Com. v. One 2004 Audi Sedan Auto.

• Decision Date: 16 December 2008
• Docket Number: No. 07-P-1408.,07-P-1408.
• Citation: 73 Mass. App. Ct. 311,897 N.E.2d 1030
• Parties: COMMONWEALTH v. ONE 2004 AUDI SEDAN AUTOMOBILE & others.<SMALL><SUP>1</SUP></SMALL>
• Court: Appeals Court of Massachusetts

897 N.E.2d 1030

73 Mass. App. Ct. 311

COMMONWEALTH v. ONE 2004 AUDI SEDAN AUTOMOBILE & others.¹

No. 07-P-1408.

Appeals Court of Massachusetts, Norfolk.

Argued May 6, 2008.

Decided December 16, 2008.

Susanne M. O'Neil, Special Assistant District Attorney, for the Commonwealth.

Edward H. Sharkansky (Dana Alan Curhan, Boston, with him) for the intervener.

Present: BERRY, SMITH, & RUBIN, JJ.

SMITH, J.

On February 24, 2006, the Commonwealth filed a civil complaint for forfeiture, pursuant to G.L. c. 94C, § 47(a)(3) & (5) and (d), of property belonging to Bruce Kneller. Specifically, the Commonwealth sought forfeiture of a 2004 Audi Sedan automobile, $4,350 in United States currency, and $226,511.92 in a local Bank of America account, all allegedly related to Kneller's illegal Internet steroid distribution operation. The Commonwealth's ex parte motion for a preliminary order of custody was allowed on February 27, 2006. Kneller, without objection, moved to intervene on March 17, 2006; the court allowed the motion on March 21, 2006.

On February 14, 2007, Kneller filed a motion pursuant to Mass.R.Civ.P. 12(b)(6), 365 Mass. 755 (1974), to dismiss the complaint as to the funds in the Bank of America account. In his motion, Kneller claimed that the forfeiture complaint and the accompanying affidavits did not demonstrate the existence of probable cause to institute the action as required by G.L. c. 94C, § 47(d). After argument, a Superior Court judge allowed the motion, ruling that "the complaint and supporting affidavits fail to aver sufficient facts to support a nexus between the funds in the bank account and Kneller's illegal drug activity, and thus fail to meet the probable cause standard."

The Commonwealth petitioned a single justice pursuant to G.L. c. 231, § 118, seeking leave to file an interlocutory appeal. On June 20, 2007, the single justice allowed the interlocutory appeal and stayed the proceedings below.

On appeal, the Commonwealth claims that the motion judge committed error in requiring the Commonwealth to establish probable cause at the complaint stage.²

Facts. The Commonwealth's complaint incorporated Massachusetts State Trooper Timothy Curtin's affidavit in support of forfeiture, detailing the specifics of the investigation into Kneller's illegal steroid sales.³ We summarize the facts alleged in the complaint and accompanying affidavits.

In October, 2005, acting on information from an informant, Drug Enforcement Special Agent Kevin Tidwell, working undercover in California, sent an electronic message (e-mail) to a particular e-mail address, requesting a price list for available steroids. In return, he received a price list and instructions to send his order to another e-mail address.⁴ After the initial investigation, Tidwell obtained a search warrant for the two e-mail addresses and discovered a third e-mail address associated with the operation that was registered to Kneller, a former registered nurse and body builder, in Randolph, Massachusetts.

Further investigation of the e-mail accounts revealed that Kneller and a partner, Gary Somerville, operated Red Star Laboratories (Red Star), selling illegal anabolic steroids. Red Star's e-mail advertisements assured customers that it sold only quality products and that it had "fulfilled 15,000 orders over seven years of doing business and had never had one package intercepted." Individuals interested in purchasing illegal steroids from Red Star sent e-mails to Somerville, and, in turn, Somerville instructed buyers to send foil-wrapped cash to one of six locations in Redondo Beach, California. Somerville then e-mailed the order to Kneller, who shipped the steroids to the buyer. Somerville mailed Kneller's profits to a postal box in Randolph, Massachusetts.

On October 14, 2005, Kneller participated in a live, online interview at www. bodybuilding.com, appearing with the president of Gaspari Nutrition, Inc. During the interview, Kneller admitted that he manufactured performance-enhancing drugs and frequently traveled to China to inspect the quality of his ingredients.

Also in October, 2005, Tidwell conducted a controlled buy of steroids from Somerville and Kneller. Tidwell sent his payment as instructed and received a package of steroids with a false return address. United States Postal Service inspectors learned that the package had been mailed from the Randolph post office, and a postal clerk identified Kneller as the sender. Kneller mailed twelve other packages on the same day.

On November 10, 2005, the same Randolph postal clerk who had earlier identified Kneller informed Postal Service inspectors that Kneller had just mailed another twelve parcels, all bearing fictitious return addresses. The packages were addressed to different individuals in ten different States. The parcels were not delayed and were delivered on time.

Investigators initiated a second controlled buy in December, 2005. In this instance, the package was tracked via FedEx. After the package was delivered, investigators observed, on a security camera, Kneller shipping the parcel, along with several other packages, from a FedEx store in Braintree, Massachusetts.

In November, 2005, and February, 2006, Kneller received a total of four FedEx packages addressed to "Bruce Kneller, Therachem, 141 Memorial Parkway, PMB 245, Randolph MA 02368," at a Postal Center USA store in Randolph. No record of a Massachusetts company with the name Therachem exists. The parcels, weighing between thirteen and forty pounds, were sent from Kansas City, Missouri, by Voigt Global Distribution LLC. Voigt Global Distribution LLC is known to sell chemicals, pharmaceutical packaging, laboratory equipment, and biochemicals. Investigators concluded that Kneller received his steroid packaging supplies from Voigt Global Distribution LLC.

On February 14, 2006, United States postal inspectors intercepted fifteen packages, suspected to contain steroids, being shipped by Kneller to various locations throughout the United States, all with false return addresses. On February 16, 2006, postal inspectors executed Federal search warrants and discovered that the packages contained various types of controlled substances, all labeled as manufactured by "Red Star Laboratories." In total, over 5,300 capsules of anabolic steroids, 1,000 capsules of Cialis (a prescription erectile dysfunction drug), and forty-eight bottles of liquid anabolic steroids were recovered.

The following day, the Massachusetts State Police sought and obtained a search warrant for Kneller's residence in Canton. While executing a search pursuant to the warrant, officers recovered 1,664 white, sealed bottles containing a white powdery substance, some of which were marked as Dianabol, Winstrol, and Anavar, along with labeling, pricing, and packing material bearing the name Red Star Laboratories. According to Red Star's price list, the retail value of the drugs was over $124,800. Officers recovered $4,359 in United States currency, some Chinese currency, seven handguns, two rifles, a shot gun, and mailing receipts from the United States Post Office and Federal Express. Kneller readily admitted the steroids belonged to him.

In addition, officers seized several Bank of America deposit slip receipts from Kneller's residence. One receipt indicated that on October 31, 2005, a $55,000 deposit was made into an account with a balance of $83,113.87. A second receipt showed that on January 23, 2006, a deposit of $60,000 was made into the same account, with a balance of $127,197. Officers also seized a blank Bank of America check in the name of Bruce Kneller, 29 Birch Drive, Randolph, MA 02368, with the same account number. A Bank of America automatic teller machine (ATM) receipt for a Bank of America ATM card that showed several thousand dollars worth of transactions from January through February, 2006, was also seized.

On February 18, 2006, officers froze Kneller's Bank of America checking account, which had a current balance of $226,511.92. Pursuant to a Norfolk County grand jury summons, officers learned that in the period from December 15, 2005, to February 15, 2006, Kneller's account had a beginning balance of $147,806.92 and an ending balance of $226,511.92. Over this two-month period, Kneller made seven outgoing wire transfers to locations outside the United States, including China, totaling $275,314. He received three incoming wire transfers totaling $373,500. The last incoming wire transfer took place on February 14, 2006, in the amount of $215,500, originating from "Gaspari Nutrition Inc."

Trooper Curtin stated in his affidavit, which was incorporated by reference into the Commonwealth's complaint, that he was familiar with the methods, routines, and practices of drug traffickers as a result of his involvement in numerous narcotics investigations. His experience included field and undercover operations, applying for and executing search warrants, and extensive education on the use and distribution of narcotics. According to Curtin, drug dealers often need large amounts of cash readily available and often hide it in various locations. He explained that dealers attempt to launder their cash through legitimate business operations in order to deposit the money in banks while keeping its origins hidden.⁵

Curtin concluded that the funds in Kneller's Bank of America account were subject to forfeiture pursuant to G.L. c. 94C, based on

"the investigation of Bruce Kneller; his access to, and possession for sale of ... large quantities of [steroids]; Kneller's statements to officers that these [steroids] belonged to him; his familiarity with prices, weights, quantity and quality of [steroids]; his possession of [guns] ... and papers with notes and ledgers used by drug dealers to track their transactions; and the possession of a large amount of cash at his house; his apparent lack of legitimate income; and based on common sense."

Discussion. Our...