave him cash, inherited approximately $8,000 in October
2014, and follows his family’s practice of keeping cash on hand. He also
maintains a balance in both his checking and savings accounts to pay for
electricity, water, and food and entertainment, but, according to his bank
statements, those expenses are not paid directly from either account by check or
automatic payment. There are also other expenses that are not reflected as having
been paid directly from either Howze’s checking or savings account. Those include
monthly payments from October 2013 to July 2014 of $531 for his BMW, his
$1,282 down payment for his Nissan, monthly payments from October 2014 to
11
As part of his “Statement of Facts”, Howze contends that “he may be the last
person in the United States to be subject to property forfeiture under
circumstances such as those related to his stop and that are the subject of this
litigation” because of Attorney General Eric Holder’s January 16, 2015 Order
entitled “Prohibition on Certain Federal Adoptions of Seizures by State and Local
Law Enforcement Agencies.” (Br. in Resp. & Opp’n to Pl.’s Mot. for Summ. J. (“Br.
in Opp’n”) at 1-2 [Doc. #25].) Despite attaching three exhibits in further
explanation of this contention (see Exs. 1-3 to Br. in Opp’n [Docs. #25-1 to 25-3]),
Howze properly recognizes that the new policy does not affect the instant action
because the date of federal adoption of Howze’s property is considered to be
January 13, 2016 (see Ex. 1 to Br. in Opp’n), two days before the effective date
of the Attorney General’s Order which was to be applied prospectively (see Ex. 2
to Br. in Opp’n).
19
January 2015 of approximately $730 for his Nissan (with the exception of
$250.80 transferred from his checking account to his loan on October 31, 2014),
and monthly payments of $62 for one year for furnishings (see Experian Credit
Report at 11 [Doc. #19-8]). In other words, although Howze had saved money in
the form of cash from his employment, tax refund, and inheritance, his expense
payments are not accounted for as debits to his checking or savings account,
which suggests that he is paying for those obligations with his accumulated cash
on hand. Most problematic for Howze’s ability to meet his burden by a
preponderance of the evidence that he is an innocent owner, though, is the fact
that he knowingly made a false statement to Ward when given the opportunity to
explain the source and purpose of the defendant currency. In sum, the evidence is
not such that a reasonable jury could return a verdict for Howze.
Because the Government has met its burden, and Howze has not met his,
summary judgment in favor of the Government is appropriate.
III.
For the foregoing reasons, IT IS HEREBY ORDERED that Plaintiff’s Motion for
Summary Judgment [Doc. #18] is GRANTED.
This the 15th day of June, 2016.
/s/ N. Carlton Tilley, Jr.
Senior United States District Judge
20
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