United States v. $1,074,900.00 in U.S. Currency
| Decision Date | 18 July 2013 |
| Docket Number | No. 8:12CV297.,8:12CV297. |
| Citation | 932 F.Supp.2d 1053 |
| Parties | UNITED STATES of America, Plaintiff, v. $1,074,900.00 IN UNITED STATES CURRENCY, Defendant, Tara Mishra, Claimant. |
| Court | U.S. District Court — District of Nebraska |
OPINION TEXT STARTS HERE
Nancy A. Svoboda, U.S. Attorney's Office, Omaha, NE, for Plaintiff.
Roger J. Diamond, Law Office of Roger J. Diamond, Santa Monica, CA, for Claimant.
NONJURY FINDINGS OF FACT AND CONCLUSIONS OF LAW
This matter is before the court following a nonjury trial held on June 3, 2013. Pursuant to Fed.R.Civ.P. 52, the court makes the following Findings of Fact and Conclusions of Law. The government filed a forfeiture action pursuant to 28 U.S.C. § 1345, alleging that the defendant currency is proceeds from drug-related activity. Tara Mishra filed a claim for the defendant currency.
On March 3, 2012, Trooper Ryan Hayes worked in the traffic division of the Nebraska State Patrol. While on duty that day, he noted a car speeding east on Interstate 80 at an estimated speed of 90 miles per hour. Trooper Hayes faced west at the time, so he crossed the median, performed a U-turn, headed east and clocked the vehicle at about 93 mph. He pulled the vehicle over and approached on the passenger side. The stop occurred at around 4:00 p.m. There is no audio of the stop. Trooper Hayes testified the audio battery was operational from 9:00 a.m. that day. He surmised that the battery lost its charge and was dead. However, Trooper Hayes did turn on the hard-wired system in his car, and there is audio of subsequent conversations that took place inside the car.
The stop occurred in Lincoln County, Nebraska. Trooper Hayes made contact with the driver, Mr. Rajesh Manju Dheri, and the passenger, his wife, Mrs. Marina Dheri. The Dheris drove a Hertz rental vehicle with a California license plate. Trooper Hayes asked Mr. Dheri to return to the police cruiser with him. He gave Mr. Dheri a citation for speeding.
Trooper Hayes then asked Mr. Dheri a series of questions about his travel plans. Mr. Dheri indicated he and his wife flew from New Jersey where they live to Los Angeles, California, to have dinner with friends. They obtained a rental car and then started driving home, making stops in Las Vegas and Colorado to visit his wife's family and intended to continue to Omaha and Chicago to visit family. Trooper Hayes found the short period of time spent in Los Angeles suspicious, along with the fact that the rental cost for the vehicle for a week was over $2,000. Trooper Hayes returned to the subject vehicle and asked Mrs. Dheri the same questions. She answered consistently with Mr. Dheri. Trooper Hayes then returned to the cruiser and gave Mr. Dheri the ticket.
Trooper Hayes indicated he then asked Mr. Dheri if there were any illegal substances in his car, and he asked if he had drugs, guns, or large amounts of money in the vehicle. Mr. Dheri stated he did not. Trooper Hayes again asked about the itinerary and received the same answers. He told Mr. Dheri he was free to leave but asked if he could search the car. Mr. Dheri agreed to the search. Mrs. Dheri also gave her permission to search. Trooper Hayes then brought Mrs. Dheri back to the patrol vehicle. At this point, approximately 15 to 20 minutes had elapsed. The trooper opened the back hatch of the vehicle and found two duffel bags and one back-pack. See Exs. 29, 31, 35 and 36. After a short search of the rear compartment, he opened the bags and found over $1 million in cash. He also saw dryer sheets, rubber bands, hair tie scrunchies, and clear baggies in the duffel bags and back-pack. Upon finding the money, Trooper Hayes returned to the cruiser and handcuffed both of the Dheris. He told them they were not under arrest. Trooper Hayes believed the money was related to narcotics.
On cross-examination, Trooper Hayes admitted he did not record the traffic stop. He also admitted that the Dheris originally told him that the money was not theirs, that they were transporting it for friends (claimant Tara Mishra and her spouse Rajat Mishra) from California to New Jersey for a business deal. The business deal involved a nightclub in New Jersey. The audio/video taken inside the cruiser supports the story given by the Dheris that they initially told Trooper Hayes that they were carrying money for the Mishras for a business deal from California to New Jersey. Later, the Dheris stated to Trooper Hayes that the money was theirs but it was borrowed.
Trooper Hayes called in back-ups at this point. The Dheris remained handcuffed in the police cruiser for quite some time. They were then taken to headquarters where they again remained in the cruiser until such time as Mrs. Dheri called an officer over to tell them that Mr. Dheri had a bad shoulder and was in pain. The audio ends at this point and the Dheris are taken into the building. The trooper testified that he could smell a chemical odor on the money and it burned his eyes.
At some time later, the Dheris signed a “Voluntary Disclaimer of Interest and Ownership”, Ex. 1, and an “Advisement Concerning Potential Forfeiture Action”, Ex. 2. The Dheris signed the Advisement stating the currency belonged to them both, Ex. 2, and that they were forfeiting all right to the same. There is no time stamp on either exhibit. There is also evidence that one of the officers called Mr. Mishra to verify the story told by the Dheris.
During the investigation the police fingerprinted the baggies. Mr. Mishra's fingerprints were on the baggies, although the claimant Mrs. Mishra's fingerprints were not.
Lieutenant Mark Stokey, a senior field lieutenant for traffic services, testified that he was called in as the supervisor. He arrived when the money was at the station and was being photographed by the officers. He contacted K–9 Officer Jeramiah Johnson who brought his K–9 trained dog, Debo, to the station. The K–9 is trained for sniffing methamphetamine, marijuana, heroin, and cocaine. Lieutenant Stokey opened doors to three offices. K–9 Debo cleared all three offices and did not alert. Lieutenant Stokey then took some money from the two duffle bags and some money they found on Mr. Dheri's person. Lieutenant Stokey placed the money from bag one in office one, from bag two in office two, and from Mr. Dheri in office three. They waited approximately 30 or 40 minutes and then took K–9 Debo through each office. On each sniff the K–9 alerted correctly, although Officer Johnson did not personally check the locations to make sure the money was in the hiding places. Trooper Johnson testified that he believed Lieutenant Stokey as to where the money was hidden. Following the dog sniff, the money was bundled, counted and placed in a night deposit bag and locked. Thereafter, the money was taken to a bank where two bank presidents met the troopers at 9:00 p.m. and put the money in the safe. The next Monday the currency was reduced to a cashier's check. Trooper Hayes testified that such procedure is the policy of the State Patrol, and anything over $300 must be converted to a cashier's check and transferred to the accounting department the next business day.
The claimant's husband, Rajat Mishra, took the stand. He lives in Rancho Cucamonga, California, and has been good friends of the Dheris for approximately six years. According to Mr. Mishra, he and his wife traveled to New Jersey on February 16, 2012, and spent five days there with the Dheris negotiating the purchase of a nightclub. They met with the owner, made an offer, and the offer was rejected. Ultimately, they ended up agreeing to buy part of a bar known as 46 Lounge and put it in a Blockbuster Video space, creating the possibility of two business opportunities. They would then become a 50% owner in the business deal. Mr. Mishra testified that they set up an LLC, made plans for the renovations for the space, and were working on profit and loss and cost statements.
He testified that Mrs. Mishra worked for years as an exotic dancer and saved her money in safe deposit boxes in two different banks to purchase a business so she could leave the stripper business. At this time of trial his wife was seven months pregnant. The Dheris flew to Los Angeles and picked up the money at the home of the Mishras. The money, according to Mr. Mishra, was not a loan or a gift. Mr. Mishra also testified that the income made by his wife was reported on their tax returns. He was the joint owner on two of the safe deposit boxes, and Mrs. Mishra was the sole owner of the third safe deposit box. He testified that Ms. Mishra retrieved the money from the safety deposit boxes on two different days and transported the money to their home. She then bundled it in $10,000 bundles with rubber bands and hair ties and placed it in plastic bags. He testified that the money had a smoke-type odor, and they put dryer sheets in with the money to reduce the smell.
The Mishras own a business, New Life Fitness, which encompasses fitness and nutrition. That income does not go into the safe deposit boxes, but instead is deposited in a business account. He further testified that Mrs. Mishra does not like banks.
The last witness to testify was Tara Mishra, the claimant in this case. Mrs. Mishra testified that she first began dancing as a nightclub dancer at the age of 18. She is now 33 and she and her husband are expecting their first child. As a result of her pregnancy, she is no longer a dancer. As a nude dancer, her customers always paid her directly in cash. She saved much of her money and placed it in safe deposit boxes. She testified she does not like banks. She also testified that she claimed all of the dancing income on her tax returns. She intended to use the money she saved for a 50/50 investment with sellers and purchasers in New Jersey, including their friends the Dheris. On two different days she went to Wells Fargo Bank and then to Bank of America to get her money out of the safe deposit...
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