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A Peculiar Idea of Proof.

On July 9, 2012, in states, Uncategorized, by Scott Alexander Meiner

United States District Judge Clay D. Land has ordered the forfeiture of $21,175 seized from two ex-convicts by Deputy Drew Crane, of the Harris County, Georgia, Sheriff’s Office.

Neither of the men were convicted, arrested, or charged. No drugs or drug paraphernalia were reported on the men from whom the currency was seized. The claimant of the currency, Terrance Durr, has a 1996 felony drug conviction and a subsequent parole violation. Durr also has documented gainful employment–including an 8 year work history as a draft technician with Adam’s Beverage, an Anheuser Busch distributor.

The government presented no specific cognizable evidence of any drug transaction (or intended drug transaction) linking the currency to any specific illicit behavior. Durr presented evidence of why he had a substantial amount of cash on his person. The court found Durr’s evidence, and reasoning, unpersuasive.

Judge Land concluded:

At trial, the Government proved that the Defendant Property is United States currency that constitutes proceeds traceable to an exchange for a controlled substance in violation of the Controlled Substances Act. Accordingly, the Defendant Property is forfeitable pursuant to 21 U.S.C. § 881(a)(6) and is hereby forfeited to the United States.

Which is an interesting definition of proved.

Judge Land cited seven points in ruling for the government:

The totality of the facts in this case demonstrates a substantial connection and relation between the Defendant Property and illegal drug activity. The factors leading to this conclusion include the following: (1) the odor of marijuana that Deputy Crane detected when he approached the vehicle during the stop; (2) Durr’s initial denial of currency being in the vehicle and his inconsistent behavior regarding the currency; (3) Lett and Durr were traveling in a thirdparty’s vehicle with a single vehicle key; (4) the amount of currency Durr was transporting and the manner in which it was bundled, bagged, and hidden under the passenger seat; (5) the odor of narcotics detected by the K-9 on both the currency and the vehicle; (6) Durr’s drug-related criminal history, coupled with Lett’s prior drug conviction; and (7) Durr’s inability to provide a legitimate source for the currency or plausible purpose for transporting it.

What the ruling appears to boil down to is

  1. Durr is an ex-con;
  2. Durr had a fairly large amount of currency;
  3. The police wanted his currency;
  4. The police found his currency;
  5. Police recorded a positive K9 alert on his currency and on his companion’s vehicle;
  6. The officer said that the vehicle smelled of alcohol and marijuana;
  7. Durr cannot prove that his money was not intended, or derived from, something to do with drugs to the satisfaction of the court; and
  8. Thus, the government has “proved” that Durr’s cash constitutes proceeds traceable to an exchange for a controlled substance.

This is utter nonsense.

Durr may have intended to use the money for narcotics. Or perhaps he was going to do something else. We do not know. Nobody else knows either–except maybe Terrance Durr.

Durr presented evidence that he intended to travel to Atlanta, GA to negotiate with a bank on the imminent foreclosure of a dilapidated rental property that he owned. Prosecutors easily poked holes in the sensibility of his plan. However, they failed to offer evidence that the money was drug related–unless we are to assume that the means, a criminal record, and unreliable evidence meet the burden. Following this standard of proof would add a lot of forfeiture victims.

There are infinite possibilities as to how he got the money and to what he intended to do with it–whether they be licit or illicit.   But reasonable jurisprudence ought to tether forfeiture to a showing of substantial connection between specific articulated criminal acts and proof beyond a reasonable doubt.

Of course,  Judge Land is not responsible for legislative mischief or higher courts sustaining unreasonable violations of process. Still, Judge Land should be constrained by a reasonable reading in accord with our Constitution and precedent. The government’s brief suggests an unpublished opinion for guidance, United States v. $183,791.00 in United States Currency, No. 09-15239, 2010 WL 3096146 at *2, 391 Fed. Appx. 791, 794 (11th Cir. Aug. 9, 2010)*1:

We look at the “totality of the circumstances” when determining whether the government has satisfied this standard. See United States v. $121,100.00 in U.S. Currency, 999 F.2d 1503, 1507 (11th Cir. 1993). The government may use circumstantial evidence as well as evidence gathered after it filed the civil forfeiture complaint to meet its burden. United States v. $291,828.00 in U.S. Currency, 536 F.3d 1234, 1237 (11th Cir. 2008). However, the government is not required to produce evidence connecting the money to a particular narcotics transaction. United States v. $242,484.00, 389 F.3d 1149, 1160 (11th Cir. 2004) (en banc). It need only show that the money was “related to some illegal drug transaction.” Id. We evaluate the evidence presented with “‘a common sense view to the realities of normal life.’” Id. at 1160 (quoting United States v. Carrell, 252 F.3d 1193, 1201 (11th Cir. 2001)).

That is, the government must show that the currency was related to some illegal drug transaction–not a particular transaction–and circumstantial arguments will be viewed in the totality of circumstances. Knowing participation in a money laundering scheme with a drug cartel would, for instance, satisfy a circumstantial argument. In U.S. v. $183,791.00, connection to drug transactions was shown by an extensive investigation that strongly indicated that the claimant was substantially, and knowingly, involved in laundering money for a Nigerian heroin trafficking organization.

Here, the complaint is bereft of any transaction.

To the extent that there is any equivalent of a criminal organization, we have an ex-con travelling with another ex-con after a supposed night at a strip club. Strippers aside, that describes a lot of people. Sixty-five million Americans are estimated to have a criminal record–and in excess of 25 million Americans are estimated to have a drug charge on their record. That is about 20% and 8% of the current United States population–and those numbers are fairly conservative. Certain populations are at far greater risk for this capricious forfeiture of property rights. African Americans have much higher incidents of arrests, charges, and incarcerations–as well as severity of punishment–despite similar (or lower) drug usage rates:

Among men, blacks (28.5%) are about six times more likely than whites (4.4%) to be admitted to prison during their life. Among women, 3.6% of blacks and 0.5% of whites will enter prison at least once. (U.S. Department of Justice) Based on current rates of incarceration, an estimated 7.9% of black males compared to 0.7% of white males will enter State or Federal prison by the time they are age 20 and 21.4% of black males versus 1.4% of white males will be incarcerated by age 30. (U.S. Department of Justice) Some have noted that more black men are in prison in America than are in college. (The Black and White of Justice, Freedom Magazine, Volume 128)

Statistics on black crime are, on the surface, very bleak. There are, however, some very important factors that help to influence the numbers. Consider those and a strong case for a much different view unfolds. Since 62% of persons admitted to Federal prison and 31.1% of those admitted to State prison for the first time were sentenced because of drug offenses, let us first take a look at the racial disparity in the war on drugs:

The National Institute of Drug Abuse estimated that while 12 percent of drug users are black, they make up nearly 50 percent of all drug possession arrests in the U.S. (The Black and White of Justice, Freedom Magazine, Volume 128)

According to the National Drug Strategy Network, although African Americans make up less than one-third of the population in Georgia, the black arrest rate for drugs is five times greater than the white arrest rate. In addition, since 1990, African Americans have accounted for more than 75% of persons incarcerated for drug offenses in Georgia and make up 97.7% of the people in that state who are given life sentences for drug offenses. In six California counties independently surveyed in 1995, 100% of those individuals sent to trial on drug charges were minorities, while the drug-using population in those same counties was more than 60% white. (The Black and White of Justice, Freedom Magazine, Volume 128) By R Jeneen Jones, The Truth About Black Crime, January 16 2000.

The remaining circumstantial arguments against Durr are of dubious value.

Self-serving testimony adds little, if any, probative value.

Harris County Sheriff’s Office Deputy Drew Crane may indeed have smelled marijuana and alcohol. But how much is his uncorroborated testimony worth if he and his department have a financial stake in perfecting the forfeiture? Because of prevailing practices, the police are allowed to give his currency to the federal government and the federal government will give back up to 80% of the proceeds of the forfeiture to participating police departments-thus cleansing the  money of his rights and any taint of suspicion that he may have criminally used, or intended to use, the money. The Sheriff’s department stands to gain a vast majority of this cash as well as any other asset forfeitures that they snag–which adds up quick.

While federally adopted forfeitures often bring tighter restrictions on allowable expenditures, it is not clear that it matters in Georgia. Sheriffs in Georgia enjoy broad discretion on how to spend forfeiture dollars. Even if the federal equitable sharing guidelines are obeyed (and they still allow the use of forfeiture dollars to pay overtime salaries–for which Deputy Crane would presumably be eligible), there is no reason to think that the money run through federal custody is not merely freeing state forfeiture dollars to be used at the sheriff’s broad discretion. And, we know little about how the department spends forfeiture fund dollars. The Harris County Sheriff’s Office, like many police departments in Georgia, has not filed public asset forfeiture expenditure reports as directed by Georgia law. In effect, forfeiture dollars are private slush funds. Sure, the department might be following every professional, ethical and legal obligation (except refusing to file publicly accessible reporting) but we don’t know that. The Harris County Sheriff’s Office would hardly be the first organization to violate guidelines when they are done in secret.

Rubber bands, bags, and hiding currency are indicative of a large amount of cash not indicia of criminality.

A recurring feature of bulk cash forfeiture complaints is how cash is hidden and how it is bundled. According to many of these complaints, the use of a bag to hold the currency and the use of rubber bands is indicative of drug dealing. Let’s back up a second. Assume a person has legitimate recognized interest in his cash and he is trying to transport the cash. To avoid the drug dealer profile must he have the cash in open air–visible to all? Must the cash be either professionally bundled by a bank or freely scattered? Only drug dealers use bags to transport things?

The rubber band hypothesis is absurd. It has been dealt with by the courts before:

The argument that the money is likely linked to drug distribution because it is bound by a rubber band needs to be carefully examined. If one is carrying a large sum of cash currency, for whatever reason, using a rubber band to keep it in order is simple and effective.

I do not doubt that drug couriers and dealers use rubber bands to bundle their ill-gotten gains. However, drug dealers also presumably use belts to hold up their trousers; under the government’s analysis, if Espinola was wearing a belt at the time of the seizure, it would suggest his involvement with illegal activity. Although many courts appear to disagree, I find that the government’s “rubber band” hypothesis doesn’t stretch quite that far. United States v. One Lot of U.S. Currency Totalling $14,665, 33 F. Supp.2d 47 (D. Mass.1998).

Equally strange is the idea that only drug dealers use bags to carry things. Individuals have a cognizable interest in transporting property in objects that make the property easier to transport and more secure. By the government’s logic, wallets are also indicia of criminality. Using a bag is indicative of having not put the money in a bank. It tells us little else. If the currency owner freely displays thousands of dollars, he is obviously enhancing thr risk of being robbed.

The use of a single-key argument seems bizarre. Driving another’s car with a single key may be indicative of auto-theft. As that was not an issue in this case, it is difficult to see what inference Judge Land is drawing between the use of a single key and any relevant illegal behavior.

Another absurd argument is that there is any probative value to a claimant’s initial lack of disclosure about the currency. Law enforcement can employ civil asset forfeiture to seize currency. For the currency owner, there is little difference between the police taking the cash and someone without a badge. If the police find a large amount of currency–whether one is forthright or not–they are probably going to seize it. Initial disclosure might help in court, later, but risks immediate seizure. At a minimum, they face substantial legal fees and lengthy litigation before the currency will be returned. This applies equally to the innocent. Consider what happened to the Nuevo Renacer Church.

On November 1st, Victor Ramos Guzman and Jose Jeronimo Sorto were driving a rental vehicle on Interstate 95. Their church had raised money to buy a trailer and a parcel of land. Guzman and Sorto were transporting $28,500 in church donations to make the purchases on behalf of Nuevo Renacer.

They were pulled over on I-95 by a Virginia State Trooper, CL Murphy, after the officer ran parallel to them. The trooper did not issue any tickets or warnings to Guzman or Sorto. However, the trooper asked if they had anything in the car. They informed him of the church donations. Trooper Murphy checked their papers, legal status, rental information, et cetera. Having found no violations, the trooper also called the FBI and ICE. The FBI declined involvement. The officer confiscated the cash and issued a receipt for it.

Guzman and Sorto were told by Trooper Murphy that the seizure was being executed “on order of ICE” but that no ICE agents were available because they were in a meeting. Guzman asked that they contact the church to verify their account of the currency trooper Murphy declined to do so and, apparently, told them to shut up. They were also told that they would be contacted by ICE Norfolk.

Having not been contacted by ICE or the Virginia State Patrol, the church contacted attorney Claudia Flower on November 4th. Flower contacted the state police and ICE. ICE, at that point, declined involvement. -By Scott Alexander Meiner, Piracy in Virginia, Americans For Forfeiture Reform, January 5 2012.

The Nuevo Renacer Church thankfully got their money back. But only after Customs attempted to forfeit the cash, we were contacted by Claudia Flower, and we put Flower and the Nuevo Renacer Church into contact with David B. Smith (one of the pre-eminent forfeiture attorneys in the United States) who agreed to take the case pro bono. Despite Smith’s assistance, the case dragged on for six months. Obviously, most claimants are not so lucky as to have Flower and Smith in their corner.

The value of K9 alerts are uncertain. Substantial doubt exist about cuing errors, false alerts, detectable levels of methyl benzoate in mold as well as cocaine, transmitted markers for marijuana in cash (prevalence is relatively small but studies indicate that somewhere between 1% to 3% of United States circulated currency has detectable cannabinoid constituents of Cannabis Sativa markers–theoretically making bulk circulated cash more likely to be falsely detected by a canine…we also do not understand how changes in currency effect drug residue retention–in New Zealand bank notes, cannabinoid constituent prevalence rivals American cocaine residue prevalence), handler impartiality, et cetera. The lack of any clear data that K9 units will not give false alerts discounts their value–particularly in forfeiture cases involving bulk currency, no drugs, and a drug theory.

Durr’s case is about being an ex-con with some $21,175 on him. Unless the government either passes a law outlawing cash or proscribing values of currency that individuals may carry, it is hard to see how the government has met its burden. Rather, it seems to be violating some of the foundational premises animating our constitutional rights.


*1 Interestingly, United States v. $183,791.00 is the only opinion that Judge Land cites in his order. That the case is clearly distinguishable is not addressed. In United States v. $183,791.00, the district court denied the government’s motion for summary judgment, “finding that, although the record suggested [claimant] Okwuosa’s involvement in some type of illegal activity, there was insufficient evidence linking the currency to the drug trade.” The district court eventually ruled against the claimant. However, that came after evidence was presented linking the claimant to active participation in a Nigerian heroin trafficking ring:

“The evidence developed during the grand jury investigation was as follows: Raymond Nsoedo led an organization that sold heroin in Detroit. The sale proceeds were sent as cash or blank money orders to Atlanta and elsewhere, where they were used to purchase vehicles that were then shipped to Nigeria. To avoid reporting requirements, the money orders were purchased in a “structured” manner—that is, in small amounts or from multiple clerks or locations. Okwuosa’s bank accounts showed deposits of more than $530,000 in money orders, most of which were purchased in the Detroit area in the structured manner used by Nsoedo’s organization. On at least two occasions, Okwuosa deposited money orders from a known affiliate of Nsoedo who was later arrested in Detroit in connection with the delivery of five kilograms of heroin. In addition, Bobby Imports was identified as one of the businesses used to purchase vehicles on behalf of Nsoedo’s organization, and Okwuosa testified that he used a company co-owned by Nsoedo as his agent for exporting certain vehicles. On two intercepted phone calls, Nsoedo and other individuals in his organization discussed Okwuosa’s legal fees, tractor business, whereabouts, and travel plans. Finally, there was direct evidence linking Okwuosa and Nsoedo: Okwuosa wrote Nsoedo two checks, and Nsoedo placed numerous calls to a telephone number registered to Okwuosa….

Finally, and most significantly, his bank accounts and business were linked to a Nigerian heroin trafficking ring. The government’s affidavits detailed how Okwuosa deposited $530,000 in structured money orders, including money orders remitted by an individual who was later arrested in connection with a heroin delivery; identified Okwuosa’s sole proprietorship as one of the businesses that purchased and exported vehicles on behalf of Nsoedo’s organization, which was the method used by the organization to transfer drug proceeds from the United States to Nigeria; explained how Nsoedo and other individuals in his organization were overheard discussing Okwuosa’s legal fees, tractor business, whereabouts, and travel plans; and provided evidence of direct contacts between Okwuosa and Nsoedo. Okwuosa did not come forward with any evidence to refute the government’s declarations; instead, he merely speculated in his response brief that there might be innocent explanations for the money orders, Bobby Imports’s export transactions, the phone conversations, and the checks to Nsoedo.

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4 Responses to “A Peculiar Idea of Proof.”

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