U.S. v. One Lot of U.S. Currency ($36,634)

• Decision Date: 05 November 1996
• Docket Number: No. 96-1753,96-1753
• Parties: UNITED STATES of America, Plaintiff, Appellant, v. ONE LOT OF U.S. CURRENCY ($36,634), Defendant, Appellee, Salvatore L. Mele, Jr., Claimant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 1048

103 F.3d 1048

UNITED STATES of America, Plaintiff, Appellant, v. ONE LOT OF U.S. CURRENCY ($36,634), Defendant, Appellee Salvatore L. Mele, Jr., Claimant.

No. 96-1753.

United States Court of Appeals First Circuit.

Heard Nov. 5, 1996.

Decided Jan. 8, 1997.

Richard L. Hoffman, Assistant United States Attorney, with whom Donald Stern, United States Attorney, Boston, MA, was on brief, for plaintiff-appellant.

Terri Klug Cafazzo, Reading, MA, for claimant.

Before CYR, BOUDIN, and LYNCH, Circuit Judges.

LYNCH, Circuit Judge.

The United States appeals from the entry of summary judgment against it in its action to forfeit one lot of currency totalling $36,634. The currency was seized from Salvatore Mele, Jr. at Logan Airport in Boston. The district court held that while there was adequate reason to believe that the money was connected to some unlawful activity, there was insufficient evidence that the unlawful activity involved drugs. Accordingly, the court held that the currency is not forfeitable under 21 U.S.C. § 881(a)(6), which requires that the moneys be "in exchange for a controlled substance ..., proceeds traceable to such exchange ... [or moneys] used or intended to be used to facilitate [a] violation of [federal drug laws]...." The court reasoned that the government had shown nothing more than that Mele met the profile of a drug courier, which was not enough.

Attempting to defend his victory, Mele argues that certain of the district court's predicate rulings were too favorable to the government. Contrary to the district court's holdings, Mele says, he was detained at Logan in violation of his Fourth Amendment rights, and so the entire forfeiture fails. Alternatively, he denies the government has met its burden of establishing probable cause to support the forfeiture.

We agree with the district court that there was no Fourth Amendment violation. On the forfeiture issue, the evidence, which went beyond mere profile evidence, established a sufficient nexus between the currency and illegal drug activity, and it provided probable cause for forfeiture. Accordingly, we vacate and direct entry of judgment for the government.

I

Agents of the U.S. Drug Enforcement Agency ("DEA") seized the money from Mele on November 1, 1994. Mele filed a motion under Fed.R.Crim.P. 41(e) seeking return of the money. On March 2, 1995, the United States filed a complaint for forfeiture in rem, supported by three affidavits which spelled out the government's version of the agents' airport encounter with Mele. The district court issued the forfeiture warrant and monition on March 23, and dismissed Mele's Rule 41(e) motion shortly thereafter.

Mele then filed his claim of ownership, accompanied by an affidavit which asserted only that the money belonged to him, that he had kept it at his business, and that it had been seized illegally from him. The affidavit did not address any specific factual allegations about the airport encounter. Mele's answer to the government's complaint contained only general denials and admissions.

The government filed a motion for summary judgment on August 14, supported by the three affidavits filed earlier and one additional affidavit. Mele responded with a submission captioned as a "Motion in Opposition to United States' Motion for Summary Judgment," ¹ which contained neither a statement of disputed facts nor any accompanying affidavit.

Six months later, on March 4, 1996, the parties argued the summary judgment motions. Mele's attorney attempted for the first time to contradict several of the government's asserted facts, and offered to have Mele testify on the spot as to his version of the facts. The district judge declined to permit either of these efforts because Mele had not properly put his version of the facts into evidence. He also denied counsel's oral motion for leave to supplement the record because Mele had had adequate time to submit evidence. The judge, consequently, decided the case solely on the basis of the facts in the government's affidavits and Mele's initial affidavit. Despite Mele's failure to offer any rebuttal evidence, however, the judge ordered summary judgment in his favor.

Mele has not argued on appeal that the district court erred in denying his motion for leave to supplement the record. Such an argument would fail in any event. The decision whether to allow a motion for leave falls within the district court's discretion, Manzoli v. Commissioner, 904 F.2d 101, 103 (1st Cir.1990), and there was no abuse of discretion here.

After losing on summary judgment, the government filed a motion to reconsider, which Mele opposed. Along with his opposition, Mele filed a new affidavit in which he contested many of the facts presented in the earlier government affidavits. The district court did not expressly rule on the admissibility of this new affidavit. In denying the government's motion, on the grounds that the government had failed to show probable cause to forfeit, the court made no reference to Mele's proffer. Given this and the court's earlier rulings, we believe the court did not allow the affidavit.

Mele has not argued on appeal that the district court erred in refusing to consider his late-filed affidavit or that it was required to consider it. ² Such an argument too would fail. District court rulings pertaining to motions for reconsideration are reviewed for abuse of discretion, Gross v. Summa Four, Inc., 93 F.3d 987, 996 n. 9 (1st Cir.1996) , and there was no abuse here. Accordingly, on appeal, we take the facts as presented to the court before the motion for reconsideration and the opposition were filed.

II

On November 1, 1994, DEA Transportation Task Force Agents Peter McCarron and Michael Cauley were stationed in Boston's Logan Airport. They were observing passengers checking in for a 10:20 p.m. "red-eye" flight to Los Angeles at the America West Airlines ticket counter. They observed a man, Salvatore Mele, Jr., pay for his ticket with $972 in cash, mostly twenty dollar bills. The man seemed nervous and "continuously scanned" the area. He was carrying only a nylon bag, which appeared to be mostly empty, and he did not check any luggage.

After Mele purchased his ticket, the agents approached him and asked if they could speak with him. Mele agreed, trembling and with a look of panic on his face. Agent McCarron asked to see Mele's ticket. It was a round-trip ticket from Boston to Los Angeles, with a brief middle-of-the-night layover in Las Vegas on the outbound part of the trip. The return trip was for four days later, on a Saturday night red-eye flight, America West flight 68.

Seeing the name "Sal Mele" on the ticket, McCarron recognized Mele as an associate of Anthony Bucci and Ralph Penta, two men known to McCarron as marijuana traffickers. Bucci and Penta had been arrested six weeks earlier, on a Sunday morning in September, at Logan Airport for possession of thirty pounds of marijuana with intent to distribute. Penta had flown in from Los Angeles on the same overnight America West flight 68 that Mele intended to take. Upon Penta's arrival at Logan Airport, he had delivered the marijuana to Bucci, who was waiting for him. At his booking, Bucci had said that he lived at 500 Salem Street, Medford, Massachusetts and that he was a business partner of Mele. Penta had told his parole officer that he was working in Mele's pizza shop. McCarron also recognized Mele as the man who had come that Sunday morning to bail Penta out after the arrest, paying $10,000 in cash.

With this history in mind, McCarron began questioning Mele about his trip. Mele told McCarron that he was going to Las Vegas to visit his ex-wife and children. He appeared nervous and was sweating. McCarron asked him if he was carrying any narcotics or large sums of money. Mele responded that he was not, but stuttered in his response. McCarron repeated the question, and this time Mele said that he had "some money." When McCarron asked him how much, Mele answered "about $30,000." McCarron asked him why he was carrying so much money, and Mele replied that he planned to do some gambling in Las Vegas and look around for a pizza shop to buy there. McCarron had already seen Mele's ticket, which provided only a brief layover in Las Vegas en route to Los Angeles.

McCarron then asked Mele if he would mind going with them to the DEA's airport field office to discuss the money further. Mele agreed, and they went to the field office. Agent Thomas G. Quin joined Mele and McCarron in the office shortly after their arrival. One of the agents asked Mele to show them the money. As Mele removed the money from a fanny pack he wore around his waist, McCarron noticed four valium tablets in the plastic wrapper of a cigarette package. Mele stated that he had been prescribed valium for his back. When asked why the valium was not in the prescription bottle, Mele said that he had brought just a few pills for his trip. Quin told Mele that he was going to seize the valium and summons Mele to court if Mele did not bring evidence the following day to prove that the valium was properly prescribed.

The agents then counted the money and questioned Mele more about his plans. Mele reiterated his claim that he was going to Las Vegas to visit his ex-wife and children and to look for a pizza place. He would not provide the agents with his ex-wife's address or with any information about hotel reservations in Las Vegas. When asked the source of the money, Mele first said he had gotten the money from his pizza shop, where he kept it hidden, and then said it was from his savings and a court settlement.

The agents asked Mele where he had been before his arrival at the airport. Mele stated that a friend, whom he refused to name, had driven him to a restaurant in Saugus, where he had dinner with his girlfriend. After dinner, he had his girlfriend drive him from the restaurant to an Osco drugstore on Salem Street in Medford and...