Attorney for Claimant
 
 

UNITED STATES OF AMERICA,                                    )
                                                                                         )             Civil No. )
                                Plaintiff,                                             ) POINTS AND AUTHORITIES IN
                                                                                         )
    vs.                                                                                 ) SUPPORT OF MOTION TO DISMISS
                                                                                         )
                                                                                         ) COMPLAINT FOR FORFEITURE
$13,980.00 in U.S. CURRENCY,                                        )
                                                                                         )
                                Defendant.                                         )
_____________________________________________)
 

Rule 12(b)(6) of the Federal Rules of Civil Procedure provides in relevant part:
 

Every defense, in law or fact, to a claim for relief in any pleading, whether a claim, counterclaim, cross-claim, or third-party claim, shall be asserted in the responsive pleading thereto if one is required, except that the following defenses may at the option of the pleader be made by motion: . . .

(6) failure to state a claim upon which relief may be granted."

In a seizure under 21 U.S.C. §881, the government must have probable cause to connect the seized property with narcotics activity.

Probable cause to believe the property is related to some illegal activity does not permit its forfeiture. United States v. $191,910.00 in U.S. Currency, 16 F.3d 1051, 1071 (9th Cir.1994); United States v. Dickerson, 873 F.2d 1181, 1884 (9th Cir. 1988).

To meet its burden of establishing probable cause, the government's belief that money was involved in drug trafficking must be based on more that mere suspicion. See United States v. $5,644,450 in U.S. Currency, supra, at 1362. To pass the point of mere suspicion and to reach probable cause, it is necessary to by some credible evidence the probability that the money was in fact drug related. See United States v. Dickerson, 873 F.2d 1181, 1184 (9th Cir. 1988).

As set forth below, the government cannot show probable cause for the institution of these forfeiture proceedings.

    As the Ninth Circuit held in United States v. $191,910.00, 16 F.3d 1051 (9th Cir. 1994), the government may not rely on evidence obtained after the institution of forfeiture proceedings to satisfy the probable cause requirement. Id. at 1066-71. Thus, probable cause must rise or fall on the evidence known to the government as of October 23, 1997, the date of the filing of the Complaint for Forfeiture.

The facts in this case simply do not rise to a level of probable cause. A similar case recently issued by the Ninth Circuit with remarkably similar facts supports this conclusion. In United States v. $49,576.00 U.S. Currency, 116 F.3d 4125 (9th Cir. 1997), one Francisco Lombera was detained by D.E.A. agents at the Ontario International Airport. The agents had been notified by an American Airlines desk agent in Dallas, Texas that someone named "Jacinto Rodriguez" had purchased a one-way ticket with cash just before Flight 533 to Ontario departed. While passengers were disembarking the flight, agents removed Rodriguez's bag from the plane. A drug-sniffing dog altered to the bag, which was then placed on the luggage carousel. Meanwhile, agents observed Lombera walking "in a very nervous manner" from the plane to the baggage area. Id. at 426-47.

When Lombera claimed the bag, agents approached him and asked for identification. He produced a California Driver's license with the name "Jacinto Rodriguez" and an alien resident card with the name "Francisco Lombera". When asked about bulges in his pants, he responded that he was carrying $2,000.00 in cash in his pockets. He was then asked to accompany the agents to their office, which he agreed to. Id. at 427.

In the office, he told the agents there was no money in his bag. When the agents opened the bag, they discovered $49,576 wrapped inside a pair of blue jeans. Although Lombera denied ownership of the money, he refused to sign a waiver of ownership or talk further about it. Id.

The government commenced forfeiture proceedings, and obtained a judgment of forfeiture in the district court. That order was reversed by the Court of Appeals.

As the appellate court observed:

To sustain a forfeiture of currency under 21 U.S.C. § 881(a)(6), a showing that the currency was 'involved in some illegal activity is not enough-the government must have probable cause to believe that the property is involved in [a drug transaction]." United States v. $191,910.00 in United States Currency, 16 F.3d 1051, 1071 (9th Cir. 1994)(emphasis in original). Here the government points to two pieces of evidence that arguably link the seized money to a drug transaction. First, the drug sniffing dog alerted to the money. We have held, however, that this factor is entitled to little weight because of the widespread contamination of money with drug residue in the Los Angeles area. (citation omitted). Second, the government noted that appellant was once detained in connection with a drug-related crime. Since appellant was released and never charged with a crime, this fact is not a credible link between the money and as drug transaction. (citation omitted). Id.

In the Fourth Amendment context, however, a drug courier profile can, at most, provide grounds for reasonable suspicion; it cannot establish probable cause. (citations omitted). As the standard of probable cause is similar for forfeiture and the Fourth Amendment, (citation omitted), the fact that appellant's actions matched a drug courier profile cannot establish probable cause to justify forfeiture. Id. at 427-48.

Appellant's use of a fake driver's license, his evasive and dishonest answers to questions, and his general nervous behavior are indicative of some illegal activity, but not necessarily of drug trafficking. We therefore conclude that the government failed to produce sufficient evidence to support a finding of probable cause to believe the property was involved in a drug transaction." Id.

The recent case of United States v. $405,089.23 in U.S. Currency, 122 F.3d 1285 (9th Cir. 1997) is equally instructive. As that court held in part:

Probable cause to believe that the property is involved in some illegal activity is not enough -- the government must have probable cause to believe that the property is involved in the activity subject to the specific forfeiture statute it invokes. (citation omitted). Id. at 11795. Thus, a 'mere suspicion [that the money is connected to some] illegal activity is not enough to establish probable cause that the money was connected to drugs. The facts of this case must be examined to determine, whether, given the totality of the circumstances, there was probable cause to believe the property was substantially connected to the sale of controlled substances. (citation omitted). Id.

There can be little doubt that the Government presented sufficient evidence that Arlt and Wren were heavily involved in the illegal acquisition and distribution of derivative chemicals used in the manufacture and distribution of methamphetamine. What the Mullins affidavit lacks, however, is a sufficient connection between the detailed narcotics activity and the particular assets targeted by the Government's forfeiture proceedings. Id. at 11796.

A series of cases addressing the issue of probable cause within the context of currency seizures makes clear probable cause was lacking for the institution of forfeiture proceedings against the defendant res. In United States v. $30,060.00, 39 F.3d 1039 (9th Cir. 1994), the following facts were submitted in support of probable cause: a narcotics detection dog's alert to the presence of the scent of a controlled substance on the seized money, the packaging and amount of the money, and the claimant's false accounts of the money's source and his own employment record. Id. at 1041.

In affirming the district's court finding of a lack of probable cause, the Ninth Circuit pointedly observed it had upheld probable cause findings in cases involving a positive canine alert only when the dog alert was combined with other credible evidence clearly connecting the money to drugs. Id. at 1043. Numerous cases cited in the $30,060.00 opinion in which no probable cause was found had facts much stronger than those here.

The $30,060.00 court also found that the large amount of money seized and his false account of the money's source and his own employment record were insufficient to establish probable cause:

"While this evidence may support a suspicion of illegal activity, a mere suspicion of illegal activity is not enough to establish probable cause that the money was connected to drugs. (citation omitted)." Id. at 1044.

In United States v. $31,990.00 in U.S. Currency, 982 F.2d 851 (2d Cir. 1993), the following facts were submitted in support of probable cause: (1) The large amount of money was wrapped and packaged in a manner consistent with money used in drug trafficking, i.e. elastic bands and plastic bags; (2) the amount of money was approximately equal to the 1988 market price for a kilogram of cocaine ($30,000.00); (3) the money was found in close proximity to cocaine; (4) the seizure occurred on the New York state thruway, a major drug route between New York City and Upstate New York; (5) the money was found in the trunk of a Gypsy Cab, a vehicle frequently used to transport drugs and cash; (6) the occupants of the vehicle stated that they had been to Schenectady, a center of Dominican drug activity; (7) all involved, including the claimant, were Dominican and their activities were consistent with the Dominican drug trafficking culture in the United States; and (8) an "incredible" story was given to the police regarding who owned the money.

In judging the issue of probable cause, the Second Circuit court observed that the government must have reasonable grounds to believe that "a substantial connection exists between the money to be forfeited and the exchange of a controlled substance". As the court observed:

"Probable cause to believe that the property is related to some illegal activity, however, does not permit its forfeiture." Id. at 854.

"The possession of large amounts of cash is no more indicative of drug sales than it is of weapon sales, gambling, or a myriad of other illegal activities." Id. at 854.

"Although "profile" factors have been used to support a finding of probable cause (citations omitted). . .they `are of little value in the forfeiture context without other persuasive evidence establishing not been held by the court to be per se evidence of illegal drug related activity. Id.

"To the extent that the conclusions are admissible. . .they add nothing more to support a finding of probable cause. Indeed, the investigators merely speculate that the money is related to narcotics. Such 'mere suspicion' is insufficient to create an issue of fact to defeat claimant's motion for summary judgment." Id. at 855.

In United States v. $53,082.00 in U.S. Currency, 985 F.2d 245 (6th Cir. 1993), the court found a lack of probable cause under the following factual circumstances.

On June 6, 1988, two DEA task force agents approached claimants as they sat in a departure area at the Detroit Metropolitan Airport. The agents approached the claimants initially because one of the claimants, Brunson, was shaking nervously, the claimants were waiting in a departure area of a plane heading for Dallas, Texas, a known source city for narcotics, claimants carried only small gym bags for luggage, and claimants had isolated themselves from the crowd. Id. at 247.

After the agents identified themselves as law enforcement agents, the claimants agreed to answer the agents questions. Upon request, the claimants produced airplane tickets which had been purchased that same day with cash and had no baggage claim receipts. The tickets were for a flight to Dallas that afternoon and a return flight to Detroit the next day.

The claimants allowed the agents to search their dufflebags. While the agents looked through the bags, claimants revealed they were carrying $45,000.00 in their socks. Id. The individuals were then taken to a DEA office at the airport and the money was subjected to a dog sniff. The dog reacted positively for drugs at which time the agents seized the currency. Id. at 247.⁽¹⁾

The court considered all of the above factors and found them insufficient to rise above a mere suspicion the claimants were involved in some drug transaction, and failed to reach the probable cause level. Id. at 251. Accord, United States v. Wright, 610 F.2d 930 (D.C. Cir. 1979), wherein the court held that $2,100.00 in seized currency should be returned to the claimants even though the money was seized at a "shooting gallery" (a place used exclusively for the injection of narcotics), the claimants were unemployed and provided no explanation as to the source of the money. Id. at 941-42. The court ordered the return of the money because "[t]here is not one shred of evidence in the record the money was obtained form heroin sales" or was otherwise "the proceeds of crime." Id. at 942.

In another case involving the seizure of a large amount of currency, United States v. $68,580.00 in U.S. Currency, 815 F.Supp. 1479 ((M.D. Ga. 1993), the District Court held the government did not have probable cause to seize the defendant currency.

After conducting an evidentiary hearing on the issue of probable cause, the District Court found the following facts insufficient to establish probable cause:

The evidence as a whole shows that the claimant was traveling on a known drug route and acted nervous, was carrying a large sum of currency in small denomination bills, lied about the identity of the owner of the currency, has a criminal record, and has a modest income according to his tax returns. In addition, an informant stated that the claimant delivered three kilos of cocaine to his brother in 1986." Id. at 1438.

In that case, probable cause was found to be lacking where $134,752.00 was found in a car, even though agents observed two occupants counting and handling numerous one-hundred dollar bills, four cocaine vials and a "billy club" were found in the vicinity of the case, and claimant's statements purporting to explain the presence of the large amount of cash were "inconsistent." Id. at 1077-78. Additionally, an agent testified the claimant was sweating profusely, had bloodshot eyes and was constantly wiping his nose. Id,. at 1077.⁽²⁾

Explaining that probable cause is more than "mere suspicion," the court stated:

The government does not meet its burden unless it shows probable cause for believing a "substantial connection" exists between the property and the criminal activity which the law seeks to prevent." Id. at 1081.

The $134,752.00 was obviously not furnished to purchase the four vials of cocaine since the money was still in [claimant]'s possession. Furthermore, there is no evidence that the money was intended to be furnished to purchase a quantity of drugs (apparently a large one) in the future, that it was proceeds of a previous sale; or that it in any way facilitated a violation of the drug law." Id. at 1083.

For the foregoing reasons, it is requested the court grant claimant's motion.

Dated: February 9, 1998

Respectfully submitted,
 

RICHARD M. BARNETT
Attorney for Claimant

________________________

FOOTNOTES:

1. The district court opinion also noted that the claimants did not provide the agents with a satisfactory explanation
as to how they came by such a large sum of money or what they intended to use it for. 773 F.Supp. 26, 33.

2.