U.S. v. $141,770.00 in U.S. Currency

• Decision Date: 21 December 1998
• Docket Number: No. 97-2393,97-2393
• Citation: 157 F.3d 600
• Parties: UNITED STATES of America, Plaintiff--Appellee, v. $141,770.00 IN UNITED STATES CURRENCY, Defendant. Rafael Moreno-Pena, Claimant--Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 600

157 F.3d 600

UNITED STATES of America, Plaintiff--Appellee, v. $141,770.00 IN UNITED STATES CURRENCY, Defendant.

Rafael Moreno-Pena, Claimant--Appellant.

No. 97-2393.

United States Court of Appeals,

Eighth Circuit.

Submitted Feb. 13, 1998.

Decided Oct. 5, 1998.

Rehearing and Suggestion for Rehearing En Banc Denied Dec.

21, 1998. ^*

Robert Gallinghouse, San Diego, CA, argued (Michael Littman, on the brief), for appellant

Nancy A. Svoboda, Assistant U.S. Attorney, Omaha, NE, argued, for appellee.

Before LOKEN and HANSEN, Circuit Judges, and DAVIS, ¹ District Judge.

HANSEN, Circuit Judge.

Rafael Moreno-Pena appeals from the district court's ² probable cause determination in this 21 U.S.C. § 881 (1994) civil forfeiture action. He also contests the exclusion of certain evidence and the overruling of his objections to a series of questions asked by the government on cross-examination. We affirm.

I.

On July 26, 1995, George E. Scott, a Nebraska State Patrol officer, observed a Toyota camper drive onto the shoulder of Interstate 80 while traveling west through Hall County, Nebraska. After stopping the vehicle, Scott asked the driver for his license and vehicle registration. The driver's license revealed the driver to be Rafael Moreno-Pena (Moreno). Moreno's passenger, Jose Javier Herrera, identified himself as the owner of the vehicle. While Scott was talking to the occupants, he detected a "heavy odor of fabric softener sheets emitting from the interior of the vehicle." (Tr. at 123.) Scott testified that, based on his training, he knew that fabric softener sheets were often used to mask the odor of drugs or narcotics. Scott was told by Moreno and Herrera that the two had traveled from California, a state of drug origin, to Illinois and Wisconsin, drug destination states, and were on their way back to California. Scott testified that both men seemed extremely nervous during the encounter.

Trooper Scott returned to his patrol vehicle and prepared a written warning for the driver, Moreno. After delivering the written warning to Moreno, Scott asked Herrera to exit the camper, and Herrera complied. Scott then asked Herrera if the camper contained drugs, weapons, or large sums of cash, and Herrera answered in the negative. Scott then asked for and received Herrera's verbal permission to search the camper. Before searching the camper, Scott produced and read Herrera a consent-to-search form, which Herrera willingly signed. Scott then asked Moreno to exit the camper, and Moreno complied.

About this time, Trooper Steve Kolb arrived to provide backup. Upon his arrival, Scott began to search the camper. He testified that, upon entering the camper, he was struck by "a very heavy odor of fabric softener sheets emitting from the entire interior of the vehicle." (Tr. at 126). Scott did not immediately locate any fabric softener sheets, but he did find several tools, including a hammer and four screwdrivers. At this point, Kolb began assisting in the search. The troopers soon located screws in the ceiling which bore marks indicating frequent removal. The ceiling panel also appeared as if it had been frequently removed and replaced. The troopers removed the worn screws and ceiling panel. Above the panel, the officers discovered a trap door, which they opened. Inside the trap door the officer found a hollow ceiling area containing five zip-lock bags. Each of the five zip-lock bags contained a second zip-lock bag, which in turn contained a third zip-lock bag. Inside each of the innermost zip-lock bags, the officers found large amounts of United States currency wrapped in scented fabric softener sheets. The total amount of cash in these five bags was $141,770.00.

When Scott discovered the bags, he motioned Moreno and Herrera into the camper and asked them who owned the large sums of cash. Both men denied any knowledge or ownership of the cash. (See Tr. at 130, 326.) These denials were called into question by receipts found in Moreno's pockets, which showed that he had purchased fabric softener and zip-lock bags in Bloomington, Minnesota, less than a week earlier. (Id. at 268-272.)

After Herrera and Moreno were taken to the police station, Nebraska State Trooper Jerry Schenck and his narcotics dog, Nero, performed a search on one of the five seized zip-lock bags of currency. The search was conducted as follows: First, Nero was told to search the empty room and did not alert. Next, money collected from various troopers was placed in the room, and Nero was again directed to search the room. Again, Nero did not alert. Finally, one of the five zip-lock bags of money from the camper was placed in the room, and Nero was again told to search the room. Nero alerted to the money from the camper.

Schenck and Nero also performed a search on the camper. Nero alerted to the driver's side door and the side entrance of the camper. Additionally, Nero alerted to a black plastic bag that had been taken out of the false ceiling and was lying on the floor of the camper.

The United States filed a forfeiture action, alleging that the money found in the camper was either proceeds traceable to the exchange of a controlled substance or was intended to be used to facilitate the possession and distribution of a controlled substance. Moreno filed an answer, claiming that the money belonged to him and was derived from a legitimate auto body/used car business. After trial, the jury returned a verdict in favor of the United States. In addition to entering judgment based on this verdict, the court issued findings of fact and conclusions of law concerning its probable cause determination. Moreno appeals.

II.

Moreno claims three points of error. First, he claims that the government failed to carry its burden of establishing probable cause to support the judgment of forfeiture. Second, he claims that the exclusion of proffered scientific evidence regarding the contamination of currency constituted error. Third, he claims that his Fifth Amendment right against self-incrimination was violated. We address each of these arguments in turn.

A. Probable Cause

Pursuant to 21 U.S.C. § 881(a)(6), all money furnished or intended to be furnished in exchange for illegal drugs, all drug proceeds, and all money used or intended to be used to facilitate illegal drug trafficking is subject to civil forfeiture. In a forfeiture action under section 881, the United States bears the initial burden of establishing probable cause to connect property to drug trafficking. See United States v. $39,873.00, 80 F.3d 317, 318 (8th Cir.1996). Establishing a connection to general criminality is not enough. United States v. $191,910.00 in United States Currency, 16 F.3d 1051, 1071-72 (9th Cir.1994). The government meets this burden by presenting evidence which creates "more than a mere suspicion but less than prima facie proof" that the seized property is related to drug trafficking. $39,873.00, 80 F.3d at 318 (internal quotations omitted). In making a probable cause determination, the district court must look to "the 'aggregate' of all facts," considering both direct and circumstantial evidence. United States v. United States Currency in the Amount of $150,660.00, 980 F.2d 1200, 1206 (8th Cir.1992). We review the district court's underlying findings of fact only for clear error, but we review determinations of probable cause de novo. Ornelas v. United States, 517 U.S. 690, 116 S.Ct. 1657, 1663, 134 L.Ed.2d 911 (1996); $39,873.00, 80 F.3d at 318.

Moreno argues that even a large amount of unexplained currency, standing alone, would be inadequate to support a forfeiture. See $191,910.00 in United States Currency, 16 F.3d at 1072 ("any amount of money, standing alone, would probably be insufficient to establish probable cause for forfeiture"); but see $39,873, 80 F.3d at 319 ("[W]e have recognized that possession of a large amount of cash ... is strong evidence that the cash is connected with the drug trade."). We need not address this contention, because we are not faced with "a large amount of money, standing alone," but with a considerable amount of other circumstantial evidence. First, the government presented evidence that Nero alerted to the seized money, to the door of the camper, and to a garbage bag which had fallen from the camper's hidden ceiling compartment. Second, the government presented evidence that the camper had originated in California, a drug source state, and was on its way back to California with a very large amount of cash after having spent time in the upper Midwest, ³ a drug destination area. Most important, however, is the telltale packaging in which the seized currency was found. Had the money simply been concealed above the ceiling, Moreno could reasonably argue that its connection to drug trafficking was not immediately apparent. But where, as here, large sums of currency are not only stowed above the ceiling panel, but also wrapped in scented fabric softener sheets and sealed in three layers of zip-lock bags, the connection to drug trafficking cannot reasonably be disputed. The only conceivable reason for packaging money in this manner is to conceal the scent of illegal narcotics. ⁴

Finally, various comments made by Moreno are incompatible with the evidence. Although Moreno claims that he brought the money from California, receipts found in his pockets verify that he purchased the dryer sheets and zip-lock bags in Minnesota. Moreno does not explain why he waited to wrap the money in this fashion until he reached Minnesota. Additionally, Moreno's statement that this money constituted legitimate business proceeds is undercut both by his inability to produce any tax records regarding the source of this income and by his initial denial of ownership over the money.

In light of the aggregate facts of this case, we independently conclude that the government met its burden of showing probable cause that the seized currency was connected to drug...