U.S. v. $215,300 U.S. Currency

• Decision Date: 14 August 1989
• Docket Number: No. 87-5826,87-5826
• Citation: 882 F.2d 417
• Parties: UNITED STATES of America, Plaintiff-Appellee, Duvan Arboleda, individually and as president of Gold & Gems Trading, Claimant-Appellant, v. $215,300 UNITED STATES CURRENCY, Defendant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 417

882 F.2d 417

UNITED STATES of America, Plaintiff-Appellee,

Duvan Arboleda, individually and as president of Gold & Gems

Trading, Claimant-Appellant, v. $215,300 UNITED STATES CURRENCY, Defendant.

No. 87-5826.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Dec. 9, 1988.

Decided Aug. 14, 1989.

Marc L. Barbakoff, Miami, Fla., for claimant-appellant.

Robert A. Pallemon, Asst. U.S. Atty., Los Angeles, Cal., for plaintiff-appellee.

Appeal from the United States District Court for the Central District of California.

Before BROWNING, SCHROEDER and NOONAN, Circuit Judges.

PER CURIAM:

On April 25, 1985, Alvaro Dario Hoyos entered Los Angeles International Airport carrying $215,300 strapped to his body and stuffed in his clothes. Law enforcement agents seized the money. The district court ordered forfeiture. Duvan Arboleda appeals, claiming the money Hoyos transported on his behalf was not drug-related. We affirm.

I.

Los Angeles Police Detective Michael Farrant was on duty at the airport when Hoyos walked past with a bundle of currency protruding from a pocket in his jacket. Detective Farrant identified himself and learned Hoyos was flying from Los Angeles to Miami via Atlanta. In response to further questioning, Hoyos took $15,000 from his coat pockets and said it was all the money he had. A patdown search, during which Hoyos became "visibly shaken," confirmed the presence of a large bulge around Hoyos' waist.

Detective Farrant asked Hoyos to accompany him to the Drug Enforcement Agency airport office. On the way to the office Hoyos told Detective Farrant the money belonged to a travel agency he owned. At the office, Detective Farrant asked Hoyos for the rest of the money. Hoyos produced an additional $201,000 from his jacket, his socks, and an apron-like cloth taped to his waist. Hoyos then told Detective Farrant that, except for $700 for personal expenses, the money was for the purchase of gold and gems. A search on the DEA's Narcotics and Dangerous Drugs Information System (NADDIS) computer revealed that Hoyos had been arrested nine years earlier on a charge of marijuana trafficking subsequently dismissed. Detective Farrant seized the currency pursuant to 21 U.S.C. Sec. 881(a)(6), issued Hoyos a receipt for $215,300, and released him. The next day a police dog searching the DEA office alerted to the odor of narcotics by biting and scratching at the desk drawer in which the money was stored. A subsequent NADDIS search revealed a report that a person with claimant's name was a drug leader in Miami.

II.

To justify civil forfeiture under 21 U.S.C. Sec. 881, the government must establish probable cause to believe the property was exchanged or intended to be exchanged for drugs. United States v. Dickerson, 873 F.2d 1181, 1184 (9th Cir.1988) (as amended). If the government does so, the onus shifts to claimant to show by a preponderance of the evidence that the property was not involved in a violation of the narcotics laws, or to otherwise refute the government's showing of probable cause. United States v. $5,644,540.00 in U.S. Currency, 799 F.2d 1357, 1362 (9th Cir.1986).

III.

To meet its burden of establishing probable cause, the government's belief that the money was involved in drug trafficking must be based on more than mere suspicion. Id. "To pass the point of mere suspicion and to reach probable cause, it is necessary to demonstrate by some credible evidence the probability that the [money] was in fact" drug-related. Dickerson, 873 F.2d at 1184 (emphasis in original).

Not all of the government's evidence was probative. A NADDIS report of a charge that was dismissed is not a credible indicia of current illegal activity. ¹ We also share claimant's concern as to the general reliability of NADDIS reports. ² Moreover, we cannot agree that flying from Los Angeles to Miami with a connection in Atlanta rather than taking a nonstop direct flight evidences an attempt to thwart surveillance. Cf. United States v. Sokolow, --- U.S. ----, 109 S.Ct. 1581, 1586, 104 L.Ed.2d 1 (1989) ("a trip from Honolulu to Miami, standing alone, is not a cause for any sort of suspicion"). ³

Nonetheless we conclude the reliable evidence offered by the government was sufficient in aggregate to give rise "to more than mere suspicion that the property was exchanged for or intended to be exchanged for drugs." $5,644,540.00, 799 F.2d at 1363. Carrying a large sum of cash is "strong evidence" of this relationship even without the presence of drugs or drug paraphernalia. United States v. U.S. Currency, $83,310.78, 851 F.2d 1231, 1236 (9th Cir.1988). So, too, is the positive canine alert for the presence of narcotics on the seized currency. Dickerson, 873 F.2d at 1184. In this instance, claimant's attack on the credibility of the canine alert fails. Uncontradicted trial testimony established that the particular police dog had an unblemished record for detecting narcotics, and the police had taken the necessary precautions to ensure a reasonable probability of proper identification and lack of tampering. See id.; United States v. Spetz, 721 F.2d 1457, 1464 (9th Cir.1983). Support was lent to the inference that the money was drug-related by Hoyos' attempts to avoid detection--through concealing and lying about the money--and by the fact that Hoyos' ticket was issued by a Miami travel agency that had issued tickets for some 20-30 other travelers from whom Detective Farrant had previously seized narcotics-related currency. See $83,310.78, 851 F.2d at 1236; $5,644,540.00, 799 F.2d at 1363. Finally, Hoyos' nervousness and his Miami destination, a "well-known center of illegal drug activity," were probative of probable cause in combination with the other circumstances. See Sokolow, 109 S.Ct. at 1586-87; United States v. $25,000 U.S. Currency, 845 F.2d 857, 862 & n. 6 (9th Cir.1988).

We conclude that "[t]he money, combined with other persuasive circumstantial evidence ... is sufficient here to establish probable cause." United States v. $93,685.61 in U.S. Currency, 730 F.2d 571, 572 (9th Cir.1984) (per curiam).

IV.

We also agree with the district court that the claimant failed to carry his burden of establishing by a preponderance of the evidence that the money was not related to narcotics trafficking. To rebut the government's showing of probable cause, it was incumbent upon claimant to prove the money had an independent innocent source and had not been used illegally. See United States v. $41,305.00 in Currency and Traveler's Checks, 802 F.2d 1339, 1343 n. 6 (11th Cir.1986).

The government's evidence suggesting drug trafficking was strong. Claimant offered his own testimony, in rebuttal. The court's ruling that claimant failed to carry his burden of proof necessarily rested upon a rejection of that testimony. Questions of credibility are for the trial court, see United States v. One Twin Engine Beech Airplane, 533 F.2d 1106, 1108-09 (9th Cir.1976) (per curiam); Fed.R.Civ.P. 52(a); we defer to a decision resting upon the credibility of witnesses unless it is clearly erroneous. One Twin Engine Beech Airplane, 533 F.2d at 1108-09. Having reviewed the evidence before the district court, we are not left with a definite and firm conviction that a mistake has been made. United States v. Obscene Magazines, Books and Advertising Materials, 653 F.2d 381, 383 (9th Cir.1981).

Claimant testified and...