United States District Court, E.D. North Carolina, Eastern Division
W. FLANAGAN, UNITED STATES DISTRICT JUDGE.
matter is before the court on plaintiffs motion for summary
judgment, filed by defendant September 26, 2018 (DE
217). 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.
OF THE CASE
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
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
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.
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)).
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.
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)).
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
OF THE UNDISPUTED FACTS
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.).
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.).
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.).
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.
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.
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).
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.).
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.).
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.).
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.).
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.).
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.).
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.
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.). ...