Posted on 03/08/2006 10:00:00 AM PST by steel_resolve
ping
The cash being discussed concerns $451,000 from two stops.
It can be a criminal question -- there is such a thing as criminal asset forfeiture. If the government has proof byond a reasonable doubt that an individual is involved in a criminal activity then they'll bring criminal charges.
If they can't meet that high standard of proof, that doesn't mean criminal activity wasn't taking place. (Do you really believe OJ didn't do it since he was found not guilty?)
If the money cannot be legally explained, the government has the burden of proof to show, with a "preponderance of the evidence", that the money was part of an illegal activity. The "owner" is merely a third party claimant.
Re; Your post #322. The prosecution presented evidence of behavior associated with criminal activity. In addition to cocaine traces on the money itself, the prosecution presented the following:
A) "Possession of a large sum of cash is “strong evidence” of a connection to drug activity, $84,615 in U.S. Currency, 379 F.3d at 501-02"
B) The currency was concealed in aluminum foil inside a plastic bag, inside a cooler ... "we have adopted the common-sense view that bundling and concealment of large amounts of currency, combined with other suspicious circumstances, supports a connection between money and drug trafficking".
C) "Gonzolez had flown on a one-way ticket, which we have previously acknowledged is evidence in favor of forfeiture, see United States v. U.S. Currency in the Amount of $150,660.00, 980 F.2d 1200, 1206 (8th Cir. 1992)".
D) " ... and he gave a vague explanation, attributed to advice from an unidentified third person, about why he elected to return by car".
E) "Gonzolez purportedly carried $125,000 in cash with him on his flight, for the purpose of buying a truck that he had never seen, from a third party whom he had never met, with the help of a friend whose name he could not recall at trial".
F) "When he was stopped by the Nebraska State Patrol, Gonzolez was driving a rental car that was leased in the name of another person who was not present, another circumstance that gives rise to suspicion".
G) "... when Gonzolez was questioned by officers, he lied about having money in the car and about the names of his friends, thus giving further reason to question the legitimacy of the currency’s presence. See $117,920.00 in U.S. Currency, 413 F.3d at 829.
"The totality of these circumstances – the large amount of concealed currency, the strange travel pattern, the inability to identify a key party in the purported innocent transaction, the unusual rental car papers, the canine alert, and the false statements to law enforcement officers – leads most naturally to the inference that Gonzolez was involved in illegal drug activity, and that the currency was substantially connected to it"
Now, you may not agree. Fine. But that was the evidence, and that was the ruling. Now quit your yapping about "my post #322".
Conspictuously absent was any real evidence of drug activity. What you cited is hardly a preponderance of the evidence standard set forth for the government.
Now quit your yapping about "my post #322".
Of course you want me to stop yapping about that case. It is SOO inconvenient to the claims of the drug warriors that asset forfeiture isn't abused and the evidentary standards have gotten so low as to become meaningless.
LAY, Circuit Judge, dissenting. I respectfully dissent. Although the circumstantial evidence offered by the government provides some indication that the money seized in this case may be related to criminal activity, 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.
Notwithstanding the fact that claimants seemingly suspicious activities were reasoned away with plausible, and thus presumptively trustworthy, explanations which the government failed to contradict or rebut, I note that no drugs, drug paraphernalia, or drug records were recovered in connection with the seized money. There is no evidence claimants were ever convicted of any drug-related crime, nor is there any indication the manner in which the currency was bundled was indicative of drug use or distribution. At most, the evidence presented suggests the money seized may have been involved in some illegal activity – activity that is incapable of being ascertained on the record before us. See United States v. U.S. Currency, $30,060.00, 39 F.3d 1039, 1044 (9th Cir. 1994) (“[A] mere suspicion of illegal activity is not enough to establish . . . that the money was connected to drugs.”).
The law of our circuit makes clear that the possession of a large amount of cash provides strong evidence of a connection between the res and illegal drug activity. Yet this fact is not dispositive. A faithful reading of the cases cited by the majority from our court reveal that we have required some additional nexus between the property seized and drug activity to support forfeiture. In United States v. U.S. Currency, in the Amount of $150,660.00, 980 F.2d 1200 (8th Cir. 1992), we recognized such a nexus where the investigating officer immediately smelled marijuana upon inspecting the currency.2 Id. at 1203, 1206. In United States v. $84,615 in U.S. Currency, 379 F.3d 496 (8th Cir. 2004), we concluded forfeiture was proper where the owner of the seized currency “undisputedly possessed illegal drugs at the time” the currency was discovered. Id. at 502. Most recently, in United States v. $117,920.00 in United States Currency, 413 F.3d 826 (8th Cir. 2005), we determined that forfeiture was warranted where materials known to be used to package and conceal drugs were recovered in close physical proximity to the seized currency, and where the investigating officer detected the smell of marijuana on some of these materials. Id. at 829.
Here, the only evidence linking the seized money to illegal drug activity is a canine sniff that alerted officers to the presence of narcotics on the currency itself and the exterior of the rear passenger side of the rental car where the currency was discovered. However, as Justice Souter recently recognized, a large percentage of currency presently in circulation contains trace amounts of narcotics. See Illinois v. Caballes, 543 U.S. 405, 410-12 (2005) (Souter, J. dissenting). As a result, this fact is virtually “meaningless and likely quite prejudicial.” United States v. Carr, 25 F.3d 1194, 1216 (3d Cir. 1994) (Becker, J., concurring). Our decision in $84,615 in U.S. Currency to afford this evidence only “slight” weight is thus well-founded, and this factor, taken in conjunction with the large amount of currency seized, does not favor forfeiture. Finally, the mere fact that the canine alerted officers to the presence of drug residue in a rental car, no doubt driven by dozens, perhaps scores, of patrons during the course of a given year, coupled with the fact that the alert came from the same location where the currency was discovered, does little to connect the money to a controlled substance offense. Therefore, I respectfully dissent.
In other words, the majority ignored their own precedents in this ruling, which is highly indicative of legislating from the bench.
If they had that, they would have charged Mr. Gonzalez with drug trafficking. You're assuming that lacking "real evidence" means no drug activity was taking place. You are naive, aren't you?
"What you cited is hardly a preponderance of the evidence standard set forth for the government."
Hardly a preponderance of evidence??? What are you, blind? Look up "preponderance of evidence" in the dictionary -- it cites this case as an example.
You're being childish. I'm done with you. There's nothing to be gained by explaining anything to a person with your simplistic 5th grade mentality.
As the dissent noted, the court's OWN PRECEDENT said there had to be some nexus between the cash and criminal activity. There was none, other than the dog sniff, which the court's OWN PRECEDENT said was marginal evidence, given that currency often has drug residue on it.
So in other words, the court OVERTURNED ITS PREVIOUS PRECEDENTS with this ruling - otherwise known as legislating from the bench. The "evidence" you cited provided no linkage to any demonstratable criminal activity. So the rulilng was bogus.
Now why would I do that? You asked how the court came up with their decision. I told you.
The dissent takes each action separately and raises doubt about the particular action. The majority of the court looked at the totality of the evidence.
"which is highly indicative of legislating from the bench."
How did the court legislate? What new law was passed? What legislative action was ordered?
Give it a rest already.
I see you didn't even bother reading the dissent. What they did was overturn their own precedent and effectively lower the evidentary standard to almost nothing. That is legislating from the bench.
I know you drug warriors hate dissent against your cherised cause. Maybe you can pass a law prohibiting such. You sure as heck don't see the rest of the Bill of Rights as much of a constraint.
So what?
Begging the question, always.
A) "Possession of a large sum of cash is “strong evidence” of a connection to drug activity, $84,615 in U.S. Currency, 379 F.3d at 501-02"
B) The currency was concealed in aluminum foil inside a plastic bag, inside a cooler ... "we have adopted the common-sense view that bundling and concealment of large amounts of currency, combined with other suspicious circumstances, supports a connection between money and drug trafficking".
C) "Gonzolez had flown on a one-way ticket, which we have previously acknowledged is evidence in favor of forfeiture, see United States v. U.S. Currency in the Amount of $150,660.00, 980 F.2d 1200, 1206 (8th Cir. 1992)".
D) " ... and he gave a vague explanation, attributed to advice from an unidentified third person, about why he elected to return by car".
E) "Gonzolez purportedly carried $125,000 in cash with him on his flight, for the purpose of buying a truck that he had never seen, from a third party whom he had never met, with the help of a friend whose name he could not recall at trial".
F) "When he was stopped by the Nebraska State Patrol, Gonzolez was driving a rental car that was leased in the name of another person who was not present, another circumstance that gives rise to suspicion".
G) "... when Gonzolez was questioned by officers, he lied about having money in the car and about the names of his friends, thus giving further reason to question the legitimacy of the currency’s presence. See $117,920.00 in U.S. Currency, 413 F.3d at 829
Oh, that's nothing./sarcasm
I love it. So what? In other words, the government has no evidence he committed a drug crime, but can keep the money anyway. Once again, you're pathetic, cheering on this kind of thievery.
Oh, and the Appeals Court overturned their own precedent that there had to be some nexus between the cash and demonstratable criminal activity.
Was he in the habit of lying to police?
Now, I know you drug warriors get all giddy at the prospect of eroding Constitutional protections to fight your beloved drug war, but some of us DO get concerned when government can take money and keep it without even meeting their own evidentary standards for doing such - and a court can reverse its own precedents to lower the evidentary threshhold.
So what? They didn't charge him with one.
If he changes his false statements regarding his activity and shows that the phantom truck, imaginary seller and invented sale are real, then the money he claims he was carrying for other people can be returned.
Once again, the court's own precedent said there had to be a nexus between the cash and criminal activity. There was none, only suppositions of such.
Can you show ONE concrete demonstration of actual criminality in the evidentary list you re-posted? I cannot. None of those activities are crimes in their own right, only indications of possible criminality. To keep the cash, the court previously ruled the government had to connect the cash to actual criminal behavior in some way. They did not.
It's stunning to see someone be so cavalier about someone else having the government take that much cash without demonstrating that criminal activity actually occurred.
From the actual decision:
The totality of these circumstances – the large amount of concealed currency, the strange travel pattern, the inability to identify a key party in the purported innocent transaction, the unusual rental car papers, the canine alert, and the false statements to law enforcement officers – leads most naturally to the inference that Gonzolez was involved in illegal drug activity, and that the currency was substantially connected to it.
Your drug legalization agenda leads you to ignore the facts.
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