United States of America v. $84,367.00 in U.S. Currency

Filing 55

Bench Trial Opinion that judgment will be entered in favor of the United States of America, and the defendant $84,367 will be forfeited to the United States for disposition according to law. Judge John R. Adams on 6/12/18. (K,C)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
UNITED STATES OF AMERICA,

Plaintiff,
v.

$84,367 IN U.S. CURRENCY,
Defendant.

I.

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Case No. 5:15CV02600
JUDGE JOHN R. ADAMS

BENCH TRIAL OPINION

PROCEDURAL BACKGROUND
The government filed a complaint for forfeiture in rem on December 15, 2015,

stating that, on August 1, 2015, $84,367 in United States currency (“the defendant
currency”) was seized pursuant to a federal search warrant executed at the residence of
James E. Golden (“Golden”) and Tiffany Motley-Golden (“Motley”) (collectively,
“claimants”), 544 Douglas Street, Akron, Ohio. (Doc. # 1.) Golden and Motley filed
separate answers and claims to the seized money, arguing that they are the rightful
owners of the defendant currency and that it constitutes earnings from lawful
employment and rental properties. (Doc. #s 4, 5, 10, 11, 12.) The Court set this matter
for a bench trial. (Doc. # 33.) Following a two-day bench trial, the parties submitted
post-trial briefs and proposed findings of fact and conclusions of law. (Doc. #s 51, 52,
53, 54.) Accordingly, this matter is ready for decision.

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II.

FINDINGS OF FACT
The Court makes the following findings of fact as required under Federal Rule of

Civil Procedure 52(a). The Court’s findings of fact are based upon the testimony and
exhibits received at trial, and upon the record in this matter. To the extent that the findings
of fact contain conclusions of law, the conclusions of law shall be regarded as such.
1.

On August 1, 2015, Anthony Mathews (“Mathews”) purchased two ounces of

cocaine from claimant Golden for $2,400 cash. The drug deal occurred at Golden’s home
located at 544 Douglas Street, Akron, Ohio. (Testimony of Mathews with corroboration
by pole camera as testified to by Special Agent (“SA”) Dan Werhmeyer.)
2.

Mathews currently is serving a five-year prison term for possessing 108.86 grams

of cocaine he admitted he had in his possession on August 1, 2015. The cocaine included
two ounces he had purchased from Golden on August 1, 2015, and an additional two ounces
he had purchased from Golden for $2,400 cash at Golden’s residence the previous week.
(Testimony of Mathews; Government Exhibit (“GVX”) 1.)
3.

Mathews had purchased at least five kilograms of cocaine from Golden between

2010 and August 1, 2015, usually in two-ounce quantities. Golden is his regular source of
supply for cocaine, which is readily available most times of year and sold to Mathews
always at Golden’s house on Douglas Street, or at Golden’s previous home on Glendora
Avenue in Akron, Ohio. (Testimony of Mathews.) These facts were corroborated by the
testimony of SA Werhmeyer, who observed Mathews visiting the Douglas Street home on
numerous occasions by pole camera. (GVX 36.)

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4.

Notwithstanding claimants’ argument that Mathews’ testimony lacks any

credibility because he would receive early release in exchange for cooperation with the
government, the Court finds Mathews’ testimony to be more credible than not.
5.

Officers of the Akron/Summit County High Intensity Drug Trafficking Area

(“HIDTA”) Initiative and Safe Streets Task Force executed a federal search warrant at 544
Douglas Street, Akron, Ohio, the residence of Golden and Motley, on August 1, 2015.
Golden lives at the home with his wife, Motley, and their three minor children. Both
Golden and Motley were present at the search. No cocaine was located during the search.
However, a large quantity of cash, the defendant currency, was found scattered throughout
the house together with marijuana, a loaded Taurus semi-automatic pistol, and a money
counter. Specifically, the following amounts were found: (1) $12,890 was discovered in
a large wad in the pocket of a heavy construction or hunting coat hanging in the stairwell
leading to the basement; (2) $14,740 was found in piles in an upper kitchen cabinet together
with a portion of the marijuana found in the home; (3) $17,760 was recovered from an attic
bedroom; (4) $38,647 was found in plastic bags hidden in a clothes hamper in the master
bedroom, the same room where the firearm was discovered between the mattresses; and
(5) $330 was discovered on Golden’s person. Some of the money was banded in a style
that drug dealers often employ. (Testimony of SA Doug Borchert; Testimony of SA
Wehrmeyer; Testimony of Task Force Officer (“TFO”) Tom Gottas; GVX 2-17.)
6.

Both Golden and Motley testified that all of the money found in the house was from

legitimate income sources, including rental properties, his employment at Extreme
Elements since 2005, and her recent ownership of the Platinum Lounge. (Testimony of
Golden and Motley; Stipulation #5.)

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7.

Golden and Motley testified that they kept the defendant currency in the house

because they don’t trust banks due to the Child Support Enforcement Agency taking money
out of Golden’s account without his knowledge. Golden and Motley maintained that they
kept money in the house, even though the same house had been “home invaded” the
previous December, at which time Golden and Motley were robbed of $5,000. (Doc. # 54,
p. 4; Testimony of Golden and Motley; Stipulation #5.)
8.

Golden denied selling drugs for the last 20 years, and specifically denied selling

any drugs in 2015, or at the Apple Jax Lounge in 2011 (discussed below). He denied
receiving $2,400 cash from Mathews on August 1, 2015. (Testimony of Golden; Cross
examination of Golden; GVX 94B (deposition testimony of Golden).)
9.

Gary Kenst, who testified as a forensic accountant, analyzed tax records belonging

to Golden and Motley. Mr. Kenst concluded that there was insufficient reported income
on the tax returns provided in discovery to account for amassing $84,367 in the home. The
claimants reported losses for rental income except less than $1000 of rental income
reported in 2015. Specifically, with regard to Motley, Mr. Kenst concluded that there was
an insufficient income stream from her employment and her recent ownership of the
Platinum Lounge to account for her claim that 30 percent of the seized currency was from
her income or rent receipts. Although Golden had legitimate income, it was insufficient to
account for the accumulation of currency in the house, especially considering that the
claimants were supporting a family of five and losing money on their rentals, as reported
in their income taxes. (Testimony of Gary Kenst; Testimony of Golden; Testimony of
Motley; GVX 93 (summary exhibit of claimants’ financial and tax documents).)

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10.

SA Wehrmeyer testified as to the methods of drug dealers in the Northeast Ohio

area. He testified regarding: the pricing for cocaine; the methods of selling cocaine; the
generation of large amounts of cash; higher level drug dealers’ practice of keeping large
amounts of cash generated from drug activity out of banks to avoid having a paper trail;
and drug dealers’ utilization of money counters to keep track of the substantial cash
generated by their drug trafficking activities. SA Wehrmeyer identified Golden’s voice
from two controlled drug buys (discussed below) and interpreted the coded language used
during the drug transactions. He also testified that evidence of drug trafficking by Golden
was corroborative of the testimony of Mathews. (Testimony of SA Wehrmeyer.)
11.

HIDTA officers conducted a controlled purchase of cocaine on November 22, 2011.

Utilizing a confidential source, the source purchased 2.5 ounces of cocaine from Golden at
the Apple Jax bar in Akron, Ohio for $2,500 cash. During the purchase, Golden departed
the Apple Jax in his Ford panel van and went to his home, then located on Glendora
Avenue, to retrieve the cocaine. Golden was observed by TFO Michael Yovanna. TFO
Yovanna observed Golden arriving at the home and departing from the home shortly
thereafter to return to the Apple Jax. The drug deal then took place in the parking lot of
the Apple Jax Bar. The drugs were tested and found to be 69.2 grams of cocaine. Golden’s
voice is captured in recordings of the meeting. (Testimony of SA Wehrmeyer; Testimony
of TFO Yovanna; GVX 21-23.)
12.

On January 31, 2013, HIDTA officers made a second controlled buy, through a

confidential source, of 4.5 ounces of cocaine from Golden for the purchase price of $5,400.
This transaction occurred at Golden’s previous residence on Glendora Avenue and the
drugs provided by Golden were tested and found to be 125.5 grams of cocaine. The buy,

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and the call made to set up the buy, were consensually monitored and recorded. Golden’s
voice is captured in the recordings. Retired TFO Gottas observed the source arrive at the
Glendora Avenue home and go into the home where Golden was residing. (Testimony of
SA Wehrmeyer; Testimony of retired TFO Gottas; GVX 26-29.)
13.

On February 3, 2015, Indiana State Police, as part of an FBI investigation into a

large-scale drug trafficking operation, searched Room 211 of the Red Roof Inn located in
Greenwood, Indiana.

In that room, the police discovered $2,000,000 in United States

currency and 19.8 kilograms of cocaine. Much of the currency was wrapped in plastic and
duct tape. One large bag of packages of currency had an “Akron” tag on top of it. A
fingerprint belonging to Dan Wilson, a charged Akron area drug dealer, was found on the
wrappings of the currency. Golden’s fingerprint was also found on the wrappings of the
currency.
14.

Golden admitted that he knows Wilson. Golden denied ever having been in the

State of Indiana. Golden testified that he does not know how his fingerprint got on the
wrappings for the currency. (Testimony of Aldaberto Martinez; Testimony of Kyle
Freeman; GVX 30-33J; GVX 94C (excerpt from deposition of Golden); cross-examination
of Golden.)
15.

After having the opportunity to carefully evaluate the testimony of claimants

regarding their purported reasons why the defendant currency was in their residence, that
the defendant currency was earned legitimately, that Golden did not sell drugs, that Golden
did not receive cash form Mathews, and that Golden does not know how his fingerprint got
on the wrappings of the currency found in Indiana, the Court finds that claimants’
testimony lacks credibility. Golden acknowledged that he was evading federal income tax

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laws, state child support laws, and state liquor laws, while steadfastly claiming that all of
his income sources were legitimate. (Testimony of Golden.) The Court finds it unlikely
that claimants’ testimony regarding the purported lawful origin of the defendant currency
is truthful, given Golden’s admission that he was evading a plethora of other laws. In light
of the implausibility of claimants’ testimony, and the contrary testimony and other
evidence presented by the government, the Court holds that the preponderance of the
evidence demonstrates that the defendant currency constitutes the proceeds of drug
activity.
III.

CONCLUSIONS OF LAW

1.

This is an action for civil forfeiture pursuant to 21 U.S.C. § 881(a)(6).

2.

The jurisdiction of this Court is invoked under 28 U.S.C. §§ 1345 and 1355, as well

as 21 U.S.C. § 881.
3.

A federal civil forfeiture action under 21 U.S.C. § 881 is an in rem action against

the property sought to be forfeited. United States v. Certain Real Prop. 566 Hendrickson
Blvd., Clawson, Oakland Cnty., Mich., 986 F.2d 990, 993 (6th Cir. 1993).
4.

Title 21, United States Code, Section 881(a)(6) provides in pertinent part:
(a) Subject property. The following shall be subject to
forfeiture to the United States and no property right shall
exist in them:
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(6) All moneys . . . furnished or intended to be furnished by
any person in exchange for a controlled substance . . . in
violation of this subchapter, all proceeds traceable to such an
exchange, and all moneys . . . used or intended to be used to
facilitate any violation of this subchapter.

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5.

This in rem action is governed by the Supplemental Rules of Admiralty or Maritime

Claims and Asset Forfeiture Actions (“Supplemental Rules”) where applicable, and by the
Federal Rules of Civil Procedure, except to the extent they are inconsistent with the
Supplemental Rules. See, Supplemental Rule A; Fed. R. Civ. P. 1; 28 U.S.C. §§ 13551356.
6.

The Civil Asset Forfeiture Reform Act of 2000 (“CAFRA”) applies to all civil

forfeiture cases, other than where specifically exempted by statute. 18 U.S.C. §§ 981, 983.
CAFRA raised the government’s ultimate burden of proof on the merits in a civil forfeiture
action from probable cause, subject to rebuttal by a preponderance of the evidence, to a
preponderance of the evidence. See United States v. Melrose E. Subdivision, 357 F.3d 493,
503 (5th Cir. 2004).
7.

The defendant currency is forfeitable as proceeds of drug trafficking under 21

U.S.C. §§ 881(a)(6).

The United States has the burden of proof to establish by a

preponderance of evidence that the property is subject to forfeiture as proceeds from drug
trafficking. 18 U.S.C. § 983(c)(1); United States v. One TRW; Model M14, 7.62 Caliber
Rifle, 441 F.3d 416, 418 (6th Cir. 2006).
8.

It is not necessary for the government to demonstrate a direct connection between

the defendant property and the illegal activity. 18 U.S.C. § 983(c)(1). See, e.g. United
States v. $118,170 in U.S. Currency, 69 F. App’x 714, 717 (6th Cir. 2003) (finding that
the government sufficiently established that the defendant currency was subject to
forfeiture based on evidence of the claimant’s insufficient income as a source of seized
currency and his history of drug purchases). Instead, “reasonable inferences may be drawn

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from the evidence presented to establish a nexus between the property and the drug
activity.” United States v. Veggacado, 37 F. App’x 189, 190 (6th Cir. 2002).
9.

The Sixth Circuit has held that there does not need to be direct evidence that the

defendant property is traceable to a specific drug offense to show it is proceeds from drug
trafficking, as long as reasonable inferences support a connection between the property and
drug activity. See Veggacado, 37 F. App’x at 190 (holding the government was not
required to trace the money that purchased the defendant property to the claimant’s
underlying criminal conviction); United States v. $110,873 in U.S. Currency, No.
1:02CV2107, 2004 WL 2359726, at *3 (N.D. Ohio 2004) (Matia, J.) (“Direct evidence that
the money is linked to specific drug sales is not necessary.”).
10.

An underlying criminal conviction is not required to support the forfeiture of the

defendant currency. Although the evidence of an underlying conviction may be considered
by the district court, United States v. Real Prop. Known and Numbered as 415 E. Mitchell
Ave., Cincinnati, Ohio, 149 F.3d 472, 476 (6th Cir. 1998), civil forfeiture proceedings are
independent of any criminal conviction. See U.S. v. $118,170, 69 F. App’x at 717
(“forfeiture under § 881(a) is not conditioned upon an arrest or conviction for a drug
offense”) (internal quotations and citation omitted); United States v. Premises and Real
Prop.at 614 Portland Ave., 670 F. Supp. 475, 479 (W.D.N.Y. 1987), aff’d, 846 F.2d 166
(2d Cir. 1988) (“[a gambling forfeiture statute] is in the tradition of these civil forfeiture
statutes and does not require any underlying criminal, in personam, conviction”).
11.

To determine if the defendant property is forfeitable under a drug proceeds theory,

courts look to the totality of the circumstances to determine if the defendant currency is
proceeds from drug trafficking. See United States v. $30,670 in U.S. Funds, 403 F.3d 448,

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469 (7th Cir. 2005) (emphasizing the court looks to the totality of the circumstances to
determine if the government carried its burden under a drugs proceeds theory).
12.

When a large amount of money is found in the home of a suspected drug dealer,

courts have held that “[an] extremely large amount of money found in the household itself
is strong evidence that the money was furnished or intended to be furnished in return for
drugs.” United States v. $93,685.61 in U.S. Currency, 730 F.2d 571, 572 (9th Cir. 1984).
When determining if a particular amount of money qualifies as a “large amount,” sister
circuits have held that “[w]hile we have never had occasion to consider the minimum
amount of cash that may be considered an ‘extremely large amount,’ the Second Circuit
has characterized an amount as low as $2,500 as being ‘substantially greater than is
commonly kept in residential premises by law-abiding wage earners.’” United States v.
Padilla, 888 F.2d 642, 644 (9th Cir. 1989) (citing United States v. $2,500 in United States
Currency, 689 F.2d 10, 16 (2d Cir. 1982)).
13.

The government can satisfy its burden of showing funds were traceable to drug-

related activity if the claimant’s legitimate income was insufficient to account for the
amount of money seized. See United States v. $174,206 in U.S. Currency, 320 F.3d 658,
662 (6th Cir. 2003); see also United States v. $34,000 in U.S. Currency, No. 4:06CV2307,
2007 WL 2710444, *2 (N.D. Ohio Sept. 2007) (Economus, J.) (holding evidence that a
drug dealer had recently sold drugs to a confidential source in a controlled buy, in
combination with tax returns showing minimal legitimate income for the previous 3 years,
was sufficient to show there was no material issue of fact regarding the forfeitability of
currency seized from drug dealer’s residence).

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14.

A claimant’s criminal (drug) record is a highly probative factor that may be used to

establish that currency is subject to federal forfeiture. See United States v. $67,220 in U.S.
Currency, 957 F.2d 280, 286 (6th Cir. 1992); United States v. $16,757 in U.S. Currency,
2013 WL 1405207, *2 (6th Cir. 2013); United States v. $99,990 in U.S. Currency, 2003
WL 21698849, *7 (6th Cir. 2003); United States v. $118 in U.S. Currency, 2003 WL
21659445, *3 (6th Cir. 2003).
15.

The presence of illegal drugs on or near the seized property also shows a nexus

between the seized currency and the drug trade. For instance, the presence of marijuana in
a vehicle where the currency is found indicates a connection between the money and drug
trafficking. See, e.g., United States v. Cunningham, 520 F. App’x 413, 415 (6th Cir. 2013)
(holding the government carried its burden to prove the defendant currency was subject to
forfeiture, as there was marijuana in the vehicle where the currency was found, the claimant
had a history of drug trafficking and did not have sufficient legitimate income to account
for the currency); United States v. $311,570.00 in U.S. Currency, No. 3:12CV1285, 2013
WL 6162989, *6-7 (N.D. Ohio Nov. 22, 2013) (Armstrong, M.J.) (granting the
government’s motion to strike, as the claimant did not create a dispute of material fact
when there was marijuana and a large amount of bundled cash in the vehicle).
16.

In addition to the presence of illegal drugs, a money counter found on the scene

where the currency was seized can be evidence of one engaging in illegal drug-related
behavior. United States v. Wren, 528 F. App’x 500 (6th Cir. 2013) (finding that $50,000
in cash, ammunition, a money counter, and vacuum sealer were all relevant in establishing
a defendant was associated in a drug conspiracy).

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17.

Taking into consideration the applicable law and the Court’s findings of fact above,

the United States has established that, under the totality of the circumstances, the
preponderance of the evidence proves that the defendant currency is forfeitable as proceeds
of drug trafficking activity by Golden.
18.

Under a totality of the circumstances, claimants’ financial records and the

testimony of Kenst support a finding that the defendant currency was from drug trafficking
proceeds rather than from any legitimate source of income of Golden and/or Motley.
19.

Under a totality of the circumstances, including the implausibility of claimants’

testimony that the defendant currency is legitimately-earned income, Golden and Motley
have failed to present any credible evidence that the defendant currency was earned by
means other than Golden’s drug activity.
IV.

CONCLUSION
In accordance with the foregoing findings of fact and conclusions of law, judgment

will be entered in favor of the United States of America, and the defendant $84,367 will be
forfeited to the United States for disposition according to law. A judgment consistent with
these findings of fact will be issued forthwith.

IT IS SO ORDERED.
s/John R. Adams____________
JOHN R. ADAMS
UNITED STATES DISTRICT JUDGE

DATED: ___6/12/2018_________