United States of America v. $28,720.00 in United States Currency
Filing
21
ORDER denying 18 MOTION for Summary Judgment. Signed by District Judge Martin Reidinger on 7/28/14. (nv)
THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
CIVIL CASE NO. 1:13-cv-00106-MR-DLH
UNITED STATES OF AMERICA,
)
)
Plaintiff,
)
)
vs.
)
)
)
$28,720.00 IN UNITED STATES
)
CURRENCY,
)
)
Defendant.
)
_______________________________ )
MEMORANDUM OF
DECISION AND ORDER
THIS MATTER is before the Court on the Government’s Motion to
Enter Judgment Against and to Strike the Claim of Sandra Isabel
Rodriguez [Doc. 18].
I.
PROCEDURAL BACKGROUND
The Government initiated this civil in rem forfeiture proceeding on
April 17, 2013 with the filing of a Verified Complaint.
[Doc. 1].
The
Claimants Fernando Gonzalez (“Gonzalez”) and Sandra Isabel Rodriguez
(“Rodriguez”) (collectively, “Claimants”), through counsel, filed a joint
Verified Claim on May 8, 2013. [Doc. 5]. The Claimants filed an Amended
Verified Claim and an Answer on May 29, 2013. [Doc. 7].
A Pretrial Order was entered on July 25, 2013, setting a discovery
deadline of April 1, 2014 and a motions deadline of May 1, 2014, and
setting this matter for a bench trial during the September 8, 2014 trial term.
[Doc. 11]. On April 8, 2014, the Government moved to compel Gonzalez’s
appearance at a deposition.
[Doc. 12].
The Court denied the
Government’s motion as untimely on April 17, 2014.
[Doc. 16].
The
Government sought reconsideration of this motion [Doc. 18], which was
denied [Doc. 20].
On May 1, 2014, the Government filed the present motion for the
entry of summary judgment against Claimant Rodriguez only. [Doc. 18].
To date, Rodriguez has not filed any opposition to the Government’s
Motion.
II.
THE SUMMARY JUDGMENT STANDARD
Summary judgment is proper “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 fact is “material” if it
“might affect the outcome of the case.” News and Observer Pub. Co. v.
Raleigh-Durham Airport Auth., 597 F.3d 570, 576 (4th Cir. 2010).
A
“genuine dispute” exists “if the evidence is such that a reasonable jury
2
could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986).
A party asserting that a fact cannot be genuinely disputed must
support its assertion with citations to the record. Fed. R. Civ. P. 56(c)(1).
“Regardless of whether he may ultimately be responsible for proof and
persuasion, the party seeking summary judgment bears an initial burden of
demonstrating the absence of a genuine issue of material fact.” Bouchat v.
Baltimore Ravens Football Club, Inc., 346 F.3d 514, 522 (4th Cir. 2003). If
this showing is made, the burden then shifts to the non-moving party who
must convince the Court that a triable issue does exist. Id.
In considering the facts for the purposes of a summary judgment
motion, the Court must view the pleadings and materials presented in the
light most favorable to the nonmoving party and must draw all reasonable
inferences in the nonmoving party’s favor. Adams v. Trustees of the Univ.
of N.C.-Wilmington, 640 F.3d 550, 556 (4th Cir. 2011). Where the nonmoving party has not responded to the motion, however, the Court may
consider the forecast of evidence presented by the movant to be
undisputed for the purposes of the present motion. See Fed. R. Civ. P.
56(e)(2).
III.
FACTUAL BACKGROUND
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In light of Claimant Rodriguez’s failure to respond to the
Government’s Motion, the following forecast of evidence is not in dispute.
On October 23, 2012, at approximately 9:30 p.m., Fernando
Gonzalez
was
driving
a
2004
BMW
Mini
Cooper,
VIN
WMWRC33494TC49089, in Buncombe County, North Carolina. [Verified
Complaint, Doc. 1 at ¶ 9]. The BMW Mini Cooper was registered in North
Carolina to Claimant Sandra Isabel Rodriguez.
[Id. at ¶ 10].
Roice
Figueroa was the only other passenger in the vehicle. [Id. at ¶ 11].
Gonzalez was stopped by Deputy Jason Lambert of the Buncombe
County Sheriff’s Office for driving erratically and operating a motor vehicle
with an inoperable headlight. [Id. at ¶¶ 12, 13]. Deputy Lambert issued
Gonzalez a citation for improper equipment. [Id. at ¶ 14]. Deputy Lambert
requested and was given verbal consent by Gonzalez to search the
vehicle. [Id. at ¶ 15]. During the search, approximately $5,000 in cash was
discovered in the driver’s door panel, and approximately $5,000 in cash
was discovered under the driver’s seat near the center console. [Id. at ¶¶
16, 17].
Buncombe County Deputy Todd Ernst subsequently arrived on the
scene with a canine. [Id. at ¶ 18]. Deputy Ernst requested and was given
verbal consent by Gonzalez to conduct a canine search of the vehicle. [Id.
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at ¶ 19].
The canine positively alerted to the presence of the odor of
narcotics in the area of the driver’s seat and center console. [Id. at ¶ 20].
A bag containing approximately $19,000 in cash was located on the driver’s
side floorboard in the area where the canine positively alerted. [Id. at ¶ 21].
A total of $28,720.00 was seized from the vehicle. [Id. at ¶ 31]. Of
the cash seized, there were 69 hundred-dollar bills, 51 fifty-dollar bills, 948
twenty-dollar bills, 29 ten-dollar bills, and 4 five-dollar bills. [Id. at ¶ 32].
Gonzalez told the officers that he was a painter, and that he intended
to purchase a house trailer with the funds seized from the vehicle. [Id. at
¶¶ 22, 23]. He further stated that a portion of the currency was from the
sale of a Chevrolet Trailblazer, and that the rest of the currency was from a
bank loan taken out by his wife. [Id. at ¶¶ 24, 25]. Gonzalez then stated
that the loan was from his wife’s brother. [Id. at ¶ 26]. Gonzalez provided
a written statement in Spanish and English which completely translated into
English stated that: “$29,000.00 with straining and sacrificing for years in
order to give the first payment on a house.”
[Id. at ¶¶ 27, 28].
The
passenger, Roice Figueroa, provided a written statement indicating that he
had no knowledge of the money in the vehicle. [Id. at ¶ 29].
On October 25, 2012, at the Buncombe County Sheriff’s Office,
another canine positively alerted to the presence of the odor of narcotics in
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one of six identical paper bags; the bag to which the canine alerted
contained the currency seized from the vehicle on October 23, 2012. [Id. at
¶ 30].
In response to the Government’s Special Interrogatories, Claimant
Rodriguez asserted that she and Gonzalez lived together and were
engaged. [Doc. 19-1 at 5]. Rodriguez further stated that $20,000.00 of the
seized cash was a loan from Rodriguez’s father to Gonzalez for the
purpose of Gonzalez and Rodriguez purchasing a home; that $6,000 of the
seized funds was from the sale of a Chevy Trailblazer that was titled in her
name; and that the remainder were funds that Gonzalez had been saving
for the past few months prior to the stop. [Id. at 4; Doc. 19-2 at 13].
Regarding the $20,000 loan, Gonzalez and Rodriguez presented in
response to written requests for production of documents a promissory
note signed by Gonzalez and Rodriguez’s father, Humberto Rodriguez
Beas, and witnessed by two other individuals. [Doc. 19-1 at 7]. Rodriguez
testified that she was not a signatory to this note, was not present when it
was purportedly executed, and never saw the note prior to it being
produced to the Government. [Doc. 19-2 at 22-24]. Rodriguez testified
that she never had seen the $20,000 proceeds from this loan and that she
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did not know in what form Gonzalez received the proceeds. [Id. at 18 (“I’m
guessing it was cash. I don’t think it was [a] check. I wasn’t there.”).
As for the $6,000 which came from the sale of the Trailblazer,
Rodriguez testified that the vehicle had been titled in her name only
because “he [Gonzalez] can’t [have] anything under his name” due to his
status as an illegal alien. [Id. at 13]. Rodriguez testified that the vehicle
had been sold for cash in July 2012, and that Gonzalez had received the
full $6,000 over a period of months prior to the October 23, 2012 stop,
although Rodriguez never saw the money. [Id. at 15-16].
IV.
DISCUSSION
Pursuant to 21 U.S.C. § 881, any “moneys, negotiable instruments,
securities, or other things of value furnished or intended to be furnished by
any person in exchange for a controlled substance or listed chemical . . .,
all proceeds traceable to such an exchange, and all moneys, negotiable
instruments, and securities used or intended to be used to facilitate” a drug
trafficking crime are subject to forfeiture to the United States. 21 U.S.C. §
881(a)(6).
It is pursuant to this provision that the Government seeks
forfeiture of the $28,720.00 in United States currency seized during the
October 23, 2012 traffic stop of Gonzalez and Figueroa.
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In a civil forfeiture case, the Government bears the initial burden of
establishing by a preponderance of the evidence that the subject property
is subject to forfeiture. 18 U.S.C. § 983(c)(1); United States v. Sims, __ F.
App’x __, 2014 WL 3377689, at *1 (4th Cir. July 11, 2014) (per curiam).
Further, “if the Government’s theory of forfeiture is that the property was
used to commit or facilitate the commission of a criminal offense, or was
involved in the commission of a criminal offense, the Government shall
establish that there was a substantial connection between the property and
the offense.” 18 U.S.C. § 983(c)(3). Once the Government has presented
its prima facie case, the burden then shifts to the claimant to demonstrate
that he or she is an innocent owner of the property. See United States v.
Munson, 477 F. App’x 57, 65-66 (4th Cir.), cert. denied, 133 S.Ct. 315
(2012).
Based on the forecast of evidence presented, the Government
contends that Rodriguez cannot carry her burden of proving by a
preponderance of the evidence that she is an innocent owner of the
property under 18 U.S.C. § 983(d).
[Doc. 18 at 1].
Before the Court
reaches this issue, however, it must first determine whether the
Government has satisfied its initial burden of demonstrating that the
property at issue is subject to forfeiture as a matter of law. Based on the
8
record presented by the Government, the Court concludes that the
Government has not met this burden.
In arguing that the subject property is forfeitable, the Government
cites to two factors: the large amount of cash recovered ($28,720) and the
specific denominations of that cash (mostly twenty-dollar bills), arguing that
both are “highly probative of drug trafficking.”
[Doc. 19 at 17].
The
Government further posits that “[t]he truth is that Fernando Gonzalez
intended to either initiate or complete a drug deal with that cash.” [Id.].
This statement, however, is merely speculation, as the Government offers
no evidence to support this assertion. The discovery of a large amount of
money in a consensual search of a vehicle during a routine traffic stop,
without more, is simply insufficient to establish a substantial connection
between those funds and a drug trafficking crime. See United States v.
$405,089.23 in United States Currency, 122 F.3d 1285, 1290 (9th Cir. 1997)
(“[T]he test requires more than the mere existence of a large amount of
cash to establish a connection between that cash and illegal drug
transactions; the money must be ‘in combination with other persuasive
circumstantial evidence’”) (quoting United States v. Padilla, 888 F.2d 642,
644 (9th Cir. 1989)).
Further, while evidence of possession of a large
amount of money in lower denominations of bills may “help[ ] to establish a
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‘substantial connection’ to drug trafficking,” United States v. Puche-Garcia,
No. 99-1612, 2000 WL 1288181, at *4 (4th Cir.
certainly not dispositive of the issue.
Sept. 13, 2000), it is
Absent any other persuasive
circumstantial evidence suggesting an illegal drug transaction, the
Government’s current forecast of evidence fails to establish as a matter of
law a connection between the seized cash and illicit drug activity.1
The Government contends that “[i]t is highly improbable that anyone
would drive around [with] $28,720 in cash, honestly derived, in an
automobile…. It is even less likely that anyone would carry around cash
accumulated from three different sources over three different periods.” [Id.
at 23]. While this may be an effective argument at trial, viewing as the
Court must the record in the light most favorable to the non-moving parties,
there are genuine issues of material fact as to whether this cash was
honestly derived. The Claimants have asserted in their Answer as well as
their various discovery responses and deposition testimony that these
funds were obtained from legitimate sources, namely, a loan, a sale of a
vehicle, and income from odd jobs. While it may be “highly improbable” to
1
In its brief, the Government does not specifically cite the positive canine alerts as an
indicia of drug trafficking. Even if the Government had done so, however, such
evidence has only minimal probative value, as the Government has not presented any
expert testimony or scientific evidence to establish the validity of these alerts.
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the Government that anyone would carry that amount of cash with them,
the record indicates that Gonzalez was in the country illegally and he could
not have placed these funds in a bank account. Considering the totality of
the circumstances and drawing all reasonable inferences in the Claimants’
favor,
the forecast of evidence presented by the Government presents genuine
issues of material fact as to whether the property seized is properly subject
to forfeiture.
Accordingly, the Government’s motion for summary
judgment is denied.
Because the Court concludes that the Government has not
demonstrated as a matter of law that the defendant property is subject to
forfeiture, the Court need not address the issue regarding Claimant
Rodriguez’s ownership of the subject property or whether her claim is
subject to being stricken due to a lack of statutory standing. Such issues
shall remain for trial.
IT IS, THEREFORE, ORDERED that the Government’s Motion to
Enter Judgment Against and to Strike the Claim of Sandra Isabel
Rodriguez [Doc. 18] is DENIED.
IT IS SO ORDERED.
Signed: July 28, 2014
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