Eighth Circuit Court of Appeals, United States v. $124,700 in U.S. Currency:
Carrying cash while driving a rental
car ruled grounds for forfeiture
During a traffic stop for exceeding the speed limit Nebraska State
Patrol Trooper Bigsby asked Emiliano Gomez Gonzolez to get out of his
rental car and wait in the passenger seat of the trooper's patrol
vehicle. Once inside the patrol vehicle Gonzolez produced his
driver's license and a rental contract for the car. Though
Trooper Bigsby did not speak fluent Spanish, Gonzolez answered the
trooper's questions as best he could using a combination of Spanish and
broken English. Another officer arrived in a second patrol
vehicle to assist Trooper Bigsby in the questioning, as he "had some
Spanish-speaking ability." The officers completed a warning
citation and returned paperwork to Gonzolez, who was still detained
inside the patrol vehicle.
The troopers continued their interrogation until Gonzolez consented to
a search of his rented car, where the officers recovered seven bundles
of cash totaling $124,700. The troopers took the vehicle,
Gonzolez, and his currency to the Nebraska State Patrol office in
Lincoln, where their drug-sniffing dog, "Rico,"alerted to the rear
passenger side of the car where the currency was located and to the
currency itself. Finding no evidence of any crime, aside from a
barking dog trained to alert to the trace amount of narcotic residue
present on the majority of currency in circulation throughout the
nation, the officers arrested the currency and released Mr. Gonzolez
without filing any criminal charges.
At the civil forfeiture trial of United
States v. $124,700 in U.S. Currency Gonzolez testified that
after pooling his own legitimately earned cash with that of two
partners in the produce business, he flew to Chicago for the purpose of
purchasing a refrigerated truck from a friend of a friend. Upon
arrival he found that the truck had already been sold. Friends
there told him that it's "bad" to carry more than $10,000 in cash on a
plane, so he decided to drive back home in a rental car. Both
business partners gave testimony at trial substantiating Gonzolez'
undisputed account of the legitimate source and intended use of the
defendant currency. None of the owners of the seized money were
ever convicted of a drug-related crime. No drugs, drug
paraphernalia, or drug records were recovered in connection with the
defendant money, nor was there any indication the currency had been
bundled in a manner indicative of drug use or distribution. The
government failed to contradict or rebut the claimants' evidence, so
the trial court considered the three claimants' testimony to be legally
trustworthy and therefore conclude that the government failed to
establish the required substantial connection between the seized money
and a drug trafficking offense–even by the mere preponderance of
evidence standard of a civil forfeiture trial (i.e.: somewhat more
likely than not).
However, when prosecuting an inanimate object the government not only
enjoys a far lower burden of proof than that required to obtain a
criminal conviction–it also gets a second bite at forfeiting seized
bounty in the event that a property owner does manage to prove his
innocence at trial. Unlike acquittals at criminal trial, the
prosecutor is allowed to repeatedly muster the vast resources of the
government to appeal judgments in favor of owners of inanimate
defendants in civil forfeiture prosecutions.
So the government appealed to a panel of judges who never had direct
contact with any witnesses. Based on transcripts of the
proceedings and legal briefs submitted by the United States Attorneys
Office in Omaha and the claimants' two San Diego attorneys, a divided
panel of the Eighth Circuit Court of Appeals second-guessed the trier
of fact, and reversed the judgment of the trial court. The trial
court had concluded that all three claimants to the $124,700 had given
a "plausible and consistent explanation for [the money's] origin and
intended use," and that "the bundling is consistent with an attempt to
sort the currency by contributor and conceal the currency from would-be
thieves, and not just to evade law enforcement." In reversing the
trial court's judgment the majority appellate panel stated that the
district court's opinion included no finding as to the credibility of
Gonzolez and the other two claimants. The trial court's finding
that claimants' explanations were undisputed, plausible and consistent,
stated the Eighth Circuit, "is different from a finding that the court
actually believed the testimony."
As Circuit Judge Lay stated in his dissent,
the only evidence linking the
seized money to illegal drug activity is a canine sniff that alerted
officers to the presence of narcotics on the currency itself and the
exterior of the rear passenger side of the rental car where the
currency was discovered. However, as Justice Souter recently
recognized, a large percentage of currency presently in circulation
contains trace amounts of narcotics.1
As a result, this fact is virtually "meaningless and likely quite
Our decision in $ 84,615 in U.S. Currency
this evidence only "slight" weight is thus well-founded.... [T]he mere
fact that the canine alerted officers to the presence of drug residue
in a rental car, no doubt driven by dozens, perhaps scores, of patrons
during the course of a given year, coupled with the fact that the alert
came from the same location where the currency was discovered, does
little to connect the money to a controlled substance offense.3
Like Judge Lay's dissent, the majority opinion rejected the
government's argument that the district court erred by according only
"slight" probative value to the canine alert, noting:
That precise language, however, was
drawn from one of our decisions,4
and the government in this case presented no expert testimony or other
scientific evidence that might warrant a stronger inference.5
The significance of canine alerts
is largely a scientific question, and absent a developed record, we
decline to expand on our previous pronouncements in this area.
Sadly however, the majority appellate panel concluded that even without
any real evidence of a crime, merely possessing a large sum of cash
provides "strong evidence" of a substantial connection to some unknown
drug activity, which caused Circuit Judges Colloton and Arnold to
"believe that the evidence as a whole demonstrates by a preponderance
of the evidence that there was a substantial connection between the
currency" and an unspecified drug trafficking offense. As Judge
Lay points out in his dissent, this is the first time the Eighth
Circuit has ever held that mere possession of a large amount of cash
without additional evidence of a connection to illegal drug activity
provides strong enough proof of a substantial connection between seized
property and a controlled substance offense to support forfeiture.6
Footnotes (from United States. v. $124,700 in U.S. Currency,
458 F.3d 822 (8th Cir., 2006):
1. See Illinois v. Caballes, 543 U.S.
405, 410-12, 125 S. Ct. 834, 160 L. Ed. 2d 842 (2005) (Souter, J.
2. United States v. Carr, 25 F.3d
1194, 1216 (3d Cir. 1994) (Becker, J., concurring).
3. 458 F.3d 822 at 827-828.
4. see $84,615 in U.S. Currency, 379 F.3d
5. Cf. United States v. Funds in the Amount
of $ 30,670, 403 F.3d 448, 457-59 (7th Cir. 2005).
6. 458 F.3d 822 at 828 (Judge Lay
The law of our circuit makes clear that
the possession of a large amount of cash provides strong evidence of a
connection between the res and illegal drug activity. Yet this fact is
not dispositive. A faithful reading of the cases cited by the majority
from our court reveal that we have required some additional nexus
between the property seized and drug activity to support forfeiture. In
United States v. U.S. Currency, in
the Amount of $ 150,660.00, 980 F.2d 1200 (8th Cir. 1992), we
recognized such a nexus where the investigating officer immediately
smelled marijuana upon inspecting the currency. n2 Id. at 1203, 1206.
In United States v. $ 84,615 in U.S.
Currency, 379 F.3d 496 (8th Cir. 2004), we concluded forfeiture
was proper where the owner of the seized currency "undisputedly
possessed illegal drugs at the time" the currency was discovered. Id.
at 502. Most recently, in United
States v. $ 117,920.00 in United States Currency, 413 F.3d 826
(8th Cir. 2005), we determined that forfeiture was warranted where
materials known to be used to package and conceal drugs were recovered
in close physical proximity to the seized currency, and where the
investigating officer detected the smell of marijuana on some of these
materials. Id. at 829.
n2 Unlike our decision in U.S.
Currency, in the Amount of $ 150,660.00, the odor of narcotics on the
currency seized in this case was not apparent upon inspection, and thus
there was no immediate relationship between drugs and the currency
which would suggest the currency had recently been involved in a
controlled substance offense.