United States v. $141,770.00 in United States Currency, Rafael Moreno-Pena, Claimant--Appellant

DAVIS, District Judge,

dissenting and concurring.

While I concur with Parts B and C of the majority opinion, I must dissent from Part A, in which the majority finds that probable cause existed to establish that the currency at issue was connected to drug trafficking. In my view, the totality of the evidence does not support a finding of probable cause as the circumstantial evidence is extremely weak.

Forfeitures are disfavored and should be enforced only when within both the letter of the law and the spirit of the law. Muhammed v. Drug Enforcement Agency, 92 F.3d 648, 654 (8th Cir.1996); United States v. One 1976 Ford F-150 Pick-Up, 769 F.2d 525 (8th Cir.1985)(citing United States v. One 1936 Model Ford V-8 De Luxe Coach, 307 U.S. 219, 226, 59 S.Ct. 861, 865, 83 L.Ed. 1249 (1939)). The letter of the law is clear: In order to seize property, the government must show probable cause to connect property to drug trafficking. See 19 U.S.C. § 1615; United States v. $39,873.00, 80 F.3d 317, 318 (8th Cir.1996); United States v. $91,960.00, 897 F.2d 1457, 1462 (8th Cir.1990). Probable cause exists only where the government’s evidence creates “more than a mere suspicion but less than prima facie proof’ that the money is connected with drug trafficking. United States v. $39,873.00, 80 F.3d at 318. In other words, the government must show a nexus between property to be forfeited and criminal drug trafficking activity. United States v. $100,000.00, 761 F.Supp. 672 (E.D.Mo.1991). The spirit of the law also is clear: Forfeiture statutes are meant to divest the blameworthy, not the inept, of private property. Muhammed at 654, citing United States v. Premises Known as 3639-2nd St., N.E., 869 F.2d 1093, 1098 (8th Cir.1989) (R. Arnold, J. concurring). As a result, in order to satisfy the intent of 21 U.S.C. § 881(a)(6), the “quality of the relationship between the property and the crime must be substantial.” Premises Known as 3639-2nd St, N.E., 869 F.2d at 1098 (R. Arnold, J. concurring).

When viewing all facts in the aggregate, I believe the forfeiture in this ease does not fall within either the letter or spirit of the law. Appellant Moreno and one of his employees, Mr. Herrera, were traveling through Nebraska in a' camper on their way to Los Angeles from Minnesota. Mr. Moreno owns and operates Moreno Auto Body, through which he buys and sells used automobiles. At trial, he testified that he was in Minnesota for the purpose of identifying vehicles to purchase for his business. Mr. Moreno had flown to Minnesota, but decided to drive back to California with Mr. Herrera. While driving through Nebraska, a State Trooper observed their camper drive onto the shoulder. For this slight infraction, the trooper ordered to the camper to pull over. When speaking with the driver, the trooper testified that he smelled the scent of dryer sheets emitting from the camper. The camper was eventually searched, and money, packaged in dryer sheets and zip lock bags, was found. No drugs, drug paraphernalia or weapons were found in the camper or on Mr. Moreno’s or Mr. Herrera’s person.

Mr. Moreno has no prior drug convictions. There is no evidence that he uses or distributes drugs. To the contrary, evidence was submitted at trial establishing that he runs an auto shop, and deals mainly in cash. Documents were admitted at trial corroborating his testimony regarding his business, including invoices, and DMV records. In addition, Mr. Moreno’s proffered purpose for being in Minnesota was corroborated by the Government’s investigation. For example, the Government determined that while in Minneapolis, Mr. Moreno and Mr. Herrara placed several phone calls to auto body shops in the San Diego Area. (Tr. 273-279).

Seemingly ignoring the fact that Mr. Moreno has no drug convictions, that no drugs, drug paraphernalia or weapons were found, and that Mr. Moreno provided an explanation for the large amount of money found in the camper, the majority finds that sufficient circumstantial evidence exists to support probable cause the money is connected to drug trafficking. First, the majority states probable cause is supported by the fact that the camper originated from California, a drug source state. The record is devoid of any evidence, however, that defines a “drug source state” and how California fits such definition. Does the fact that California borders a foreign country make it a “drug source state”? If that is the case, then twenty-eight of the fifty states in this country should be defined as a “drug source state.”⁶ Similarly, does any city in which an international airport is located become a “drug source city”?

The majority states that the most telling evidence supporting probable cause was the way the money was packaged. While I certainly recognize that wrapping money in dryer sheets in zip lock bags has been found to mask the smell of illegal narcotics, I do not agree that such packaging, without corroborating drug evidence, is sufficient to establish probable cause the money is connect ed to drug trafficking. For instance, in United States v. $39,873.00, evidence of dryer sheets supported a finding of probable cause, together with evidence of drug paraphernalia and drugs. 80 F.3d at 318. In this case, there is absolutely no evidence connecting Mr. Moreno to drugs, drug paraphernalia or of a history in dealing in drugs.⁷

The majority also bases its finding of probable cause on the dog⁸ alert to the packages of money, and the camper doors. However, as this circuit has previously found, “it is well-established that an extremely high percentage of all cash in circulation in America today is contaminated with drug-residue. Muhammed, 92 F.3d at 653 (citation omitted). Thus, contamination alone is virtually meaningless as it is unknown where or when the money was contaminated. Id.⁹

The facts presented in this case are analogous to those addressed in Muhammed, 92 F.3d at 648, United States v. $7,850.00 in U.S. Currency, 7 F.3d 1355 (8th Cir.1993) and United States v. $506,231.00 in U.S. Currency, 125 F.3d 442 (7th Cir.1997).

In Muhammed, the Muhammed family from near Los Angeles had been visiting family in Missouri, and had purchased one-way tickets back to Los Angeles by paying in cash. Mr. and Mrs. Muhammed were approached by DEA agents at the airport, and were separated and interviewed, without Miranda warnings. Muhammed, 92 F.3d at 650. Mr. Muhammed was carrying $70,990 in his bags, and explained that the cash was a result of fundraising activities for the Nation of Islam. A drug dog alerted to the cash, and it was seized. Id. Similarly, Mrs. Mu-hammed was carrying $22,000 in her girdle, but said she was uncertain where her husband had obtained the cash. When a drug dog alerted to that cash, it was also seized. Id. About five months after the seizure, Mr. Muhammed was stopped in the St. Louis airport after he allegedly “discarded” a ticket not in his name and was found to have 12.7 grams of marijuana on his person. Id. at 653. Even though a small amount of drugs had been found, a panel from this circuit characterized this case as “a seemingly baseless government seizure of its citizens’ cash currency.” Id. at 653.

While the government’s failure to perfect the seizure in Muhammed turned on the lack of adequate notice to the claimants, the ease nonetheless illustrates that no undue deference should be afforded to drug-alerts by dogs to large amounts of cash, in the absence of some evidence linking the alerts to an actual drug transaction. A mere alert to cash simply threatens to inculpate law-abiding citizens.

In United States v. $7,850.00 in U.S. Currency, 7 F.3d 1355 (8th Cir.1993), the claimant had purchased a one-way air ticket in the Minneapolis-St. Paul airport to Omaha, with cash. He was not carrying any baggage or identification and had the same physical description of an individual found in the Narcotics and Dangerous Drugs Information System (NADDIS), which also reported that the claimant had a heroin supplier in Omaha. The claimant had been seen at the airport the previous day, and had lied about that fact. In addition, a police dog made a positive drug-alert and “bit at the money, indicating the currency had recently been in contact with controlled substances.” Id. at 1357.¹⁰ The district court had granted summary judgment in favor of the government, but this court reversed, finding that no probable cause, prior to seizure, could establish a connection to contraband. Id., at 1358.

Finally, in United States v. $506,281.00, currency was seized from a Chicago pizzeria alleged to be a buyer of stolen property. A police search, pursuant to a warrant, discovered three unregistered guns and the more than $500,000 defendant currency, stashed inside a 44-gallon barrel, and wrapped in plastic bags. 125 F.3d at 452. In addition to the weapons and an unusual storage of such a large amount of currency, the government asserted that a positive drug alert by a police dog and a witness who had seen a cocaine delivery to the pizzeria helped establish probable cause. Id. The Seventh Circuit Court of Appeals held that this evidence, taken together, did not establish a connection to drug trafficking. Id. at 452-453.

In the ease at bar, the government has failed to establish probable cause that the currency was connected to drug trafficking. There is no evidence that ties the currency to drug trafficking, such as drugs or drug paraphernalia in the camper or on the individuals and the lack of evidence regarding any associations to drug dealers. It seems the government has raised only a “mere suspicion” that the cash was related to drug trafficking, but that suspicion is no greater than the suspicion that the cash is related to some other transaction, even an illegal one, not subject to the forfeiture provisions of 21 U.S.C. § 881.

While I do not find the district court’s decision to allow the government to explore the claimant’s taxpaying history to be a clear error under the abuse of discretion standard, the issue to which his tax history speaks is not necessarily suggestive of drug trafficking. To satisfy the forfeiture requirements of 21 U.S.C. § 881 and the logical relevance standai’ds prescribed by Fed.R.Evid. 403, the government must show a nexus between the evidence of failure to properly pay taxes and drug trafficking. There can be no question that the failure to properly pay taxes is evidence of some variety of wrongdoing. However, that fact is no more probative of drug trafficking than it is of failure to report income from his otherwise legitimate business, trading guns or even running an illegal auto parts business between the United States and Mexico. The forfeiture statute makes no provision for wrongfully obtained funds not related to drug trafficking. See United States v. $150,660.00, 980 F.2d 1200, 1208 (8th Cir.1992). See also, United States v. $38,600.00 in U.S. Currency, 784 F.2d 694 (5th Cir.1986).

In addition, while I do not dissent with respect to the refusal to admit Mr. Ihm’s expert testimony that 99 percent of U.S. currency is drug-contaminated, because such opinion was based upon unreliable methodology, other courts have recognized similar expert testimony in numerous forfeiture cases. See eg. United States v. $53,082.00 in U.S. Currency, 985 F.2d 245, 250, note 5 (6th Cir.1993) (indication that as much as 96 percent of currency has narcotics contamination); United States v. Carr, 25 F.3d 1194, 1214-1218 (3rd Cir.1994) (Becker, J., concurring in part and dissenting in part) cert. denied, 513 U.S. 1086, 115 S.Ct. 742, 130 L.Ed.2d 643 (1995); United States v. $639,-558.00 in U.S. Currency, 955 F.2d 712, 714, note 2, (D.C.Cir.1992) (referencing expert testimony that 90 percent of currency contains sufficient quantities of cocaine to alert a trained dog).

For all of the above reasons I dissent from Part A of the majority opinion.

6 . Twenty-eight states either border Mexico, Canada or a body of water such as the Atlantic or Pacific ocean.

7 . It is also important to note that the camper involved in this case did not have a hidden compartment of the type used to conceal and transport narcotics.

8 . Is it a coincidence that the dog in this case is named Nero? History remembers the Roman Emperor Nero as an evil man who sent the then detested Christians to horrible deaths and sat idly composing music while fire destroyed Rome.

9 . In his dissenting opinion in Bennis v. Michigan, 516 U.S. 442, 460 n. 1, 116 S.Ct. 994, 134 L.Ed.2d 68 (1996), in which he was joined by Justices Souter and Breyer, Justice Stevens noted:

Without some form of an exception for innocent owners, the potential breadth of forfeiture actions for illegal proceeds would be breathtaking indeed. It has been estimated that nearly every United States bill in circulation— some $230 billion worth — carries trace amounts of cocaine, so great is the drug trade’s appetite for cash. See Range & Witkin, The Drug-Money Hunt, U.S. News & World Report, Aug. 21, 1989, p. 22; Heilbroner, The Law Goes on a Treasure Hunt, N.Y. Times, Dec. 11, 1994, p. 70, col. 1. Needless to say, a rule of strict liability would have catastrophic effects for the nation's economy.

See also, United States v. $53,082.00 in U.S. Currency, 773 F.Supp. 26 (E.D.Mich.1991) aff'd 985 F.2d 245 (6th Cir.1993)(factors relied on by the government to show probable cause were equally consistent with others kinds of illegal activity not involving drugs; dog alert proved nothing.)

10 . Because the initial seizure which was effected in order to conduct the drug sniffing test was made without a warrant or consent, the Court of Appeals held that the seizure was illegal. The positive drug-alert was referenced in the facts, but not the holding.