UNITED STATES of America, Plaintiff-Appellee, v. $141,770.00 IN UNITED STATES CURRENCY, Defendant. Rafael Moreno-Pena, Claimant-Appellant.
No. 97-2393
United States Court of Appeals, Eighth Circuit
Decided Oct. 5, 1998
157 F.3d 600
Submitted Feb. 13, 1998.
The trial court found that Dominguez was a “major player” in a conspiracy to distribute drugs to South Dakota through Mousel and Ness. It is also clear that he attributed to Dominguez the 300 to 350 pounds of marijuana which the South Dakota men bought during the conspiracy. This finding is not clearly erroneous because the record supports a strong inference that Dominguez was the supplier of marijuana to Thomas Cordova who in turn supplied the drugs to Mousel, Ness and Williamson for distribution in South Dakota. Thomas Cordova acknowledged that he was only a middleman and that Dominguez was his supplier. When the South Dakota men arrived in Denver unexpectedly, Thomas Cordova went to Dominguez‘s house and returned with the drugs or Dominguez arrived at Thomas Cordova‘s house with the drugs. When prior arrangements had been made, the drugs were already at Thomas Cordova‘s house.
Given the close family relationship between Thomas Cordova and Dominguez, the proximity of their homes, the similarity in the packaging of the marijuana on those occasions when it was delivered by Dominguez and those occasions when the marijuana was already at Thomas Cordova‘s house because prior arrangements had been made for its delivery, Thomas Cordova‘s statement that Dominguez was his supplier, and Dominguez‘s statement that the South Dakota men could call him directly to buy marijuana, it is logical to infer that Dominguez supplied all the marijuana which Thomas Cordova sold to the South Dakota men during the conspiracy. See United States v. Padilla-Pena, 129 F.3d 457, 468-69 (8th Cir.1997), cert. denied, U.S. -, 118 S.Ct. 2063, 141 L.Ed.2d 141 (1998). While testimony concerning the amount of drugs taken to South Dakota was confused in places, considering the totality of the evidence, the trial court‘s conclusion that Dominguez was responsible for between 300 and 350 pounds of marijuana was clearly supported by the evidence. Convictions AFFIRMED.
Nancy A. Svoboda, Assistant U.S. Attorney, Omaha, NE, argued, for appellee.
Before LOKEN and HANSEN, Circuit Judges, and DAVIS,1 District Judge.
HANSEN, Circuit Judge.
Rafael Moreno-Pena appeals from the district court‘s2 probable cause determination in this
I.
On July 26, 1995, George E. Scott, a Nebraska State Patrol officer, observed a Toyota camper drive onto the shoulder of Interstate 80 while traveling west through Hall County, Nebraska. After stopping the vehicle, Scott asked the driver for his license and vehicle registration. The driver‘s license revealed the driver to be Rafael Moreno-Pena (Moreno). Moreno‘s passenger, Jose Javier Herrera, identified himself as the owner of the vehicle. While Scott was talking to the occupants, he detected a “heavy odor of fabric softener sheets emitting from the interior of the vehicle.” (Tr. at 123.) Scott testified that, based on his training, he knew that fabric softener sheets were often used to mask the odor of drugs or narcotics. Scott was told by Moreno and Herrera that the two had traveled from California, a state of drug origin, to Illinois and Wisconsin, drug destination states, and were on their way back to California. Scott testified that both men seemed extremely nervous during the encounter.
Trooper Scott returned to his patrol vehicle and prepared a written warning for the driver, Moreno. After delivering the written warning to Moreno, Scott asked Herrera to exit the camper, and Herrera complied. Scott then asked Herrera if the camper contained drugs, weapons, or large sums of cash, and Herrera answered in the negative. Scott then asked for and received Herrera‘s verbal permission to search the camper. Before searching the camper, Scott produced and read Herrera a consent-to-search form, which Herrera willingly signed. Scott then asked Moreno to exit the camper, and Moreno complied.
About this time, Trooper Steve Kolb arrived to provide backup. Upon his arrival, Scott began to search the camper. He testified that, upon entering the camper, he was struck by “a very heavy odor of fabric softener sheets emitting from the entire interior of the vehicle.” (Tr. at 126). Scott did not immediately locate any fabric softener sheets, but he did find several tools, including a hammer and four screwdrivers. At this point, Kolb began assisting in the search. The troopers soon located screws in the ceiling which bore marks indicating frequent removal. The ceiling panel also appeared as if it had been frequently removed and replaced. The troopers removed the worn screws and ceiling panel. Above the panel, the officers discovered a trap door, which they opened. Inside the trap door the officer found a hollow ceiling area containing five zip-lock bags. Each of the five zip-lock bags contained a second zip-lock bag, which in turn contained a third zip-lock bag. Inside each of the innermost zip-lock bags, the officers found large amounts of United States currency wrapped in scented fabric softener sheets. The total amount of cash in these five bags was $141,770.00.
When Scott discovered the bags, he motioned Moreno and Herrera into the camper and asked them who owned the large sums of
After Herrera and Moreno were taken to the police station, Nebraska State Trooper Jerry Schenck and his narcotics dog, Nero, performed a search on one of the five seized zip-lock bags of currency. The search was conducted as follows: First, Nero was told to search the empty room and did not alert. Next, money collected from various troopers was placed in the room, and Nero was again directed to search the room. Again, Nero did not alert. Finally, one of the five zip-lock bags of money from the camper was placed in the room, and Nero was again told to search the room. Nero alerted to the money from the camper.
Schenck and Nero also performed a search on the camper. Nero alerted to the driver‘s side door and the side entrance of the camper. Additionally, Nero alerted to a black plastic bag that had been taken out of the false ceiling and was lying on the floor of the camper.
The United States filed a forfeiture action, alleging that the money found in the camper was either proceeds traceable to the exchange of a controlled substance or was intended to be used to facilitate the possession and distribution of a controlled substance. Moreno filed an answer, claiming that the money belonged to him and was derived from a legitimate auto body/used car business. After trial, the jury returned a verdict in favor of the United States. In addition to entering judgment based on this verdict, the court issued findings of fact and conclusions of law concerning its probable cause determination. Moreno appeals.
II.
Moreno claims three points of error. First, he claims that the government failed to carry its burden of establishing probable cause to support the judgment of forfeiture. Second, he claims that the exclusion of proffered scientific evidence regarding the contamination of currency constituted error. Third, he claims that his Fifth Amendment right against self-incrimination was violated. We address each of these arguments in turn.
A. Probable Cause
Pursuant to
Moreno argues that even a large amount of unexplained currency, standing alone, would be inadequate to support a forfeiture. See Currency, 16 F.3d at 1072 (“any amount of money, standing alone, would probably be insufficient to establish probable cause for forfeiture“); but see $39,873, 80 F.3d at 319 (“[W]e have recognized that possession of a large amount of cash ... is strong evidence that the cash is connected with the drug trade.“). We need not address this contention, because we are not faced with “a large
Finally, various comments made by Moreno are incompatible with the evidence. Although Moreno claims that he brought the money from California, receipts found in his pockets verify that he purchased the dryer sheets and zip-lock bags in Minnesota. Moreno does not explain why he waited to wrap the money in this fashion until he reached Minnesota. Additionally, Moreno‘s statement that this money constituted legitimate business proceeds is undercut both by his inability to produce any tax records regarding the source of this income and by his initial denial of ownership over the money.
In light of the aggregate facts of this case, we independently conclude that the government met its burden of showing probable cause that the seized currency was connected to drug trafficking, i.e., more than mere suspicion but less than prima facie proof.
B. The Exclusion of Scientific Evidence
At trial, Moreno sought to discredit the significance of Nero‘s positive alerts by intro-
Under
1. Ihm‘s Proffered Testimony is Unreliable
Ihm‘s methodology is incapable of producing the conclusion to which he was prepared to testify—that 99 percent of all United States currency is contaminated with drug residue. With the exception of five bills supplied to him by a local television station, his “methodology” consisted of taking whatever bills were brought to him by the narcotics unit of the Omaha Police Department or the Bellevue Police Department and testing them for drug residue. (See Tr. at 47-49.) Because bills seized during narcotics investigations are not necessarily representative of the general population of bills in circulation, Ihm‘s methodology cannot support the conclusion that 99 percent of bills in circulation are contaminated with drug residue. At best, his results show that most bills seized in narcotics investigations are corrupted with drug residue.
Second, Mr. Ihm‘s methodology—to the extent that he can be said to have had one—does not bear any of the indicia of reliability articulated in Daubert. See Daubert, 509 U.S. at 593-94, 113 S.Ct. 2786. Mr. Ihm has not submitted to peer review any of the test results which form the basis of his opinion. His rate of error is unknowable but potentially very high, especially in light of the fact that he handled many bills without changing his gloves. (Tr. at 27, 41.) Nor can Ihm‘s tests be replicated, since he placed no controls over his samples. In short, the district court correctly concluded that Ihm‘s testimony was not sufficiently reliable to be of assistance to the trier of fact.
2. Ihm‘s Proffered Testimony is Irrelevant
Ihm‘s proffered testimony also flunks the relevancy prong of Daubert, because even if believed, it would not make the existence of any material fact more or less probable. See
C. Moreno‘s Privilege Against Self-incrimination
During his case-in-chief, Moreno tried to establish that the seized currency was not derived from drug trafficking but rather from a legitimate private business. To this end, Moreno testified that he had earned the seized currency from his private business activities during the period between 1990 and 1994. Moreno testified that he owned a business in San Diego known as “Moreno Auto Body” and that he also sold used cars at auctions in Mexico.
In an attempt to impeach Moreno‘s testimony that the money was derived from legitimate business activities, the government attorney asked Moreno on cross-examination if he had paid any federal income tax on any of the alleged business profits in 1990, 1991, 1992, 1993, or 1994. Moreno objected to the questions, but his objections were overruled. Rather than answer the question, Moreno invoked the Fifth Amendment privilege against self-incrimination. Moreno claims that overruling his objection to the questions constituted error, because it allowed the government to elicit an invocation of the Fifth Amendment in front of the jury.
We have held that a mistrial may be warranted when the prosecutor calls a witness to the stand in a criminal trial and intentionally elicits an invocation of the Fifth Amendment. See United States v. Reeves, 83 F.3d 203, 207 (8th Cir.1996); United States v. Quinn, 543 F.2d 640, 649-50 (8th Cir.1976). However, this case is distinguishable from Reeves and Quinn on several grounds. First, this is not a criminal action. See Baxter v. Palmigiano, 425 U.S. 308, 318, 96 S.Ct. 1551, 47 L.Ed.2d 810 (1976) (Fifth Amendment does not forbid adverse inference when privilege is claimed by a party to a civil action).5 Second, it was not the government, but Moreno himself, who called Moreno to the stand. See United States v. Ornelas-Rodriguez, 12 F.3d 1339, 1348 (5th Cir.1994) (finding no error in district court‘s refusal to grant mistrial where Fifth Amendment invocation was elicited during government‘s cross-examination of a nongovernment witness), cert. denied, 512 U.S. 1222, 114 S.Ct. 2713, 129 L.Ed.2d 839 (1994). Third, there is little likelihood that the jury drew any unwarranted inferences against Moreno. See Quinn, 543 F.2d at 650 (mistrial only required in criminal trial where jury is likely to draw unwarranted inferences against criminal defendant from government witness‘s invocation of the Fifth Amendment). The obvious purpose of the government‘s questions was to impeach the
ΙΙΙ.
Accordingly, we affirm the judgment of the district court.
DAVIS, District Judge, dissenting and concurring.
While I concur with Parts B and C of the majority opinion, I must dissent from Part A, in which the majority finds that probable cause existed to establish that the currency at issue was connected to drug trafficking. In my view, the totality of the evidence does not support a finding of probable cause as the circumstantial evidence is extremely weak.
Forfeitures are disfavored and should be enforced only when within both the letter of the law and the spirit of the law. Muhammed v. Drug Enforcement Agency, 92 F.3d 648, 654 (8th Cir.1996); United States v. One 1976 Ford F-150 Pick-Up, 769 F.2d 525 (8th Cir.1985)(citing United States v. One 1936 Model Ford V-8 De Luxe Coach, 307 U.S. 219, 226, 59 S.Ct. 861, 865, 83 L.Ed. 1249 (1939)). The letter of the law is clear: In order to seize property, the government must show probable cause to connect property to drug trafficking. See
When viewing all facts in the aggregate, I believe the forfeiture in this case does not fall within either the letter or spirit of the law. Appellant Moreno and one of his employees, Mr. Herrera, were traveling through Nebraska in a camper on their way to Los Angeles from Minnesota. Mr. Moreno owns and operates Moreno Auto Body, through which he buys and sells used automobiles. At trial, he testified that he was in Minnesota for the purpose of identifying vehicles to purchase for his business. Mr. Moreno had flown to Minnesota, but decided to drive back to California with Mr. Herrera. While driving through Nebraska, a State Trooper observed their camper drive onto the shoulder. For this slight infraction, the trooper ordered to the camper to pull over. When speaking with the driver, the trooper testified that he smelled the scent of dryer sheets emitting from the camper. The camper was eventually searched, and money, packaged in dryer sheets and zip lock bags, was found. No drugs, drug paraphernalia or weapons were found in the camper or on Mr. Moreno‘s or Mr. Herrera‘s person.
Mr. Moreno has no prior drug convictions. There is no evidence that he uses or distributes drugs. To the contrary, evidence was submitted at trial establishing that he runs an auto shop, and deals mainly in cash. Documents were admitted at trial corroborating his testimony regarding his business, including invoices, and DMV records. In addition, Mr. Moreno‘s proffered purpose for being in Minnesota was corroborated by the Government‘s investigation. For example, the Government determined that while in Minneapolis, Mr. Moreno and Mr. Herrara placed several phone calls to auto body shops in the San Diego Area. (Tr. 273-279).
The majority states that the most telling evidence supporting probable cause was the way the money was packaged. While I certainly recognize that wrapping money in dryer sheets in zip lock bags has been found to mask the smell of illegal narcotics, I do not agree that such packaging, without corroborating drug evidence, is sufficient to establish probable cause the money is connected to drug trafficking. For instance, in United States v. $39,873.00, evidence of dryer sheets supported a finding of probable cause, together with evidence of drug paraphernalia and drugs. 80 F.3d at 318. In this case, there is absolutely no evidence connecting Mr. Moreno to drugs, drug paraphernalia or of a history in dealing in drugs.7
The majority also bases its finding of probable cause on the dog8 alert to the packages of money, and the camper doors. However, as this circuit has previously found, “it is well-established that an extremely high percentage of all cash in circulation in America today is contaminated with drug-residue. Muhammed, 92 F.3d at 653 (citation omitted). Thus, contamination alone is virtually meaningless as it is unknown where or when the money was contaminated. Id.9
The facts presented in this case are analogous to those addressed in Muhammed, 92 F.3d at 648, United States v. $7,850.00 in U.S. Currency, 7 F.3d 1355 (8th Cir.1993) and United States v. $506,231.00 in U.S. Currency, 125 F.3d 442 (7th Cir.1997).
In Muhammed, the Muhammed family from near Los Angeles had been visiting family in Missouri, and had purchased oneway tickets back to Los Angeles by paying in cash. Mr. and Mrs. Muhammed were approached by DEA agents at the airport, and were separated and interviewed, without Miranda warnings. Muhammed, 92 F.3d at 650. Mr. Muhammed was carrying $70,990 in his bags, and explained that the cash was a result of fundraising activities for the Nation of Islam. A drug dog alerted to the cash, and it was seized. Id. Similarly, Mrs. Muhammed was carrying $22,000 in her girdle, but said she was uncertain where her hus-
While the government‘s failure to perfect the seizure in Muhammed turned on the lack of adequate notice to the claimants, the case nonetheless illustrates that no undue deference should be afforded to drug-alerts by dogs to large amounts of cash, in the absence of some evidence linking the alerts to an actual drug transaction. A mere alert to cash simply threatens to inculpate law-abiding citizens.
In United States v. $7,850.00 in U.S. Currency, 7 F.3d 1355 (8th Cir.1993), the claimant had purchased a one-way air ticket in the Minneapolis-St. Paul airport to Omaha, with cash. He was not carrying any baggage or identification and had the same physical description of an individual found in the Narcotics and Dangerous Drugs Information System (NADDIS), which also reported that the claimant had a heroin supplier in Omaha. The claimant had been seen at the airport the previous day, and had lied about that fact. In addition, a police dog made a positive drug-alert and “bit at the money, indicating the currency had recently been in contact with controlled substances.” Id. at 1357.10 The district court had granted summary judgment in favor of the government, but this court reversed, finding that no probable cause, prior to seizure, could establish a connection to contraband. Id., at 1358.
Finally, in United States v. $506,231.00, 125 F.3d 442 (7th Cir.1997), currency was seized from a Chicago pizzeria alleged to be a buyer of stolen property. A police search, pursuant to a warrant, discovered three unregistered guns and the more than $500,000 defendant currency, stashed inside a 44-gallon barrel, and wrapped in plastic bags. 125 F.3d at 452. In addition to the weapons and an unusual storage of such a large amount of currency, the government asserted that a positive drug alert by a police dog and a witness who had seen a cocaine delivery to the pizzeria helped establish probable cause. Id. The Seventh Circuit Court of Appeals held that this evidence, taken together, did not establish a connection to drug trafficking. Id. at 452-453.
In the case at bar, the government has failed to establish probable cause that the currency was connected to drug trafficking. There is no evidence that ties the currency to drug trafficking, such as drugs or drug paraphernalia in the camper or on the individuals and the lack of evidence regarding any associations to drug dealers. It seems the government has raised only a “mere suspicion” that the cash was related to drug trafficking, but that suspicion is no greater than the suspicion that the cash is related to some other transaction, even an illegal one, not subject to the forfeiture provisions of
While I do not find the district court‘s decision to allow the government to explore the claimant‘s taxpaying history to be a clear error under the abuse of discretion standard, the issue to which his tax history speaks is not necessarily suggestive of drug trafficking. To satisfy the forfeiture requirements of
For all of the above reasons I dissent from Part A of the majority opinion.