U.S. v. $242,484.00

• Decision Date: 20 November 2003
• Docket Number: No. 01-16485.,01-16485.
• Citation: 351 F.3d 499
• 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: U.S. Court of Appeals — Eleventh Circuit

351 F.3d 499

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.

November 20, 2003.

COPYRIGHT MATERIAL OMITTED

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

Madeleine R. Shirley, Anne R. Schultz, Jeanne Marie Mullenhoff, Miami, FL, for U.S.

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

ON PETITION FOR REHEARING

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

EDMONDSON, Chief Judge:

This case comes before us on a petition for rehearing by appellee, the United States of America. We deny the petition, but we substitute this opinion for the previous opinions which we have already withdrawn.

This appeal arises out of a civil forfeiture action applying 21 U.S.C. § 881(a)(6) (1994) — the version in effect before the 2000 amendments — 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.² The district court saw probable cause as "admittedly a close question." Because we conclude the circumstances are insufficient to establish the needed probable cause, we reverse the forfeiture order.³

BACKGROUND

Deborah Stanford lives in Opa Locka, Miami-Dade County, Florida. She is a shareholder and president of Mike's Import & Export U.S.A., Inc. ("Mike's").

In December 1998, Stanford purchased for $93 in cash a round-trip ticket from Miami to New York City. She says that she was in New York City regarding a court case from a car accident she had approximately ten years prior. While in New York, she says that she was contacted by her brother and told to pick up some money for their business, Mike's. The cash money was delivered to her by people whom she says she did not know. One package was wrapped in black plastic and the other in a Christmas wrapping. Each package was enclosed in what the district court described as "cellophane-type material."

Stanford was originally scheduled to return to Miami on 12 December; but after failing to show up on 12 December, she twice changed her return date. Then, on 14 December, Stanford flew from New York to Miami. Airport personnel at John F. Kennedy International Airport ("JFK") questioned her about the packages. After questioning, Stanford boarded her flight, but an airport worker notified the Drug Enforcement Administration ("DEA") that a woman carrying a large amount of cash was traveling to Miami. The airport worker also reported to the DEA that the woman had become "belligerent" when questioned about the money.

Several Miami DEA agents went to the gate where Stanford's flight was scheduled to arrive. Agents Kenneth Miles and John Johnson saw Stanford soon after she came off the plane. The agents approached her and identified themselves as DEA agents.

At Agent Miles's request, Stanford gave him her ticket and identification. Both the ticket and identification were in her own name: Deborah Stanford. The agents verified her name and returned the items. Agent Miles asked her if she was carrying contraband 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 found two packages, one wrapped in black plastic and the other in Christmas wrapping. Each package contained large bundles of cash in various denominations. The bundles were not of uniform size or amounts and did not bear the binding of a bank or financial institution. The Agents asked Stanford to accompany them to the DEA's airport office, and she agreed.

At the office, Agent Miles asked Stanford why she was in New York. She said she was there because of a court case; but Agent Miles stated that, later during the interrogation,⁴ Stanford said that she was in New York to pick up the money in question. Stanford could not identify who gave her the cash other than to say that, while in New York, she was called by her brother who told her to meet some people to pick up money for Mike's. Stanford also could not, or would not, identify where she stayed in New York. She did not produce documentation connecting the currency to Mike's. When asked for the total amount of the cash, Stanford said that one package contained $79,900 and the other $162,750, a total of $242,650. But an official count of the money at the bank found the total to be $242,484.

During the airport interrogation, "Rambo," a narcotics-detection dog, was brought into the office. Stanford's backpack was placed in a hallway with other packages of similar size and shape. Rambo alerted to Stanford's backpack. Thereafter, Stanford and the DEA supervisor — who had just arrived — had a heated exchange, and Stanford left to contact her attorney.

After the seizure on 14 December 1998, the DEA performed an investigation into the surrounding circumstances, including a check into Stanford's trip to New York and the business history of Mike's.⁵ According to the district court's order, no proceedings were brought against Stanford, nor was she charged with a crime in connection with these events. The 2001 order does not suggest that anyone has ever been charged with a crime or been the subject of other proceedings arising from these events.

DISCUSSION

Stanford argues that the government has made no showing — that rises above suspicion — of a connection between the money and controlled substances.

In reviewing a determination of probable cause, we engage in a two-part analysis. Ornelas v. United States, 517 U.S. 690, 116 S.Ct. 1657, 1662, 134 L.Ed.2d 911 (1996). First, we review the district court's "findings of historical fact only for clear error." Id. at 1663; see also Fed. R.Civ.P. 52(a). In reviewing the findings for clear error, we "consider the evidence, and such reasonable inferences as may be drawn therefrom, in the light most favorable to the appellees." Wheeler v. Holland, 218 F.2d 482, 483 (5th Cir.1955). Second, we review de novo "whether the rule of law as applied to the established facts is or is not violated." Id. at 1662; see also Sunderland Marine Mut. Ins. Co. v. Weeks Marine Constr. Co., 338 F.3d 1276, 1277 (11th Cir.2003). In determining whether the district court properly applied the law, we construe all facts in favor of the prevailing party. See, e.g., United States v. Goddard, 312 F.3d 1360, 1362 (11th Cir.2002).

By facts, we, as an appellate court, mean only the factual findings that the district court made. Those findings may be express or implied. See Barber v. Int'l Bhd. of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers & Helpers, Dist. Lodge No. 57, 778 F.2d 750, 756 (11th Cir.1985). But we will infer findings of fact only where the district court distinctly seems to have intended to imply such facts. See, e.g., Triangle Conduit & Cable Co. v. FTC, 168 F.2d 175, 179 (7th Cir. 1948) (inferring fact where no one could doubt that the fact was implied).

Although we construe all factual findings in favor of the prevailing party, we do not go beyond the district court's findings. Once we have reviewed the findings for clear error, we consider only whether the findings — construed in favor of the prevailing party — support the judgment.⁶

We will not engage in finding new facts to support or to diminish the district court's legal conclusions. See United States v. Barnette, 10 F.3d 1553, 1556 (11th Cir.1994) (stating that "an appellate court does not find facts"). In this case, if evidence is in the record to support possible additional factual findings by an appropriate fact finder, we are inclined to think that "[i]t is not within the competence of this Court to make such findings."⁷ Deering-Milliken & Co. v. Modern-Aire of Hollywood, Inc., 231 F.2d 623, 627 (9th Cir.1955). We remember that there "is no excuse for the Court of Appeals ... [to] engage in impermissible appellate factfinding." Amadeo v. Zant, 486 U.S. 214, 108 S.Ct. 1771, 1780, 100 L.Ed.2d 249 (1988).

To prevail in a civil forfeiture case, the government must establish "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. $364,960.00, 661 F.2d 319, 323 (5th Cir. Unit B 1981) (emphasis omitted)). The probable-cause standard demands less evidence than the preponderance-of-the-evidence standard. But the probable-cause standard demands more powerful evidence than would allow someone to suspect — even reasonably to suspect — that a substantial connection exists between the pertinent property and a drug crime. Probable cause exists when "the facts warrant a reasonably cautious person" to believe that the item to be forfeited is substantially related to drug crime.⁸ See, e.g., United States v. Armstrong, 722 F.2d 681, 686 (11th Cir.1984) (discussing probable cause in the context of a seizure); United States v. Four Parcels of Real Property, 941 F.2d 1428, 1440 (11th Cir.1991) (en banc) (stating that the standard for probable cause in forfeiture cases is "the same standard used to determine the legality of arrests, searches, and seizures in criminal law") (internal quotations and citations omitted). 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. at 1440.

"[T]he probable cause inquiry is a flexible one in which the court must consider the `totality of the circumstances.'" United States v....