U.S. v. Funds in Amount of $30,670.00

• Citation: 403 F.3d 448
• Decision Date: 31 March 2005
• Docket Number: No. 02-2899.,02-2899.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. FUNDS IN THE AMOUNT OF THIRTY THOUSAND SIX HUNDRED SEVENTY DOLLARS ($30,670.00), Defendant, Antonio Calhoun, Claimant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

403 F.3d 448

UNITED STATES of America, Plaintiff-Appellee, v. FUNDS IN THE AMOUNT OF THIRTY THOUSAND SIX HUNDRED SEVENTY DOLLARS ($30,670.00), Defendant, Antonio Calhoun, Claimant-Appellant.

No. 02-2899.

United States Court of Appeals, Seventh Circuit.

Argued October 28, 2004.

Decided March 31, 2005.

COPYRIGHT MATERIAL OMITTED

James M. Kuhn (argued), Office of the United States Attorney, Chicago, IL, for Plaintiff-Appellee.

Sanford I. Weisburst (argued), Mayer, Brown, Rowe & Maw, New York, NY, for Claimant-Appellant.

Before POSNER, KANNE, and ROVNER, Circuit Judges.

KANNE, Circuit Judge.

Two Drug Enforcement Administration ("DEA") agents encountered Antonio Calhoun at Chicago's Midway Airport as he attempted to board a flight destined for Phoenix. The agents confiscated $30,670 in cash that Calhoun was carrying, and a drug detection dog later alerted to the currency, indicating the presence of narcotics. The United States filed a civil forfeiture action with regard to the cash, and the district court granted summary judgment in the government's favor. Calhoun appeals the judgment and, moreover, asks that we sua sponte grant summary judgment in his favor. We decline Calhoun's request and affirm the judgment of the district court.

I. Background

A. Factual History

Around 9:00 A.M. on September 5, 2000, Antonio Calhoun paid cash at Chicago's Midway Airport for a one-way ticket to Phoenix, Arizona. He checked no luggage, but carried with him a gym bag. As Calhoun attempted to pass through security on the way to his departure gate, he was approached by DEA agents. One agent informed Calhoun that they had heard that a person matching Calhoun's description would be coming through the airport carrying a large amount of cash. The agent also explained to Calhoun that he was not under arrest and could leave at any time.

After identifying himself to the agents with an Illinois state identification card, Calhoun explained that he had lost his job and was traveling to Phoenix in order to find work. He also indicated that he had no luggage other than his carry-on gym bag. He confirmed that the bag belonged to him and that he had packed the bag himself. The agents asked Calhoun if he was carrying any narcotics or large amounts of currency, and Calhoun responded that he was carrying "about $1000." Calhoun then consented to the agents' request to search his bag. The search revealed a few changes of clothes, assorted toiletries, and two separate bundles of cash wrapped with rubber bands. The agents again asked Calhoun how much cash he was carrying, and this time Calhoun answered that he was carrying $1700. The agents also noticed that Calhoun was stuttering his answers and appeared increasingly nervous.

The agents asked Calhoun if he was certain that he was carrying no other money, and Calhoun replied, "No." One of the agents noticed that Calhoun had several bulges in the front and sides of his clothing, and he asked Calhoun for permission to search his person. Calhoun backed away, asking, "What do you want to search me for?" The agent brushed Calhoun's body with the back of his hand and felt an odd protrusion under Calhoun's clothes. At that point, both agents escorted Calhoun to a vacant DEA office at the airport, where the agents made an interesting discovery regarding the mysterious bulges in Calhoun's clothing — under his clothes, Calhoun wore a woman's girdle stuffed with 27 additional bundles of cash totaling $28,970.

Calhoun denied that he was the owner of the money but refused to say who the actual owner was. He also signed a "Voluntary Disclaimer of Interest and Ownership" form. The agents gave Calhoun a receipt for $30,670 (the sum of the cash in Calhoun's gym bag and girdle¹) and sent him on his way. Calhoun never traveled to Phoenix that day, nor did he ever claim a credit for his unused ticket.

After Calhoun left the DEA office, the agents placed all of Calhoun's bundles of cash into a plastic bag and enclosed the bag inside one of many empty suitcases in the room. The agents then enlisted the services of "Bax,"² a Cook County Sheriff's Police narcotic detector dog, to conduct a sweep of the room containing the suitcase. The agents informed Officer Robert Arrigo, Bax's handler, only that confiscated currency had been hidden in the room, but not where (the room contained the suitcases as well as two desks and two filing cabinets). Officer Arrigo brought Bax into the room and commanded him to search for drugs. Bax sniffed around the room before fixing on the suitcase containing the bundles of cash. At that point, Bax alerted by scratching at the suitcase's surface. When the agents removed from the suitcase the plastic bag containing the cash, Bax continued to scratch and bite at the plastic bag, indicating the presence of narcotics.

B. Calhoun's Story

On February 27, 2001, the government filed a verified complaint of forfeiture pursuant to 21 U.S.C. § 881(a)(6), alleging that the seized cash "constitute [s] proceeds of narcotics trafficking and [was] intended to facilitate a narcotics transaction, or [was] to be furnished in exchange for narcotics...." Shortly thereafter, Calhoun, despite his earlier disclaimer of ownership of the cash, filed an answer and a verified claim for the $30,670.

Discovery ensued, and additional facts emerged regarding Calhoun's Phoenix trips and the sources of his cash hoard. Regarding his aborted trip on September 5, 2000, Calhoun testified in his deposition that he recently had lost his job in Chicago, so he was traveling to Phoenix to "start over" — in other words, to move there permanently. He planned to find work there and to continue a budding relationship with a young woman identified as "Rochelle," whom he had met at a Phoenix barber shop. Calhoun could not, however, recall Rochelle's last name, stating that it was "either Brown or Burns." Calhoun was similarly unable to provide Rochelle's address or phone number.

Calhoun further testified that he had made a total of three previous trips to Phoenix in July and August 2000. He always purchased one-way tickets under his own name and flew American Trans Air ("ATA"). He claimed to have stayed at the same hotel in Phoenix on each trip. He could not, however, remember which hotel ("I stayed at a hotel on 55th and the [I-10] expressway. I think it's called Holiday Inn or the Hampton Inn or something.").

Calhoun testified that he did not know anyone in Phoenix and did not visit anyone while there. He also claimed that he filled out "a couple of [job] applications" but could not provide details of these prospective employers other than his mention of one unnamed gas station, which never responded to his application. He indicated that each of his stays in Phoenix lasted less than a week. He also testified that while in Phoenix on his first trip, he spent more than $300, and he spent about $700 on each of his subsequent trips.

As for the sizable hoard of cash stashed in his girdle and gym bag, Calhoun indicated that he had accumulated the cash from various sources, including savings and gambling earnings that he started to accumulate in 1994 or 1995. He provided no evidence, such as receipts or bank statements, to substantiate these claims.

C. The Government's Motion for Summary Judgment

Following discovery, the government moved for summary judgment. The government pointed out a number of problems with Calhoun's story, including various contradictions in Calhoun's explanations of his trips to Phoenix. For example, the government presented records subpoenaed from ATA. These records indicated that Calhoun did not, as he testified in his deposition, make three prior trips to Phoenix. Instead, from July 1 to August 27, 2000, he made no fewer than seven round trips. For each of these flights (both to and from Phoenix), Calhoun purchased a one-way ticket and made his flight reservation either the day of, or the day before, his departure.

The government also subpoenaed records showing that Calhoun never stayed at the Holiday Inn, Hampton Inn, or Super 8 hotel, all of which are located at 55th Street and the expressway in Phoenix. Instead, records indicated that Calhoun stayed at a Traveler's Inn, located at least four blocks from the location Calhoun indicated in his deposition. In sum, based on his flight schedule, Calhoun stayed a total of 27 nights in Phoenix over the course of two months.

The government contended that all the evidence regarding Calhoun's prior travels — along with evidence that Calhoun left his car in the Midway Airport parking garage on September 5, 2000, did not bring his driver's license with him, made no arrangements for his two daughters to join him in Phoenix, and did not continue on to Phoenix (nor exercise a credit on his unused flight) that day or later — indicates that Calhoun had no plan to move permanently to Phoenix as he had testified.

In addition, the government pointed out obvious contradictions in Calhoun's income (as indicated in various financial records) and Calhoun's stated sources for his cash hoard. For example, in November 1998, Calhoun filed for Chapter 7 bankruptcy. In his bankruptcy petition — signed under penalty of perjury — Calhoun declared that he had no cash on hand. On his 1998-2000 tax returns, Calhoun filed as head of household, took the Earned Income Tax Credit, and claimed no interest income from savings. Calhoun's tax returns indicated no gambling earnings. Moreover, Calhoun supported both of his daughters, who lived with him in 1999 and 2000. Calhoun did not have any bank accounts, savings or otherwise.

From November 1998, when Calhoun filed for bankruptcy, until the day the cash was seized, Calhoun's combined reported income totaled $47,098. Calhoun's reported expenditures in the same period (including rent, food, car payments, clothing, and recreation), plus the money Calhoun spent in connection with his travels to and from Phoenix, totaled at least $73,412....