USA v. $124,700

-! bgcolor="6699FF" | Court membership
-|"United States of America v. $124,700 in U.S. Currency", 05-3295 (8th Cir. 2006), was a decision of the United States Court of Appeals for the Eighth Circuit that was handed down on August 18, 2006. Although it is usual for persons, rather than property, to be sued in court, the controversial doctrine of asset forfeiture does allow a piece of property (in this case, $124,700 in cash) to be directly sued by and forfeited to the government, without either just compensation or the owner being convicted of a crime.

Background

The defendant currency was seized on May 28, 2003, from one of the claimants, Emiliano Gomez Gonzalez. According to testimony adduced at trial, Gonzalez was driving west on Interstate 80 in a rented Ford Taurus when a Nebraska State Patrol Trooper, Chris Bigsby, stopped Gonzalez for exceeding the posted speed limit. Trooper Bigsby testified that he asked Gonzalez to sit in the front passenger side of his patrol vehicle during the stop. At Bigsby's request, Gonzalez presented a Nevada driver's license and a rental contract for the car, but the rental contract was not in Gonzalez's name and did not list Gonzalez as an additional driver.

Trooper Bigsby did not speak fluent Spanish, but he testified that Gonzalez responded to his questions, which were mostly in English, in a combination of English and Spanish. Bigsby asked Gonzalez where he was going, and Gonzalez responded that he had been in Chicago for three days. Gonzalez indicated that a person named "Luis" had rented the car for him, but the name "Luis" did not match the name on the rental agreement that he presented to Trooper Bigsby. Trooper Bigsby also twice inquired whether Gonzalez had ever been arrested or placed on probation or parole, and Gonzalez said that he had not.

Before Trooper Bigsby had completed the traffic stop, another officer, Jason Brownell, stopped to ask if Bigsby needed any assistance. When Trooper Bigsby found out that Trooper Brownell had some Spanish-speaking ability, Bigsby asked if Brownell would stay and assist. Trooper Bigsby testified that with Brownell's assistance, he completed a warning citation and returned Gonzalez's license and paperwork. Having learned through his dispatcher that Gonzalez had been arrested in 2003 for driving while intoxicated, Bigsby then asked, through Trooper Brownell, if he could "ask a few more questions," and Gonzalez answered yes. Again through Trooper Brownell, Bigsby asked if Gonzalez had ever been arrested for driving while intoxicated, and Gonzalez answered that he had. Bigsby and Brownell also inquired whether any alcohol, guns, marijuana, methamphetamine, heroin, or large amounts of cash were in the car, and Gonzalez answered no. Brownell then asked for, and received, consent to search the car. Trooper Bigsby went directly to the rear passenger side of the vehicle and opened a cooler that was in the back seat, where he found a large plastic bag that contained seven bundles wrapped in rubber bands inside aluminum foil packaging. These bundles contained a total of $124,700 in currency. Gonzalez and the vehicle were then taken to the Nebraska State Patrol office in Lincoln.

Lawsuit

The district court concluded that the government had not established, by a preponderance of the evidence, that there was a substantial connection between the money and a drug trafficking offense. The court noted that large sums of unexplained currency can be evidence of drug trafficking, and that in this case the money was bundled in an unusual manner. The court also concluded, however, that the claimants had given a "plausible and consistent explanation for [the money's] origin and intended use," (Add. at 12), and that "the bundling is consistent with an attempt to sort the currency by contributor and conceal the currency from would-be thieves," and not just to evade law enforcement. ("Id". at 13). In addition, the court observed that the government had not presented any expert testimony about "whether the manner the bundles were wrapped either increased or decreased the likelihood of the currency's use or connection with a drug trafficking offense." ("Id".)

Opinion of the Eighth Circuit Court of Appeals

Judge Steven Colloton, a G.W. Bush appointee to the Eighth Circuit, wrote the majority opinion for himself and Judge Arnold. He said, "The United States initiated civil forfeiture proceedings against $124,700 in United States currency, alleging that the money was subject to forfeiture as the proceeds of a drug transaction or as property used to facilitate the possession, transportation, sale, concealment, receipt, or distribution of a controlled substance. "See" 21 U.S.C.§ 881(a)(6). Three individuals filed claims opposing the forfeiture, and after a bench trial, the district court entered judgment in favor of the claimants.

The dissent

Senior Circuit Judge Donald P. Lay, a Lyndon B. Johnson appointee to the Eighth Circuit wrote: "I respectfully dissent. Although the circumstantial evidence offered by the government provides some indication that the money seized in this case may be related to criminal activity, I cannot agree that the government has proven, by a preponderance of the evidence, the requisite "substantial" connection between the currency and a "controlled substance offense".

"Notwithstanding the fact that claimants seemingly suspicious activities were reasoned away with plausible, and thus presumptively trustworthy, explanations which the government failed to contradict or rebut, I note that no drugs, drug paraphernalia, or drug records were recovered in connection with the seized money. There is no evidence claimants were ever convicted of any drug-related crime, nor is there any indication the manner in which the currency was bundled was indicative of drug use or distribution. At most, the evidence presented suggests the money seized may have been involved in some illegal activity - activity that is incapable of being ascertained on the record before us. See "United States v. U.S. Currency, $30,060.00", 39 F.3d 1039, 1044 (9th Cir. 1994) (" [A] mere suspicion of illegal activity is not enough to establish ... that the money was connected to drugs.")".

"Here, the only evidence linking the seized money to illegal drug activity is a canine sniff that alerted officers to the presence of narcotics on the currency itself and the exterior of the rear passenger side of the rental car where the currency was discovered. However, as Justice Souter recently recognized, a large percentage of currency presently in circulation contains trace amounts of narcotics. See "Illinois v. Caballes" ussc|543|405|2005, 410-12 (Souter, J. dissenting). As a result, this fact is virtually "meaningless and likely quite prejudicial." "United States v. Carr", 25 F.3d, 1194, 1216 (3d Cir. 1994) (Becker, J., concurring). Our decision in "$84,615 in U.S. Currency" to afford this evidence only "slight" weight is thus well-founded, and this factor, taken in conjunction with the large amount of currency seized, does not favor forfeiture. Finally, the mere fact that the canine alerted officers to the presence of drug residue in a "rental car", no doubt driven by dozens, perhaps scores, of patrons during the course of a given year, coupled with the fact that the alert came from the same location where the currency was discovered, does little to connect the money to a controlled substance offense. Therefore, I respectfully dissent".

ee also

*United States Court of Appeals for the Eighth Circuit
*List of notable United States Courts of Appeals cases
*Asset forfeiture
*War on Drugs

External links

* [http://www.ca8.uscourts.gov/opndir/06/08/053295P.pdf Full text, ten page PDF of the decision from the Eighth Circuit]
* [http://www.usdoj.gov/jmd/afp/ United States Department of Justice Asset Forfeiture Program]
* [http://www.ca8.uscourts.gov/index.html U.S. Court of Appeals For The Eighth Circuit]

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