United States v. Puche-Garcia

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.

JOSE JESUS PUCHE-GARCIA; RUBEN
DARIO BARRIOS-OLIVARES, No. 99-1612
Claimants-Appellants,

v.

$294,950.00, U.S. Currency,
Defendant.

Appeal from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
Terrence W. Boyle, Chief District Judge.
(CA-98-4605-BO-3)

Argued: June 7, 2000

Decided: September 13, 2000

Before MURNAGHAN,* LUTTIG, and MICHAEL, Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.
_________________________________________________________________
*Judge Murnaghan heard oral argument in this case but died prior to
the time the decision was filed. The decision is filed by a quorum of the
panel. 28 U.S.C. § 46(d).
COUNSEL

ARGUED: Benjamin Samuel Waxman, ROBBINS, TUNKEY,
ROSS, AMSEL, RABEN & WAXMAN, P.A., Miami, Florida, for
Appellants. Stephen Aubrey West, Assistant United States Attorney,
Raleigh, North Carolina, for Appellee. ON BRIEF: Robert G. Amsel,
ROBBINS, TUNKEY, ROSS, AMSEL, RABEN & WAXMAN,
P.A., Miami, Florida, for Appellants. Janice McKenzie Cole, United
States Attorney, Anne M. Hayes, Assistant United States Attorney,
Margaret Phillips Eagles, Third-Year Law Student, Raleigh, North
Carolina, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

The United States filed a complaint for forfeiture against $294,950
in cash found in a car driven by Jose Jesus Puche-Garcia, alleging that
this money was the proceeds of drug trafficking. The district court
ultimately awarded summary judgment to the government, and the
claimants appeal. We affirm.

I.

On August 26, 1997, Deputy Mark Hart and Deputy T.J. Bailer
from the Cumberland County, North Carolina, Sheriff's Department
were conducting traffic law enforcement operations as a two-man
team (in separate cruisers) on Interstate 95. While traveling south-
bound, Bailer noticed a southbound Chevrolet Lumina in front of him
traveling in the lefthand lane at a speed of five to ten miles per hour
below the speed limit of 70. As Bailer began following the Lumina,
he called in its plate number to the dispatcher, who reported that the
car belonged to Avis in New York. Deputy Hart was positioned in the

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median a few miles down the road, doing radar detection. Upon see-
ing Deputy Hart's cruiser, the driver of the Lumina slammed on the
brakes, abruptly decelerating to about 45 miles per hour. This forced
Deputy Bailer and several drivers behind him to brake sharply in
order to avoid a series of rear-end collisions. Concluding that the
Lumina driver's sudden braking and deceleration had created a traffic
hazard, Deputy Bailer stopped the Lumina.

As Bailer left his cruiser and walked toward the Lumina, the driver,
soon identified as Jose Jesus Puche-Garcia, stepped out of the car,
held his hands in the air, and said, "I am a tourist." Bailer immediately
explained that he had stopped Puche-Garcia because he had created
a hazard, but Puche-Garcia offered no explanation for his driving
behavior. After issuing Puche-Garcia a warning citation for careless
driving and impeding the flow of traffic, Bailer asked him if he had
any large amounts of U.S. currency, narcotics, or firearms in the car.
Puche-Garcia answered in the negative and thereafter consented to a
search of the car and the two suitcases in the trunk. The passenger,
Humbert Gerardo Hernandez-Fuenmayor, unlocked one of the suit-
cases with a key. In the suitcases were large amounts of U.S. currency
in small denominations wrapped in stacks with rubber bands. Bailer
noticed that Puche-Garcia had a stunned looked on his face and was
sweating heavily while Deputy Hart searched the suitcases. A short
time later, a police drug dog gave a "positive alert" for controlled sub-
stances on both of the suitcases.

After waiving his Miranda rights, Puche-Garcia first said that he
did not know whose money he had, but that he was"just to take it
back to Venezuela" with him. He then said that he was driving in a
rental car from New Jersey to Miami where he was to buy merchan-
dise in connection with his business. He said he was in the business
of buying large appliances and reselling them. When Puche-Garcia
was asked where in Venezuela his business was located, he only
answered, "in Venezuela." He also said that he had received a tele-
phone call at his hotel near the airport in Newark, New Jersey, and
the caller gave him instructions about where to pick up the packages
(containing the money). Puche-Garcia told the deputies that he did not
know or could not remember the name of the person who called.
After some hesitation, Puche-Garcia said that he believed he would
get a telephone call in Florida advising him where to deliver the

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money, but he said he did not know exactly where or how he was to
be contacted. Finally, Puche-Garcia said he did not know where the
money came from, but it was for his business. He insisted that he was
not a drug dealer.

Although Puche-Garcia claimed that he was in the business of buy-
ing and selling appliances, he had no documents or papers indicating
he was in that business. After the deputies seized the money, Puche-
Garcia was told he was free to resume his trip. He responded that he
could not leave without the money "because someone would hurt
him."

When the deputies removed the cash from the suitcases, they found
forty-two bundles in one suitcase and twenty-six bundles in the other.
The cash was in small denominations of twenty, ten, five, and one;
it was wrapped with rubber bands and had been hidden behind and
in the clothing packed in the suitcases. The deputies observed that the
money was not new or fresh, and based on their training and experi-
ence, they concluded that the appearance and packaging of the cur-
rency was consistent with use in drug trafficking. A subsequent
search of the Narcotics and Dangerous Drugs Information System
indicated that a telephone number found in the car, handwritten on a
folio from the Newark hotel in which Puche-Garcia had stayed, was
associated with a drug money laundering investigation in New York.

Because the North Carolina deputies believed the money was the
proceeds of illegal drug trafficking, they transferred the case to the
Drug Enforcement Administration (DEA). In due course, the United
States filed a complaint for forfeiture against the $294,950.00 in cur-
rency seized from Puche-Garcia's rental car. The forfeiture action was
brought under 21 U.S.C. § 881(a)(6), which provides that money fur-
nished in exchange for a controlled substance and all proceeds trace-
able to such an exchange shall be subject to forfeiture to the United
States. No property right exists in such money. See 21 U.S.C.
§ 881(a)(6). The District Court for the Eastern District of North Caro-
lina issued a warrant for arrest of the property and directed that notice
be given to potential claimants. Thereafter, Puche-Garcia, Ruben
Dario Barrios-Olivares, and Sunfruits, C.A. (together, the "Claim-
ants") filed a verified claim and an answer to the complaint. The
Claimants filed a motion for summary judgment without supporting

4
affidavits. They also filed a motion to suppress, asserting that the traf-
fic stop was orchestrated. The government filed a cross-motion for
summary judgment that was supported by several affidavits from the
law enforcement officers involved in the seizure of the money. A
hearing on these motions was set for February 11, 1999, but Claim-
ants did not appear. Claimants failed to appear because their local
counsel did not notify Claimants' Florida counsel about the hearing.
(Local counsel assumed that Florida counsel had also received a copy
of the notice from the clerk.) The district court invoked Fed. R. Civ.
P. 41(b) and denied Claimants' summary judgment and suppression
motions for failure to prosecute. In the alternative, the district court
denied Claimants' motions on the merits and entered summary judg-
ment for the government. The district court also denied Claimants'
subsequent motion to reconsider. Claimants appeal.

II.

Claimants first argue that the district court erred in denying their
motion to suppress without holding an evidentiary hearing. They
claim that there were material facts in dispute because of their allega-
tion that the stop of Puche-Garcia's vehicle was orchestrated by the
police. Because the Claimants proffered no evidence to rebut the dep-
uties' sworn explanations of the stop, an evidentiary hearing was not
necessary.

The police may stop a vehicle if they have probable cause to
believe that the driver is committing a traffic violation. See Whren v.
United States, 517 U.S. 806, 819 (1996). Of course, the police cannot
orchestrate a traffic stop, see United States v. Castro, 129 F.3d 752,
756 (5th Cir. 1997), but there is no evidence of orchestration here. On
the day Puche-Garcia's car was stopped, Deputies Bailer and Hart
were conducting routine traffic patrol on I-95 in North Carolina.
North Carolina law prohibits a person from driving"at such a slow
speed as to impede the normal and reasonable movement of traffic
except when reduced speed is necessary for safe operation or in com-
pliance with law." N.C. Gen. Stat. § 20-141(h). North Carolina law
also provides that a person who drives "without due caution and cir-
cumspection and at a speed or in a manner so as to endanger or be
likely to endanger any person or property shall be guilty of reckless
driving." N.C. Gen. Stat. § 20-140(b). In this case, Deputy Bailer saw

5
Puche-Garcia violate both of these traffic laws: Puche-Garcia was
driving too slowly in the passing lane, thereby impeding the flow of
traffic; in addition, upon seeing Deputy Hart, he braked sharply and
his sudden reduction in speed created a risk of collision. Deputy
Bailer therefore had probable cause to stop Puche-Garcia's car.
Because the Claimants have not proffered any evidence to show that
the traffic stop was orchestrated, the district court did not err in deny-
ing Claimants' motion to suppress without holding an evidentiary
hearing.

III.

Claimants also argue that the district court erred in denying their
motion for summary judgment and in granting the government's
cross-motion for summary judgment. Our summary judgment analysis
in this civil forfeiture proceeding has two components. First, in
response to Claimants' motion for summary judgment, which asserted
lack of probable cause, the government was required to show (by affi-
davit or other appropriate evidence) that it had probable cause to seek
forfeiture. See 21 U.S.C. § 881(d); 19 U.S.C. § 1615; Fed. R. Civ. P.
56(e). Second, on its own motion for summary judgment, the govern-
ment had to show that there was no genuine issue of material fact and
that it was entitled to judgment as a matter of law. See Fed. R. Civ.
P. 56(c); see also United States v. Leak, 123 F.3d 787, 793 (4th Cir.
1997).

A.

To establish probable cause, the government must show

that a substantial connection exists between the property for-
feited and the criminal activity defined by the statute. The
applicable definition of probable cause is the same as that
which applies elsewhere: reasonable ground for belief of
guilt, supported by less than prima facie proof but more than
mere suspicion.

Leak, 123 F.3d at 792 (internal quotation marks and citations omit-
ted). In evaluating probable cause in drug trafficking forfeitures, we

6
should bear in mind that "[c]ircumstantial evidence of drug transac-
tions is sufficient to support the establishment of probable cause in a
forfeiture proceeding, without showing a direct connection between
the property subject to seizure and the illegal activity that renders the
items forfeitable." United States v. Thomas , 913 F.2d 1111, 1117 (4th
Cir. 1990) (internal quotation marks and citations omitted). Moreover,
courts should not "dissect strands of evidence as discrete and discon-
nected occurrences . . . but [should] apply the probable cause standard
to the facts in the totality." Id. at 1115 (internal quotation marks and
citation omitted).

Several of the factors present in this case have been relied on by
courts to support a finding of probable cause for forfeiture. The fact
that "most of the money consisted of small denominations bundled
with rubber bands" helps to establish a "substantial connection" to
drug trafficking. United States v. $206,323.56, More or Less, in
United States Currency, 998 F. Supp. 693, 699 (S.D. W. Va. 1998).
The concealment of money (in socks and elsewhere) lends "to the
inference that the money was drug related." United States v. $215,300
United States Currency, 882 F.2d 417, 418-19 (9th Cir. 1989). The
carrying of "unusually large amounts of cash" can help to establish
the link to drug activity, Thomas, 913 F.2d at 1115; see also $215,300
United States Currency, 882 F.2d at 419; and, an"evasive, confused
explanation for carrying" a large sum can contribute to probable
cause, United States v. One Lot of U.S. Currency ($36,634), 103 F.3d
1048, 1055 (1st Cir. 1997) (internal quotation marks and citation
omitted). Likewise, "carrying cash from an unknown owner to an
unknown recipient" is probative in establishing a connection to drug
trafficking. See United States v. $321,470.00, United States Currency,
874 F.2d 298, 304 (5th Cir. 1989). Finally, a positive alert by a police
dog on a cache of money can have some probative value in establish-
ing probable cause, particularly when it is considered along with other
telling circumstances:

Even though widespread contamination of currency
plainly lessens the impact of dog sniff evidence, a trained
dog's alert still retains some probative value. Ordinary expe-
rience suggests that currency used to purchase narcotics is
more likely than other currency to have come into contact
with drugs.

7
United States v. Saccoccia, 58 F.3d 754, 777 (1st Cir. 1995).

The totality of the facts in the present case points to the conclusion
that the government established probable cause to connect the money
in Puche-Garcia's rental car to illegal drug activity. The deputies
recovered $294,950 in cash from the car, a very large sum. It con-
sisted of small denominations of twenty-, ten-, five-, and one-dollar
bills. It was organized in sixty-eight bundles tied together with rubber
bands. The money was found hidden in clothing located in two suit-
cases in the trunk of a car. When Deputy Hart was searching the suit-
cases, Puche-Garcia had a stunned look on his face and was sweating
heavily. The explanation that Puche-Garcia provided to the deputies
was inconsistent and confusing. Puche-Garcia initially said he was not
carrying a large sum of money, but when the money was found he
said he was taking it to Venezuela. Later, he said he was taking it to
Miami where he would use it to buy merchandise in connection with
his business. Puche-Garcia could not give the name of the person
from whom he had picked up the money in New Jersey, and he could
not explain where (or to whom) he was to deliver the money once he
arrived in Miami. He said he was afraid of being hurt if he could not
deliver the money. Puche-Garcia insisted that he was not in the drug
business and that he was in the appliance business. Yet he could not
give an address for his business other than "Venezuela." Adding to all
of these facts is the positive dog sniff and the telephone number found
in the car that was related to a (drug) money laundering investigation.
Considering all of these facts in the totality, we conclude that the gov-
ernment has shown the requisite probable cause. Therefore, we affirm
the district court's denial of Claimants' motion for summary judg-
ment.

B.

Claimants' argument that the district court erred in granting the
government's cross-motion for summary judgment also fails. The
government is entitled to summary judgment if it can show (1) that
there is no genuine issue of material fact on the question of claimants'
lack of a property right in the money and (2) that the government is
entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(c). As
we explained in Leak, "the government cannot prevail on summary
judgment if the [claimants] offer[ ] a reasonable and legitimate expla-

8
nation . . . and the explanation is verified by facts and circumstances
which, if believed, would enable a rational jury to conclude by a pre-
ponderance of the evidence that [forfeiture is not warranted]." Leak,
123 F.3d at 793 (internal quotation marks omitted). Fed. R. Civ. P.
56(e) explains the burden of a party opposing a summary judgment
motion:

When a motion for summary judgment is made and sup-
ported as provided in this rule, an adverse party may not rest
upon the mere allegations or denials of the adverse party's
pleading, but the adverse party's response, by affidavits or
as otherwise provided in this rule, must set forth specific
facts showing that there is a genuine issue for trial. If the
adverse party does not so respond, summary judgment, if
appropriate, shall be entered against the adverse party.

Claimants in this case did not heed the requirements of Rule 56.
They did not present any affidavits or other evidence to the district
court in order to offer a legitimate explanation as to the source of the
money and to explain why forfeiture was not warranted. Claimants
were not entitled to sit back and wait for a hearing before presenting
any evidence they might have had. See Atkinson v. Bass, 579 F.2d 865
(4th Cir. 1978) (affirming grant of summary judgment to defendants
without a hearing where plaintiff failed to proffer any affidavits chal-
lenging the motion); see also 10A Wright, Miller & Kane, Federal
Practice and Procedure: Civil 3d § 2720.1, at 357 (1998) (the prevail-
ing view is that a court can grant summary judgment without a hear-
ing). The government met its burden under Rule 56(c), making at
least a circumstantial case (through the deputies' affidavits) that the
money in Puche-Garcia's car was connected to drug trafficking and
that the Claimants had no right to retain the money. The Claimants,
on the other hand, failed to satisfy their burden of presenting contrary
facts.

Claimants argue that they offered evidence that they were innocent
owners when they filed an administrative claim with the DEA. The
administrative claim, however, was not part of the record in the dis-
trict court, and the district court was thus not able to consider it. The
record on appeal does not include information submitted to an agency
unless that information is part of the "original papers and exhibits

9
filed in the district court." Fed. R. App. P. 10(a)(1). Consequently, we
cannot consider the summary of this information that is contained in
the Claimants' brief.

Because Claimants failed to offer any evidence contradicting the
government's evidence that the $294,950 in Puche-Garcia's car was
the proceeds of drug trafficking, there is no dispute of material fact
as to this issue. Given these facts, the money is subject to forfeiture
under 21 U.S.C. § 881(a)(6) as "proceeds traceable to [a controlled
substance] exchange," and the government is thus entitled to judg-
ment as a matter of law. Therefore, the district court did not err in
awarding summary judgment to the government.

IV.

We affirm (on the merits) the district court's denial of Claimants'
motion to suppress and for summary judgment, and we affirm (on the
merits) the award of summary judgment to the government. In light
of this disposition, it will not be necessary for us to consider Claim-
ants' argument that the district court abused its discretion by entering
an involuntary dismissal under Fed. R. Civ. P. 41(b) for failure to
prosecute.

AFFIRMED

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