Commonwealth v. Three Hundred Ten Thousand Twenty Dollars ($310,020.00) in United States Currency, 030806 PACCA, 2454 CD 2004

Docket Nº:2454 CD 2004
Party Name:Commonwealth v. Three Hundred Ten Thousand Twenty Dollars ($310, 020.00) in United States Currency,
Case Date:March 08, 2006
Court:Court of Appeals of Pennsylvania
 
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Commonwealth of Pennsylvania

v.

Three Hundred Ten Thousand Twenty Dollars ($310,020.00) In United States Currency

Appeal of: Dien Vy Phung

Commonwealth of Pennsylvania

v.

$141,370.00 U.S. Currency

Appeal of: Herman Keese

Nos. 2454 C.D. 2004, 2765 C.D. 2004

Court of Appeals of Pennsylvania

March 8, 2006

Argued: September 14, 2005

BEFORE: HONORABLE JAMES GARDNER COLINS, President Judge, BERNARD L. McGINLEY, Judge, DORIS A. SMITH-RIBNER, Judge, ROCHELLE S. FRIEDMAN, Judge, BONNIE BRIGANCE LEADBETTER, Judge, RENÉE COHN JUBELIRER, Judge, MARY HANNAH LEAVITT, Judge

OPINION

LEAVITT, JUDGE

These consolidated appeals involve the forfeiture of large sums of cash seized by the Pennsylvania State Police from vehicles that had been stopped for speeding. In each case, the trial court granted the Commonwealth’s forfeiture petition because it concluded that the cash had been used for trafficking in illegal drugs. This conclusion was based, inter alia, upon the results of an ion scan of the seized cash that showed trace amounts of cocaine far in excess of the levels expected to be found on currency in general circulation. From these test results and the other evidence presented by the Commonwealth, each trial court inferred that the seized cash had a nexus to illicit drug activity. Because the inference was logical, given the totality of the circumstances in each case, we affirm.

No. 2454 C.D. 2004

The background to the first appeal is as follows. On April 4, 2002, Trooper Wesley Berkebile stopped a vehicle for speeding on the Pennsylvania Turnpike and asked the driver for his operator’s license and registration.1The driver, Dien Vy Phung, appeared unusually nervous and had difficulty responding to the request, but he eventually produced a Canadian operator’s license and a rental agreement for the vehicle. The operator’s license was suspended, and the rental agreement did not list Phung as a permitted driver or Pennsylvania as an authorized state of operation. Further, the rental agreement had lapsed two days earlier.

Berkebile asked Phung if he was carrying any narcotics, weapons or large amounts of cash, and Phung answered that he was not. Berkebile was granted permission to look through the car and did so, finding two bags in the trunk, each filled with cash.2Phung first told the officer that the cash totaled $60,000, but after he made a call on his cellphone stated that the cash totaled $260,000. A dog was dispatched to the scene and “alerted” on both bags, which, according to the dog’s handler, indicated that the money had been in recent contact with drugs.

Phung was conducted to the State Police barracks. There the cash was counted, using a money counter borrowed from First National Bank of Somerset. The total was found to be $307,695; however, a subsequent count determined the actual total to be $310,020. While the cash was being counted, Phung was interviewed by Special Agent Akins of the Federal Bureau of Investigation, to whom Phung gave an account of how he came to possess over $300,000 in cash.

Phung explained that he left Canada in a rented van with his friend, Law, with the intention of acquiring a manicure salon in Pittsburgh for $70,000. Because the van’s rental agreement had lapsed, the two were refused entry at the United States border. Law then contacted a friend who brought them a car; the friend also delivered $60,000 in U.S. currency from Phung’s father, which represented Phung’s savings from his job at a Canadian plastics factory. Phung and Law then drove to Boston and checked into a hotel. There, Phung met another friend, Hung, in the hotel parking lot, who gave him the vehicle in which Phung was stopped for speeding in Pennsylvania; Hung also gave Phung another $150,000 in U.S. currency. Phung then drove to Jersey City, New Jersey, where he visited his girlfriend, Kim, who gave him an additional $100,000 in U.S. currency. With this cash, to be used to acquire and expand a nail salon, Phung departed for Pittsburgh.3

After hearing Phung’s story, the State Police seized the cash. Phung responded with an emergency petition for return of property with the Court of Common Pleas of Somerset County. At the hearing on Phung’s petition, only the Commonwealth presented evidence. Agent Akins, of the FBI, and Trooper Berkebile testified about the results of their interviews of Phung, recounting Phung’s explanation for how he came into possession of $310,020. The Commonwealth also offered the testimony of the dog handler and of the person responsible for counting the cash. At the conclusion of the hearing, the trial court held that Phung did not prove lawful possession of the cash. Accordingly, the trial court denied Phung’s petition without prejudice to present new evidence on the provenance of the cash at the subsequent forfeiture proceeding.4

To support its forfeiture petition, the Commonwealth offered the following evidence: the transcript of the hearing on Phung’s motion for return of property; a certified copy of Phung’s May 8, 2003, conviction of conspiracy to distribute ecstasy and possession with intent to distribute 7,560 tablets of ecstasy; and the testimony of Sergeant Randy Wasserleben, who explained the results of an ion scan done on the currency seized from Phung. In response, Phung offered his deposition testimony that was taken in prison where he was serving his sentence for his drug conviction. In his deposition, Phung explained how he came into possession of $310,020; in all material respects, his deposition was consistent with the account he gave the State Police and FBI on the evening of his arrest.

Critical to this appeal is the testimony of Sergeant Wasserleben who testified for the Commonwealth as an ion scan expert. He explained that an ion scan device measures microscopic levels of narcotics, able to differentiate between various controlled substances because the ions of various chemical compounds vary in weight. Thus, an ion scanner is able to detect the presence, quantity and type of narcotic present on the currency. The ion scanner is used to establish “casual contact” level of drug residue on currency in general circulation. In this case, 38 random samples of cash from Boston and northern New Jersey were tested in October of 2002. These tests established a casual contact level of cocaine in Boston to be 77.2 digital units, and for northern New Jersey 33.47 digital units.5Ten samples of cash seized from Phung were tested. Nine of the ten samples seized from Phung registered hits for cocaine between 540 and 893 digital units; the “cocaine high” measured between 643 and 1137 digital units.6The tenth sample registered a level of ions consistent with the casual contact levels of cocaine for cash in general circulation. In short, the cash seized from Phung had ten to twenty times more cocaine residue than currency circulating in Boston or in northern New Jersey.7

The trial court granted the Commonwealth’s forfeiture petition. The trial court found that the dog’s alert, the denominations of the bills, the manner in which the cash was packaged, the levels of cocaine found on the cash, the very large sum of cash, Phung’s subsequent drug conviction, and Phung’s failure to provide a credible explanation for his possession of the $310,020 all supported the grant of forfeiture. In reaching this conclusion, the trial court relied upon our decision in Commonwealth v. $11,600.00 Cash, U.S. Currency, 858 A.2d 160 (Pa. Cmwlth. 2004), holding that the results of the ion scan is evidence of probative value where the Commonwealth seeks to show a nexus between the seized currency and illegal drug activity.

No. 2765 C.D. 2004

The background to the second appeal is as follows. On May 22, 2004, Corporal Brian Merritt stopped a vehicle for speeding on the Pennsylvania Turnpike. Lawrence Russell Fair was the driver, and Herman Keese, Jr. was one of several passengers.

Corporal Merritt’s suspicions were aroused when he discovered the following: Fair did not have a driver’s license and was the subject of an outstanding arrest warrant in North Carolina; the vehicle had been rented, not to the occupants, but to an individual under investigation for stealing drugs; and Keese was a Virginia parolee. Accordingly, Corporal Merritt asked to search the vehicle. When a drug dog alerted at the passenger door of the vehicle, Brett Townsend, another passenger, denied the search request. The State Police then obtained a warrant and searched the vehicle, finding a shoebox filled with cash.8Keese informed Trooper Merritt that the cash totaled $131,000 or $132,000, that it belonged to him and that it represented the proceeds of a mortgage loan. Keese stated that he intended to use the cash in the shoebox to invest in a car and towing business in California and, in fact, he was on his way to California for that purpose when stopped by Corporal Merritt.

The amount in the shoebox was determined to be $141,370 and seized. Keese then filed a petition for return of property with the Court of Common Pleas of Cumberland County, and the Commonwealth filed a petition for forfeiture. The two petitions were consolidated for hearing.

In support of his petition, Keese and his father testified. Keese again offered an explanation for the source of the cash. The sum of $49,000 represented the proceeds of a mortgage taken out by his father in South Carolina; approximately $70,000 represented the proceeds of a loan his father received from a friend; and $31,000 was a loan from his ex-wife in Pennsylvania.9Keese stated that he did not have a bank account and, thus, kept the funds in cash at the homes of his two ex-wives who live in the Philadelphia area. Keeses father stated that his son worked for his tow truck business and earneda couple hundred a week...

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