Seizure of $23,691.00 in U.S. Currency, Matter of

• Decision Date: 24 October 1995
• Docket Number: No. 94-588,94-588
• Citation: 273 Mont. 474,52 St.Rep. 1063,905 P.2d 148
• Parties: In the Matter of the SEIZURE OF $23,691.00 IN UNITED STATES CURRENCY.
• Court: Montana Supreme Court

Page 148

905 P.2d 148

273 Mont. 474

In the Matter of the SEIZURE OF $23,691.00 IN UNITED STATES CURRENCY.

No. 94-588.

Supreme Court of Montana.

Submitted on Briefs Aug. 3, 1995.

Decided Oct. 24, 1995.

Karl P. Seel, Bozeman, for appellant.

Joseph P. Mazurek, Attorney General, Cregg Coughlin, Assistant Attorney General, Helena; Mike Salvagni, Gallatin County Attorney, Marty Lambert, Deputy Gallatin County Attorney, Bozeman; Marcelle Quist, Bozeman, for respondent.

NELSON, Justice.

Petitioner Robert Burns of the West Yellowstone Police Department initiated this suit in the District Court of the Eighteenth Judicial District, Gallatin County, for the forfeiture of $23,691 seized from a 1991 Ford Explorer on November 15, 1991. The District Court entered judgment in favor of the Petitioner for $1,980, and ordered Claimant Stacy Vanderburg (Vanderburg) to forfeit $22,980 to the Drug Forfeiture Fund of the West Yellowstone Police Department. The District Court entered judgment in favor of Claimant Donna Nelson (Nelson), allowing her to keep $711. Vanderburg appeals the judgment ordering the forfeiture. We affirm.

ISSUES

We address the following issues on appeal:

1. Did the District Court err in admitting Nelson's videotaped deposition?

2. Did the District Court err in failing to make particular findings of fact?

3. Did the District Court err by failing to base its findings of fact and conclusions of law on substantial credible evidence?

BACKGROUND

On the night of November 10, 1992, Vanderburg, accompanied by Nelson, rented room 112 at the Brandin' Iron Motel in West Yellowstone, Montana. On the morning of November 11, 1991, a maid at the motel notified the West Yellowstone Police Department that she found a black suitcase containing a pound of marijuana in room 112. On the same morning, after discovering that they had left the suitcase in the room, Vanderburg and Nelson returned to the motel and asked the manager for the suitcase. The manager informed Nelson that the police had possession of the suitcase. Vanderburg and Nelson drove off.

The West Yellowstone Police stopped Vanderburg and Nelson about six miles north of West Yellowstone and Vanderburg gave them permission to search the vehicle. However, before searching the vehicle, the police obtained a search warrant. The police found $21,000 of United States currency, a loaded handgun, and a bag of rubberbands in Vanderburg's briefcase. In Nelson's purse they found $1,000 and $980 in bundles of United States Currency. In Nelson's wallet they found $711 and Zig Zag cigarette papers.

They also found a digital electronic scale and the receipt to room 112 at the Brandin' Iron Motel in the back of the vehicle.

The West Yellowstone Police arrested Vanderburg and Nelson on charges of criminal possession of dangerous drugs with intent to sell. While Vanderburg and Nelson were incarcerated, Officer Burns overheard Vanderburg telling Nelson that they would be in trouble when the police found the scale and that the police would keep the money they found in the car because a financial background check would show that neither Vanderburg nor Nelson would normally have such a large amount of money.

After a jury trial, Nelson was convicted of possession of dangerous drugs with intent to sell. Charges against Vanderburg were dismissed after a mistrial and in his case, double jeopardy prevented a new trial.

The West Yellowstone Police Department then filed a petition for forfeiture of the $23,691 seized from Vanderburg's vehicle pursuant to § 44-12-102(1)(g), MCA, which subjects to forfeiture proceeds traceable to an exchange of dangerous drugs or proceeds used or intended to be used to facilitate a violation of Title 45, chapter 9, MCA. Vanderburg claims $21,000 of the money taken from his briefcase which was seized from the vehicle. Nelson claims $711 taken from her wallet which was seized from the vehicle. Neither Vanderburg nor Nelson claim the $1,980 taken from Nelson's cosmetic bag.

Vanderburg's and Nelson's statements regarding the money conflicted. Nelson claimed that Vanderburg went to West Yellowstone to sell marijuana. She further claimed that Vanderburg transported the marijuana in five-gallon plastic buckets and that she saw two men leaving room 112 carrying the five-gallon buckets. Nelson also stated that after they left the motel and before they were pulled over, Vanderburg took money out of his briefcase and gave it to her. In contrast, Vanderburg claimed that Nelson went to West Yellowstone to sell drugs. He also claimed that he borrowed the $21,000 in cash from his mother, Judy Cornell, and from a family friend, Eleanor Clark, for his school tuition. He took the cash with him for safe keeping and took the handgun to "fend off some robbers or something." He claimed that he did not know of the scale or marijuana before the trial.

At Nelson's deposition, her attorney instructed her not to answer a number of questions. Although the parties did not request a transcript, the State's brief included excerpts from Vanderburg's attorney's line of questions:

Were you aware that there was a warrant for your arrest for contempt of court?;

Have you been found in contempt of court for failing to successfully complete counseling for DUI? ... My question was whether you were aware of it?;

Were you, or had you been arrested and found guilty of possession of marijuana in the State of Washington?;

On previous occasion[sic] ... Did you sell marijuana?;

Did you, were you in fact known to be a dealer of drugs in Spokane, Washington?;

Are you aware of the fact that you have been accused in other court proceedings of being a drug dealer?;

Isn't it true ... that your neighbors have filed affidavits in which they were, say that you sold drugs out of your home?

Nelson's counsel instructed her not to answer these questions and to assert her Fifth Amendment right against self-incrimination. The State's attorney objected to the line of questions as violating Rules 608 and 609, M.R.Evid. Vanderburg then moved to exclude the deposition entirely. At the bench trial, the District Court allowed Nelson's videotaped deposition over Vanderburg's objections.

The District Court found Vanderburg's, Judy Cornell's, and Eleanor Clark's testimony not credible. Because the West Yellowstone Police introduced no evidence that the $711 found in Nelson's wallet was used to facilitate the sale of marijuana, the District Court found that the money was not proceeds of a drug transaction and ordered it released to Nelson pursuant to § 44-12-205(1), MCA.

The District Court concluded that Vanderburg failed to rebut the presumption of forfeiture

                by a preponderance of the evidence and ordered judgment in favor of the West Yellowstone Police Department in the sum of $21,000, which does not include the $1,980 that neither Vanderburg nor Nelson claimed.   The District Court entered judgment in favor of Nelson for the $711.   Vanderburg appeals the judgment granting the forfeiture of $22,980 to the West Yellowstone Police Department and releasing $711 to Nelson
                

DISCUSSION

1. Did the District Court err in admitting Nelson's videotaped deposition?

The standard of review for evidentiary rulings is whether the district court abused its discretion. State v. Passama (1993), 261 Mont. 338, 341, 863 P.2d 378, 380 (citing State v. Crist (1992), 253 Mont. 442, 445, 833 P.2d 1052, 1054). The District Court has broad discretion to determine if evidence is admissible. Accordingly, absent an abuse of discretion, we will not overturn the district court's determination. Passama, 863 P.2d at 380.

Citing to no other authority than evidentiary privileges which Vanderburg admits do not apply, Vanderburg claims that the District Court erred when it admitted Nelson's videotaped deposition. Vanderburg supports his claim by stating that Nelson waived her Fifth Amendment privilege against self-incrimination, could not assert her privilege against self-incrimination after being convicted of possession of dangerous drugs, and could not assert her privilege against self-incrimination in a civil proceeding. Vanderburg fails to explain why the District Court should have excluded Nelson's entire deposition when she asserted her Fifth Amendment right against self-incrimination only as to certain questions asked and he cites no authority for that proposition.

The State argues that not only did Nelson correctly assert her Fifth Amendment privilege against self-incrimination but also that the District Court did not abuse its discretion in denying Vanderburg's motion to exclude Nelson's testimony. The State asserts that had Vanderburg wanted Nelson's testimony, he could have moved to compel Nelson to answer the disputed questions rather than move to exclude the entire deposition.

The State correctly argues that the Fifth Amendment's protection "covers not only criminal proceedings but also other proceedings where compelled testimony could lead to future prosecution." Matter of C.L.R. (1984), 211 Mont. 381, 386, 685 P.2d 926, 929 (citing Lefkowitz v. Turley (1973), 414 U.S. 70, 94 S.Ct. 316, 38 L.Ed.2d 274). Thus, Nelson's conviction in a prior criminal proceeding and the fact that the instant case is a civil proceeding have no bearing on Nelson's ability to assert her Fifth amendment right against self-incrimination. Nelson had the right not to answer questions where the answers could lead to future prosecution. As the State suggested, had Vanderburg wanted the answers to the questions, he could have moved to compel the answers. Instead he moved to strike the entire deposition testimony. Vanderburg did not support his unorthodox motion with any authority demonstrating why the District Court should have excluded the testimony or how the District Court erred in not excluding the testimony.

In addition, the State argues that Vanderburg attempted to impeach Nelson's credibility with evidence of prior convictions. Evidence of...