United States Of America v. $2,106.00, More or Less, in United States Currency et al

Filing 39

ORDER GRANTING 33 Motion for Summary Judgment; GRANTING 34 Motion for Summary Judgment. It is ordered that the 2007 Ford F-250 be released and returned to Leonard Trevino, or his designated agent, within sixty days of this Order. The $2,10 6, 2007 Dodge Charger, and the 2006 Ford F-150 is forfeited to the United States of America. The 1957 Chevrolet Coupe is forfeited to the United States of America. The United States Marshals Service, or its designated agent, shall dispose of the forfeited properties in accordance with law. Signed by Judge Xavier Rodriguez. (rg)

In the United States District Court
for the
Western District of Texas
UNITED STATES OF AMERICA
v.
$2,106.00 MORE OR LESS IN
UNITED STATES CURRENCY, ET
AL.

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§

SA-10-CV-1024-XR

ORDER
On this day came on to be considered the Government’s motions for summary judgment
(docket nos. 33 and 34).
BACKGROUND
On December 16, 2010, the United States filed a verified complaint for forfeiture alleging
that $2,106, a 2007 Ford F-250, a 2007 Dodge Charger, a 2006 Ford F-150, and a 1957
Chevrolet Coupe were all subject to forfeiture pursuant to 21 U.S.C. §§ 801, 881(a)(4) and
881(a)(6). The above were seized by the Drug Enforcement Administration on July 30, 2010.
On August 4, 2010, an indictment was filed charging Leonard Trevino and others with
conspiracy to possess with intent to distribute cocaine. See Cause No. SA-10-CR-661.
On February 23, 2011, Leonard Trevino filed a Claim in this civil case to the $2,106, the
2007 Ford F-250, the 2007 Dodge Charger, and the 2006 Ford F-150. Mr. Trevino’s daughter,
Emily, filed a claim to the 1957 Chevrolet Coupe.
On February 23, 2012, Mr. Trevino pled guilty to a superseding information (conspiracy
to distribute and possess with intent to distribute over 500 grams but less than 5 kilograms of
cocaine). On August 8, 2012, a Judgment was entered and Mr. Trevino was committed to the
custody of the United States Bureau of Prisons to be imprisoned for a term of 72 months.

Government’s motion (docket no. 34)
In this motion for summary judgment, the United States seeks summary judgment that
Leonard Trevino’s interest in the $2,106, the 2007 Dodge Charger, and the 2006 Ford F-150 is
subject to forfeiture. The Government no longer seeks forfeiture of the 2007 Ford F-250 and
agrees to release that vehicle to Mr. Trevino. Mr. Trevino has not filed any response to this
motion.
Analysis
The procedures in this case are governed by the Civil Asset Forfeiture Reform Act of
2000 (“CAFRA”), 18 U.S.C. § 981, et seq. The United States bears the burden of proving by a
preponderance of the evidence that a substantial connection exists between the property to be
forfeited and the criminal activity defined by federal statute. See 18 U.S.C. § 983(c)(1) and (3);
see also United States v. Melrose East Subdivision, 357 F.3d 493, 502 (5th Cir. 2004).
The Government asserts two main theories of forfeiture based on violations of the
Controlled Substances Act.

Specifically, the Government contends that the properties are

proceeds traceable to an illegal exchange in violation of the Controlled Substances Act, pursuant
to 21 U.S.C. § 881(a)(6), and that the properties were used to facilitate the commission of an
offense in violation of the Controlled Substances Act pursuant to 21 U.S.C. § 881(a)(4).
The Government is required to establish by a preponderance of the evidence that there
was a substantial connection between the defendant property and the offense. A substantial
connection may be established by showing that use of the property made the prohibited conduct
less difficult or more or less free from obstruction or hindrance. See United States v. $7708.78 in
U.S. Currency, 2011 WL 3489835 (S.D. Miss. Aug. 9, 2011).

2

Once the Government satisfies its burden in proving a substantial connection, the
claimant then has the burden of proving that he was an innocent owner by a preponderance of the
evidence. 18 U.S.C. § 983(d)(1). If the Government meets its burden, it will prevail on a motion
for summary judgment unless the claimant introduces evidence to support his case. See United
States v. $174,206.00 in U.S. Currency, 320 F.3d 658, 662 (6th Cir. 2003).
The Government has established by competent evidence that the Ford F-150 had a hidden
compartment in the glove box area of the truck and that the vehicle was used to transports drugs.
The Government has established by competent evidence the $2,106 in currency was found in Mr.
Trevino’s pocket at the time of his arrest.1 The Government has also established by competent
evidence that the 2007 Dodge Charger was used by Mr. Trevino to pick up Thomas Fornarelli
and others to transport them to a stash house.
In failing to respond to the Government's motion or otherwise object to the Government's
summary judgment evidence, Mr. Trevino has failed to carry his burden in establishing that he
was an innocent owner of the defendant properties. Having carried its burden under CAFRA, the
Government is therefore entitled to a summary judgment of forfeiture against the $2,106, the
Ford F-150, and the 2007 Dodge Charger.
Government’s motion (docket no. 33)
In this motion the Government moves the Court to find that Emily Trevino is a nominee
owner, who lacks standing to contest forfeiture of the 1957 Chevrolet Coupe. The Government
contests whether Mr. Trevino ever “gifted” the vehicle to Emily and further argues that it is
undisputed that Emily never received the vehicle. The Government argues that, as a matter of
law, Emily has failed to establish that the vehicle was a gift because dominion and control over
the property was never released to her. The Government further argues that Emily cannot
1

Mr. Trevino’s lawful earnings at this time were only $2,054.41.
3

establish that she is an owner as that term is defined in 18 U.S.C. § 983(d)(6).2 Ms. Trevino has
filed a response in opposition to the Government’s motion. She argues that the vehicle was a
high school graduation gift, that it was stored at her father’s home because she did not secure a
driver’s license until March 2011, the vehicle’s certificate of title reflects that she is the owner,
and there is no evidence that the vehicle “had anything to do with any criminal activity or was
acquired from any alleged proceeds of criminal activity.”
Ms. Trevino testified that the first time she heard about the vehicle was “after the
beginning of 2010.” It is uncertain when Mr. Trevino acquired the vehicle. A Texas Certificate
of Title indicates that the vehicle’s title was transferred from Jose Carrillo of California to Ms.
Trevino on March 8, 2010. Ms. Trevino testified that she never drove the vehicle. Ms. Trevino
has no personal knowledge about how her father paid for the vehicle and the various repairs and
improvements he made to the vehicle.3 Ms. Trevino did not pay any monies to have the vehicle
insured. Her father was listed as the insured driver for the vehicle. Ms. Trevino does not have
any personal knowledge about where the vehicle was located at the time it was seized by the
DEA. Thomas Fornarelli states in his affidavit that Mr. Trevino drove him to Mr. Trevino’s
residence4 and “proudly showed [him] his 1957 Chevrolet Coupe.”
Analysis
To seek return of seized property, a claimant must prove an interest in it sufficient to
establish standing. A claimant in a federal civil forfeiture proceeding bears the burden to
2

“In this subsection, the term “owner”-(A) means a person with an ownership interest in the specific property sought to be forfeited, including a leasehold,
lien, mortgage, recorded security interest, or valid assignment of an ownership interest; and
(B) does not include-(i) a person with only a general unsecured interest in, or claim against, the property or estate of another;
(ii) a bailee unless the bailor is identified and the bailee shows a colorable legitimate interest in the property seized;
or
(iii) a nominee who exercises no dominion or control over the property.”
3
The Government’s appraisal of the vehicle indicates the average value for this vehicle is approximately $73,000.
4
Ms. Trevino lived with her mother at a different location.
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establish standing by preponderance of the evidence.

At the summary judgment stage, a

claimant must present some evidence of ownership interest in the subject property beyond the
mere assertion of an ownership interest. United States v. $133,420.00 in U.S. Currency, 672 F.3d
629, 638–39 (9th Cir. 2012). “Ownership may be established by proof of actual possession,
control, title, and financial stake.” United States v. One (1) 1983 Homemade Vessel Named
Barracuda, 625 F.Supp. 893, 897 (S.D. Fla. 1986).
The Fourth Circuit Court of Appeals has employed the dominion and control test to
assess the existence of a possessory or ownership interest in a civil forfeiture proceeding. See
United States v. Bryson, 406 F.3d 284, 291 (4th Cir. 2005) (dominion and control test used in
criminal forfeiture proceeding); United States v. Morgan, 224 F.3d 339, 343 (4th Cir. 2000)
(same).
In order to establish standing under the dominion and control analysis, a claimant cannot
rely on “bare legal title” alone. U.S. v. One Lot or Parcel of Ground Known as 1077 Kittrell
Street, Norfolk, Va., 947 F.2d 942 (4th Cir. 1991). Dominion and control can be established
through “‘possession, title, [and] financial stake.’” United States v. Various Vehicles, Funds,
and Real Properties Described in Attachment A, No. 2:11–1528, 2011 WL 6012424, at *3
(D.S.C. Oct. 25, 2011), aff'd, 2011 WL 6019196 (D.S.C. Nov. 30, 2011).
The Fifth Circuit has stated that “in a proceeding under § 881(a)(6) it is not necessary for
an intervenor or claimant to show ownership of seized property. ‘It is clear that anyone with an
ownership or possessory interest in at least a portion of the property may file a claim and
answer.’ We accept this statement as correct, but we qualify it by requiring that the possessory
interest be a colorably lawful interest in the property.” U.S. v. $321,470.00, U.S. Currency, 874
F.2d 298, 303-04 (5th Cir. 1989).

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Assuming Ms. Trevino has standing to pursue the filing of her claim, Ms. Trevino has
nevertheless failed to establish that she was the owner of the vehicle. She was merely “a
nominee who exercise[d] no dominion or control over the property.” See U.S. v. 2004 Ferrari
360 Modeno, 902 F.Supp.2d 944 (S.D. Tex. 2012)(finding claimant was not an innocent owner),
aff’d, --- F. App’x. ----, 2013 WL 5943306 (5th Cir. Nov. 7, 2013).
Although the Government does not argue that this vehicle was used to facilitate the
commission of an offense in violation of the Controlled Substances Act, it does argue that the
vehicle was purchased with proceeds traceable to an illegal exchange in violation of the
Controlled Substances Act.

As stated above, during the timeframe the vehicle title was

transferred, Mr. Trevino’s legitimate income could not have supported the purchase of this
vehicle. Further, the Government has established that Mr. Trevino was displaying the vehicle to
others as belonging to him. Automobile insurance records indicate that the only authorized
driver was Mr. Trevino. Even assuming that during some portion of this timeframe, Ms. Trevino
was holding only a learner license or provisional license (because she was under the age of 18),
Ms. Trevino fails to present any evidence that she was added to any insurance policy that
covered the vehicle. In sum, Ms. Trevino fails to bring forth any competent summary judgment
evidence establishing that she is an owner as that term is defined in 18 U.S.C. § 983(d)(6).
Conclusion
It is ordered that the 2007 Ford F-250 be released and returned to Leonard Trevino, or his
designated agent, within sixty days of this Order.
The $2,106, 2007 Dodge Charger, and the 2006 Ford F-150 is forfeited to the United
States of America.
The 1957 Chevrolet Coupe is forfeited to the United States of America.

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The United States Marshal’s Service, or its designated agent, shall dispose of the
forfeited properties in accordance with law.
The United States Marshal’s Service shall be reimbursed from any sale or auction of the
forfeited properties for any costs and expenses incurred relating to the seizure, custody, storage
and maintenance of the forfeited properties.
SIGNED this 3rd day of January, 2014.

XAVIER RODRIGUEZ
UNITED STATES DISTRICT JUDGE

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