U.S. v. $64,000.00 in U.S. Currency

• Decision Date: 12 January 1984
• Docket Number: No. 82-3265,82-3265
• Citation: 722 F.2d 239
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. $64,000.00 IN UNITED STATES CURRENCY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 239

722 F.2d 239

UNITED STATES of America, Plaintiff-Appellee, v. $64,000.00 IN UNITED STATES CURRENCY, Defendant-Appellant.

No. 82-3265.

United States Court of Appeals Fifth Circuit.

Jan. 12, 1984.

Gerber, Gerber & Agee, Hal Gerber, Memphis, Tenn., Gerber & Gerber, Martin S. Gerber, Chicago, Ill., for defendant-appellant.

D.H. Perkins, Jr., Asst. U.S. Atty., Shreveport, La., for plaintiff-appellee.

Appeal from the United States District Court for the Western District of Louisiana.

Before WISDOM, TATE and GARWOOD, Circuit Judges.

GARWOOD, Circuit Judge:

The United States government brought this suit under 21 U.S.C. Sec. 881(a)(6) ¹ to obtain the forfeiture of $64,000 in cash which it claimed that David Westoff had intended to use to purchase two pounds of cocaine. Westoff appeals from the district court's judgment for the government.

On September 6, 1979, Dale Gagnard, in Shreveport, Louisiana, telephoned David Westoff in Aspen, Colorado, and offered to sell him two pounds of cocaine for $30,000 per pound. Gagnard had been arrested during an investigation of a drug trafficking conspiracy, and had agreed to cooperate in the Drug Enforcement Agency's ("D.E.A.") investigation of the conspiracy. Gagnard's conversation with Westoff on September 6 was made pursuant to this investigation, and the D.E.A. taped the call.

During this telephone conversation, Westoff agreed to purchase the cocaine. In a telephone call which Westoff made the next day to Gagnard, and which was also taped by the D.E.A., the two decided to meet in Salt Lake City to complete the transaction on Tuesday, September 11, 1979.

Acting according to the plans, Gagnard went to Salt Lake City the next Tuesday. He was accompanied by D.E.A. Special Agent, Ronald Hall, who carried a bag which was meant to appear to contain the two pounds of cocaine. The two men actually brought no cocaine with them.

Westoff, accompanied by a woman from Salt Lake City named Judith Saunders, met Hall and Gagnard in the Salt Lake City airport. The four discussed where the cocaine should be tested; whether at Saunders' office or at a motel room. Westoff stated that the easiest solution might be to test it in the airport rest room, so that Hall and Gagnard could return to Shreveport that night, without ever having to leave the airport. At that point, Agent Hall gave a signal to other D.E.A. agents who were in the airport, and Westoff was arrested. Hall had in his pocket a warrant for Westoff's arrest, although he did not give a copy of it to Westoff.

Robert Wadman, Deputy Commissioner of Public Safety for the State of Utah, aided in the Salt Lake City airport arrest. When he asked Saunders for her identification, she said it was in the car she had rented for the day. Wadman and Grant Larson, Division Chief for Narcotics and Liquor Law Enforcement for the State of Utah, accompanied Saunders to her car in the airport parking lot. Wadman asked Saunders if he could search her car and she consented. He searched the interior and then asked if there was anything in the trunk. Saunders told him that the trunk contained only some paintings and Westoff's luggage. Wadman then searched the trunk and took the carry-on bag, which Saunders had said was Westoff's, back to the airport terminal. Saunders had not protested the trunk search.

The agents then took Westoff and Saunders to the D.E.A. office where Special Agent Paull of the D.E.A., who had assisted in the arrest, questioned Westoff. Agent Paull asked for and received Westoff's permission to open the carry-on bag. Among the items in the bag was a large manila envelope. Westoff told the agents that a man rushing for a plane in the airport had handed it to him and had asked him to mail it. Agent Paull asked Westoff's permission to open the envelope, but Westoff refused, saying that he would like to talk to his attorney. Subsequently, Agent Hall took the envelope back to Shreveport where, based on his affidavit which described the Gagnard/Westoff telephone conversations and the meeting in Salt Lake City, he obtained a warrant authorizing him to search the envelope. The envelope, stamped and addressed to Ronald Garfield, Attorney, at an Aspen address, contained one "Teacher" magazine and $64,000 in one hundred dollar bills.

On September 21, 1979, Westoff was indicted for several offenses, including conspiring to import and to possess with intent to sell cocaine. On March 17, 1980, the district court held an evidentiary hearing on Westoff's motion to suppress the $64,000. The motion was denied. ² Trial began on March 24, 1980 for the substantive offenses and ended in a mistrial. ³ The case was reset for trial November 9, 1981. Westoff's counsel moved for permission to withdraw because Westoff had become indigent. The motion was granted on October 2, 1981, and the district court appointed counsel for Westoff.

On November 9, 1981, Westoff changed his plea to guilty. He pleaded guilty only to one count of the indictment under section 841(a)(1) for the substantive offense of possession with intent to distribute cocaine.

The forfeiture suit had been stayed pending disposition of the criminal charges against Westoff. After Westoff pleaded guilty in November 1981, the forfeiture suit was set for trial for March 22, 1982. Westoff retained private counsel throughout the forfeiture proceedings.

On March 5, 1982, Westoff's counsel filed a petition for a writ of habeas corpus ad testificandum requesting that the government pay to have Westoff, then imprisoned in the Federal Correctional Institution at Montgomery, Pennsylvania, brought to the forfeiture trial. Magistrate James M. Barton, to whom the petition had been directed, responded that Westoff would only be brought to the forfeiture trial if he or his attorneys posted the $5,000 that it was estimated it would cost to have Westoff present. Neither Westoff nor his attorneys posted the $5,000. They neither submitted an affidavit from Westoff declaring his indigency, nor asked for a continuance so that they could obtain such an affidavit. The district court held the trial without Westoff.

Westoff complains now (1) that there was no probable cause to arrest him, (2) that there was no substantial connection between the $64,000 and the criminal activity defined in the forfeiture statute, (3) that his Fourth Amendment rights were violated by the searches of the car, the bag, and the envelope, and (4) that the district court erred in refusing to issue a writ of habeas corpus ad testificandum to procure Westoff's presence, at government expense, at the forfeiture proceeding. We address each of Westoff's claims in turn and conclude that he can succeed on none of them.

THE ARREST

Westoff contends that he was unlawfully arrested and that the $64,000 of which the government sought forfeiture was therefore tainted. See United States v. One Mercury Cougar XR-7, 666 F.2d 228, 230 (5th Cir.1982) (exclusionary rule applies in forfeiture proceedings and probable cause for forfeiture cannot rest upon tainted evidence). Westoff's contentions that he was unlawfully arrested are simply meritless.

When he arrested Westoff, Agent Hall had an arrest warrant in his possession for Westoff's violation of 21 U.S.C. Sec. 841(a)(1) and Sec. 846. ⁴ Westoff's conversations with Gagnard and the preparations they made for the Salt Lake City rendezvous laid the predicate for the warrant. Contrary to Westoff's assertions, no requirement exists that a warrant may only be executed for conduct occurring at the time of the warrant's execution. We find no impropriety in the arrest of Westoff for conduct which had preceded the arrest. Although Westoff had not performed any "acts" in Salt Lake City which the warrant covered, the warrant, which covered acts performed in Aspen, Colorado and Shreveport Louisiana, could have been "executed ... at any place within the jurisdiction of the United States." Fed.R.Crim.P. 4(d)(2). See also Gill v. United States, 421 F.2d 1353, 1354-55 (5th Cir.), cert. denied, 400 U.S. 851, 91 S.Ct. 85, 27 L.Ed.2d 89 (1970). ⁵ The officer need not have the warrant in his possession, though "upon request" he shall show it to the defendant "as soon as possible." Fed.R.Crim.P. 4(d)(3). Here, there is no evidence of such a request. Moreover, failure to comply with Rule 4(d)(3) is not ordinarily grounds for suppression. See United States v. McKenzie, 446 F.2d 949, 954 (6th Cir.1971).

THE LINK BETWEEN THE $64,000 AND THE TITLE 21 CRIME

The government's burden under the forfeiture statute, 21 U.S.C. Sec. 881(a)(6), is to show probable cause for belief that a substantial connection exists between the property to be forfeited and a crime under Title 21 of the United States Code. United States v. $364,960.00 in United States Currency, 661 F.2d 319, 323 (5th Cir.1981). Probable cause is in turn defined as "a reasonable ground for belief of guilt, supported by less than prima facie proof but more than mere suspicion." United States v. One 1978 Chevrolet Impala, 614 F.2d 983, 984 (5th Cir.1980).

Westoff argues that because Gagnard and the government agents had no cocaine with them in Salt Lake City, no transaction could have been finalized, and Westoff committed no crime. Instead, he argues, the government only showed his preparation to commit an offense, and that showing was insufficient to sustain the forfeiture, since no nexus between the $64,000 and a Title 21 crime was established.

The government's proof of Westoff's criminal activity in attempting to procure the cocaine was substantial and uncontradicted--the government showed that Westoff and Gagnard had discussed the amount and price of the cocaine, had arranged to meet and had met in Salt Lake City, and had discussed, in Salt Lake City, the exchange and how to effect it. Finally, Westoff had $64,000 in his baggage--$60,000 for the two pounds of cocaine, and $2,000 per pound commission for himself. ⁶ Clearly, Westoff was attempting...