US v. $95,945.18, US CURRENCY, C-C-88-444-P.

• Decision Date: 11 December 1989
• Docket Number: No. C-C-88-444-P.,C-C-88-444-P.
• Citation: 727 F. Supp. 242
• Court: U.S. District Court — Western District of North Carolina
• Parties: UNITED STATES of America, Plaintiff, v. $95,945.18, UNITED STATES CURRENCY, Defendant.

727 F. Supp. 242

UNITED STATES of America, Plaintiff, v. $95,945.18, UNITED STATES CURRENCY, Defendant.

No. C-C-88-444-P.

United States District Court, W.D. North Carolina, Charlotte Division.

December 11, 1989.

Thomas J. Ashcraft, U.S. Atty., Charlotte, N.C., for plaintiff.

George V. Laughrun, II, Charlotte, N.C., for defendant.

ORDER

ROBERT D. POTTER, Chief Judge.

THIS MATTER is before the Court on the United States of America's Motion for Summary Judgment, filed August 9, 1989. On August 17, 1989, Claimant Carlton Lee Baxter (hereafter "Claimant") filed a Response to the United States of America's Motion for Summary Judgment.

The United States of America (hereafter "Plaintiff" or "the Government") brought this in rem forfeiture action pursuant to section 881 of Title 21 of the United States Code.¹ The Government seeks forfeiture of $95,945.18 in United States Currency (hereafter "Defendant currency" or "Defendant") as a result of an alleged interception of an attempted drug transaction in Charlotte, North Carolina.

The Court's standard for considering motions for summary judgment is clear. Summary judgment is appropriate when the pleadings, responses to discovery, and the record reveal that no genuine issue of any material fact exists and that the moving party is entitled to judgment as a matter of law. F.R.Civ.P. 56(c). The party moving for summary judgment has the initial burden of showing that no genuine issue of any material fact exists and that the moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). After the moving party has met its burden, the non-moving party must come forward with specific facts showing that evidence exists to support its claims and that a genuine issue for trial exists. Id.; Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986); see F.R.Civ.P. 56(e) (in response to motion for summary judgment, "adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial") (emphasis added). When considering motions for summary judgment, courts must view facts and inferences from the facts in the light most favorable to the party opposing the motion for summary judgment. Matsushita, 475 U.S. at 587-88, 106 S.Ct. at 1356-57; United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962). When, however, the evidence from the entire record could not lead a rational fact-finder to find for the non-moving party, no genuine issue for trial exists and summary judgment is appropriate. Matsushita, 475 U.S. at 587, 106 S.Ct. at 1356.

In a forfeiture action brought by the Government pursuant to section 881, the Government ordinarily has the burden to establish probable cause for a belief that a substantial connection exists between the property sought to be forfeited and the exchange of a controlled substance, which is criminal activity defined and proscribed by statute. Boas v. Smith, 786 F.2d 605, 609 (4th Cir.1986); United States v. Four Million, Two Hundred Fifty-five Thousand, 762 F.2d 895, 903 (11th Cir.1985), cert. denied, 474 U.S. 1056, 106 S.Ct. 795, 88 L.Ed.2d 772 (1986); see United States v. United States Currency $31,828, 760 F.2d 228, 230 (8th Cir.1985) (stating that plaintiff's initial burden is to show probable cause to believe that property sought to be forfeited is "linked to illegal activity"). In the context of forfeitures, courts have interpreted the term "probable cause" to mean a "reasonable ground for belief of guilt, supported by less than prima facie proof but more than mere suspicion." United States v. $364,960.00, 661 F.2d 319, 323 (5th Cir. Unit B 1981); see Four Million, Two Hundred Fifty-five Thousand, 762 F.2d at 903 (quoting United States v. $364,960.00, 661 F.2d 319 (5th Cir. Unit B 1981); United States v. One 1978 Chevrolet Impala, 614 F.2d 983, 984 (5th Cir.1980) (same)). Courts have recognized that once the plaintiff in a forfeiture action meets its burden of establishing probable cause, the burden of proof shifts to the claimants to establish, by a preponderance of the evidence, that the property was not used in violation of the law or was not intended to be used unlawfully. Boas, 786 F.2d at 609; United States v. One 1975 Ford Pickup Truck, 558 F.2d 755, 756 (5th Cir.1977).

The Court carefully has reviewed the entire case file and has viewed the facts and the inferences from the facts in the light most favorable to Claimant. The Court believes that no genuine issue of material fact exists for trial and that the Government is entitled to judgment as a matter of law. The Court is of the opinion that the evidence from the entire record now before this Court could not lead a rational fact-finder to find for Claimant in this forfeiture action. The Court concludes, therefore, that the entry of summary judgment in favor of Plaintiff is appropriate and that Plaintiff's Motion for Summary Judgment should be granted.

First, the Court finds that no genuine issue of material fact exists regarding whether probable cause exists to believe that a substantial connection exists between the Defendant currency and the exchange of a controlled substance. The Court shall summarize the evidence before this Court supporting a finding that no genuine issue of material fact exists regarding probable cause. Officer Calvin Kearney (hereafter "Kearney"), an under-cover officer with the Charlotte Police Department, learned from a reliable confidential informant that Mr. Andre King (hereafter "King") was going to meet a Mr. Andrea Jackson (hereafter "Jackson") on the evening of April 27, 1988, and exchange six kilograms of cocaine for $100,000 in a parking lot behind a particular hotel in Charlotte, North Carolina. The Charlotte Police Department established surveillance of the location for the drug transaction. King drove into the parking lot, drove to a dark blue automobile occupied by two black males, engaged in a brief conversation with the occupants of the other automobile, and then drove away.

Kearney shortly thereafter drove up to the dark blue automobile, engaged in a brief conversation with one of the occupants of the automobile whom Kearney recognized to be Jackson. Using language with which Kearney was familiar in his experience as an undercover narcotics officer, Kearney and Jackson then negotiated a drug transaction. Kearney agreed to sell Jackson six kilograms of cocaine for $107,000.00.

After negotiating the drug transaction, Jackson went to his vehicle, which Jackson had parked nearby and in which Claimant was sitting. Claimant handed Jackson a bag, which contained the Defendant currency, and Jackson subsequently climbed into Kearney's automobile and delivered the bag to Kearney. The Charlotte Police Department then arrested both Jackson and Claimant. In his affidavit submitted to support Plaintiff's Motion for Summary Judgment, Kearney stated that:

As an experienced narcotics investigator, there is no question in my mind that Andrea Jackson and Carlton Lee Baxter expected and intended to exchange the $95,945.18 for six kilograms of cocaine, and there is no question in my mind that Andrea Renee Jackson and Carlton Lee Baxter thought I was the delivery person who was suppose (sic) to deliver the six kilograms of cocaine they had arranged with Andre King.

Although Claimant generally has denied the allegations contained in the Verified Complaint regarding the interception of the drug transaction and contends that whether Claimant participated in illegal activities and whether Claimant used the funds in a drug-related activity is a question of fact for the jury, the record before this Court establishes that no genuine issue of material fact exists regarding a finding of probable cause. Claimant has failed to come forward with specific facts showing that evidence exists to support its claims and that a genuine issue for trial exists. The Court believes that taken in the light most favorable to Claimant, the evidence establishes probable cause to believe that Jackson and Claimant anticipated the delivery of cocaine, that Jackson believed that he had negotiated a drug transaction with a delivery person, and that Jackson and Claimant intended to purchase the cocaine using the Defendant currency located in the bag delivered to Kearney. The Court believes, thus, that no genuine issue exists regarding whether a substantial connection exists between the Defendant currency and the exchange of a controlled substance.

If this matter proceeded to trial, the burden of proof now would shift to Claimant to establish, by a preponderance of the evidence, that he is the legitimate owner of the property sought to be...