U.S. v. $67,220.00 in U.S. Currency, 91-5645

• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)
• Writing for the Court: Before KENNEDY and GUY, Circuit Judges, and LIVELY; RALPH B. GUY, Jr.
• Citation: 957 F.2d 280
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. $67,220.00 IN UNITED STATES CURRENCY, Defendant, Robert N. Easterly, Jr., Claimant-Appellee.
• Docket Number: No. 91-5645,91-5645
• Decision Date: 28 February 1992

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957 F.2d 280 UNITED STATES of America, Plaintiff-Appellant,
v.
$67,220.00 IN UNITED STATES CURRENCY, Defendant,
Robert N. Easterly, Jr., Claimant-Appellee. No. 91-5645. United States Court of Appeals,
Sixth Circuit. Argued Jan. 31, 1992.
Decided Feb. 28, 1992.

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D. Gregory Weddle, Asst. U.S. Atty. (argued and briefed), Jerry G. Cunningham, U.S. Atty., Office of U.S. Atty., Knoxville, Tenn., for plaintiff-appellant.

W. Thomas Dillard (briefed), Kenneth F. Irvine (argued), Ritchie, Fels & Dillard, Knoxville, Tenn., for claimant-appellee.

Before KENNEDY and GUY, Circuit Judges, and LIVELY, Senior Circuit Judge.

RALPH B. GUY, Jr., Circuit Judge.

The government appeals the district court's grant of summary judgment to the claimant in this civil forfeiture action brought under 21 U.S.C. § 881. The district court found that the government had failed to establish probable cause to believe that the currency seized from the claimant was substantially connected to illegal drugs. We reverse and remand.

I.

On March 9, 1990, the claimant, Robert Easterly, Jr., drove a borrowed truck to the Metropolitan Knoxville Airport to catch a Delta Airlines flight to Miami, Florida. Easterly, using his American Express card, had purchased a one-way ticket earlier in the day at the Delta office in downtown Knoxville. Easterly was casually dressed and carried a suitcase and camera bag as he approached the Delta ticket counter.

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Lieutenant Kelly Camp, a plainclothes airport police officer, observed Easterly as he checked his suitcase at the ticket counter. Camp had never seen or heard of Easterly before that date. Camp noticed a rubber-banded stack of money protruding from one of Easterly's pockets and bulges in several other pockets. After learning from the ticket agent that Easterly had a one-way ticket to Miami, Camp followed Easterly toward the departure gate.

After Easterly had passed the airport metal detector, Camp overtook him, introduced himself, and asked to speak with him. Easterly agreed. Camp first asked to see Easterly's plane ticket. Easterly produced the ticket, and Camp observed that it was in the name "Robert Easterly." Camp then checked Easterly's driver's license and confirmed that the same name appeared on it. Easterly next agreed to let Camp search his camera bag. Camp found only toiletries and camera parts in the bag. At some point during this encounter, Camp used his radio to request backup.

Easterly then consented to a search of his person. Lt. Don Moore, a uniformed airport officer, arrived at the concourse as Camp searched Easterly. Camp found and removed five bundles of large denomination bills. Easterly told Camp that he was carrying about five thousand dollars.

Camp, holding the cash that he had removed, asked Easterly to accompany him to the police office in the airport. Easterly expressed concern about missing his flight, but agreed to accompany the officers. Easterly walked beside Camp while Moore walked behind. Upon arriving at the police office, the officers drew the blinds and closed the doors.

The officers then made a series of phone calls. They called Delta to have Easterly's suitcase pulled off of the flight, the Blount County Sheriff's Office to have a drug-sniffing dog brought to the airport, and Agent Lowell Miller of the Drug Enforcement Agency to request his presence.

While waiting for the arrival of the luggage, the dog, and Miller, Camp asked Easterly how much money he had and why he was carrying it. Easterly responded that he was carrying about $20,000 to buy jewelry in Florida. Camp then asked Easterly to consent to another search of his person. Camp found and removed several more bundles of cash from Easterly's waistband. The officers counted the money and arrived at a total of $67,220.

Easterly's suitcase arrived and the officers searched it. They found nothing unusual in it. Easterly then asked, for the first time, if he was free to leave. Camp told Easterly that he could leave but that he could not take the money with him. Easterly stayed.

A few minutes later, the dog arrived. The dog sniffed the money, the camera bag, and the suitcase. According to Moore, the dog sat after sniffing these items. The dog's handler told Camp and Moore that this was a positive reaction for drugs.

Next, Agent Miller arrived at the scene. After telling Camp to write Easterly a receipt for the money, Miller spoke with Easterly. Easterly told Miller that he had intended to go to Hollywood, Florida, to buy jewelry for Budget Gold, a business owned by Ira Grimes. Easterly explained that he worked for Grimes and that the $67,220 represented Budget Gold's profits for the previous four years. Miller asked Easterly where he was planning to buy jewelry in Hollywood. Miller later testified that he could not recall whether Easterly could not or would not answer that question.

Easterly then left the office with his suitcase, camera bag, and receipt. Moore accompanied Easterly to the borrowed truck in the parking lot. Easterly allowed Moore to search the truck, but the search revealed nothing other than a cigarette butt in the ashtray. Moore stated that he could not determine whether the butt came from a marijuana or tobacco cigarette. Easterly then left the airport.

The next day, Easterly told Grimes about the seizure. According to Grimes, Easterly confessed to taking $2,000 from Grimes' desk and removing Grimes' business license from his wall. Easterly explained

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that he had borrowed most of the seized money from friends and relatives in order to buy jewelry. He told Grimes that he took his business license so that he would be able to make purchases wholesale and that he had planned to repay the $2,000 after turning a profit. Easterly asked him to vouch that the seized cash was Budget Gold's money so that Easterly could get it back. Grimes refused to help Easterly because only $2,000 of the cash was Budget Gold's money and because he was angry at Easterly for taking his money and business license.

The government instituted this forfeiture proceeding in October 1990. Easterly immediately filed a claim for the money. Camp, Moore, Miller, Easterly, and Grimes were all deposed one month later. Each of the five deponents testified to the events of March 9 and March 10. There were only minor discrepancies in the various accounts.

Miller, Easterly, and Grimes also testified to other matters. Miller stated that he had information that Easterly and Grimes were cocaine dealers, but refused to provide any basis for that statement on the ground that an investigation was continuing.

Grimes confirmed that Easterly had sold jewelry on a commission basis for Budget Gold for four years prior to the seizure. Grimes also stated that he was aware that there was a well-known jewelry flea market in the Miami area. Grimes stated that he usually bought jewelry through the mail or in Atlanta. Grimes testified that he had no knowledge of any illegal drug activity involving Easterly.

Easterly testified that he had borrowed most of the seized money from friends and relatives in order to set up his own jewelry business. Easterly provided the names of three persons he claimed had loaned him the bulk of the money. According to Easterly, the three had loaned him the cash without obtaining a note or receipt. Easterly confirmed that he had taken Grimes' business license and $2,000 from his desk without permission. He also provided the name of a jewelry mart in Florida that he had planned to visit.

Easterly moved for summary judgment two months later. He argued that the seizure had violated his Fourth Amendment rights and that the government did not have the necessary probable cause required to sustain a forfeiture action. The district court agreed that the government's proof fell short of probable cause and granted the motion for summary judgment. The court ordered the government to return the money to Easterly, but stayed the order pending the outcome of this appeal.

II.

The civil forfeiture provision of the Controlled Substances Act provides, in pertinent part:

The following shall be subject to forfeiture to the United States and no property right shall exist in them:

....

(6) All moneys ... furnished or intended to be furnished by any person in exchange for a controlled substance in violation of this subchapter, all proceeds traceable to such an exchange, and all moneys ... used or intended to be used to facilitate any violation of this subchapter....

21 U.S.C. § 881(a)(6).

The allocation of burdens in a forfeiture proceeding is provided by 19 U.S.C. § 1615, made applicable to forfeitures under the Controlled Substances Act by 21 U.S.C. § 881(d). "[T]he burden of proof shall lie upon [the] claimant ... Provided, That probable cause shall be first shown for the institution of such suit or action, to be judged of by the court...." 19 U.S.C. § 1615 (emphasis in original). To meet its burden, the government "must establish probable cause to believe that a substantial connection exists between the property to be forfeited and the illegal exchange of a controlled substance." United States v. 526 Liscum Drive, 866 F.2d 213, 216 (6th Cir.1989). ¹

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"Probable cause means 'reasonable ground for belief of guilt, supported by less than prima facie proof but more than mere suspicion.' " Id. at 216 (citations omitted). Thus, in a subsection (a)(6) forfeiture...