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United States v. $307

United States District Court, E.D. North Carolina, Eastern Division

March 1, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
$307, 970.00 IN U.S. CURRENCY, Defendant,

          ORDER

          LOUISE W. FLANAGAN, UNITED STATES DISTRICT JUDGE.

         This matter is before the court on plaintiffs motion for summary judgment, filed by defendant September 26, 2018 (DE 217).[1] The issues raised have been fully briefed by the parties, and in this posture are ripe for ruling. For the reasons that follow, plaintiffs motion for summary judgment is denied.

         STATEMENT OF THE CASE

         This case has a lengthy and contentious history that is summarized more fully in the court's prior orders. The court herein summarizes the history pertinent to disposition of the instant motion.

         The government initiated this civil forfeiture action on July 12, 2012, by filing a complaint for forfeiture in rem against $3 07, 970.00 in U.S. currency to enforce 21 U.S.C. § 881(a)(6), asserting that the defendant property was used or intended to be used in exchange for controlled substances, represented proceeds of trafficking in controlled substances, or was used or intended to be used to facilitate a violation of Title II of the Controlled Substances Act, 21 U.S.C. §§ 801 et seq. The currency was arrested by warrant.

         On July 31, 2012, the government filed an amended complaint, (DE 4), correcting an allegation as to where the defendant funds were seized. On August 20, 2012, claimants Cirila Garcia ("Garcia") and Lucia Covarrubias ("Covarrubias") filed claims alleging ownership and possessory interest in defendant funds. (DE 7, 8). On August 29, 2012, claimant Apolinar Garcia-Ancelmo ("Garcia-Ancelmo") filed his claim, (DE 11), also alleging an ownership and possessory interest in the funds. A lengthy period of discovery, interspersed with various stays of the case, followed.

         On September 26, 2018, plaintiff filed the instant motion for summary judgment. Plaintiff argues that no reasonable jury could return a verdict for claimants because of the circumstantial evidence showing the money was being used for money laundering; claimant Garcia-Ancelmo's alleged prior history dealing drugs; the expert opinions of law enforcement agents regarding the manner and packaging of currency and the profile of drug couriers; financial records showing lack of adequate income accrued by claimants; and claimants' inconsistent testimony about the source of the seized currency. In support of plaintiff s motion, plaintiff attaches a statement of material facts and appendix of exhibits, including declarations by Gilbert Trillo ("Trillo Deck" (DE 220-1)) and Matthew Miller ("Miller Deck" (DE 220-2)); claimants' responses to plaintiff s interrogatories ("Interrogatory Responses" (DE 220-3); "Covarrubias Special Interrogatory Responses" (DE 220-12); "Supplemental Interrogatory Responses" (DE 220-13)); and depositions of Gilbert Trillo ("Trillo Dep." (DE 220-4, 220-5)), Cirila Garcia ("Garcia Dep." (DE 220-6)), Lucia Covarrubias ("Covarrubias Dep." (DE 220-7)), Thurman Ray Bohne ("Bohne Dep." (DE 220-8)), Hilaria Rodriguez ("Rodriguez Dep." (DE 220-9)), Shannon Titch ("Titch Dep." (DE 220-10)), and Matthew Miller ("Miller Dep." (DE 220-11)).

         Claimants responded in opposition to the motion on October 23, 2018. Claimants argue that summary judgment should be denied because the government asks the court to make an impermissible inference in the face of direct testimony by claimants about the purpose of the money being delivered; claimants' involvement with selling drugs is a disputed fact; plaintiff asks the court to draw impermissible inferences about the meaning of coded language, plaintiff asks the court to draw an impermissible inference in favor of the government's witnesses; plaintiff asks for an impermissible inference in its favor and to credit the officers' opinion over claimants' direct evidence; plaintiff argues that claimants' testimony was that they savedmoney over many years; and claimant Garcia-Ancelmo's reaction to being stopped with the cash was not because the money was being used for drug transactions. Claimants also object to Officer Miller's expert testimony as to currency denominations in drug trafficking, Sharon Titch's opinions on claimants' finances, and Special Agent Trillo's expert testimony as to the coded meaning of "comida para los caballos" at summary judgment.

         In support of claimants' response, claimants submit a statement of material facts and several exhibits, including deposition testimony of Justo Urena ("Urena Dep." (DE 233-1)), Cirila Garcia ("Garcia Dep." (DE 233-4)), Lucia Covarrubias ("Covarrubias Dep." (DE 233-5)), Gilbert Trillo ("TrilloDep."(DE 234-1)), Heather Ross, Ph.D. ("Ross Dep. (DE 234-6)), ThurmanBohne("Bohne Dep." (DE 234-8)), Hilaria Rodriguez (DE 235-2)), Matthew Miller ("Miller Dep." (DE 235-5)), Brian Fleming ("Fleming Dep." (DE 235-7)), and Sharon Titch ("Titch Dep." (DE 235-8)); declarations by Garcia-Ancelmo ("Garcia-Ancelmo Decl." (DE 233-3)) and Cirila Garcia ("Garcia Deck" (DE 235-6)); claimants' responses to plaintiffs interrogatories ("Garcia-Ancelmo Interrogatory Responses" (DE 233-2); "Covarrubias Interrogatory Responses" (DE 234)); government translations of wiretapped calls between Garcia-Ancelmo and "UM39" or "Guero" ("12/15/2011 Call" (DE 234-2); "Jan.-March 2012 Calls" (DE 234-3)); impeachment evidence concerning HilariaRodriguez ("Rodriguez Trial Tr." (DE 234-4); "Rodriguez DEA Interview" (DE 23 5-1)) and Thurman Bohne ("Bohne Psychological Report" (DE 234-5); "Bohne Plea Agreement" (DE 235-3)); a Wilson County Sheriffs Office report ("Brandon Keel Report" (DE 234-7)); evidence regarding the currency itself ("Currency Photos" (DE 235-4); "Spoliation Email" (DE 23 5-10)); and excerpts of claimant's tax returns ("Tax Returns" (DE 235-9)).

         Plaintiff replied on November 13, 2018, arguing that claimants do not dispute the dispositive facts in this case; and that claimants cannot manufacture a genuine issue of material fact regarding financial impossibility. In support of its reply, plaintiff files a second statement of material facts, along with an appendix of exhibits including Garcia-Ancelmo and Garcia's tax return forms from 2008 to 2011 ("2008 Form 4562" (DE 244-1); "2009 Form 4562" (DE 244-2); "2010 Form 4562" (DE244-3); "2011 Form 4562" (DE 244-4)). Plaintiff argues proffered testimony by Officer Miller, Sharon Titch, and Special Agent Trillo are admissible. Plaintiff also argues that the opinion testimony of Justo Urena as to claimants' finances should be excluded.

         STATEMENT OF THE UNDISPUTED FACTS

         The undisputed facts in this case may be summarized as follows. Claimant Apolinar Garcia-Ancelmo ("Garcia-Ancelmo") was referred by a friend to Special Agent Gilbert Trillo ("Trillo") to help claimant Garcia-Ancelmo transport currency to Mexico. (See Garcia Dep. (DE 220-6) 25:7-15). On February 15, 2012, claimant Garcia-Ancelmo made a phone call to Special Agent Trillo to deliver the currency. (See Trillo Decl. (DE 220-1) ¶ 2). During the call, claimant Garcia-Ancelmo asked Special Agent Trillo to meet him in Wilson, North Carolina. (See id.). When Special Agent Trillo suggested that they meet near 1-40 or 1-95, claimant Garcia-Ancelmo indicated he did not like to meet near highways. Trillo recalled that "he wanted to meet in an area where it was very rural, where there was nobody there." (Trillo Dep. (DE 220-4) 22:16-18). Claimant Garcia-Ancelmo suggested that Special Agent Trillo meet him on Highway 58 near Highway 264 in Wilson, North Carolina. (See Trillo Decl. (DE 220-1) ¶ 2). Special Agent Trillo asked claimant Garcia-Ancelmo how much Trillo would be picking up, and Garcia stated there would be $308, 000.00. (Id.). Later that day, at approximately 8:00 p.m., Trillo received a phone call from Garcia in which Garcia advised him that he would be at the BP Gas Station on Highway 58, as discussed, waiting in a Mazda Tribute. (Id.).

         At approximately 8:15p.m., Special Agent Trillo arrived at the BP Gas Station and observed a Mazda Tribute bearing North Carolina license plate ZTH-23 51. (Id. ¶ 3). He later determined that the vehicle was registered to Lucia Covarrubias. (Id.). A man he assumed to be claimant Garcia-Ancelmo (as he had not yet met him) was outside of the vehicle, waiting. (Id.). He has seen a photo taken of claimant Garcia-Ancelmo on his admission to the Wake County Jail on January 14, 2015, and the photo is of the same person he saw on February 15, 2012. (Id.). He parked next to claimant Garcia-Ancelmo, exited his vehicle, and began a conversation. (Id.).

         Claimant Garcia-Ancelmo wanted Special Agent Trillo to follow him to a house at an unknown location that he said was a close distance to the gas station, where he could pick up the money. (Id. ¶ 4). Special Agent Trillo refused to travel to any other location with him, telling him that he had "work" in the truck. (Id.). Claimant Garcia-Ancelmo refused to go get the money. (Id.). He called an unidentified person he referred to as his "boss." (Id.). He handed the phone to Special Agent Trillo to negotiate a neutral location with Garcia's boss. (Id.). No. agreement as to a meeting location was reached. (Id.). Special Agent Trillo did not recognize the Hispanic male voice on the phone, who spoke to him in Spanish, nor did he identify himself. (Id.). Ultimately, claimant Garcia-Ancelmo refused to go retrieve the money and told Special Agent Trillo that he would call him on another day to complete the transaction. (Id.). Claimant Garcia-Ancelmo returned to his vehicle and drove away. (Id.).

         The next day, on February 16, 2012, at approximately 11:30 a.m., claimant Garcia-Ancelmo called Special Agent Trillo and asked where they could meet to drop off the currency. (Id. ¶ 5). Special Agent Trillo told claimant Garcia-Ancelmo it would have to be later in the day due to other obligations. (Id.). Later that day, at approximately 5:05 p.m., Special Agent Trillo placed a phone call to claimant Garcia-Ancelmo to request a meeting in the parking lot of Wayne County Memorial Hospital located at 2700 Wayne Memorial Drive, Goldsboro, North Carolina. (Id. ¶ 6). Though Garcia expressed concern about there being cameras at the hospital location, he agreed to come. (Id.).

         At approximately 5:31 p.m. that same day, claimant Garcia-Ancelmo was traveling to meet Special Agent Trillo at Wayne County Memorial Hospital when the Wayne County Sheriff s Office Interdiction Unit stopped him for an alleged traffic violation. (See id. ¶ 7). Though Special Agent Trillo was not present at the stop, he was aware that it would occur. (Id.). Claimant Garcia-Ancelmo was driving the same Mazda Tribute as the night before. (Id.).

         A few minutes after the stop occurred, Special Agent Trillo called claimant Garcia-Ancelmo and asked him where he was. (Id. ¶ 8). Claimant Garcia-Ancelmo told Special Agent Trillo that the police stopped him and that the money was in police hands now. (Id.; Trillo Dep. (DE 220-4) 48:1-22). He was upset and said that they should have met at his place rather than coming out with the money. (Trillo Decl. (DE22O-l)¶8; Trillo Dep. (DE 220-4) 48:1-5). A few minutes later Special Agent Trillo received a phone call from a Hispanic male with a Mexican phone number (52-443-1958562). (Trillo Decl. (DE 220-1) ¶ 8). He identified himself as Garcia's "boss." (Id.). He asked Special Agent Trillo what had happened with the money pick up. (Id; Trillo Dep. (DE 220-4) 48:15-17). Special Agent Trillo explained that claimant Garcia-Ancelmo was stopped by the police. (Trillo Decl. (DE 220-1) ¶ 8; Trillo Dep. (DE 220-4) 48:18-19).

         Claimant Garcia-Ancelmo was stopped by FBI Task Force Officer Matthew Miller ("Miller"), who was at that time a Detective Sergeant with the Wayne County Sheriff s Department. (Miller Decl. (DE 220-2) ¶ 1). On Thursday, February 16, 2012 Officer Miller was instructed as part of the ACE team to provide assistance with an investigation by the Drug Enforcement Administration (DEA). (Id. ¶ 4). The ACE Team is a uniformed street-level narcotics unit aimed at targeted high-crime areas. (Id.). One of its functions is criminal and highway drug interdiction. (Id.). After being briefed on the circumstances of the investigation on February 16, 2012, Officer Miller left the briefing and, as instructed, positioned himself on Wayne Memorial Drive in Goldsboro. (Id. ¶ 5). He waited at a staging location until he was advised that the target (Garcia-Ancelmo) was driving to a designated meet location. (Id.). He was told that the target vehicle would be a small gray Mazda SUV. (Id.). Surveillance units explained via radio communication the direction of travel taken by the target vehicle. (Id.). Officer Miller then intercepted the path of travel of the target vehicle and positioned himself directly behind the vehicle on Wayne Memorial Drive. (Id.). He followed the vehicle for approximately two or three miles before initiating his blue lights and sirens to stop it. (Id.).

         Officer Miller was able to record the traffic movements of the target vehicle during this time of observation. As a result of his observations, he stopped the target vehicle for improper left turn and suspicion of driving while impaired (DWI). (Id. ¶6). As a result of his blue lights and siren, the target vehicle stopped on Hare Road just south of its intersection with Wayne Memorial Drive. (Id.).

         Once stopped, Deputy Hatch and Officer Miller left their vehicle and walked up to the target vehicle. (Id. ¶ 7). The vehicle was bearing NC license plate ZTH-2351. (Id.). Officer Miller observed what appeared to be a laundry basket/bucket inside the rear area of the vehicle as he approached to talk with the driver. (Id.). The driver was then identified by his NC issued driver's license as claimant Garcia-Ancelmo. (Id.). As claimant Garcia-Ancelmo was handing his driver's license over to Officer Miller, his hands were noticeably shaking and he appeared unusually nervous for a traffic stop. (Id.). His breathing was labored. (Id.). Officer Miller explained to claimant Garcia-Ancelmo that he was stopped because he had made an improper left turn and due to his suspicion that he was driving while impaired. (Id.). Claimant Garcia-Ancelmo told Officer Miller that he was driving from home to the laundromat to do laundry. (Id.). He said this while motioning with his hand toward the rear of his vehicle. (Id.).

         Claimant Garcia-Ancelmo talked with Officer Miller about his nervousness for a brief moment until he returned to his vehicle, where he checked claimant Garcia-Ancelmo's driver information and vehicle registration. (Id. ¶ 8). Officer Miller then returned to claimant Garcia-Ancelmo's vehicle and handed him back all his documents, while continuing to talk with him. (Id.). He asked claimant Garcia-Ancelmo about any previous encounters he may have had with law enforcement. (Id.). He then asked him if he would walk to the back of his vehicle in order to display whether his physical faculties were impaired. (Id.).

         After claimant Garcia-Ancelmo walked to the back of the vehicle, Officer Miller made attempts to convey to him that he was free to leave. (Id. ¶ 9). He told him that he did not want to keep claimant Garcia-Ancelmo from doing his laundry. (Id.). As claimant Garcia-Ancelmo was walking back toward the driver's seat of his vehicle, Officer Miller asked him if he had anything illegal in his car. (Id.). Claimant Garcia-Ancelmo immediately said "do you want to check?" (Id.). Officer Miller saId. "if you don't care, I'll look." (Id.). Claimant Garcia-Ancelmo opened the rear passenger door. (Id.).

         Having obtained claimant Garcia-Ancelmo's consent, Officer Miller then opened the rear hatch and looked inside the laundry basket that was in the back of the car and observed a large, black plastic bag. (Id. ¶ 10). He forced a small opening in the bag and could see what appeared to be a large amount of U.S. currency inside the bag. (Id.). A second, similar bag was located with the one he examined. (Id.). At that point, for safety, Officer Miller placed claimant Garcia-Ancelmo in handcuffs but was careful to explain to him that he was not under arrest. (Id.). Officer Miller opened the front passenger's side door of his vehicle and asked claimant Garcia-Ancelmo to sit inside. (Id.).

         Claimant Garcia-Ancelmo then asked Officer Miller to make a deal with him. (Id. ¶ 11). He indicated to Officer Miller that Officer Miller could take the money. (Id.). Officer Miller asked claimant Garcia-Ancelmo if the money was his, and he told Officer Miller that the money was not his. (Id.). Claimant Garcia-Ancelmo told Officer Miller that he was paid $1000 to deliver it. (Id.). Officer Miller then walked back to claimant Garcia-Ancelmo's vehicle and secured the two bags of U.S. Currency inside of it. (Id.). The currency in the two black trash bags was packaged in vacuum-sealed plastic bags. (Id. ¶ 12).

         Claimant Garcia-Ancelmo made several more statements to Officer Miller in reference to Officer Miller keeping the money. (Id. ¶ 13). For example, claimant Garcia-Ancelmo saId. "the money, it's for you." (Id.). He was very nervous and said "somebody kill me." (Id.). He saId. "I give $1, 000 for - for to bring it." (Id.). He saId. "I promise them." (Id.). Officer Miller explained to him that he was not going to take the money but that the money would be seized and he would be given a property receipt and then released. (Id.). ...


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