''United States of America v. $124,700 in U.S. Currency'', 458

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822 ( 8th Cir. 2006), was a decision of the

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that was handed down on August 18, 2006. The form of the styling of this case—the

defendant In court proceedings, a defendant is a person or object who is the party either accused of committing a crime in criminal prosecution or against whom some type of civil relief is being sought in a civil case. Terminology varies from one jurisd ...

being an object, rather than a

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—is because this is a jurisdiction ''in rem'' (power over objects) case, rather than the more familiar ''

in personam ''In personam'' is a Latin phrase meaning "against a particular person". In a lawsuit in which the case is against a specific individual, that person must be served with a summons and complaint (E&W known as Particulars of Claim (CPR 1999) to give ...

'' (over persons) case. In current US legal practice, ''in rem'' is most widely used in the area of

asset forfeiture Asset forfeiture or asset seizure is a form of confiscation of assets by the authorities. In the United States, it is a type of criminal-justice financial obligation. It typically applies to the alleged proceeds or instruments of crime. This ap ...

, frequently in relation to controlled substances offenses. In rem forfeiture cases allow property (in this case, $124,700 in cash) to be directly sued by and forfeited to the government, without either

just compensation Just compensation is a right enshrined in the Fifth Amendment to the U.S. Constitution (and counterpart state constitutions), which is invoked whenever private property is taken (also in some states damaged) by the government. Usually, the gove ...

or the possessor (and presumptive owner) being convicted of a crime.

Background

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

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in a rented Ford Taurus when a

Nebraska State Patrol The Nebraska State Patrol is Nebraska's only statewide full-service law enforcement agency. Serving Nebraska since 1937, State Patrol troopers perform a wide variety of duties. Those include working with communities to improve public safety, e ...

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

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, but he testified that Gonzalez responded to his questions, which were mostly in

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, 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

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Lawsuit

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 he money'sorigin 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''.)

Opinion of the Eighth Circuit Court of Appeals

Judge Steven Colloton wrote the majority opinion for himself and Judge

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. 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."

Dissenting opinion

Senior Circuit Judge Donald P. Lay, a

Lyndon B. Johnson Lyndon Baines Johnson (; August 27, 1908January 22, 1973), often referred to by his initials LBJ, was an American politician who served as the 36th president of the United States from 1963 to 1969. He had previously served as the 37th vice ...

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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