657 F.3d 838 (9th Cir. 2011), 08-17558, Fiore v. Walden

Docket Nº:08-17558.
Citation:657 F.3d 838
Opinion Judge:BERZON, Circuit Judge:
Party Name:Gina FIORE; Keith Gipson, Plaintiffs-Appellants, v. Anthony WALDEN; Unknown Agents of the Federal Government, Defendants-Appellees.
Attorney:Robert A. Nersesian and Thea Marie Sankiewicz, Nersesian & Sankiewicz, Las Vegas, NV, for the plaintiffs-appellants. Michael F. Hertz, Acting Assistant Attorney General, and Barbara L. Herwig and Kelsi Brown Corkran, Attorneys, Civil Division, Department of Justice, Washington, D.C., for the defe...
Judge Panel:Before: ALFRED T. GOODWIN, MARSHA S. BERZON, and SANDRA S. IKUTA, Circuit Judges. Opinion by Judge BERZON; Dissent by Judge IKUTA. IKUTA, Circuit Judge, dissenting:
Case Date:September 12, 2011
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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657 F.3d 838 (9th Cir. 2011)

Gina FIORE; Keith Gipson, Plaintiffs-Appellants,

v.

Anthony WALDEN; Unknown Agents of the Federal Government, Defendants-Appellees.

No. 08-17558.

United States Court of Appeals, Ninth Circuit.

September 12, 2011

Argued and Submitted Feb. 12, 2010.

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Robert A. Nersesian and Thea Marie Sankiewicz, Nersesian & Sankiewicz, Las Vegas, NV, for the plaintiffs-appellants.

Michael F. Hertz, Acting Assistant Attorney General, and Barbara L. Herwig and Kelsi Brown Corkran, Attorneys, Civil Division, Department of Justice, Washington, D.C., for the defendants-appellees.

Appeal from the United States District Court for the District of Nevada, Edward C. Reed, Senior District Judge, Presiding. D.C. No. 2:07-cv-01674-ECR-LRL.

Before: ALFRED T. GOODWIN, MARSHA S. BERZON, and SANDRA S. IKUTA, Circuit Judges.

Opinion by Judge BERZON; Dissent by Judge IKUTA.

OPINION

BERZON, Circuit Judge:

Federal law enforcement officers seized funds from passengers who were temporarily in the Atlanta airport changing planes. The travelers, Gina Fiore and Keith Gipson, explained that the funds were legal gambling proceeds, not evidence of drug transactions. Their story turned out to be true. Fiore and Gipson claim the seizure and later efforts to institute forfeiture proceedings were unconstitutional. They sued in Las Vegas, where they were heading, lived at least part time, and suffered the inconvenience of arriving with absolutely no money, as well as other financial injuries. The district court dismissed this Bivens 1 action against the federal officers for lack of personal jurisdiction. We reverse and remand.

I. FACTUAL AND PROCEDURAL BACKGROUND

In July and August of 2006, Fiore and Gipson, professional gamblers, traveled from Las Vegas, Nevada, where both maintained residences, to casinos in Atlantic City, New Jersey, and San Juan, Puerto Rico, before returning to Las Vegas.2 On their return trip on August 8, 2006, they left from San Juan, boarded a connecting flight in Atlanta, Georgia, and then flew to Las Vegas, their final destination.

In San Juan, an agricultural x-ray inspection and other additional screening showed no contraband in Fiore's or Gipson's luggage. At a Transportation Security Administration (TSA) checkpoint, Fiore and Gipson were subjected to

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heightened security procedures because they were traveling on one-way tickets. They were screened for minute traces of illegal drugs; none was found. Search of their carry-on bags revealed approximately $48,000 in Gipson's carry-on bag and $34,000 in Fiore's carry-on bag, all carried openly. Gipson also had approximately $15,000 on his person. These funds, totaling approximately $97,000 in United States currency, included approximately $30,000 in seed money for gambling— their " traveling bank" — brought with them from Las Vegas.3

After this cash was discovered, San Juan Drug Enforcement Administration (DEA) Agent Michael Cuento and two other agents arrived and questioned Fiore. Gipson was not questioned directly, but stood by and participated in the conversation. Fiore explained that she and Gipson had been staying and gambling at the El San Juan Casino property. When asked for identification, Fiore and Gipson showed their California drivers' licenses and stated that they had California residences, as well as residences in Las Vegas.4 They further informed the DEA agents " that Las Vegas was the final destination of most if not all of the funds in their possession" and that they were returning to their Las Vegas residences. Agent Cuento escorted Gipson and Fiore to their plane and told them that they might be questioned further in Las Vegas. The two therefore called their attorneys in Las Vegas and arranged to meet them at the airport.

When they arrived at the Atlanta Hartsfield-Jackson International Airport for their connecting flight to Las Vegas, neither Gipson nor Fiore left the transit area near the departure gates. At their gate, DEA Agent Anthony Walden and another DEA agent approached Fiore and began questioning her. Fiore said again that she was not carrying contraband, weapons, or drugs. She explained that she and Gipson were professional advantage gamblers 5 and that the money in their possession was their gambling bank and winnings. In addition, Fiore showed Walden her trip record,6 which dated back to July 10, 2006, and listed casinos and gaming results. Gipson, sequestered from Fiore for questioning, explained that the documents evidencing that his trip was for gambling were in his checked bag.

After about ten minutes of questioning, another DEA agent arrived in the boarding area with a drug-detecting dog. The dog did not react to Fiore's carry-on bag but pawed Gipson's bag once. The agents informed Fiore and Gipson that the dog's reaction sufficiently signaled contraband to indicate that their money was involved in drug transactions and then seized all the funds that Fiore and Gipson had in their possession. Although Fiore and Gipson asked to be allowed at least taxi fare for their arrival in Las Vegas, the agents denied the request. Walden told Fiore and Gipson that if they later produced receipts showing the legitimacy of the funds, their money would be returned. With this understanding, Fiore and Gipson boarded

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their flight to Las Vegas. When they arrived in Las Vegas, Fiore and Gipson learned that their checked luggage also had been searched in Atlanta.

On August 30, 2006, and September 15, 2006, Fiore and Gipson sent Walden, from Las Vegas, various documents showing the legitimacy of their funds, including federal tax returns demonstrating that they were professional gamblers; the itinerary, hotel records, and receipts from their trip, which showed the legitimacy of their seized money; and a win record on El San Juan Casino letterhead stationery stating that Gipson left the hotel with over $30,000 in winnings immediately before leaving for Las Vegas via Atlanta. Fiore and Gipson asked that their money be returned to them as Walden had promised.

The funds, however, were not returned to Fiore and Gipson. Instead, the matter was forwarded to DEA headquarters in Virginia for additional investigation.7 According to the complaint, the DEA's background searches on Fiore and Gipson showed them to be " squeaky clean." Nonetheless, according to the complaint, Walden and another DEA agent provided a false probable cause affidavit to the United States Attorney in the Northern District of Georgia, to assist in bringing a forfeiture action. Specifically, Fiore and Gipson allege in the complaint that this probable cause affidavit falsely stated that Gipson had been uncooperative and had refused to respond to questions; that Fiore and Gipson had given inconsistent answers during questioning; and that there was sufficient evidence for probable cause to forfeit the funds as drug proceeds. Also, according to the complaint, Walden left out exculpatory evidence he knew about when he submitted the affidavit: that Fiore and Gipson had no history of unlawful drug use or trade; that they had documentation showing them to be advantage gamblers; that their bags had passed through an agricultural x-ray and other inspections used for contraband detection without incident; that Fiore and Gipson had provided actual receipts for most of the funds that they carried; and that the $30,000 Gipson was carrying could be traced directly to a legal source, his winnings at El San Juan Casino.

The case was referred to Assistant United States Attorney (AUSA) Dahil Goss. After determining that Walden had in fact omitted information, with the result that the probable cause affidavit he provided was misleading, Goss concluded that there was no probable cause for the forfeiture of the funds. Goss contacted Fiore and Gipson and offered to return their funds in exchange for a release, presumably of any possible legal claims, but they refused to execute one. Nonetheless, Goss directed the DEA to return Fiore and Gipson's money. The $97,000 was returned to them in Las Vegas on March 1, 2007, nearly seven months after the seizure at the Atlanta airport and six months after Fiore and Gipson had provided Walden with the requested documentation showing the legal source of their funds.

Fiore and Gipson brought a Bivens action in the District of Nevada against Walden and three other, unnamed DEA agents or attorneys 8 in their individual capacities, alleging that Walden and the other agents had violated their Fourth Amendment rights by: (1) seizing their

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money without probable cause; (2) continuing to hold the funds for nearly six months after receiving information conclusively demonstrating the legal source of the cash; (3) knowingly compiling a false and misleading probable case affidavit to support a forfeiture action; and (4) referring the matter to the United States Attorney for prosecution on the basis of deficient and/or falsified information, while willfully withholding known exculpatory information.

Walden moved to dismiss for lack of personal jurisdiction, under Fed.R.Civ.P. 12(b)(2), and for improper venue, under Fed.R.Civ.P. 12(b)(3). The district court determined that Walden's search of Fiore's and Gipson's bags and initial seizure of their funds occurred in, and was expressly aimed at, Georgia. Therefore, the district court concluded, there was not personal jurisdiction over Walden in Nevada.9 The district court did not separately consider whether Walden's actions regarding the allegedly false probable cause affidavit justified personal jurisdiction.

On appeal...

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