MARK E. FULLER, Chief Judge.
In this lawsuit brought pursuant to 21 U.S.C. § 881(a)(6), Plaintiff United States of America (the "Government") seeks forfeiture of six thousand two hundred seven dollars ($6,207) in United States currency (the "defendant money"). (Doc. # 1). The Government alleges that the defendant money, seized during the arrest of Sylvester Vaughn ("Vaughn") for drug trafficking and distribution of a controlled substance, was furnished, or intended to be furnished, in exchange for controlled substances; represents proceeds of trafficking in controlled substances; or was used or intended to be used to facilitate violations of 21 U.S.C. § 801 et seq. Id. at 2. The sole claimant before this Court is Vaughn. This cause is before the Court on the Government's Motion for Summary Judgment. (Doc. # 47). Vaughn opposes the Government's motion. After careful consideration of the arguments of counsel, the relevant case law, and the record as a
This Court has subject matter jurisdiction over the case pursuant to 28 U.S.C. §§ 1345 and 1355, and 21 U.S.C. §§ 881. Venue is proper in this district pursuant to 28 U.S.C. §§ 1355 and 1395, and 21 U.S.C. § 881(j).
On December 17, 2008, the Government commenced this in rem action pursuant to 21 U.S.C. § 881(a)(6), seeking the forfeiture of the defendant money on the grounds that it was furnished, or intended to be furnished, in exchange for controlled substances; represents proceeds of trafficking in controlled substances; or was used or intended to be used to facilitate violations of 21 U.S.C. § 801 et seq. The salient facts are not in dispute and establish the following:
On August 6, 2008, Montgomery police officers met with a confidential source (the "CS") to set up a controlled purchase of 5.5 grams of powder cocaine from a subject, later identified as Timothy Whiting ("Whiting").
A short while after Whiting's vehicle drove away, a marked patrol unit was instructed to conduct a traffic stop of the vehicle. The vehicle was stopped, and Whiting and Vaughn were taken into custody. A search incident to arrest revealed $80.00 of the drug-buy money in Whiting's possession. Vaughn's front pocket contained $6,207.00 in assorted U.S. currency, of which $220.00 was the remaining drug-buy money. A trained drug-detection dog alerted upon the currency, indicating that the dog detected the exposure of the currency to illegal drugs or materials used in illegal drug manufacture or preparation.
Vaughn was indicted by the Montgomery County District Attorney's Office for distribution of a controlled substance and drug trafficking in relation to a prior drug transaction on June 4, 2008, as well as the August 8, 2008 drug transaction. After a federal grand jury indicted Vaughn and another with conspiracy to distribute 50 grams or more of "crack" cocaine and distribution
Under Federal Rule of Civil Procedure 56(c), summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The party asking for summary judgment "always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of `the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact." Id. at 323, 106 S.Ct. 2548. The movant can meet this burden by presenting evidence showing there is no dispute of material fact, or by showing the non-moving party has failed to present evidence in support of some element of its case on which it bears the ultimate burden of proof. Id. at 322-23, 106 S.Ct. 2548.
Once the moving party has met its burden, Rule 56(e) "requires the nonmoving party to go beyond the pleadings and by [his] own affidavits, or by the `depositions, answers to interrogatories, and admissions on file,' designate `specific facts showing that there is a genuine issue for trial.'" Id. at 324, 106 S.Ct. 2548. To avoid summary judgment, the nonmoving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (emphasis added). A plaintiff must present evidence demonstrating that he can establish the basic elements of his claim. Celotex, 477 U.S. at 322, 106 S.Ct. 2548. A court ruling on a motion for summary judgment must believe the evidence of the non-movant and must draw all justifiable inferences from the evidence in the non-moving party's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). After the nonmoving party has responded to the motion for summary judgment, the court must grant summary judgment if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c).
The Government brings this action pursuant to 21 U.S.C. § 881(a)(6), which states in pertinent part that "[a]ll moneys. . . furnished or intended to be furnished by any person in exchange for a controlled substance . . ., all proceeds traceable to such an exchange, and all moneys . . . used or intended to be used to facilitate any violation of [the drug laws]" are subject to forfeiture. 21 U.S.C. § 881(a)(6).
By its motion, the Government seeks a grant of summary judgment ordering the forfeiture of the defendant money to the United States. (Doc. # 47). The Government argues that all of the money is forfeitable as illegitimate drug money. (Doc. #48, at 10-15).
In response, Vaughn argues that the Government has failed to prove that the defendant money was illegitimate drug money. (Doc. # 53).
Id. at 8. In relation to the commingling theory of forfeitability, Vaughn admits that the $220.00 drug-buy money was exchanged for drugs and subject to forfeiture. Id. at 11. However, he argues that the remaining defendant money is not forfeitable merely by touching and "com[ing] into contact with other property that is forfeitable." Id. at 12 (citing U.S. v. Pole No. 3172, Hopkinton, 852 F.2d 636, 639-40 (1st Cir.1988)).
In evaluating the evidence, this Court must maintain "`a common sense view to the realities of normal life' applied to the `totality of the circumstances.'" United States v. Carrell, 252 F.3d 1193, 1201 (11th Cir.2001) (quoting United States v. Four Million, Two Hundred Fifty-Five Thousand, 762 F.2d 895, 903-04 (11th Cir. 1985)); see also United States v. $291,828.00 in United States Currency, 536 F.3d 1234, 1237 (11th Cir.2008).
Under the Civil Asset Forfeiture Reform Act of 2000 ("CAFRA"),
However, the Government "is not required to `connect the defendant currency to any particular drug transaction,' or proffer evidence that `points to drugs to the exclusion of all other theories.'" United States v. Eighty Thousand Six Hundred Thirty-Three Dollars ($80,633.00), No. 2:05-cv-1086-WKW, 2008 WL 1808328, at *2 n. 2, 2008 U.S. Dist. LEXIS 32745, at *5-6 n. 2 (M.D.Ala. Apr. 21, 2008) (quoting $121,100.00, 999 F.2d at 1508), aff'd, 340 Fed.Appx. 579 (11th Cir.2009). Indeed, the property need not belong to a drug dealer when seized. See Four Million, Two Hundred Fifty-Five Thousand, 762 F.2d at 905 ("[Section 881(a)(6)] does not limit forfeiture to property found in the hands of a drug dealer."); see also Carrell, 252 F.3d at 1200 ("We have recognized that `Congress clearly contemplated the forfeiture of property that once belonged to drug dealers, but subsequently was transferred, via `legitimate transactions,' to third parties.'") (quoting Four Million, Two Hundred Fifty-Five Thousand, 762 F.2d at 905).
Once the Government has shown that the property is subject to forfeiture, "the burden of proof shifts to the claimant[] to show, by a preponderance of the evidence, that the property is not subject to forfeiture." United States v. Cleckler, 270 F.3d 1331, 1334 (11th Cir.2001). "The claimant may meet this burden either by rebutting the government's evidence or by showing that the claimant is an innocent
To qualify as an innocent owner, a claimant must be one who "(i) did not know of the conduct giving rise to forfeiture; or (ii) upon learning of the conduct giving rise to the forfeiture, did all that reasonably could be expected under the circumstances to terminate such use of the property." Id. § 983(d)(2)(A). However, "[i]f a post-illegal act transferee knows of illegal activity which would subject property to forfeiture at the time he takes his interest, he cannot assert the innocent owner defense to forfeiture." Carrell, 252 F.3d at 1203-04 (quoting United States v. 6640 SW 48th St., Miami Dade County, Fla., 41 F.3d 1448, 1452 (11th Cir.1995)).
If the Government establishes that property is subject to forfeiture, then "legitimate funds are forfeitable when knowingly commingled with forfeitable funds." United States v. Thirty-Three Thousand Eight Hundred Thirty-Six Dollars ($33,-836.00) in United States Currency, 899 F.Supp. 574, 579 (M.D.Ala.1995) (quoting United States v. One Single Family Residence, 933 F.2d 976, 981 (11th Cir.1991)); see also United States v. $52,000.00, More or Less, in United States Currency, 508 F.Supp.2d 1036, 1044 (S.D.Ala.2007) ("Once legitimate funds are commingled with those subject to forfeiture, all of the funds become subject to forfeiture."). "[W]hen a claimant to a forfeiture action has actual knowledge, at any time prior to the initiation of the forfeiture proceeding, that claimant's legitimate funds are commingled with drug proceeds, traceable in accord with the forfeiture statute, the legitimate funds are subject to forfeiture." Carrell, 252 F.3d at 1204 n. 12; see also Four Million, Two Hundred Fifty-Five Thousand, 762 F.2d at 905 ("Congress clearly contemplated the forfeiture of property that once belonged to drug dealers, but subsequently was transferred, via `legitimate transactions,' to third parties. . . . [T]hose who knowingly do business with drug dealers do so at their own risk.").
A claimant possessing actual knowledge of the commingling of legitimate and drug funds may still claim the innocent owner defense if "the claimant can prove that everything reasonably possible was done to withdraw the commingled funds or to dispose of the property." Carrell, 252 F.3d at 1204 n. 12; see also United States v. One 1988 Checolet 410 Turbo Prop Aircraft, 282 F.Supp.2d 1379, 1382 (S.D.Fla.2003) ("[W]here an owner was aware of an illegal use of his property, he could still invoke the `innocent owner' defense if he could show that he took `all reasonable steps' to prevent the illegal activity.").
Vaughn concedes "that the $220 of marked buy money found in Vaughn's pocket was exchanged for drugs, and is therefore subject to forfeiture" under 21 U.S.C. § 881(a)(6). (Doc. # 53, at 11). Thus, there is no genuine issue of material fact and the Government is entitled to judgment as a matter of law on the forfeitability of the $220.00 drug-buy money.
The Government argues that the remaining defendant money is forfeitable under the commingling theory. (Doc. # 48, at 15-16). Under this theory, "when a claimant to a forfeiture action has actual knowledge, at any time prior to the initiation of the forfeiture proceeding, that claimant's legitimate funds are commingled with drug proceeds, traceable in accord with the forfeiture statute, the legitimate funds are subject to forfeiture." Carrell, 252 F.3d at 1204 n. 12.
In regards to whether Vaughn knew of the August 6, 2008 drug transaction, this Court finds that Vaughn's presence in the enclosed vehicle in which the drug transaction took place, during the drug transaction, provides compelling circumstantial evidence that he had actual knowledge of the drug buy. Vaughn has admitted to the following facts. He arrived with Whiting to the location of the drug buy in the passenger seat of the vehicle in which the drug transaction took place. Whiting remained in the driver's seat. The CS entered the enclosed vehicle and sat in the back seat. Whiting gave the cocaine to the CS, who in turn gave Whiting the $300.00 drug-buy money. The CS then exited the vehicle, and Whiting drove off with Vaughn still in the passenger seat.
In sum, Vaughn admits to arriving with Whiting, the drug dealer, and to remaining in the passenger seat of the enclosed vehicle while the drug transaction occurred. Vaughn also admits that the drug dealer sat in the driver's seat and that the buyer sat in the back seat. Thus, the drug transaction must have occurred between the front and back seat, directly in front of Vaughn. This Court finds that, even taking all reasonable inferences in Vaughn's favor, the Government has presented sufficient circumstantial evidence to prove that, by a preponderance of the evidence, Vaughn had actual knowledge of the illegal activity at the time it occurred. Based upon these undisputed facts, this Court refuses to allow one who remains in an enclosed vehicle, while a drug buy occurs directly in front of him, to turn a blind eye and claim lack of knowledge when he is found with the drug-buy money shortly thereafter. Cf. One 1988 Checolet 410 Turbo Prop Aircraft, 282 F.Supp.2d at 1383 ("`[A]ctual knowledge' may be proven
Vaughn has failed in his burden to "go beyond the pleadings" and "designate `specific facts showing that there is a genuine issue for trial.'" Celotex, 477 U.S. at 324, 106 S.Ct. 2548. He has not supplemented the record with his "own affidavits, or [with] the `depositions, answers to interrogatories, and admissions on file.'" Id. Vaughn has failed to even allege a lack of knowledge as to the August 6, 2008 drug transaction. He merely contends that he personally had no involvement in that drug buy;
United States v. 1461 W. 42nd St., 251 F.3d 1329, 1333 (11th Cir.2001) (emphasis added). Thus, it is not Vaughn's culpability in the underlying criminal conduct that subjects the property to forfeiture. Vaughn is not the defendant in this forfeiture proceeding; the money is the defendant. It is Vaughn's actual knowledge of the underlying illegal activity, namely the August 6, 2008 drug transaction, that subjects the remaining defendant money to forfeiture, not his participation, or lack thereof, in that drug buy. Based on the foregoing undisputed facts and taking all reasonable inferences in Vaughn's favor, this Court finds that there is no genuine dispute as to material fact and that the Government has proven, by a preponderance of the evidence, that Vaughn had actual knowledge of the August 6, 2008 drug transaction at the time it occurred. Indeed, on the record before the court, no reasonable fact finder could conclude otherwise.
For the commingling doctrine to apply, a claimant must have actual knowledge prior to initiation of the forfeiture proceeding. Carrell, 252 F.3d at 1204 n. 12. It is undisputed that the illegal activity underlying this forfeiture proceeding is the August 6, 2008 drug transaction. This Court finds that the Government has proven, by a preponderance of the evidence, that Vaughn had actual knowledge of this illegal activity at the time it occurred. Thus, any allegedly legitimate funds that Vaughn commingled with the drug-buy money prior to initiation of the forfeiture proceeding on December 17, 2008 are subject to forfeiture. Because the remaining defendant money was seized from Vaughn's person on August 6, 2008, shortly after the relevant drug transaction which took place in
In order to be subject to forfeiture, legitimate funds must actually be commingled with illegitimate funds. Id. Vaughn contends that "the fact that the buy money touched the defendant currency in [his] pocket does not establish that the defendant currency was exchanged for drugs, or that it is proceeds traceable to a drug exchange, or that it facilitated a violation of the controlled substance laws of the United States." (Doc. #53, at 11). He further argues that money is forfeitable only when "exchanged for drugs, or is proceeds of drug dealing, or that it is intended to be used in drug trafficking, not merely that it comes into contact with other property that is forfeitable." Id. at 11-12. To support this proposition, Vaughn cites to First Circuit law. Id. at 12 (citing Pole No. 3172, 852 F.2d at 639-40).
Whatever views the First Circuit may hold, the Eleventh Circuit has explicitly acknowledged the forfeitability of legitimate funds when knowingly commingled with illegal drug proceeds. Carrell, 252 F.3d at 1204 n. 12; see also $52,000, More or Less, 508 F.Supp.2d at 1044 ("Once legitimate funds are commingled with those subject to forfeiture, all of the funds become subject to forfeiture.") (citing United States v. 15603 85th Ave. N., 933 F.2d 976, 982 (11th Cir.1991)). As such, it is irrelevant whether the Government establishes that the remaining defendant money represents drug money. Even legitimate money—that which is not "exchanged for drugs, or that . . . is [not] proceeds traceable to a drug exchange, or that . . . [did not] facilitate[] a violation of the controlled substance laws," (Doc. # 53, at 11)—is subject to forfeiture if knowingly commingled with illegitimate funds.
Here, both $220.00 of the illegitimate drug-buy money and the remaining defendant money were found together in Vaughn's front pocket. Thus, all of the defendant money is subject to forfeiture under the commingling doctrine. Cf. $52,000.00, More or Less, 508 F.Supp.2d at 1038, 1045 (granting summary judgment for the United States and finding that allegedly legitimate money was forfeitable under the commingling doctrine when found on the claimant's person in sealed envelopes along with illegitimate funds). Additionally, Vaughn concedes that the allegedly legitimate money and the illegitimate money were, in fact, commingled. (Doc. # 53, at 3) ("A search incident to arrest revealed . . . $220.00 of the buy money in the possession of [Vaughn] co-mingled [sic] with $6,207.00 of United States currency.") (emphasis added); see also id. at 11 ("The fact that $220 of buy money was comingled [sic] in Vaughn's pocket with the defendant currency, does not establish that the government has met its burden by a preponderance of the evidence that the defendant currency is subject to forfeit.") (emphasis added). Thus, this Court finds that there is no genuine issue of material fact and that the Government has established, as a matter of law, that the $220.00 drug-buy money was commingled with the remaining defendant money.
In sum, the undisputed facts, taking all reasonable inferences in Vaughn's favor, establish the following: (1) Vaughn had
In the Eleventh Circuit, even claimants with actual knowledge of the commingling of legitimate funds and drug proceeds can still claim the innocent owner defense if "the claimant can prove that everything reasonably possible was done to withdraw the commingled funds or to dispose of the property." Carrell, 252 F.3d at 1204 n. 12. However, "[i]f a post-illegal act transferee knows of illegal activity which would subject property to forfeiture at the time he takes his interest, he cannot assert the innocent owner defense to forfeiture." Id. at 1203-04 (emphasis added). The undisputed facts demonstrate that the CS gave the drug-buy money to Whiting during the drug transaction. Thus, Vaughn must have obtained his interest in the $220.00 drug-buy money after the drug transaction. Because the Government has established that Vaughn had actual knowledge of the drug transaction at the time it occurred, Vaughn knew of this illegal activity when he later took his interest in the $220.00 drug-buy money. Therefore, the innocent owner defense is unavailable to Vaughn.
It is understood that one who engages in criminal conduct runs the risk of incarceration and the forfeiture of his property; this case, however, provides a crucial warning for those who knowingly associate with criminals. Once cannot receive money from drug dealers, with a wink and a nod, and then be immune to the consequences. As the Eleventh Circuit has so assertively stated, "those who knowingly do business with drug dealers do so at their own risk." Four Million, Two Hundred Fifty-Five Thousand, 762 F.2d at 905. For the foregoing reasons, it is hereby ORDERED that the Government's Motion for Summary Judgment (Doc. # 47) is GRANTED.
It is ORDERED that the Government shall file a proposed Decree of Forfeiture
It is further ORDERED that the pretrial conference scheduled for September 29, 2010 is CANCELLED.
The Clerk of the Court is DIRECTED to remove the above-styled case from the trial docket.
The Court will enter a separate final judgment consistent with this Memorandum Opinion and Order.