UNITED STATES of America, Plaintiff-Appellee, v. $493,850.00 IN U.S. CURRENCY; One 1993 Ford F-350 Truck, Defendants. Roy F. Bruno; Miguel Camacho, Claimants-Appellants.
No. 06-15225
United States Court of Appeals, Ninth Circuit
March 13, 2008
518 F.3d 1159
Having concluded that the district court erred in not addressing Alvarezs RLUIPA claim, we vacate its grant of summary judgment as to his religious exercise claims without reaching his constitutional arguments in support of reversal. See Anchustegui v. Dep‘t of Agric., 257 F.3d 1124, 1129 (9th Cir.2001).
This panel shall retain jurisdiction over any subsequent appeals in this matter. Alvarez shall recover his costs on appeal.
AFFIRMED IN PART AND REVERSED IN PART; REMANDED.
Paul K. Charlton, United States Attorney, District of Arizona and Joan G. Ruffennach and John Joseph Tuchi, Assistant United States Attorneys for the District of Arizona, Phoenix, AZ, for the plaintiff-appellee.
Before: JEROME FARRIS, ROBERT R. BEEZER, and SIDNEY R. THOMAS, Circuit Judges.
BEEZER, Circuit Judge:
Roy Bruno (“Bruno“) and Miguel Camacho (“Camacho“) (collectively, “Claimants“) appeal the magistrate judges order granting summary judgment in favor of the government in its civil forfeiture action against $493,850 in U.S. currency and one 1993 Ford F-350 truck. We affirm.
I
On June 3, 2003, Officer John McFarland (“McFarland“) of the Arizona Highway Patrol observed a Ford truck with Florida license plates swerve over the center line on an Arizona highway. McFarland pulled the truck over and approached the driver. As he approached, McFarland
As Camacho walked back towards the truck, McFarland called Camacho back and began talking to him about drug trafficking. McFarland asked for, but did not receive, consent to search the truck. McFarland also asked for, and eventually received, consent to run a drug-sniffing dog around the truck. The dog alerted. McFarland searched the truck and found $493,850 сoncealed throughout the truck. He seized the truck and the currency.
On November 26, 2003, the government brought a civil complaint for forfeiture, separately naming $493,850 in U.S. currency and one 1993 Ford F-350 truck as in rem defendants. The government alleged that the currency was subject to forfeiture because it was furnished or intended to be furnished in exchange for a controlled substance. Alternatively, it alleged that the currency was subject to forfeiture because it was engaged in a transaction or attempted transaction involving property derived from a specified unlawful activity. The government alleged that the truck was subject to forfeiture because it was used and intended to be used to transport and facilitate the transportation, sale, receipt, possession and concealment of a controlled substance.
Bruno timely filed a claim to the currency. Camacho timely filed a claim to the truck. All parties consented to proceed before a U.S. magistrate judge.
After an evidentiary hearing, the magistrate judge held that McFarland had made a lawful investigatory stop оf the truck, but that he unlawfully exceeded the scope of the investigatory stop by calling Camacho back, questioning him and searching and seizing the truck and currency. The magistrate judge suppressed all evidence gathered after McFarland issued Camacho the warning.
The government subsequently presented the following facts in a motion for summary judgment, which the government had not previously disclosed to Claimants because of an ongoing and sealed criminal investigation: (1) a special agent with the Drug Enforcement Administration (“DEA“) learned of the June 3, 2003 seizure on the day it occurred; (2) on that same day, that same agent also learned that Camacho was the subject of an ongoing DEA investigation in Miami, Florida; (3) DEA agents had observed Camachos 1993 Ford F-350 truck during that investigation; and (4) Camacho was the subject of a separate narcotics investigation being conducted by the South Florida Money Laundering Strike Force.
The government also submitted affidavits by two witnesses cooperating in the Miami investigations, which were both signed after the complaint was filed. The witnesses testified that long before the illegal seаrch and seizure, Camacho met separately with each of them to discuss the importation and sale of cocaine. Camacho indicated to these witnesses that he employs his family members in his cocaine operations, and that he personally transports cocaine and currency to Mexico using different types of vehicles. One of the witnesses met Bruno, a relative by marriage, during one of these meetings.
Based upon this information, the magistrate judge granted summary judgment in favor of the government. The magistrate judge found that the аffidavits of the cooperating witnesses, as well as portions of the DEA agents affidavit, were not tainted by the illegal search and seizure. The magistrate judge held that the government
Claimants timely appealed. They initially moved to stay execution of the entire judgment pending appeal, but later withdrew their request as to the truck. The magistrate judge granted the motion to stay. The judgment as to the truck has been executed.
II
We review, de novo, the denial of a motion to suppress, United States v. Jensen, 425 F.3d 698, 704 (9th Cir.2005), a determination of probable cause, United States v. $30,060 in U.S. Currency, 39 F.3d 1039, 1041 (9th Cir.1994), an interpretation of federal forfeiture law, United States v. 25445 Via Dona Christa, 138 F.3d 403; 407 (9th Cir.1998), amended by, 170 F.3d 1161 (9th Cir.1999), and an order granting summary judgment, United States v. 5208 Los Franciscos Way, 385 F.3d 1187, 1190 (9th Cir.2004).
III
The government argues that we lack jurisdiction over the truck. We agree.
In Republic National Bank of Miami v. United States, 506 U.S. 80, 113 S.Ct. 554, 121 L.Ed.2d 474 (1992), the Supreme Court held that once a court validly asserts jurisdiction in an in rеm civil forfeiture proceeding, courts of appeals may continue to exercise jurisdiction even after the res is removed from the court. 506 U.S. at 88-89, 113 S.Ct. 554. There is one exception to this rule, “where the release of the property would render the judgment useless because the thing could neither be delivered to the libellants, nor restored to the claimants.” Id. at 85, 113 S.Ct. 554.
In this case, the judgment as to the truck has been executed, so the res can neither be delivered nor restored to Claimants. Id. Claimants never entered into an agreement with the governmеnt to substitute proceeds from the sale of the truck in place of the truck for purposes of appeal. Cf. Ventura Packers, Inc. v. F/V JEANINE KATHLEEN, 424 F.3d 852, 861-62 (9th Cir.2005) (allowing substitution of property to abide the fate of the suit). A judgment as to the truck in this case would be useless. We lack jurisdiction over the truck.
IV
Claimants argue that the magistrate judge should have excluded all information from the Miami investigations as fruit of the poisonous tree, because Arizona investigators would not have learned of the information but for the illegal seizure. We disagree.
The exclusionary rule applies in civil forfeiture cases. United States v. $191,910 in U.S. Currency, 16 F.3d 1051, 1063 (9th Cir.1994), superseded on other grounds as stated in United States v. $80,180 in U.S. Currency, 303 F.3d 1182, 1184 (9th Cir.2002). It bars the admission of evidence obtained in violation of the U.S. Constitution, as well as “fruits of the poisonous tree.” United States v. Ramirez-Sandoval, 872 F.2d 1392, 1395 (9th Cir.1989). “[U]nder the fruits of the poisonous tree doctrine, evidence obtained subsequent to a violation of the Fourth Amendment is tainted by the illegality and is inadmissible....” United States v. Washington, 490 F.3d 765, 774 (9th Cir.2007). There are three exceptions to the fruits of the poisonous tree doctrine. Ramirez-Sandoval, 872 F.2d at 1396.
The independent source exception is at issue in this case. It allows admission of “evidence that is actually found by legal means through sources unrelated to the search.” Id. “Independent source evidence is not fruit of the poisonous tree because its discovery through independent legal means does not result from the officials illegal conduct.” Id.
The information at issue here is not a fruit of the poisonous tree because it was not discovered subsequent to the illegal seizure, see Washington, 490 F.3d at 774, nor was it derived in any way from the illegal seizure, see Ramirez-Sandoval, 872 F.2d at 1396. The information was learned from preexisting, unrelated investigations. See id. It could have been, and likely was, discovered with the simple use of Camachos name and vehicle registration, which McFarland legally obtained before the illegal seаrch and seizure. The Miami information is admissible.
V
Claimants argue that the magistrate judge erred in considering the fact that the illegally seized res consisted of $493,850 of U.S. currency. It is unclear whether the magistrate judge considered the amount of currency in her analysis. To the extent she considered the amount of currency, we agree that such consideration was improper. To the extent she merely recognized the nature of the illegally seized property as currency, we hold that such consideration was proper.
Illegally seized proрerty may not be “introduced as evidence in a forfeiture proceeding.” $191,910, 16 F.3d at 1063 (emphasis in original). For example, in United States v. $191,910 in U.S. Currency, police became suspicious of the claimant after he put his bags through an airport security x-ray that revealed he was carrying a large amount of cash. Id. at 1054. The claimant initially told police that he was a gemologist carrying $20,000, but later told police that he was carrying $15,000. Id. at 1054-55. Police, believing that they had reasonable suspicion to search the claimants bags, discovered $191,910 in the bags. Id. at 1055-56. The government filed a forfeiture complaint against the $191,910. Id. The district cоurt held that the search was illegal, suppressed all fruits of the search and granted the claimants motion for summary judgment. Id. at 1056-57.
We affirmed. Id. at 1054. We held that the district court properly suppressed the amount of money as fruit of the unlawful search. Id. at 1059, 1065. We rejected the governments arguments that (1) the money could not be suppressed because it was the nominal defendant, id. at 1062-63, and (2) the exclusionary rule bars only the introduction of illegally seized materials that are not the res, id. at 1063 n. 24. To have held otherwise would merely reward the government for carrying out an illegal search or seizurе. Id. at 1065. Left only with evidence that (1) the claimant admitted to carrying either $15,000 or $20,000, (2) the claimant provided slightly inconsistent stories and (3) x-ray screening of the claimants bags revealed that the claimant was carrying a large amount of cash, we held that the government had failed to establish, at the time it filed the complaint, probable cause to believe the money was intended for use in a drug transaction. Id. at 1071.
$191,910 makes clear that we cannot consider the amount of currency that the government illegally seized. Id. at 1059, 1065. The issue presented here is whether it neсessarily follows that we are prohibited from considering the fact that
Claimants argue that we cannot consider the fact that the illegally seized res consists of currency, and must instead treat the illegally seized res as a “featureless widget.” Claimants attempt to distinguish $191,910, because in that case we referred to the illegally seized property as “money,” but we had the benefit of an admission by the claimant that he was carrying “money.” See $191,910, 16 F.3d at 1071-72.
Claimants read $191,910 too broadly to exclude more than it does. We have consistently held that “[t]he mere fact of the illegal sеizure, standing alone, does not immunize the goods from forfeiture.” United States v. One 1977 Mercedes Benz, 708 F.2d 444, 450 (9th Cir.1983). An interpretation of $191,910 requiring us to ignore the character of the illegally seized property as currency, or requiring us to consider the illegally seized property a “featureless widget,” would contradict this longstanding principle by immunizing illegally seized currency from forfeiture. As noted by the magistrate judge, there would be “no way for the government to show that a widget is the product of a drug transaction.” The government could never place a “widget” in context or connect it with anything, let alone a drug transaction.
Wе hold that when the illegally seized res in a civil forfeiture proceeding consists of currency, courts may consider the fact that the illegally seized res is currency. This holding is consistent with our holding in $191,910 that illegally seized property may not be “introduced as evidence in a forfeiture proceeding.” See id. at 1063. While courts may not introduce illegally seized currency into evidence or consider its amount, courts may recognize that illegally seized property consists of currency, if that is the case. Our view is consistent with the views of the First and D.C. Circuits. See $36,634, 103 F.3d at 1052 n. 3; $639,558, 955 F.2d at 715 n. 5.
VI
Claimants argue that the admissible evidence is insufficient to establish that the government had probable cause to institute the forfeiture action as required by
A
It is an open question whether section 1615 continues to require that the
Although Congress never mentioned the effect of CAFRA on section 1615, see H.R.Rep. No. 105-358, pt. 1, at 41-42 (1997) (noting only that CAFRA codifies some existing procedures but replaces others to the extent they are inconsistent); 146 Cong. Rec. H2040-01, CAFRA supersedes certain portions of section 1615 with resрect to forfeiture actions brought under
When we interpret a statute, our purpose is to discern the intent of Congress. Amalgamated Transit Union Local 1309 v. Laidlaw Transit Servs., 448 F.3d 1092, 1093 (9th Cir.2006). To discern the intent of Congress, “[w]e look first to the plain language of the statute, construing the provisions of the entire law, including its object and policy.” Carson Harbor Vill., Ltd. v. Unocal Corp., 270 F.3d 863, 877 (9th Cir.2001) (internal citations omitted). We will resort to legislative history when that history “clearly indicates that Congress meant something other than what it said.” Id. (internal citations omitted). It is ““a cardinal principle of statutory construction that repeals by implication are not favored.” City & County of S.F. v. Assessment App. Bd., 122 F.3d 1274, 1276 (9th Cir.1997) (internal citation omitted). “An implied repeal may only be found if there is an irreсoncilable conflict between the two federal statutes at issue.” Id. (internal citation omitted).
The government argues that CAFRAs plain language eliminates the probable cause requirement by providing that “[n]o civil forfeiture complaint may be dismissed because the government lacked sufficient evidence at the time of filing.” The governments citation to CAFRA is incomplete and misleading. CAFRA provides that “[n]o complaint may be dismissed on the ground that the Government did not have adequate evidence at the time the complaint was filed to establish the forfeitability of the prоperty.”
CAFRAs provision allowing the government to use evidence gathered after the filing of a complaint to establish the forfeitability of the property,
The government cites the First Circuits opinion in United States v. Lopez-Burgos, 435 F.3d 1 (1st Cir.2006), for the proposition that CAFRA eliminated section 1615s probable cause requirement. In Lopez-Burgos, the First Circuit held that CAF- 3RA eliminated the governments need to plead facts sufficient to establish probable cause to forfeit.4 435 F.3d at 2. At no point in its brief opinion did the First Circuit analyze whether CAFRA eliminated section 1615s requirement that the government show probable cause to institute a forfeiture action. Id. In fact, the First Circuit was specific in noting that CAFRA increased the governments “burden of proof at trial,” id., rather than replaced its initial burden in filing the complaint. Although Lopez-Burgos described section 1615 as “statutorily superseded,” “legally irrelevant” and “since repealed,” id., this description is inaccurate because section 1615 remains applicable to forfeiture actions brought under Titles 19 and 26, see
Claimants argue that CAFRAs legislative history clearly indicates that the government is still required to show probable cause to institute a forfeiture action. CAFRAs legislative history indicates that CAFRA was intended to modify or codify certain practices, but it is devoid of any reference as to whether CAFRA eliminated the probable cause requirement. See, e.g., H.R.Rep. No. 105-358, pt. 1. U.S. Representative Henry Hyde stated that “current law would be retained allowing the government to forfeit property on a showing of probable cause if the property owner elects not to challenge the forfeiture by filing a claim.” Id. at 28. He also stated that:
[W]hile the government may use evidence obtained after the forfeiture complaint is filed to establish the forfeitabili-
ty of the property by a preponderance of the evidence, the government must still have had enough evidence to establish probable cause at the time of filing (or seizure, if earlier).
146 Cong. Rec. H2040-01, 2050 (statement of Rep. Hyde).
These statements are not the clear support Claimants argue them to be because they could refer to either (1) the governments burden to show probable cause to seize the property under
Nevertheless, the coexistence of section 1615s probable cause requirement and CAFRA is consistent with the legislative intent of CAFRA. In enacting CAFRA, Congress intended to institute stronger procedural safeguards before the government could forfeit property. See, e.g., 146 Cong. Rec. H2040-01, 2051 (statement of Rep. Jackson-Lee); id. at 2052 (statement of Rep. Barr). Requiring the government to show probable cause before instituting a forfeiture action is consistent with this intent because it provides an additional procedural protection. See $191,910, 16 F.3d at 1069.
Nothing in CAFRAs plain language indicates that Congress intended to eliminate section 1615s probable cause requirement, there is no irreconcilable conflict between section 1615 and CAFRA, CAFRAs legislative history is devoid of any relevant discussion on the issue and repeals by implication are disfavored. It is also well-established that “forfeiture statutes are strictly construed against the government.” $191,910, 16 F.3d at 1068. We hold that section 1615 continues to require that the government show probable cause to institute a forfeiture action.
B
The government has probable cause to institute a forfeiture action when it has “reasonablе grounds to believe that the property was related to an illegal drug transaction, supported by less than prima facie proof but more than mere suspicion.” One Parcel of Real Prop., 904 F.2d at 490-91. “Probable cause to believe that the property is involved in some illegal activity is not enough the government must have probable cause to believe that the property is involved in the activity subject to the specific forfeiture statute it invokes.” $191,910, 16 F.3d at 1071. Probable cause may only be based upon information gathered before the complaint was filed. Id.
Prior to November 26, 2003, when thе government filed the civil forfeiture complaint, McFarland legally gathered evidence that: (1) Camacho was driving a 1993 Ford F-350 truck with Florida license plates in Arizona; (2) Camacho and Bruno provided slightly inconsistent stories; (3) the truck smelled strongly of air freshener; and (4) in McFarlands experience, suspects often used strong air freshener to cover the smell of narcotics. Prior to November 26, 2003, the government also legally gathered evidence that: (1) Camacho was the subject of an ongoing DEA investigation in Miami and (2) DEA agents had observed the truck at issue during that investigation.
McFarlands evidence, standing alone, may only raise a mere suspicion that Claimants are involved in narcotics activity. When that evidence is combined with the Miami evidence linking Camacho and his truck with cocaine traffickers, however, it is sufficient to satisfy probable cause. The evidence provides reasonable grounds to believe that Camacho, his truck and anything that could be used in furtherance of cocaine transactions including cocaine,
VII
Claimants argue that the magistrate judge erred granting summary judgment in favor of the government. We disagree.
In a civil forfeiture proceeding, CAFRA requires the government to prove, by a preponderance of the evidence, that property is subject to forfeiture.
In this case, to meet its burden, the government may rely upon the evidence supporting probable cause, as well as the following evidence: (1) the fact that Camacho was observed during a second narcotics investigation and (2) affidavits from cooperating witnesses revealing that (a) Camacho had met with them several times to discuss the importation and sale of cocaine; (b) Camacho employed his family in his cocaine business; (c) Bruno was part of Camachos family and had met one of the cocaine dealers; and (d) Camacho would personally transport cocaine and currency to Mexico.
This evidence is sufficient to prove, more likely than not, that Camacho, Bruno and anything that could be used in furtherance of cocaine transactions including cocaine, currency, transportation for both and pеrsons assisting in the transportation of both are involved in cocaine transactions. This is true regardless of the amount of currency at issue, because the evidence connecting Camacho and Bruno with cocaine trafficking is overwhelming.
Because the government met its burden under
VIII
In granting summary judgment, the magistrate judge properly considered information from the Miami investigations and the nature of the res as currency. To the extent the magistrate judge relied upon the amount of currency, such reliance was error but only harmless errоr. The admissible evidence is sufficient to establish probable cause and proof, by a preponderance of the evidence, that the currency is subject to forfeiture without regard to the amount of currency. Claimants presented no evidence of innocent ownership. The magistrate judge properly granted
AFFIRMED.