U.S. v. One 1991 Chevrolet Corvette

• Decision Date: 03 August 2005
• Docket Number: No. CIV.A. 03-0488-CG-M.,CIV.A. 03-0488-CG-M.
• Citation: 390 F.Supp.2d 1059
• Parties: UNITED STATES of America, Plaintiff, v. ONE 1991 CHEVROLET CORVETTE, and $22,522.00, More or Less, in United States Currency Defendants.
• Court: U.S. District Court — Southern District of Alabama

390 F.Supp.2d 1059

UNITED STATES of America, Plaintiff, v. ONE 1991 CHEVROLET CORVETTE, and $22,522.00, More or Less, in United States Currency Defendants.

No. CIV.A. 03-0488-CG-M.

United States District Court, S.D. Alabama, Southern Division.

August 3, 2005.

COPYRIGHT MATERIAL OMITTED

Alex F. Lankford, IV, U.S. Attorney's Office, Mobile, AL, for Plaintiff.

Christ N. Coumanis, Donald M. Briskman, Christopher Alan Akins, Briskman & Binion, P.C., Mobile, AL, for Defendants.

AMENDED ORDER

GRANADE, Chief Judge.

It has been brought to the court's attention that this court's previous order of August 1, 2005, granting summary judgment in favor of plaintiff (Doc. 56), confused the applicable standard for forfeiture.¹ After reviewing the order, the court agrees and hereby RESCINDS the August 1, 2005 order (Doc. 56) and the corresponding final judgment of forfeiture (Doc. 57) and enters the following amended order.

This matter is before the court on the motion for summary judgment and brief in support of plaintiff, the United States of America (Docs. 39,40), the response thereto of claimant, James E. Body (Doc. 48), claimant's motion to strike (Doc. 49), the response of the United States (Doc. 50), the United States' motion to strike (Doc. 51), and the United States' response to claimant's motion to strike (Doc. 52). The court finds that claimant's motion to strike is due to be denied and the United States' motion to strike is due to be granted. The court also finds that the United States has demonstrated that there is no genuine issue as to any material fact and that it is entitled to judgment as a matter of law. Therefore, the motion to the United States for summary judgment is due to be granted.

BACKGROUND

On March 5, 2003, the Mobile County Sheriff's Office, Narcotics Division, executed a search warrant at claimant's residence. When the deputies arrived, they found approximately 15 individuals outside the residence, including claimant (Cuthkelvin Affid. p. 3). Claimant had a paper bag in his front pants pocket that contained $2,527.00 in U.S. currency. (Cuthkelvin Affid. p. 3). The currency was separated by denomination, folded and bundled together with rubber bands. (Walker Affid. p. 3). Claimant waived his Miranda rights and agreed to cooperate. (Cuthkelvin Affid. p. 3, Walker Affid. p. 3). One of the officers, Deputy Walker, had investigated and arrested claimant in 1994 for distribution of a controlled substance, for which claimant was sentenced to serve 20 years in state prison. (Walker Affid. pp. 2, 4; Doc. 40 Ex. K). Claimant had been released from prison on parole in April 2000. (Doc. 40, Ex. K). Claimant also has a 1986 drug-related conviction.

In a safe located in claimant's residence, the officers found a plastic shopping bag tied at the top which contained two brown paper bags that held a total of $19,995.00 in U.S. currency separated by denomination, folded and bundled together with rubber bands. (Walker Affid. p. 3, Cuthkelvin Affid. p. 4). Deputy Walker asked claimant if he was still selling narcotics, and claimant responded that he did from time-to-time because there was nothing else for him when he got out of prison. (Walker Affid. p. 4). Deputy Walker asked claimant if there were any narcotics in his residence, and claimant responded "No. It all been turned to cash." (Walker Affid. p. 4). When asked if he had any dealings with Larry Collins, a person of interest to the Narcotics Division concerning cocaine distribution, claimant stated that at least three times he had bought "halves" and "quarters." (Walker Affid. pp. 4-5). When asked whether "halves" and "quarters" meant half-kilos and quarter-kilos of cocaine, claimant responded affirmatively. (Walker Affid. p. 5). Claimant stated that he had paid $11,000 each for the "halves." (Walker Affid. p. 5).

Officers also found a .45 caliber Taurus revolver in claimant's bedroom closet which claimant said he had for safekeeping for a family member, Ashley Snowden. (Walker Affid. p. 5). Deputy Houseknecht's canine partner, Otter, alerted to a white 1991 Chevrolet Corvette, Vin 1G1YY2385M5108771, which was parked in claimant's garage, but the officers found no physical presence of narcotics in the Corvette. (Cuthkelvin Affid. p. 6; Houseknecht Affid. p. 4). According to claimant, he bought the car for $6,500 cash in December 2002. (Walker Affid. p. 5-6; Doc. 40 Ex. O). When asked where he got the money to buy the Corvette, claimant told Deputy Walker "You know where it came from." (Walker Affid. pp. 5-6). A search of the garage yielded drug paraphernalia and substances later determined to be cocaine. (Goolsby Affid. pp. 2-3, Warren Affid. pp. 4-5).

Twenty-six pounds of marijuana and $2,500.00 in cash were also found in another car parked at claimant's residence and $1,8533.00 in cash was found on one of the people standing outside claimant's house. (Cuthkelvin Affid. pp. 4-5). These items were forfeited administratively after no one filed a claim for them. (Doc. 40 Ex. M). Two of the people outside claimant's residence, Ashley Snowden and Darnell Watkins, have prior drug-related convictions. (Doc. 40, Ex. L, M). One of claimant's sons, Antonio Law, testified that Watkins would deliver 1 or 2 kilos of cocaine to claimant every week or every other week and that claimant would front Law 50% of the cocaine. (Law Affid. p. 2). According to Law, claimant would sell the remaining cocaine to others. (Law Affid. p. 2). After Law sold the cocaine fronted to him by claimant, he would pay claimant about $22,000.00 cash per kilo of cocaine. (Law Affid. p. 2). According to Law, these transactions took place regularly and frequently between 2000 and October to November 2002. (Law Affid. p. 2). Law estimated that he earned a profit of about $2,500 per kilo of cocaine and that claimant would have earned about the same. (Law Affid. p. 2).

There is no federal criminal case against claimant. Claimant's State of Alabama parole was revoked on May 14, 2003, and his parole review date is not until April 2007. (Doc. 40 Ex. K).

DISCUSSION

A. Claimant's Motion to Strike

Claimant moves to strike the portion of the Government's narrative summary of facts which relates to individuals other than himself who were at his residence during the execution of the warrant, namely Snowden and Watkins, and property seized during the execution of the warrant. According to claimant, such facts have no relationship or relevancy to claimant. However, there is evidence that Watkins was claimant's source of cocaine. The court finds that the fact that known drug traffickers, drugs and drug paraphernalia were present at claimant's residence at the time of the seizure is strong circumstantial evidence that the vehicle and cash are proceeds of an exchange for a controlled substance. Moreover, the court finds that summary judgment is due to be granted even without consideration of the evidence claimant seeks to strike. Therefore, claimant's motion to strike is due to be denied.

B. United States' Motion to Strike

The United States moves to strike evidence submitted by claimant that he generated legitimate income from his paving work. When asked to provide information regarding his earnings and income, claimant invoked his Fifth Amendment privilege. Claimant refused to produce his federal, state, or local tax returns from 1990 to 2003 or to authorize the IRS to release copies of his tax returns. (Doc. 48, Ex. C pp. 5-6). Claimant refused to allow the Social Security Administration to release information concerning his earnings and refused to execute any other releases concerning his employment or earnings. (Doc. 48, Ex. C, pp. 6-7). Claimant now wants to offer evidence of alleged legitimate income.

Claimant had a right to assert his Fifth Amendment privilege when asked to produce documents concerning his income. United States v. Two Parcels of Real Property Located in Russell County, Ala., 92 F.3d 1123, 1129 (11th Cir.1996) (citations omitted). However, the court finds that the information claimant now wishes to offer in his defense concerning his alleged legitimate income should be stricken. "It is well-accepted that a witness' direct testimony can be stricken if she [or he] invokes the fifth amendment on cross-examination to shield that testimony from scrutiny." U.S. v. Two Parcels Property Located at 2730 Highway 31 Jemison, Chilton County, Ala., 909 F.Supp. 1450, 1456 (M.D.Ala.1995) (citations omitted). The court finds it would clearly be prejudicial to the United States to allow claimant to offer evidence after the close of discovery on issues that he refused to provide information on during discovery. Although claimant provided some information about his income, including handwritten contracts purporting to be paving proposals or contracts, he refused to provide the necessary releases and other information to allow the United States to discover the accuracy of the information provided. "A party who asserts the privilege may not `convert [it] from the shield against compulsory self-incrimination which it was intended to be into a sword ...'" Arango v. U.S. Dept. of the Treasury, 115 F.3d 922, 926 (11th Cir.1997) (quoting United States v. Rylander, 460 U.S. 752, 758-59, 103 S.Ct. 1548, 1553, 75 L.Ed.2d 521 (1983)); see also U.S. v. $110.873.00 in U.S. Currency, 2004 WL 2359726, *4 (N.D.Ohio Oct. 6, 2004) ("Once invoked in response to a discovery request, a forfeiture claimant cannot testify at trial or oppose the government's motion for summary judgment through affidavits." citation omitted); Pedrina v. Chun, 906 F.Supp. 1377, 1398 (D.Hawai'i 1995), aff'd. 97 F.3d 1296 (9th Cir.1996), cert. denied, 520 U.S. 1268, 117 S.Ct. 2441, 138 L.Ed.2d 201 (1997) ("Defendants may not rely on their own testimony or affidavits to support their version of a disputed issue where they have asserted their Fifth Amendment right not to answer questions concerning that very same issue." citation omitted...