UNITED STATES of America, Plaintiff-Appellee, v. $49,576.00 U.S. CURRENCY, Defendant, Francisco Lombera, Claimant-Appellant
116 F.3d 425
9th Cir.
1997
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UNITED STATES of America, Plaintiff-Appellee, v. $49,576.00 U.S. CURRENCY, Defendant, Francisco Lombera, Claimant-Appellant.

No. 95-56170

United States Court of Appeals, Ninth Circuit.

June 25, 1997

116 F.3d 425

Before: HALL, KOZINSKI and HAWKINS, Circuit Judges.

Argued and Submitted Dec. 13, 1996.

Thus, we actually held that “[t]he employment relationship coupled with a reasonable apprehension of violence by bank robbers leads us to believe that bias of thоse who work for the bank robbed should be presumed.” (emphasis added). There is no “reasonable apprehension of violence” in this case. While Nathan contends that the two Boeing jurors would be afraid of Boeing‘s “retaliatory” practices toward its employеes who decide against it, this alleged fear does not approach the “bank robber” apprehension of Allsup. This reading of Allsup squares with our case law. See (“Th[e] combination [in Allsup of employee status and the reasonable apprehension of violence] added up to presumed bias.“), cert. denied, ; (“Bias [in Allsup] was inferred, despite the jurors’ untested claim of impartiality, because their employment subjected them to the same threat of violence.“).

Since there is no per se rule requiring removal in federal court, we must determine if the district court abused its discretion in refusing to remove the Boeing employees for cause. The district court asked the Boeing employees about their impartiality, and they repeatedly said that they could decide the case fairly. The employees then told Nathan that they did not fear retaliation by Boeing. At a conference out of prospective jurors’ hearing, the district judge said that the Boeing employees “presumably own stock. Nobody asked that question.” Nathan asserts that this statement by the district cоurt constitutes judicial notice of the employees’ stock ownership.

Nathan‘s argument fails. While Federal Rule of Evidence § 201(c) permits a court to take judicial notice sua sponte, section 201(e) states that “[a] party is entitled upon timely request to an opportunity to be heard as to the propriety of taking judicial notice and the tenor of the matter noticed.” Section 201(e), of course, assumes that the court announces that it is taking judicial notice of a fact. Here, the court never said that it took judicial notice of the jurors’ stock ownership. Rather, it was chastising Nаthan for not asking such an obvious question. Nathan should have asked the Boeing employees if they owned stock in Boeing, and we will not presume on his behalf that they did.

When a juror is an employee of a party, the district court (and this court on appeal) should examine the juror closely to determine if any bias exists. The district court did this, and gave Nathan the opportunity to do so as well. Nothing in the record indicates that the Boeing employees could not render impartial verdicts. Since we do not have a per se rule against employees serving as jurors in a case involving their employer, we hold that the district court did not abuse its discretion in permitting the two Boeing employees to remain on the panel.

An unpublished disposition addresses the remainder of Nathan‘s claims.

AFFIRMED.

David L. Ross, Eric Avazian, Law Offices of David L. Ross, Beverly Hills, CA, for claimant-appellant Francisco Lombera.

Miriam A. Krinsky, Carla A. Ford, Assistant United States Attorneys, ‍​‌‌​​​‌​‌​​​​‌‌​‌‌‌​‌​‌‌‌‌​‌​‌‌​‌‌​​‌​​‌‌​‌​‌‌‌​‍Los Angeles, CA, for plaintiff-appellee United States of America.

Opinion by Judge Kozinski; Concurrence by Judge Hall.

KOZINSKI, Circuit Judge.

We consider whether the government has met its burden of proof in a civil forfeiture action.

I

On January 31, 1994, appellant was detained and searched by a Drug Enforcement Administration Narcotics Task Force at the Ontario International Airport in Ontario, California. The agents had been notified by an American Airlines desk agent in Dallas, Texas that someone named “Jaсinto Rodriguez” had purchased a one-way ticket in cash just minutes before flight number 533 to Ontario departed. While passengers were disembarking flight 533, agents removed Rodriguez‘s bag from the plane. A drug-sniffing dog alerted to the bag, which was then put on the luggage carrousel. Meanwhile, agеnts observed appellant walking “in a very nervous manner” from the plane to the baggage claim area.

When appellant claimed Rodriguez‘s bag, agents approached him and asked for some identification. Appellant produced a California driver‘s license with the name “Jacinto Rodriguez” and an alien resident card with the name “Francisco Lombera.” When asked about “bulges” in his pants, appellant responded that he was carrying $2000 in cash in his pockets. The officers asked appellant to accomрany them to their office; appellant agreed.

In the office, appellant told the agents that there was no money in the bag. Although he consented to a search of the bag, there was a problem: The bag had two locks-a combination and key lock-аnd appellant knew the combination but didn‘t have the key. However, the manufacturer of the suitcase used the exact same lock on all its cases, and the agents had a key from another case made by the same manufacturer. When the agents opened thе bag, they discovered $49,576 wrapped inside a pair of blue jeans. Although appellant denied ownership of the money, he refused to sign a waiver of ownership or talk further about it. The agents therefore released appellant, but kept the money. Appellant was not charged with a crime.

The government moved to forfeit the money under 21 U.S.C. § 881(a)(6). The district court held that, based on the above facts, the government had probable cause to believe the money was involved in a drug transaction and thus the burden shifted to appellant to prove otherwise by a preponderаnce of the evidence. When appellant failed to meet his burden of proof, the district court ordered the money forfeited. Appellant challenges both the district court‘s probable cause determination and the constitutionality of the forfeiture statute‘s burden-shifting mechanism.1

II

To sustain forfeiture of currency under 21 U.S.C. § 881(a)(6), a showing that the currency was “involved in some illegal activity is not enough-the government must have probable cause to believe that the property is involved in [a drug transaction].” (emphasis in original); cf. (“To pass the point of mere suspicion and to reach probablе cause, it is necessary to demonstrate by some credible evidence the probability that the plane was in fact used to transport a controlled substance.” (emphasis in original)). Here, the government points to two pieces of evidence that arguably link thе seized money to a drug transaction. First, the drug-sniffing dog alerted to the money. We have held, however, that this factor is entitled to little weight because of the widespread contamination of money with drug residue in the Los Angeles area. See . Second, the government notes thаt appellant was once detained in connection with a drug-related crime. Since appellant was released and never charged with a crime, this fact is not a credible link between the money and a drug transaction. See .

The government also argues thаt probable cause exists because appellant fits a drug courier profile defined by the affidavit of the arresting officer. In the Fourth Amendment context, however, a drug courier profile can, at most, provide grounds for reasonable suspicion; it cannot establish ‍​‌‌​​​‌​‌​​​​‌‌​‌‌‌​‌​‌‌‌‌​‌​‌‌​‌‌​​‌​​‌‌​‌​‌‌‌​‍probable cause. See, e.g., ; ; . As the standard of probable cause is similar for forfeiture and the Fourth Amendment, , the fact that appellant‘s actions matched a drug courier profile cannot establish probable cause to justify forfeiture.

Finally, apрellant‘s use of a fake driver‘s licence, his evasive and dishonest answers to questions, and his general nervous behavior are indicative of some illegal activity, but not necessarily of drug trafficking. We therefore conclude that the government failed to produce sufficient evidence to support a finding of probable cause to believe the property was involved in a drug transaction.

III

Because we find no probable cause to sustain the forfeiture, we need not resolve appellant‘s constitutional challengе to the burden-shifting used in forfeiture proceedings. See 19 U.S.C. § 1615. Nevertheless, we feel constrained to answer the government‘s assertion that such a challenge is foreclosed by our caselaw. According to the government, our decision in , has immunized section 1615 against a due рrocess attack; two of our sister circuits also take this view. See ; (both citing ). We note, however, that constitutional doctrine has changed a good bit since and that opinion is therefore of questionable validity today.

The biggest doctrinal change occurred a month after was decided: The Supreme Court in , held that civil administrative proceedings which result in deprivations of property must provide meaningful due process safeguards. Subsequently, ‍​‌‌​​​‌​‌​​​​‌‌​‌‌‌​‌​‌‌‌‌​‌​‌‌​‌‌​​‌​​‌‌​‌​‌‌‌​‍the Court specified that one such safeguard is the imposition of a heightened burden of proof on the government. See, e.g., ; . And, in , the Court made it clear that the test applies to civil in rem forfeiture proceedings. See . As a result, even if is still good law, it cannot possibly preclude a constitutional challenge.

Moreover, our rationale for rejecting the due prоcess challenge in is now somewhat suspect. We reasoned there that civil forfeiture proceedings were not “criminal enough” to preclude Congress from exercising its power to set burdens of proof in civil cases. . In characterizing civil forfeiture as not “сriminal enough,” we followed the Supreme Court‘s then-apparent lead: Although civil forfeiture had been deemed criminal for Fourth and Fifth Amendment purposes, we noted that “the Supreme Court has firmly refused to broaden the criminal aspect of forfeiture so as to encompass a wider range of constitutional protections.” The Supreme Court, however, has recently expanded the constitutional protections applicable in forfeiture proceedings to include those of the Eighth Amendment. See . But see (refusing to apply double jeopardy protections). At the very least, this doctrinal upheaval should force us to revisit ‘s reasoning. We therefore agree with the Second Circuit: “Good and Austin reopen the question of whether the quantum of evidence the government needs to show in order tо obtain a warrant in rem allowing seizure-probable cause-suffices to meet the requirements of due process.” , cert. denied, .

At oral argument, the government also contended that the Addington line of due process cases-in which the Court imposed heightened burdens of proof on the government-are inapposite in the forfeiture context because what was at stake there was merely property, not liberty. The government bases this argument on the Court‘s observation in Addington that heightened burdens of proof are often required when an interest “more substantial than mere loss of money” is at stake. . However, this distorts what Addington actually said. In fact, the paragraph in which this quotation appears supports appellant‘s argument. The Court explains there that a “clear and convincing” standard of prоof ‍​‌‌​​​‌​‌​​​​‌‌​‌‌‌​‌​‌‌‌‌​‌​‌‌​‌‌​​‌​​‌‌​‌​‌‌‌​‍is often used in cases “involving allegations of fraud or some other quasi-criminal wrongdoing by the defendant” because “[t]he interests at stake... are deemed to be more substantial than mere loss of money.” . Of course, forfeiture proceedings have long been cоnsidered “quasi-criminal” proceedings, see, e.g., ; , and forfeiture proceedings perforce involve something “more substantial than mere loss of money.”

Finally, we observe that allowing the government to forfeit property based on a mere showing of probable cause is a “constitutional anomaly.” 1 David B. Smith, Prosecution and Defense of Forfeiture Cases, ¶ 2.04, at 2-37 (1996). As the Supreme Court has explained, burdens of proof are intended in part to “indicate the relative importance attached to the ultimate decision.” . The stakеs are exceedingly high in a forfeiture proceeding: Claimants are threatened with permanent deprivation of their property, from their hard-earned money, to their sole means of transport, to their homes. We would find it surprising were the Constitution to permit such an important decision to turn on a meager burden of proof like probable cause. See (“Whether the loss threatened by a particular type of proceeding is sufficiently grave to warrant more than average certainty on the part of the factfinder turns on bоth the nature of the private interest threatened and the permanency of the threatened loss.“); see also (Weinstein, J.) (burden-shifting “is inherently unfair to claimants“), aff‘d, . We leave the ultimate resolution of this question for аnother day.

REVERSED.

HALL, Circuit Judge, concurring in part.

Judge Kozinski‘s disquisition in Part III on the constitutionality of burden-shifting in forfeiture proceedings is entirely dictum. Moreover, it is dictum on an important constitutional issue, thus violating our rule against reaching constitutional questions unless we must in order to dispose of a case. E.g., ; . I find the inclusion of Pаrt III particularly odd in light of the fact that the parties did not raise the issue. Appellant did not “challenge” the forfeiture statute‘s burden-shifting procedure, opinion at 427, he merely responded to our order that the ‍​‌‌​​​‌​‌​​​​‌‌​‌‌‌​‌​‌‌‌‌​‌​‌‌​‌‌​​‌​​‌‌​‌​‌‌‌​‍parties be prepared to discuss the issue at oral argument. We ought not to feel “constrained to answer the government‘s assertion” that the statute has been held constitutional, opinion at 427-28, when it did not ask the question in the first place.

Accordingly, I concur in all but Part III of the opinion.

Notes

1
Appellant also challenges his seizure and the subsequent search of his suitcase. Because appellant consented to both, the district court correctly denied appellant‘s motion to suppress.