*1 1265, (10th Cir.1998); English 1278-80 v.
Powell, 727, Cir.1979).
Therefore, to adjudi- eliminate a need claims,
cate multiplicitous avoid
possible problems remedy if an ordi- provision or charter
nance were held con- employee
stitutional as but invalid spouse,
as to his I would hold pruden-
tial concerns limit standing to the employ-
ee. America,
UNITED STATES of
Plaintiff-Appellee,
Ruby Hysell, Claimant-Appellant,
CURRENCY, $42,500.00,
Defendant.
No. 00-55875.
United States Court of Appeals,
Ninth Circuit.
Argued and Submitted Nov.
Filed March
As Amended March *2 O’Toole, K. Attor-
Patrick United States A. ney, Rupert Linley, Assistant United Office, Attorney’s Attorney, U.S. States CA, Diego, plaintiff-appellee. for the San SCHROEDER, Judge, Before: Chief RAWLINSON, TROTT, and Circuit Judges. TROTT; by Judge
Opinion Concurrence by Judge TROTT.
TROTT, Judge. Circuit Ruby Hysell (“Hysell”) appeals Diane grant the district court’s of forfeiture in summary favor of the United States on contends the judgment. ment lacked cause to seek the thus, forfeiture of that she is trial in go prove entitled to order to entangled with illegal was not disagree. transactions. We jurisdiction pursuant have to 28 U.S.C. § affirm and we the district court’s summary grant judgment.
I
BACKGROUND recounting If Holmes were Sherlock it tale of this he would no doubt call Cellophane The Case Claim. 17, 1998, April On flew from New on a Diego round-trip York to San ticket to return in one week. Based scheduled from task force officer Kevin on referral O’Malley of Francisco the San DEA/Air- Unit, task force port Interdiction officers greeted Hysell Hansen at the Weil and Barnett, CA, iden- Diego, Diego airport. M. Weil Hansen Richard San they could tified themselves and asked the claimant-appellant. Hysell’s luggage. Hysell search consented The United States instituted this civil to the search. forfeiture action against the aas drug related seizure under U.S.C. waiting luggage While to arrive 881(a)(6). § 30, 1999, On April Hysell, claim, at baggage Hysell told the officers *3 counsel, assisted filed an ambiguous pack that she did not all the of contents claim to the seized currency and signed it luggage carrying. According she was under penalty perjury owner, of as “an her, man, a previously she met unknown owner, agent of the of bailee said and/or her, airport the JFK who identified currency.” In subsequent her answer to only as alleged- himself “Samuel.” Samuel the complaint trial, and demand jury for a ly Hysell’s bag, placed took small it in a she asserted as an affirmative defense that larger black bag belong duffel did not she was “an innocent owner.” her, larger locked the bag, duffel government The moved for summary giving Hysell key. left without judgment. The district court granted the larger bag then checked the and its con- motion, 1) finding: probable cause to initi- tents with the airlines and flew to San 2) forfeiture; ate the no genuine issue Diego. regarding material fact forfeitability Hysell’s permission, With officers Weil currency. Hysell appeals. and Hansen removed the lock from the (1) larger bag large and found sum of II money wrapped in cellophane sepa- in five (2) bundles, Hysell’s rate STANDARD smaller duf- OF REVIEW bag. currency fel The totaled in A grant of summary judgment is bills, tens, small specifically 159 1248 twen- Prods., reviewed de novo. Far Out Inc. v. ties, fifties, 119 and 100 An hundreds. on- Oskar, (9th Cir.2001). 247 F.3d duty canine, Sutter, narcotics subsequently determine, We must viewing the evidence “alerted” to the currency, indicating the light most favorable to the nonmov money had in recently been contact with ing party, whether there any genuine are narcotics. issues of material fact and whether the district court correctly applied the relevant
Hysell consensually accompanied the of- Summary substantive law. Id. judgment ficers to narcotics task force office for ..the procedures must necessarily be construed questioning. further During questioning, light forfeitures, in statutory law of Hysell told the officers that had re- she particularly procedural require cently graduated film from school and was ments set forth therein. United States v. in Diego San in production assist Tahuna, One 56-Foot Motor Yacht Named an adult film. She claimed that she had (9th Cir.1983). Once been to Diego on two prior occasions demonstrated, probable cause been has film, in connection with the same adult procedures forfeiture shift the burden of identify could not anybody associated with proof to the claimant to come forward with the film company by produce full name or competent support evidence sufficient to any corroborating telephone numbers verdict in her favor. Moreover, addresses. she had no hotel reservations. knowing disclaimed III who owned the money signed a “Dis- A. Probable Cause claimer Of Ownership Currency” Of form to that effect. The disclaimer 881(a)(6), § lists Under 21 U.S.C. seized “(1) owner of subject “unknown.” forfeiture it is Diego doppelganger, in to Samuel’s San intended to be furnished furnished or (2) substance; a controlled exchange person Jose is another with no last “Jose.” (3) exchange; or used traceable to such an might name and no other information to facilitate a viola- to be used or intended him. be used to find therefore of federal laws.” United States tion to retrieve the as bailee for seeks Currency, 16 F.3d phantom its owner. Cir.1994). The Hysell’s case glaring hole stems establishing has the initial burden of ment provide any refusal deliberate prop- the seized connecting cause information to the or the dis- See 19 erty illegal drug with transactions. supposed trict court about the owner (2001). If § 1615 U.S.C. *4 the on whose behalf she claims to burden, the burden then shifts to meets its fact, In cre- appear court. the record by of the Hysell prove, preponderance to ates reason to that “Lankford” even doubt evidence, money that the was not connect- exists. activity. See illegal drug ed with United $98,685.61 Currency, v. in U.S. 730
States declaration, Hysell submitted a under curiam). (9th Cir.1984) 571, (per F.2d perjury, stating only of she earned penalty probable The determination of during spent on rent facts, aggregate based on the cause is insurance, and car and the rest on the facts. including circumstantial United addition, In necessities of life. she claimed $30,060, 39 F.3d States v. U.S. savings” had “no accumulated she other (9th Cir.1994). govern The wealth. on her asserted lack of Based must show that it had reasonable ment cash, Hysell permitted give was to her a connection existed grounds believe deposition telephonically, remaining sworn activities, property between the government in the East while counsel by suspicion than supported more mere questioned gov- her from The California. prima proof. less than facie Id. Each testify that expected Hysell ernment facts, and upon case stands its own the currency and “Gary Lankford” owned the presence any or absence of one fact is not Therefore, simply she was its bailee. the dispositive; indeed cause is not bring government requested that an exacting standard. See United States telephone depo- Lankford’s number to the Padilla, Cir. 18, 1999, sition on November so Lankford 1989). story. might verify be contacted to her attempt regain possession In an During Hysell’s deposition, the currency, Hysell claims it be now predictably ment asked for Lankford’s her, longs “Gary not to but to Lankford” telephone Hysell replied number. that she (“Lankford”), supposedly the adult film’s get had his number “at home” and could that producer. executive She claims address, provide but was unable to Lankford has asked her to retrieve his at that either time. money government, from the but she has asked she could no paperwork offered or other evidence telephone retrieve Lankford’s number contention. support whatsoever this by address the time of continuation According Hysell, Lankford informed Hysell’s attorney, Mr. deposition. prior trip to her fateful she Barnett, interrupted and did not allow his money airport at the to be used to receive pretext client to answer on the pay equipment “talent” film, money question “improper.” and that was to deliver the was she thereafter, (3)
Shortly
gov-
counsel for the
she
key;
did not have the
five bundles
said,
ernment
currency,
wrapped
cellophane, total-
$42,500,
Counsel,
ing
were found inside the locked
deposi-
I wish to continue this
(4)
luggage;
purpose
getting
acquired
tion for the
the docu-
admitted she
man,
phone
bag containing
money
mentation as to the
number of
from a
Lankford,
“Samuel”,
requested
only
Mr.
which was
in identified
as
no last name
deposition....
the notice of
or further useful description, whom she
(5)
met for the first time at
airport;
request,
To this reasonable
Mr. Barnett
Hysell admitted she was to
money
deliver
responded as follows:
(6)
“Jose”;
to a man
she identifies
My only comment is that as to the depo-
Hysell was unaware of the amount of mon-
request,
sition
I don’t believe that the
ey
carrying
surprised
she was
was
phone
quote
is a
number
documentation
the substantial
bag
amount when the
was
supporting
ownership
of the defen-
(7)
opened
Sutter,
airport;
a drug-
property unquote
dant’s
and we’ve al-
sniffing dog,
alerted to the
ready
objection
stated our
on the tax
(8)
bag Hysell was carrying;
Hysell dis-
basis.
knowing
claimed
who
owned the
response,
government’s lawyer
In
*5
signed
and
an official document to that
said,
(9)
effect;
Hysell asserts that she is not
Hysell,
you
Ms.
can
also
that
furnish
of the money,
appears
owner
on
telephone number to counsel to forward
phantom
behalf of a
owner who refuses to
your
to me at
earliest convenience? The
nothing
come forward and about whom
telephone number of Mr. Lankford.
(10)
known;
Hysell
else relevant
is
Mr. Barnett answered for his client:
attorney
her
have refused to disclose to
I think we’ll
stipulate
she has the
government
information in their pos-
ability to
it to
forward
me.
Is there
session that would allow the
anything else?
verify
story
her
that “Lankford” owns the
There was not.
disputed currency
Hysell
and has asked
entry
The next relevant
in the record
agent
it.
retrieve
concerning Lankford’s available but with-
alone,
While several of
taken
these facts
telephone
held
number is
declaration
cross-country
such as
travel without hotel
signed by
executed and
the government’s
traveling
key
reservations and
without
attorney, Rupert Linley,
February
on
luggage,
to locked
create proba-
not
2000. The declaration states:
“Since
cause,
aggregate
ble
of facts raise
interview,
telephonic
date of the
November
than
suspicion
more
a mere
of a connection
18, 1999, I
Hysell’s
have asked Ms.
attor-
money
drugs; they
between the seized
Barnett,
ney,
telephone
Richard
probable
establish
cause to initiate civil
number
I
‘Gary
and address of
Lankford.’
forfeiture.
have never
received that
information.”
anything
The record does not contain
have
previously
pos
We
held
Linley’s
refute Mr.
declaration.
large
session of a
amount of cash is
money
evidence that
fur
“strong
was
case,
In this
we are
with the
confronted
(1)
nished or intended to be furnished in re
following undisputed
facts:
was
$93,685.61
turn
drugs.”
for
in U.S. Curren
traveling from
York to
Diego,
New
(2)
cy,
A large
572.
amount of
drugs;
well known source cities for
alone, however,
piece
luggage money standing
checked one
of locked
is insuffi
belong
probable
which did not
to her and for which
cient
cause.
establish
See
at 1041^44. In that case
$191,910
F.3d at
alert. 39 F.3d
Currency, 16
in U.S.
Here,
carrying a sub-
by
dog
was
an alert
a trained
we discounted
cash,
$42,500 in
money,
stantial sum
evi-
presented
when
with uncontroverted
man, to be
from an unknown
obtained
of circulat-
seventy-five percent
dence that
man,
another
identified
delivered to
Angeles
in Los
was contaminat-
money
ed
knowing who owned
Hysell denied
as Jose.
ed
residues from controlled substances.
country
across the
she carried
funds
however,
recently,
we reaffirmed
Id. More
verbally
ownership both
and disclaimed
drug dogs
importance
of alerts from
in writing.
by-products
detect
trained to
transient
narcotics,
that the
was
significant
indicating
find
recent contact
purse
$22,474
in
Unlike
wrapped
cellophane.
Currency, drugs.
with
in U.S.
is not a normal
money pouch, cellophane
F.3d at 1216. As
has been trained
Sutter
large amounts of
repository
carrying
manner,
reject Hysell’s reli-
in such a
we
large-
cellophane, which is
money. Rather
$30,060.
Currency,
ance on U.S.
commonly used
ly
gas,
impermeable
Hysell also relies on
States v.
United
drugs and avoid
to conceal the smell of
Currency,
Finally, we come to to an recipient, “Lankford.” Out of unknown resolute in his caution, an abundance of give fairness determination to no explanation ex- Barnett, Mr. we issued an order after oral cept that he was asked to transport cash, argument requesting that Mr. Barnett ei- traffickers, ideal mule for ther provide confirm his failure to must be prepared to demonstrate that requested with the informa- he has a possessory lawful interest. Lankford,” “Gary tion about or direct our Unexplained possession naked aof cash anything attention to in the record refut- setting hoard the factual of this case ing government’s contentions. Mr. possesso- does not rise to the level of the responded, confirming Barnett has what ry requisite interest at- standing quote the record shows. To response, tack proceeding. the forfeiture telephone pro- number was not later “[t]he Id. counsel, duced Ms. or her Rich- From the facts and circumstances of this ard Barnett.” case, including Hysell’s steadfast refusal to A court is a place play not hide-and- conclude, identify alleged principal, we go-seek with relevant evidence infor- court, as did the district *7 mation. Lankford’s information was cer- ment has convincing probable shown cause relevant, tainly for when one claims an to initiate proceedings. forfeiture Accord- bailee, property interest forfeitable as a ingly, pro- the burden shifts to owner, identity purported the as duce evidence sufficient for a reasonable investigate well as sufficient information to fact finder to conclude that the validity the of the claim of an owner-bailee drugs. not related to relationship, are needed. Hysell’s B. Failure to Create a Genu- A similar of set facts and circum ine Issue of Material Fact
stances caused the Fifth
to hold
Circuit
alleged
that an
bailee
withholds iden
correctly
who
states that
the
standing
summary judgment stage,
pro
tification of the bailor lacks
she must
attack the forfeiture.
v. duce evidence from which “a fair-minded
United States
$321,470,
F.2d, 298,
jury
U.S.
874
could return a verdict for
on the
[her]
(5th Cir.1989).
presented.”
Liberty
304
While the
evidence
Anderson v.
Inc.,
242, 252,
appeal
Hysell Lobby,
does not contend on
that
106
U.S.
S.Ct.
(1986).
standing,
sage
lacks
observations of
that counsel is not Ms. mirez; Ramirez; Regina sell, Joshua protecting someone behind the Ramirez, Plaintiffs-Appellants, prefers who not to be identified. scenes indigent If Ms. is too to afford to v. Diego travel to for a deposition, COUNTY; BUTTE-SILVER BOW John money, if she does not own this one can McPherson, Sheriff of Butte-Silver only arrangement wonder what counsel County; Lee, Bow Joe Undersheriff of respect and “Lankford” have with to its County; Butte-Silver Bow John Does disposition they should be successful in its 1-50, in their individual official and/or recovery. argument Counsel’s current re- capacities, Defendants, garding performance during depo- sition and afterwards that he “did not agree produce[Lankford’s’] ever tele- Groh, Special Agent Jeff with The
phone number address outside of and/or Alcohol, Tobacco, Bureau of discovery” formal is the kind of assertion Firearms, Defendant-Appellee. legal profession that draws the ill into repute. Joseph Ramirez; Ramirez; R. Julia L. Ramirez; Regina Ramirez, Joshua
Although private attorneys are held to
Plaintiffs-Appellants,
government pros-
different standards than
ecutors,
States,
Berger
see
v. United
78,
629,
88-89,
55 S.Ct.