SAMUEL CONTI, District Judge.
Now before the Court are several motions in this civil forfeiture case. First, Claimant Julio Figueroa moves to suppress evidence seized during his interaction with Drug Enforcement Agency ("DEA") Agents at the San Francisco International Airport ("SFO"). ECF No. 18 ("Mot. to Suppress"). Second, the Government moves for summary judgment, alleging Figueroa, "will be unable to adduce sufficient evidence to establish any affirmative defense," and, alternatively, lacks standing to contest the forfeiture. ECF No. 56 ("SJ Mot."). Finally, the Government moves to strike Figueroa's claim and for entry of default judgment for Figueroa's failure adequately to respond to special interrogatories. ECF No. 59 ("Mot. to Strike"), as amended ECF No. 62 ("Am. Mot. to Strike). These motions are fully briefed.
The Court finds the following facts after the testimony of three witnesses at the evidentiary hearing: DEA Special Agents Leo Bondad and Paul Harris (collectively, "the Agents"), and Figueroa, as well as exhibits received at that hearing and other documents submitted in support of the motion.
This is a civil forfeiture case arising out of $209,815 in United States currency ("the Currency") seized from Claimant's checked luggage at the SFO. The currency was uncovered during the course of a DEA interdiction involving Figueroa, a DEA Confidential Source, and five DEA Agents: Bondad, Harris, Boston Special Agent David O'Neill, San Francisco Group Supervisor Aaron Jenkins, and Task Force Agent Kevin O'Malley.
The investigation began with a tip by a confidential source that Figueroa had purchased a one-way ticket from New York's John F. Kennedy International Airport ("JFK") to SFO that night, and that Figueroa would arrive in SFO the next day with two checked bags. Further investigation revealed that the phone number used to book the ticket was connected in the DEA's Narcotics and Dangerous Drugs Information System ("NADDIS") to multiple marijuana trafficking investigations and that Figueroa had a prior arrest for narcotics possession. In order to identify Figueroa after leaving his flight, the Agents reviewed the photo associated with his California ID Card.
Before Figueroa's flight arrived, the Agents, dressed in street clothes, began surveillance of the gate. After Figueroa deplaned, the Agents surreptitiously followed him and observed him remove two large suitcases from the baggage carousel and begin walking toward the elevator. The Agents took the escalator to the second floor near where Figueroa would exit the elevator. One agent, Bondad, stood to the side of the elevator doors while the other, Harris, stood approximately 15 feet away from the elevators across an area of high pedestrian traffic. Neither Agent's position blocked Figueroa's most direct path to the terminal exit.
After Figueroa stepped off the elevator, Agent Bondad called out "Julio?" Figueroa turned, but did not respond immediately and continued walking toward the exit. Agent Bondad repeated "Are you Julio?" and, in the same motion, showed his DEA credentials. Figueroa stopped and responded "No." Agent Bondad asked if Figueroa had identification, and Figueroa gave Agent Bondad his California ID card. Seeing that Figueroa's first name was, in fact, Julio, Bondad said "You are Julio. Why did you lie about your name?" and returned the ID card. Figueroa responded that he said "no" because he did not recognize Agent Bondad. Bondad then explained that he was a DEA agent, and told Figueroa he "wasn't in trouble" and was free to leave. Bondad stated that they were looking for people trafficking "dope" and asked Figueroa if he was carrying any narcotics or contraband with him. After Figueroa said no, Bondad asked, pointing out Agent Harris (who also displayed his DEA credentials), "would you mind if we search your bags?" Figueroa agreed, and Harris moved closer as Figueroa handed him one of the bags. Harris moved the bag to another public area of the terminal roughly 10 feet away with less pedestrian traffic. After kneeling down next to the bags, Harris noticed they were locked and asked Figueroa for the combination to unlock the bags. Figueroa gave the agents the combination, and upon unlocking the bags and searching the contents, the Agents discovered and seized the Currency, which was bundled in two backpacks inside each of Figueroa's bags.
At no time during the encounter was Figueroa advised of his right to decline consent to search. He was, however, told at the beginning of the encounter that he was free to leave. The Agents did not advise Figueroa that they would seek a warrant if he declined consent. It was uncontroverted that Figueroa and the Agents remained calm throughout the encounter, no guns were drawn, Figueroa was never told he was under arrest, and no Miranda warnings were given.
The remaining facts come from the parties' submissions and in some cases remain in dispute.
After seizing the Currency, the Agents questioned Figueroa. Both parties agree Figueroa said "we can cut the chit chat now," and that "I didn't say [the Currency] was mine" but also that "I didn't say that [the Currency] wasn't mine," although they disagree about what Figueroa meant to communicate by these statements.
Following the seizure of the currency, obtaining the Figueroa's contact information, and explaining the civil forfeiture process, the Figueroa left the airport. The Agents determined that the Currency consisted of 13,644 bills, 13,554 of which were in denominations of $20 or less. After placing the Currency in evidence bags and hiding it in an inconspicuous location, a trained narcotics dog, Jackson, altered that the Currency smelled of illegal drugs.
Subsequently, the Government filed a complaint for civil forfeiture under 21 U.S.C. Section 983 arguing that the Currency is forfeitable as "proceeds traceable" to the sale of illegal drugs. 21 U.S.C. § 881(a)(6). Figueroa intervened, filing a verified claim and answer required under the statute and asserting "an ownership and possessory interest in, and the right to exercise dominion and control over, all the defendant property." ECF Nos. 11 ("Claim"), 14 ("Answer").
Shortly thereafter, the Government served special interrogatories under the Supplemental Rules for Admiralty or Maritime Claims and Asset Forfeiture Actions ("Supplemental Rules") "to gather information that bears on the claimant's standing." Advisory Committee Note to Subd. 6 of Supp. R. G;
After Figueroa supplemented his answers, the Government moved to strike Figueroa's verified claim for failure to adequately respond to interrogatories. Mot. to Strike at 1;
Finally, the Government has also moved for summary judgment on the forfeitability of the currency, the sufficiency of Figueroa's affirmative defenses, and Figueroa's alleged inability to show standing to contest the forfeiture. Figueroa opposes.
The Fourth Amendment ordinarily bars the admission of evidence seized as fruit of an illegal search.
The Fourth Amendment "protects two types of expectations, one involving `searches,' and the other `seizures.'"
The Ninth Circuit has enumerated several factors to guide the analysis of whether an encounter with police constitutes a seizure. Specifically, Courts should look to the number of officers, whether weapons were drawn, the location in which the encounter occurred, the officers' tone or manner, and whether the officers informed the person he could terminate the encounter.
Similarly, the Fourth Amendment protects individual expectations of privacy from unreasonable searches. Nonetheless, "[a]n individual may waive his Fourth Amendment rights by giving voluntary and intelligent consent to a warrantless search of person, property, or premises."
Entry of summary judgment is proper "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). Summary judgment should be granted if the evidence would require a directed verdict for the moving party.
The Supplemental Rules permit the Government to file a motion to strike a verified claim "at any time before trial . . . for failing to" answer special interrogatories or for lack of standing. Supp. R. G(8)(c)(i)(A), (B). A motion to strike under the Supplemental Rules is "`something like a motion to dismiss where we can look to matters outside the pleadings, and where appropriate, allow for the possibility of conversion to summary judgment.'"
In support of his motion to suppress, Figueroa makes two arguments. First, he contends that his encounter with the Agents constituted an illegal seizure within the meaning of the Fourth Amendment, thus rendering the subsequent search unlawful. Alternatively, Figueroa argues that even if he was not seized, his consent to search was involuntary. Accordingly, Figueroa asks that the currency be suppressed. Figueroa asserts, and the Government does not contest, that he has standing to bring the motion to suppress.
Figueroa contends that he was seized within the meaning of the Fourth Amendment because the Agents lacked reasonable suspicion to detain him, and Agent Bondad's actions constituted a "show of official authority" which a reasonable person would not feel free to refuse. Mot. at 8. Specifically, Figueroa states that Bondad repeatedly calling out his name and displaying his badge would make "clear to any reasonable person in Figueroa's shoes[] not only that he was not free to leave, but that he, specifically, was the subject of an investigation."
The Government is right. No unlawful seizure took place in this case. Generally speaking, law enforcement officers are free approach individuals in a public place and ask them questions.
Numerous facts weigh in favor of finding that a reasonable person would feel free to leave. First, and most compellingly, Figueroa was specifically told by Agent Bondad that he was not in trouble and was free to leave. The conversation between Figueroa and the agents happened in public and remained calm throughout. The Agents were dressed in plain clothes and, although they were armed, their weapons were never displayed. The Agents never touched Figueroa or otherwise blocked his path to the exit, and they remained a reasonable distance away at all times. Despite the characterization in Figueroa's briefing that he was "ordered" to produce identification, the testimony at the evidentiary hearing supports the Court's finding that Agent Bondad simply asked if Figueroa had identification — a request to which Figueroa responded by handing over his ID card. After confirming his identity, Bondad immediately returned Figueroa's identification to him.
Figueroa argues that two facts constitute a show of authority sufficient to render this encounter a seizure. First, before displaying his badge, Agent Bondad called out "Julio," to which Figueroa turned, but did not respond and continued walking. Only after repeating his statement and simultaneously displaying his badge did Figueroa stop and respond to Bondad. Second, in calling out to Figueroa, Bondad used Figueroa's first name, indicating prior knowledge of his identity and communicating at least the inference that Figueroa was the target of a criminal investigation. Figueroa argues that as a result, (1) the Agents ignored his intention to decline the encounter and leave the airport, and (2) by using his name, the Agents communicated that Figueroa, "specifically, was the subject of an investigation." Unfortunately for Figueroa, neither the cases he cites nor the weight of the relevant facts are in his favor.
First, the fact that Figueroa did not respond to Agent Bondad's initial attempt to get his attention does not render this encounter a seizure. Figueroa's response to Bondad's initial "Julio?", turning, but continuing to walk toward the exit, did not constitute an "unequivocal unwillingness to engage in further conversation . . . ."
Furthermore, the fact that Bondad displayed his identification and used Figueroa's name (rather than some other generic greeting) does not alter this conclusion. First, "[t]he fact that the officer identifies himself as a police officer does not convert the encounter into a seizure requiring some level of objective justification."
In short the Court is persuaded that under these circumstances a reasonable person would have felt free to leave. Hence, this encounter was not a seizure.
Having found that Figueroa was not seized within the meaning of the Fourth Amendment, the only remaining issue on the motion to suppress is whether Figueroa voluntarily consented to the search of his luggage. As discussed earlier, in the Ninth Circuit, the Court's voluntariness analysis is driven by five factors, none of which is dispositive.
Here, these factors favors weigh in favor of voluntariness. Having earlier found that Figueroa was not seized, he cannot be deemed to have been in custody. Because Figueroa was not in custody, "
At the hearing on the motion to suppress, Claimant's counsel made much of the fact that the Agents had a consent form that could have been used to obtain a written waiver of Figueroa's Fourth Amendment rights, but nonetheless chose not to use it. He also extensively questioned the Agents regarding various DEA policies and guidelines, insinuating that these guidelines also encourage officers to obtain a signed consent form under circumstances like this. While this may be true, the Court finds it is nonetheless inapposite. The fact that officers could have obtained a more unassailable type of consent to search does not change the Court's conclusion that the consent they actually did obtain was voluntary.
As a result, the Court finds that Figueroa voluntarily consented to the search of his luggage. Having found that Figueroa was also not seized within the meaning of the Fourth Amendment, the motion to suppress is DENIED.
Next, the Government moves for summary judgment on three issues. First, the Government argues that the Court should grant summary judgment on the issue of the forfeitability of the currency at issue. Second, the Government contends that summary judgment on the remaining issues is appropriate because Figueroa will not be able to provide sufficient evidence to establish any of his affirmative defenses. Third, and in the alternative, the Government moves to strike Figueroa's claim on the grounds that he has failed to establish standing to contest the forfeiture. Because standing is a "threshold matter," the Court will address the alternative motion based on standing first.
The Ninth Circuit has yet to identify the burden on the issue of a forfeiture claimant's standing at the summary judgment stage.
The Government urges the Court to fill in any blanks left by the Ninth Circuit in this area with cases and principles derived from Federal Rule of Civil Procedure 12(b)(1), which governs motions to dismiss for lack of subject-matter jurisdiction. This appears to be a novel argument, but because the general principles articulated by the Ninth Circuit in
First, as the Ninth Circuit has suggested, "[t]he fact that the property was seized from the claimant's possession, for example, may be sufficient evidence, when coupled with a claim of ownership, to establish standing at the summary judgment stage."
The Government objects to this declaration, arguing that it is simply a "conclusory, self-serving affidavit, lacking detailed facts and any evidence," and therefore it is insufficient to create a genuine issue of material fact.
Nevertheless, the Government contests Figueroa's declaration further, arguing that the Court should disregard it because Figueroa has resisted the Government's discovery requests and because his declaration contradicts statements he allegedly made to the Agents following the search of his luggage. The Government's first point is raised in the parallel motion to strike for failure to adequately respond to special interrogatories, and the Court will address it there. The second point, that the declaration contradicts the Agent's version of events after the currency was seized, is irrelevant. A forfeiture claimant need not show that the evidence of his standing is undisputed or prove standing by a preponderance of the evidence at the summary judgment stage. Instead, the claimant must, as Figueroa has here, set forth specific facts, "
The remainder of the Government's motion seeks summary judgment on the question of whether the Currency is subject to forfeiture and on Figueroa's affirmative defenses. Under 21 U.S.C. Section 881(a)(6), seized currency is subject to forfeiture if (1) it is intended to be furnished in exchange for controlled substances, (2) it is proceeds "traceable" to such exchanges, or (3) it is otherwise used or meant to be used to facilitate violation of the Controlled Substances Act. Here, the Government argues the currency is either the proceeds of illegal drug sales or is traceable to such sales. As a result, the Government must show a connection between the Currency and illegal drug trafficking by a preponderance of the evidence. 18 U.S.C. § 983(c)(1);
The problem with this motion is that it is premature. Because the Government filed this and its other motions so early in the case, there has not been a case management conference. As a result, Figueroa is currently barred from taking any discovery.
As a result, the Court finds that the Government's summary judgment motion is premature, and that the motion should be DENIED WITHOUT PREJUDICE. Fed. R. Civ. P. 56(d)(1). The Court will instead schedule a case management conference at which the parties and the Court can determine how best to proceed with discovery.
Finally, the Government has moved to strike Figueroa's claim on the grounds that he has failed to provide adequate answers to the Government's special interrogatories. In the context of civil forfeiture proceedings, Supplemental Rule G(6) permits the government to serve special interrogatories that "broadly allow the government to collect information regarding the claimant's relationship to the defendant property . . ."
The Court previously granted a motion to compel Figueroa to respond to the Government's special interrogatories. ECF No. 49 ("Order"). In that order, the Court rejected Figueroa's argument that because his verified claim and limited responses to the Government's special interrogatories were sufficient to establish his standing to contest forfeiture, no further responses could be compelled. Subsequently Figueroa twice supplemented his answers. ECF No. 82-1 ("Chart").
The Government's chief complaints at this stage are threefold. First, Figueroa continues to assert numerous boilerplate objections despite the Court's order to the contrary. Second, Figueroa's second supplemental answers were untimely and unauthorized. Third, his answers to most of the special interrogatories are insufficient. Figueroa disagrees with these arguments, instead arguing that the Court should reconsider its prior order because the Court misinterpreted the Supplemental Rules and the Ninth Circuit's decision in
As a preliminary matter, the Court declines to reconsider the order on the motion to compel. Figueroa's chief objection to the order granting the motion to compel is that because Figueroa is asserting an ownership interest in the Currency, his standing to contest the forfeiture is clear. As the Court found above, Figueroa has provided sufficient detail to show his standing at this time. That said the Government may, on the basis of subsequent discovery, seek to rebut that evidence.
As to the Government's first point, the Court agrees. The Court has little patience for the unjustified (but puzzlingly pervasive) practice of asserting numerous, often frivolous boilerplate objections with any discovery response.
Despite that, Figueroa is correct in arguing that he has fully responded to some of the Government's interrogatories. Specifically, the Court finds that Figueroa has adequately answered interrogatories number 1, 2, and 5-9. This is a close question on some. For example, interrogatory number 2 seeks a description of the circumstances under which Figueroa acquired the Currency, and if acquired at different times, the circumstances under which each interest was acquired. While Figueroa has simply stated he acquired roughly half the Currency from a cash inheritance and the remainder from his employment, the Court finds this satisfactorily explains the "circumstances" by which he acquired the Currency. Explaining the "circumstances" of acquiring the Currency does not require, as it seems the Government believes, Figueroa to go through each specific instance during which he performed some freelance graphic design or consulting work and explain the project and identify the amount of money he received. Instead, the Court reads this request and others like it, for example number 5, as only requiring a general description of the circumstances.
Similarly, in his response to interrogatory number 6, Figueroa states that he obtained a small amount of the Currency in paychecks from a prior employer, Instituto Familiar de la Raza, and provided two paystubs. ECF No. 68-1 ("Supplemental Answers") at 16. The Government's issue with Figueroa's response is somewhat unclear. The Government states Figueroa's answer is "incomplete" because Figueroa said "he obtained `most of the defendant property in cash' and `some small portion' in checks from Instituto Familiar," without offering more detail about the exact problem with this answer. Strike Reply at 7 (quoting ECF No. 68-1 ("Supplemental Answers") at 18). As best as the Court can discern, the Government's issue is that Figueroa responded without "identify[ing] the payor and payee of the check(s), the amount of the check(s), and the approximate date of the check(s)," as requested. Supplemental Answers at 16. However there are several problems with the Government's view. First, Figueroa has identified the payor (Instituto Familiar), the payee (himself), and the approximate dates during which he received the relevant checks (2007-2009). Second, even if Figueroa has not listed every check he received from Instituto Familiar or given the exact amount of those checks, "[o]n motion or on its own," the Court must weigh the burden of proposed discovery against its likely benefit. Fed. R. Civ. P. 26(b)(2)(C)(iii). Figueroa claims that the Currency is his life savings and that any checks form only a small portion of the Currency. Furthermore, Figueroa has already provided information about the payor, payee, and approximate dates of any relevant checks. Given those facts, the Court finds that the burden of providing additional detail regarding checks that are in some cases as much as seven years old would be unduly burdensome in light of the relatively small probative value of such information. Accordingly the Court finds this response is also sufficient. If the Government can articulate some reason why the benefits of this information outweigh the burden then it may simply seek this information in the ordinary course of discovery.
At the same time, the Government is right that Figueroa's answers to some of the special interrogatories remain deficient in several respects. Specifically the Court finds Figueroa's answers to interrogatories numbers 3, 4, and 10 are insufficient. Figueroa argues interrogatories 3 and 10 need not be answered with anything but objections because they either (1) seek production of documents, and (2) exceed the scope of the Supplemental Rules because they seek information that does not bear on the claimant's standing. Not so. First, request number 3 asks Figueroa to identify any records or documents he has with specificity. Supplemental Answers at 6. While Figueroa argues that "[i]dentifying `any' documents that you have `with specificity' is asking for the production of documents." Opp'n at 17. This is obviously mistaken, and the Court has previously rejected any suggestion that the Government's interrogatories are actually requests for production.
Nevertheless, the Court is not persuaded that the Government's suggested remedy — striking Figueroa's claim as a sanction for failure to comply with the Supplemental Rules — is appropriate at this time. As the advisory committee notes to the Supplemental Rules point out, "[n]ot every failure to respond to subdivision (6) interrogatories warrants an order striking the claim." Furthermore, this is not a case in which the claimant has completely failed to respond to special interrogatories,
Rather than strike Figueroa's claim at this point, the Court DENIES the motion to strike without prejudice and ORDERS Figueroa to serve supplemental answers to special interrogatories numbers 3, 4, and 10 within fourteen (14) days from the signature date of this order. If Figueroa's answers remain insufficient after supplementation, the Government may re-file its motion to strike.
For the reasons set forth above, the Court ORDERS as follows:
IT IS SO ORDERED.
