U.S. v. $493,850.00 in U.S. Currency
| Decision Date | 13 March 2008 |
| Docket Number | No. 06-15225.,06-15225. |
| Citation | 518 F.3d 1159 |
| Court | U.S. Court of Appeals — Ninth Circuit |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. $493,850.00 IN U.S. CURRENCY; One 1993 Ford F-350 Truck, Defendants. Roy F. Bruno; Miguel Camacho, Claimants-Appellants. |
Richard B. Jones, Tucson, AZ, for the claimants-appellants.
Paul K. Charlton, United States Attorney, District of Arizona and Joan G. Ruffennach and John Joseph Tuchi, Assistant United States Attorneys for the District of Arizona, Phoenix, AZ, for the plaintiff-appellee.
Appeal from the United States District Court for the District of Arizona; Virginia A. Mathis, Magistrate Judge, Presiding. D.C. No. CV-03-02345-VAM.
Before: JEROME FARRIS, ROBERT R. BEEZER, and SIDNEY R. THOMAS, Circuit Judges.
Roy Bruno ("Bruno") and Miguel Camacho ("Camacho") (collectively, "Claimants") appeal the magistrate judge's order granting summary judgment in favor of the government in its civil forfeiture action against $493,850 in U.S. currency and one 1993 Ford F-350 truck. We affirm.
On June 3, 2003, Officer John McFarland ("McFarland") of the Arizona Highway Patrol observed a Ford truck with Florida license plates swerve over the center line on an Arizona highway. McFarland pulled the truck over and approached the driver. As he approached, McFarland could smell the strong odor of air freshener, which, in his experience, suspects often used to cover the odor of narcotics. He questioned the driver, Camacho, and the passenger, Bruno. McFarland noted some minor inconsistencies between their statements, but issued Camacho a warning and told him that he was free to leave.
As Camacho walked back towards the truck, McFarland called Camacho back and began talking to him about drug trafficking. McFarland asked for, but did not receive, consent to search the truck. McFarland also asked for, and eventually received, consent to run a drug-sniffing dog around the truck. The dog alerted. McFarland searched the truck and found $493,850 concealed throughout the truck. He seized the truck and the currency.
On November 26, 2003, the government brought a civil complaint for forfeiture, separately naming $493,850 in U.S. currency and one 1993 Ford F-350 truck as in rem defendants. The government alleged that the currency was subject to forfeiture because it was furnished or intended to be furnished in exchange for a controlled substance. Alternatively, it alleged that the currency was subject to forfeiture because it was engaged in a transaction or attempted transaction involving property derived from a specified unlawful activity. The government alleged that the truck was subject to forfeiture because it was used and intended to be used to transport and facilitate the transportation, sale, receipt, possession and concealment of a controlled substance.
Bruno timely filed a claim to the currency. Camacho timely filed a claim to the truck. All parties consented to proceed before a U.S. magistrate judge.
After an evidentiary hearing, the magistrate judge held that McFarland had made a lawful investigatory stop of the truck, but that he unlawfully exceeded the scope of the investigatory stop by calling Camacho back, questioning him and searching and seizing the truck and currency. The magistrate judge suppressed all evidence gathered after McFarland issued Camacho the warning.
The government subsequently presented the following facts in a motion for summary judgment, which the government had not previously disclosed to Claimants because of an ongoing and sealed criminal investigation: (1) a special agent with the Drug Enforcement Administration ("DEA") learned of the June 3, 2003 seizure on the day it occurred; (2) on that same day, that same agent also learned that Camacho was the subject of an ongoing DEA investigation in Miami, Florida; (3) DEA agents had observed Camacho's 1993 Ford F-350 truck during that investigation; and (4) Camacho was the subject of a separate narcotics investigation being conducted by the South Florida Money Laundering Strike Force.
The government also submitted affidavits by two witnesses cooperating in the Miami investigations, which were both signed after the complaint was filed. The witnesses testified that long before the illegal search and seizure, Camacho met separately with each of them to discuss the importation and sale of cocaine. Camacho indicated to these witnesses that he employs his family members in his cocaine operations, and that he personally transports cocaine and currency to Mexico using different types of vehicles. One of the witnesses met Bruno, a relative by marriage, during one of these meetings.
Based upon this information, the magistrate judge granted summary judgment in favor of the government. The magistrate judge found that the affidavits of the cooperating witnesses, as well as portions of the DEA agent's affidavit, were not tainted by the illegal search and seizure. The magistrate judge held that the government carried its burden in proving, by a preponderance of the evidence, a substantial connection between the in rem defendants and cocaine transactions. The magistrate judge further held that the Claimants had failed to prove, by a preponderance of the evidence, that they were innocent owners because they presented nothing to rebut the government's evidence. The magistrate judge also drew a negative inference from Claimants' refusal to answer requests for admission based on the Fifth Amendment.
Claimants timely appealed. They initially moved to stay execution of the entire judgment pending appeal, but later withdrew their request as to the truck. The magistrate judge granted the motion to stay. The judgment as to the truck has been executed.
We review, de novo, the denial of a motion to suppress, United States v. Jensen, 425 F.3d 698, 704 (9th Cir.2005), a determination of probable cause, United States v. $30,060 in U.S. Currency, 39 F.3d 1039, 1041 (9th Cir.1994), an interpretation of federal forfeiture law, United States v. 25445 Via Dona Christa, 138 F.3d 403, 407 (9th Cir.1998), amended by, 170 F.3d 1161 (9th Cir.1999), and an order granting summary judgment, United States v. 5208 Los Franciscos Way, 385 F.3d 1187, 1190 (9th Cir.2004).
The government argues that we lack jurisdiction over the truck. We agree.
In Republic National Bank of Miami v. United States, 506 U.S. 80, 113 S.Ct. 554, 121 L.Ed.2d 474 (1992), the Supreme Court held that once a court validly asserts jurisdiction in an in rem civil forfeiture proceeding, courts of appeals may continue to exercise jurisdiction even after the res is removed from the court. 506 U.S. at 88-89, 113 S.Ct. 554. There is one exception to this rule, "where the release of the property would render the judgment `useless' because `the thing could neither be delivered to the libellants, nor restored to the claimants.'" Id. at 85, 113 S.Ct. 554.
In this case, the judgment as to the truck has been executed, so the res can neither be delivered nor restored to Claimants. Id. Claimants never entered into an agreement with the government to substitute proceeds from the sale of the truck in place of the truck for purposes of appeal. Cf. Ventura Packers, Inc. v. F/V JEANINE KATHLEEN, 424 F.3d 852, 861-62 (9th Cir.2005) (). A judgment as to the truck in this case would be useless. We lack jurisdiction over the truck.
Claimants argue that the magistrate judge should have excluded all information from the Miami investigations as fruit of the poisonous tree, because Arizona investigators would not have learned of the information but for the illegal seizure. We disagree.
The exclusionary rule applies in civil forfeiture cases. United States v. $191,910 in U.S. Currency, 16 F.3d 1051, 1063 (9th Cir.1994), superseded on other grounds as stated in United States v. $80,180 in U.S. Currency, 303 F.3d 1182, 1184 (9th Cir.2002). It bars the admission of evidence obtained in violation of the U.S. Constitution, as well as "fruits of the poisonous tree." United States v. Ramirez-Sandoval, 872 F.2d 1392, 1395 (9th Cir.1989). "[U]nder the `fruits of the poisonous tree' doctrine, evidence obtained subsequent to a violation of the Fourth Amendment is tainted by the illegality and is inadmissible....'" United States v Washington, 490 F.3d 765, 774 (9th Cir. 2007). There are three exceptions to the fruits of the poisonous tree doctrine. Ramirez-Sandoval, 872 F.2d at 1396.
The independent source exception is at issue in this case. It allows admission of "evidence that is actually found by legal means through sources unrelated to the search." Id. "Independent source evidence is not `fruit of the poisonous tree' because its discovery through independent legal means does not result from the official's illegal conduct." Id.
The information at issue here is not a fruit of the poisonous tree because it was not discovered subsequent to the illegal seizure, see Washington, 490 F.3d at 774, nor was it derived in any way from the illegal seizure, see Ramirez-Sandoval, 872 F.2d at 1396. The information was learned from preexisting, unrelated investigations. See id. It could have been, and likely was, discovered with the simple use of Camacho's name and vehicle registration, which McFarland legally obtained before the illegal search and seizure. The Miami information is admissible.
Claimants argue that the magistrate judge erred in considering the fact that the illegally seized res consisted of $493,850 of U.S. currency. It is unclear whether the magistrate judge considered the amount of currency in her analysis. To the extent she considered the amount of currency, we agree that such consideration was improper. To the extent she merely recognized the nature of the illegally seized property as currency, we hold that such consideration was proper.
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