United States v. $124,700 in U.S. Currency

The defendant currency was seized on May 28, 2003, from one of the claimants, Emiliano Gomez Gonzalez. According to testimony adduced at trial, Gonzalez was driving west on Interstate 80 in a rented Ford Taurus when a Nebraska State Patrol Trooper, Chris Bigsby, stopped Gonzalez for exceeding the posted speed limit. Trooper Bigsby testified that he asked Gonzalez to sit in the front passenger side of his patrol vehicle during the stop. At Bigsby's request, Gonzalez presented a Nevada driver's license and a rental contract for the car, but the rental contract was not in Gonzalez's name and did not list Gonzalez as an additional driver.

Trooper Bigsby did not speak fluent Spanish, but he testified that Gonzalez responded to his questions, which were mostly in English, in a combination of English and Spanish. Bigsby asked Gonzalez where he was going, and Gonzalez responded that he had been in Chicago for three days. Gonzalez indicated that a person named "Luis" had rented the car for him, but the name "Luis" did not match the name on the rental agreement that he presented to Trooper Bigsby. Trooper Bigsby also twice inquired whether Gonzalez had ever been arrested or placed on probation or parole, and Gonzalez said that he had not.

Before Trooper Bigsby had completed the traffic stop, another officer, Jason Brownell, stopped to ask if Bigsby needed any assistance. When Trooper Bigsby found out that Trooper Brownell had some Spanish-speaking ability, Bigsby asked if Brownell would stay and assist. Trooper Bigsby testified that with Brownell's assistance, he completed a warning citation and returned Gonzalez's license and paperwork. Having learned through his dispatcher that Gonzalez had been arrested in 2003 for driving while intoxicated, Bigsby then asked, through Trooper Brownell, if he could "ask a few more questions," and Gonzalez answered yes. Again through Trooper Brownell, Bigsby asked if Gonzalez had ever been arrested for driving while intoxicated, and Gonzalez answered that he had. Bigsby and Brownell also inquired whether any alcohol, guns, marijuana, methamphetamine, heroin, or large amounts of cash were in the car, and Gonzalez answered no. Brownell then asked for and received consent to search the car. Trooper Bigsby went directly to the rear passenger side of the vehicle and opened a cooler that was in the back seat, where he found a large plastic bag that contained seven bundles wrapped in rubber bands inside aluminum foil packaging. These bundles contained a total of $124,700 in currency. Gonzalez and the vehicle were then taken to the Nebraska State Patrol office in Lincoln.

The district court concluded that the government had not established, by a preponderance of the evidence, that there was a substantial connection between the money and a drug trafficking offense. The court noted that large sums of unexplained currency can be evidence of drug trafficking, and that in this case the money was bundled in an unusual manner. The court also concluded, however, that the claimants had given a "plausible and consistent explanation for [the money's] origin and intended use," (Add. at 12), and that "the bundling is consistent with an attempt to sort the currency by contributor and conceal the currency from would-be thieves," and not just to evade law enforcement. (Id. at 13). In addition, the court observed that the government had not presented any expert testimony about "whether the manner the bundles were wrapped either increased or decreased the likelihood of the currency's use or connection with a drug trafficking offense." (Id.)

Judge Steven Colloton wrote the majority opinion for himself and Judge Arnold. Colloton wrote, "The United States initiated civil forfeiture proceedings against $124,700 in United States currency, alleging that the money was subject to forfeiture as the proceeds of a drug transaction or as property used to facilitate the possession, transportation, sale, concealment, receipt, or distribution of a controlled substance. See 21 U.S.C.§ 881(a)(6). Three individuals filed claims opposing the forfeiture, and after a bench trial, the district court entered judgment in favor of the claimants. The government appeals, and we reverse and remand for further proceedings."

Senior Circuit Judge Donald P. Lay, a Lyndon B. Johnson appointee to the Eighth Circuit, dissented, concluding "I cannot agree that the government has proven, by a preponderance of the evidence, the requisite substantial connection between the currency and a controlled substance offense."

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