661 F.2d 319 (5th Cir. 1981), 80-5207, United States v. Three Hundred Sixty Four Thousand Nine Hundred Sixty Dollars ($364,960.00) in United States Currency

Docket Nº:80-5207.
Citation:661 F.2d 319
Case Date:November 13, 1981
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

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661 F.2d 319 (5th Cir. 1981)

UNITED STATES of America, Plaintiff-Appellant,



($364,960.00) IN UNITED STATES CURRENCY, Defendant-Appellee.

No. 80-5207.

Unit B [*]

United States Court of Appeals, Fifth Circuit

November 13, 1981

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Robert I. Targ, Sp. Asst. U. S. Atty., Miami, Fla., for plaintiff-appellant.

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Becham, McAililey & Proenca, James R. Hubbard, Miami, Fla., for defendant-appellee.

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

Before RONEY, KRAVITCH and ANDERSON, Circuit Judges.

KRAVITCH, Circuit Judge:

In 1978, Congress amended 21 U.S.C. § 881 to provide for the forfeiture of monies traceable to, intended for use, or used in the unlawful exchange of a controlled substance. Pub.L.No. 95-633, § 301(a), 92 Stat. 3777 (1978). At issue here are the requirements for standing to contest a forfeiture pursuant to this provision and the extent of proof necessary to establish probable cause of a substantial nexus between seized monies and illegal narcotics transactions. The government argues that the district court erred in (1) allowing standing to claimant, as assignee of the currency, without requiring proof of the validity of the assignors' interest; and (2) granting claimant's motion for summary judgment on the ground that the facts shown failed to establish probable cause. We agree with the government on both counts. We therefore reverse and remand so that the trial court may hold proceedings and make findings not inconsistent with this opinion.

I. Facts

Early on the morning of November 23, 1978, officers of the Dade County Department of Public Safety discovered an abandoned automobile that appeared to have veered off the road and struck a utility pole. Within the car were blood spatters indicating that there had been at least two occupants. An address from a utility bill found in the vehicle led the police to a nearby apartment, where they found Norberto Murillo and Javier Arbelaez, both injured. 1 They also found Abraham Nachman asleep in a bedroom. The officers ascertained the identities of the three men: Murillo and Arbelaez were Colombian aliens, and Nachman claimed dual American-Israeli citizenship. The officers sent Murillo and Arbelaez to a nearby hospital where, after receiving medical treatment, the two attempted to escape through a rear-exit hospital door. Subsequently they were apprehended by Safety Department officers and transported back to the apartment.

Meanwhile, the officers at the apartment had questioned Nachman and observed in his purse two glassine packets containing what later was determined to be cocaine. They placed Nachman under arrest. They also discovered a female illegal alien hiding in a bathtub and further observed a loaded .32 caliber Titan pistol with an attached silencer in the bed in which Nachman had been sleeping 2 and a small envelope containing what appeared to be hashish on the dresser in the same room. In an open box in a living room closet, they observed a pharmacist's scale and five empty plastic baggies containing traces of a white powdery substance that appeared to be cocaine residue. The officers arrested Murillo and Arbelaez and, on the basis of the above facts, obtained a search warrant for the apartment. The products of that search were three suitcases containing currency totalling $364,960.00. 3

All three men advised the arresting officers that they were recent guests in the apartment. It later was determined that the apartment had been leased to one Jaime Valez, who was not present at the time of the incidents leading to the arrests and

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seizure. The parties disagree on the facts surrounding the discovery of the suitcases, and the district court made no express findings on these facts. The government claims that all three of the men denied knowledge or ownership of the money found in the suitcases at the time of their arrest and that Nachman stated that an unidentified person had given him $500 on the previous evening to transport one of the suitcases from Los Angeles to Dade County. Brief for Appellant at 6. Although claimant admits that the men initially disclaimed ownership, 4 it states that Nachman later claimed he owned one of the suitcases, 5 and that physical evidence established Murillo's and Arbelaez' ownership of the other two suitcases. 6

The Customs Service seized the money on November 28, 1978 pursuant to 21 U.S.C. § 881(a)(6). 7 The State of Florida charged Murillo and Arbelaez with possession of cocaine and narcotics paraphernalia and Nachman with possession of cocaine, hashish, and the two weapons. 8 At a preliminary hearing the State dismissed the charges against Murillo and Arbelaez, and subsequently dropped the charges against Nachman.

On November 30, 1978, Arbelaez, Murillo, and Nachman assigned all of their interest in the seized currency to their attorneys, Moran and Gold, P. A., claimant here. On February 21, 1979, the United States filed a formal complaint for forfeiture, alleging that the currency had been exchanged or intended to be exchanged for a controlled substance. Moran and Gold interposed its claim to the currency, alleging the assignment by Murillo, Arbelaez, and Nachman.

II. Probable Cause

The district court concluded that the government had failed to satisfy its burden of showing probable cause 9 in a forfeiture proceeding under 21 U.S.C. § 881(a)(6). 10 Section 881(a)(6) provides:

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All moneys, negotiable instruments, securities, or other things of value furnished or intended to be furnished by any person in exchange for a controlled substance in violation of this subchapter, all proceeds traceable to such an exchange, and all moneys, negotiable instruments, and securities used or intended to be used to facilitate any violation of this subchapter (shall be subject to forfeiture to the United States), except that no property shall be forfeited under this paragraph, to the extent of the interest of an owner, by reason of any act or omission established by that owner to have been committed or omitted without the knowledge or consent of that owner.

Additionally, the legislative history of this provision contains the following passage:

Due to the penal nature of forfeiture statutes, it is the intent of these provisions that property would be forfeited only if there is a substantial connection between the property and the underlying criminal activity which the statute seeks to prevent. 11

Relying on this statement, the district court wrote:

The facts herein simply do not satisfy the above-stated "substantial connection" requirement. To order a forfeiture based on wholly circumstantial evidence and mere inference would conflict with established principles of due process. In short, this Court is unable to conclude, based on the undisputed facts contained in the record, that probable cause exists of the seized currency's connection to illegal activity.

Order granting Motion for Summary Judgment, at 3.

Our disagreement with the district court lies not with its reading of the legislative history and its finding of a "substantial connection" requirement but rather with the meaning of probable cause in these circumstances. First, we note that this question is one of law. Beck v. Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964). See also United States v. One Twin Engine Beech Airplane, 533 F.2d 1106, 1109 (9th Cir. 1976). 12 Additionally, we must view the facts in the light most favorable to the government, the party opposing summary judgment. Adickes v. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970).

We accept the formulation of the government's burden suggested by claimant: under § 881(a)(6), the government must show "probable cause for belief that a substantial connection exists between the property to be forfeited and the criminal activity defined by the statute;" i. e., the exchange of a controlled substance. We note, however, that the definition of probable cause applicable here is the same as that which applies elsewhere: "reasonable ground for belief of guilt, supported by less than prima facie proof but more than mere suspicion." United States v. One 1978 Chevrolet Impala, 614 F.2d 983, 984 (5th Cir. 1980). Our review of the facts in this case leads us to conclude that the officers had a reasonable ground for belief, or more than mere suspicion, that there was a substantial connection between the $364,960.00 seized and illegal narcotics trafficking.

Two illegal aliens from Colombia, a country where large amounts of the narcotics

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that enter the United States originate, were apprehended in an apartment in which they claimed no interest, with narcotics, narcotics paraphernalia, guns, and the $364,960.00. From the sheer quantity of currency seized under these circumstances, a court may permissibly infer a connection with illegal narcotics trafficking. In United States v. Magnano, 543 F.2d 431, 437 (2d Cir. 1976), cert. denied, 429 U.S. 1091, 97 S.Ct. 1101, 51 L.Ed.2d 536 (1977), the Second Circuit held that possession of a large amount of cash by a defendant charged with participation in a narcotics trafficking conspiracy was relevant admissible evidence of such participation:

(T)he possession of large amounts of unexplained cash in connection with evidence of narcotics trafficking on a large scale is similar to the possession of special means, such as tools or apparatus, which is admissible to show the doing of an act requiring those means. (Quoting United States v. Tramunti, 513 F.2d 1087, 1105 (2d Cir. 1975), cert. denied, 419 U.S. 1079, 95 S.Ct. 667, 42 L.Ed.2d 673.)

See also United States v. Schwartz, 535 F.2d 160, 165 (2d Cir. 1976), cert. denied, 430 U.S. 906, 97 S.Ct. 1175, 51 L.Ed.2d 581 (1977) (evidence of unusual accumulation of cash and assets in...

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