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United States v. $307

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

September 13, 2019




         This matter comes before the court on claimants' motion in limine to exclude evidence due to spoliation, or in the alternative a request for spoliation jury instruction (DE 260). Also before the court is claimants' motion in limine to exclude testimony by Thurman Bohne (“Bohne”) and request for hearing to assess competency (DE 275). The issues raised are ripe for ruling. For the reasons that follow, claimants' motion for sanctions due to spoliation is granted in part and denied in part. Claimants' motion to exclude testimony by Bohne is denied.


         This matter, set for trial commencing October 21, 2019, concerns whether $307, 970.00 in United States currency seized from claimant Apolinar Garcia-Ancelmo (“Garcia-Ancelmo”) during a traffic stop 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. Where this case has a complex procedural history and lengthy factual background, the court recounts the following facts and procedure pertinent to the issues now under consideration.

         A. The Currency

         Claimant Garcia-Ancelmo met with an undercover drug interdiction officer, Special Agent Gilbert Trillo (“Trillo”), in order arrange transport of the currency to Mexico. While driving to deliver the currency to Trillo on February 16, 2012, claimant Garcia-Ancelmo was stopped by FBI Task Force Officer Matthew Miller (“Miller”), then investigating claimant Garcia-Ancelmo. Miller allegedly observed claimant Garcia-Ancelmo commit traffic violations, and initiated a traffic stop. During the traffic stop, Miller asked for and received consent to search claimant Garcia-Ancelmo's car.[1] Upon searching the car, Miller discovered the currency buried under a pile of laundry in a bin, concealed within two black trash bags and packaged in vacuum-sealed plastic bags.

         Following Miller's discovery of the currency in claimant Garcia-Ancelmo's car, Officer Kenneth Prevost (“Prevost”) and police canine Iko arrived at the scene to conduct a sniff for drugs. According to Prevost, Iko alerted to drugs on the currency. Thereafter, Miller explained to claimant Garcia-Ancelmo that the money would be seized and he would be given a property receipt and then released. Miller's report of investigation makes no mention of Prevost and Iko's search of the car, though Miller observed the search and the search was recorded on dash camera video.

         Shortly after seizing the currency, Miller and another deputy sheriff transported the currency back to the Wayne County Sheriff's Office (“WCSO”) Annex, where the currency was turned over to Drug Enforcement Administration (“DEA”) agent Nicholas J. Giacobbe (“Giacobbe”). The currency was photographed by Giacobbe and Trillo, transported from the WCSO Annex to the DEA's Wilmington Regional Office (“WRO”), and secured in an overnight high value storage safe. On February 17, 2012, the currency was taken by other DEA agents to RBC Bank, Princess Street, Wilmington, NC, and converted into a cashier's check. Trillo and Giacobbe's reports of investigation do not mention the drug dog search of claimant Garcia-Ancelmo's car.

         In June 2017, the government reviewed the dash camera footage of the traffic stop and discovered that a drug dog search had been conducted. After conferring with Miller, the government was able to confirm Prevost's identity and amended its discovery disclosures to say that they intended to offer evidence of the drug dog search. Claimants sought discovery sanctions, asking the court to exclude evidence of the drug dog search for failing to timely disclose the evidence. The court denied the motion, finding the government timely disclosed the information, and that in any event the evidence should be permitted at trial. The court also denied claimants' motion to exclude expert testimony of Prevost and Dr. Kenneth Furton (“Furton”) that Iko alerted to drugs recently in contact with defendant currency, pursuant to Federal Rules of Evidence 403, 702, and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).

         B. Interviews and Testimony of Thurman Bohne

         The government does not rely solely on contamination of the currency to support its argument that the currency is substantially connected to drug trafficking. They also rely on witnesses that testify claimants gave them drugs. One of those witnesses is Thurman Bohne (“Bohne”). Bohne testifies that, from the beginning of 2010 to the middle of 2012, he received significant quantities of cocaine from claimant Garcia-Ancelmo and other members of his family.

         Claimants seek to preclude Bohne's testimony. First, they argue that the government despoiled evidence used in Bohne's interviews, including a list containing the names of individuals who sold Bohne drugs, and photographs used by the government to confirm that Bohne was referring to claimants. Claimants argue such purported spoliation requires exclusion of any identification testimony by Bohne. Second, they challenge Bohne's competency. Relying on the expert opinions of Dr. Len Lecci (“Lecci”) and Dr. Heather Ross (“Ross”), claimants argue that Bohne's substance abuse and Antisocial Personality Disorder bar him from testifying at trial.


         A. Claimants' Motion for Spoliation Sanctions (DE 260)

         “Spoliation refers to the destruction or material alteration of evidence or to the failure to preserve property for another's use as evidence in pending or reasonably foreseeable litigation.”[2]Silvestri v. Gen. Motors Corp., 271 F.3d 583, 590 (4th Cir. 2001). “The right to impose sanctions for spoliation arises from a court's inherent power to control the judicial process and litigation, but the power is limited to that necessary to redress conduct ‘which abuses the judicial process.'” Id. (quoting Chambers v. NASCO, Inc., 501 U.S. 32, 45-46 (1991)). “[S]poliation does not result merely from the ‘negligent loss or destruction of evidence.'” Turner v. United States, 736 F.3d 274, 282 (4th Cir. 2013) (quoting Vodusek v. Bayliner Marine Corp., 71 F.3d 148, 156 (4th Cir. 1995)). “Rather, the alleged destroyer must have known that the evidence was relevant to some issue in the anticipated case, and thereafter willfully engaged in conduct resulting in the evidence's loss or destruction.” Turner, 736 F.3d at 282; Vulcan Materials Co. v. Massiah, 645 F.3d 249, 259-60 (4th Cir. 2011); Hodge ...

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