U.S. v. $242,484.00, 01-16485.

• Citation: 318 F.3d 1240
• Decision Date: 22 January 2003
• Docket Number: No. 01-16485.,01-16485.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. $242,484.00, Defendant, Deborah Stanford, individually and as President, Director, and Stockholder of Mike's Import & Exports, U.S.A., a Florida corporation, Claimant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

318 F.3d 1240

UNITED STATES of America, Plaintiff-Appellee, v. $242,484.00, Defendant, Deborah Stanford, individually and as President, Director, and Stockholder of Mike's Import & Exports, U.S.A., a Florida corporation, Claimant-Appellant.

No. 01-16485.

United States Court of Appeals, Eleventh Circuit.

January 22, 2003.

Douglas L. Williams, Miami, FL, for Stanford.

Jeanne Marie Mullenhoff, Anne R. Schultz, Madeleine R. Shirley, Miami, FL, for United States.

Appeal from the United States District Court for the Southern District of Florida.

Before EDMONDSON, Chief Judge, ANDERSON, Circuit Judge, and POGUE^*, Judge.

EDMONDSON, Chief Judge:

This appeal arises out of a civil forfeiture action pursuant to 21 U.S.C. § 881(a)(6) which provides for the forfeiture of money linked to drug crimes.¹ The district court ordered the forfeiture of $242,484.00 seized from the claimant, Deborah Stanford. Stanford argues that the Government lacked probable cause to support forfeiture of the defendant currency. Because we conclude insufficient evidence supports the finding of probable cause, we reverse the forfeiture order.²

BACKGROUND

Deborah Stanford is an American citizen who was born in Surinam, South America, and lives in Miami. She is the owner and president of Mike's Import & Export U.S.A., Inc. (Mike's). Mike's buys electronics, household and automotive goods and exports the items to South America.

In December 1998, Stanford was in New York City. She says that she was there to meet with her lawyer about a lawsuit involving a 1988 car accident. While in New York, she says that she was contacted by her brother and told to pick up some money for Mike's. The cash money was delivered to her by Surinamese people whom she says she did not know. Upon receipt of the money, Stanford counted it, separated it by denomination, and wrapped it in black plastic and a Christmas bag.

On 14 December, Stanford flew from New York to Miami. Security at John F. Kennedy Airport (JFK) questioned her about the packages. She told them that the packages contained money. Security allowed her to board her flight but notified the Drug Enforcement Administration (DEA) that a woman carrying a large amount of cash was traveling to Miami.

Believing that Stanford might be a currency courier for a drug organization, six Miami DEA agents, in three teams of two, went to the gate where Stanford's flight was scheduled to arrive. One team stayed close to the gate, another team stayed near the middle of the concourse, and the third stayed near the exit of the concourse. The agents were in plain clothes.

Agent Kenneth Miles saw Stanford as she walked out of the jet-way. He and Agent John Johnson approached her and identified themselves as DEA agents. Agent Miles testified that he explained to Stanford that part of his job was to ask people for their help in fighting the drug flow at the airport.

At the agent's request, Stanford gave them her ticket and identification. They verified her name and returned the items. The agents asked her if she was carrying drugs or money, and she said she was carrying about $200,000 cash in her backpack.

Agent Miles, with Stanford's permission, looked into the backpack and saw a "Christmas bag type package." He poked a hole in the bag and could see bundles of cash inside. The cash was bundled by denomination. The bundles were not of uniform size and did not bear the binding of a bank or financial institution. The Agents asked Stanford to accompany them to the DEA office, and she agreed.

At the office, Agent Miles asked Stanford why she was in New York. She said she was there because of her court case, but later said she was there to pick up money. Stanford could not, or would not, identify where she stayed in New York or who gave her the cash other then to say (according to Agent Miles) that she was called by her brother who told her to meet some people and pick up money for Mike's. She did not produce documentation connecting the currency to Mike's. When asked for the total amount of the cash, Stanford said that one bundle contained $79,900 and the other $162,750; a total of $242,650.

"Rambo," a narcotics-detecting dog, was brought into the room. Stanford's backpack was placed in a hallway with other packages of similar size and shape. Rambo alerted on Stanford's backpack.³ After the dog alert, Agent Miles prepared a receipt for the currency and gave the receipt to Stanford as confirmation of the seizure.

Stanford took the receipt and left the office. The agents packed the money inside an evidence box. On 15 December, the agents took the cash to SunTrust Bank and exchanged it for a cashier's check. The bank counted the cash, determined that there was a total of $242,484 and issued a check for that amount.

A follow-up investigation revealed that, in Miami, Stanford had purchased a 93 dollar round-trip airline ticket with cash; but did not board the return flight and subsequently changed her return date twice. No evidence in the record indicates that Stanford had a history of involvement in drug crimes, and she was charged with no crimes on account of these events.

DISCUSSION

Stanford argues that the Government has made no showing of a connection between the money and controlled substances that rises above simple suspicion. We will consider all the evidence to determine whether the Government has met its burden of establishing "probable cause for belief that a substantial connection exists between the property to be forfeited and the criminal activity defined by the statute." United States v. $4,255,625.39, 762 F.2d 895, 903 (11th Cir.1985) (quoting United States v. $364,960 in U.S. Currency, 661 F.2d 319, 323 (5th Cir. Unit B 1981))(emphasis omitted).⁴ "`Probable cause' refers to `reasonable ground for belief of guilt, supported by less than prima facie proof but more than mere suspicion.'" Id. (quoting United States v. One 1978 Chevrolet Impala, 614 F.2d 983, 984 (5th Cir.1980)). In this case, we stress that, because the forfeiture is pursuant to 21 U.S.C. § 881(a)(6), not just any criminal activity will support the forfeiture: the form of criminal wrongdoing must involve "the exchange of a controlled substance." Id.

"[T]he probable cause inquiry is a flexible one in which the court must consider the `totality of the circumstances.'" United States v. $121,100.00 in U.S. Currency, 999 F.2d 1503, 1506 (11th Cir.1993). When reviewing a forfeiture order we accept the district court's fact findings unless clearly erroneous. United States v. $149,442.43 in U.S. Currency, 965 F.2d 868, 876 (10th Cir.1992). Whether the facts as found by the district court are sufficient to establish probable cause is a question of law which we review de novo. See $121,100.00, 999 F.2d at 1507.

The district court relied on these circumstances to support its finding of probable cause: (1) "the quantity of cash and its physical condition"; (2) "the route and circumstances surrounding Ms. Stanford's travel"; (3) "Ms. Stanford's lack of knowledge concerning the circumstances surrounding her trip to New York and the receipt of this money, including her inability to identify from whom she received it"; (4) "that Ms. Stanford twice was a `no show' for her scheduled departure from New York to Miami"; and (5) a narcotics dog alerted on the cash.⁵ None of these things standing alone is sufficient to establish probable cause. Always keeping in mind that probable cause is a totality-of-the-circumstances test, we will consider each element in turn to determine how much weight, if any, should be assessed to it as part of the whole.

Carrying a large amount of cash can indicate criminal activity. But it is not illegal to transport money this way. A large amount of cash does not — alone — satisfy the Government's burden to show probable cause. $121,100.00, 999 F.2d at 1506.

The manner in which the currency was bundled indicates that it did not come directly from a bank; and we suppose it could indicate some kind of illegal source, but it does not necessarily indicate a connection to drugs. The money, much of which was small bills, was packaged in bundles according to denomination. The currency bundles were wrapped in rubber bands and stowed inside two larger packages, one "Christmas bag type package" and one brown shopping bag inside a black plastic or cellophane wrapping. The evidence presented in support of probable cause need not "point to drugs to the exclusion of all other theories." $121,100.00, 999 F.2d at 1508. But the Government must ultimately make a connection between the seized money and an illegal narcotics transaction; and the way the money was bundled, while possibly consistent with some criminal activity, does not assist in making that connection.

That the currency was wrapped to conceal its presence counts for little. While we understand that a currency courier for a drug organization would attempt to conceal the money, we accept that anyone traveling with a large amount of currency would try to conceal it for safety reasons. As Agent Johnson testified, someone identified as having a large amount of currency could be robbed or killed. Stanford never hid that she was carrying currency from the authorities; when asked, she told both JFK Security and the DEA agents that she was carrying cash. Had Stanford actively attempted to conceal the money from the authorities, the wrapping might be of more influence. But in this case, we cannot say that the currency being wrapped to conceal its presence indicates a connection to narcotics transactions as required by the statute.

We recognize that travel from New York to Miami is an appropriate element to consider. Miami is a known center for drug smuggling and money laundering. $4,255,625.39, 762 F.2d at 904. Travel between source cities is circumstantial evidence of a possible connection between the money seized and narcotics transactions. Id. Combined with other circumstantial evidence,...