Eighth Circuit Court of Appeals, United States v. $124,700 in U.S. Currency:
Carrying cash while driving a rental car ruled grounds for forfeiture  
by Judy Osburn

During a traffic stop for exceeding the speed limit Nebraska State Patrol Trooper Bigsby asked Emiliano Gomez Gonzolez to get out of his rental car and wait in the passenger seat of the trooper's patrol vehicle.  Once inside the patrol vehicle Gonzolez produced his driver's license and a rental contract for the car.  Though Trooper Bigsby did not speak fluent Spanish, Gonzolez answered the trooper's questions as best he could using a combination of Spanish and broken English.  Another officer arrived in a second patrol vehicle to assist Trooper Bigsby in the questioning, as he "had some Spanish-speaking ability."  The officers completed a warning citation and returned paperwork to Gonzolez, who was still detained inside the patrol vehicle.

The troopers continued their interrogation until Gonzolez consented to a search of his rented car, where the officers recovered seven bundles of cash totaling $124,700.  The troopers took the vehicle, Gonzolez, and his currency to the Nebraska State Patrol office in Lincoln, where their drug-sniffing dog, "Rico,"alerted to the rear passenger side of the car where the currency was located and to the currency itself.  Finding no evidence of any crime, aside from a barking dog trained to alert to the trace amount of narcotic residue present on the majority of currency in circulation throughout the nation, the officers arrested the currency and released Mr. Gonzolez without filing any criminal charges.

At the civil forfeiture trial of United States v. $124,700 in U.S. Currency Gonzolez testified that after pooling his own legitimately earned cash with that of two partners in the produce business, he flew to Chicago for the purpose of purchasing a refrigerated truck from a friend of a friend.  Upon arrival he found that the truck had already been sold.  Friends there told him that it's "bad" to carry more than $10,000 in cash on a plane, so he decided to drive back home in a rental car.  Both business partners gave testimony at trial substantiating Gonzolez' undisputed account of the legitimate source and intended use of the defendant currency.  None of the owners of the seized money were ever convicted of a drug-related crime.  No drugs, drug paraphernalia, or drug records were recovered in connection with the defendant money, nor was there any indication the currency had been bundled in a manner indicative of drug use or distribution. The government failed to contradict or rebut the claimants' evidence, so the trial court considered the three claimants' testimony to be legally trustworthy and therefore conclude that the government failed to establish the required substantial connection between the seized money and a drug trafficking offense–even by the mere preponderance of evidence standard of a civil forfeiture trial (i.e.: somewhat more likely than not).

However, when prosecuting an inanimate object the government not only enjoys a far lower burden of proof than that required to obtain a criminal conviction–it also gets a second bite at forfeiting seized bounty in the event that a property owner does manage to prove his innocence at trial.  Unlike acquittals at criminal trial, the prosecutor is allowed to repeatedly muster the vast resources of the government to appeal judgments in favor of owners of inanimate defendants in civil forfeiture prosecutions.  

So the government appealed to a panel of judges who never had direct contact with any witnesses.  Based on transcripts of the proceedings and legal briefs submitted by the United States Attorneys Office in Omaha and the claimants' two San Diego attorneys, a divided panel of the Eighth Circuit Court of Appeals second-guessed the trier of fact, and reversed the judgment of the trial court.  The trial court had concluded that all three claimants to the $124,700 had given a "plausible and consistent explanation for [the money's] origin and intended use," 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."  In reversing the trial court's judgment the majority appellate panel stated that the district court's opinion included no finding as to the credibility of Gonzolez and the other two claimants.  The trial court's finding that claimants' explanations were undisputed, plausible and consistent, stated the Eighth Circuit, "is different from a finding that the court actually believed the testimony."

As Circuit Judge Lay stated in his dissent,
 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.1 As a result, this fact is virtually "meaningless and likely quite prejudicial."2 Our decision in $ 84,615 in U.S. Currency to afford this evidence only "slight" weight is thus well-founded.... [T]he 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.3

Like Judge Lay's dissent, the majority opinion rejected the government's argument that the district court erred by according only "slight" probative value to the canine alert, noting:
That precise language, however, was drawn from one of our decisions,4 and the government in this case presented no expert testimony or other scientific evidence that might warrant a stronger inference.5 The significance of canine alerts is largely a scientific question, and absent a developed record, we decline to expand on our previous pronouncements in this area.

Sadly however, the majority appellate panel concluded that even without any real evidence of a crime, merely possessing a large sum of cash provides "strong evidence" of a substantial connection to some unknown drug activity, which caused Circuit Judges Colloton and Arnold to "believe that the evidence as a whole demonstrates by a preponderance of the evidence that there was a substantial connection between the currency" and an unspecified drug trafficking offense.  As Judge Lay points out in his dissent, this is the first time the Eighth Circuit has ever held that mere possession of a large amount of cash without additional evidence of a connection to illegal drug activity provides strong enough proof of a substantial connection between seized property and a controlled substance offense to support forfeiture.6


Footnotes (from United States. v. $124,700 in U.S. Currency, 458 F.3d 822 (8th Cir., 2006):

1.    See Illinois v. Caballes, 543 U.S. 405, 410-12, 125 S. Ct. 834, 160 L. Ed. 2d 842 (2005) (Souter, J. dissenting).
2.    United States v. Carr, 25 F.3d 1194, 1216 (3d Cir. 1994) (Becker, J., concurring).
3.   458 F.3d 822 at 827-828.
4.   see $84,615 in U.S. Currency, 379 F.3d at 502
5.   Cf. United States v. Funds in the Amount of $ 30,670, 403 F.3d 448, 457-59 (7th Cir. 2005).
6.   458 F.3d 822 at 828 (Judge Lay dissenting opinion):
The law of our circuit makes clear that the possession of a large amount of cash provides strong evidence of a connection between the res and illegal drug activity. Yet this fact is not dispositive. A faithful reading of the cases cited by the majority from our court reveal that we have required some additional nexus between the property seized and drug activity to support forfeiture. In United States v. U.S. Currency, in the Amount of $ 150,660.00, 980 F.2d 1200 (8th Cir. 1992), we recognized such a nexus where the investigating officer immediately smelled marijuana upon inspecting the currency. n2 Id. at 1203, 1206. In United States v. $ 84,615 in U.S. Currency, 379 F.3d 496 (8th Cir. 2004), we concluded forfeiture was proper where the owner of the seized currency "undisputedly possessed illegal drugs at the time" the currency was discovered. Id. at 502. Most recently, in United States v. $ 117,920.00 in United States Currency, 413 F.3d 826 (8th Cir. 2005), we determined that forfeiture was warranted where materials known to be used to package and conceal drugs were recovered in close physical proximity to the seized currency, and where the investigating officer detected the smell of marijuana on some of these materials. Id. at 829.
n2 Unlike our decision in U.S. Currency, in the Amount of $ 150,660.00, the odor of narcotics on the currency seized in this case was not apparent upon inspection, and thus there was no immediate relationship between drugs and the currency which would suggest the currency had recently been involved in a controlled substance offense.