United States v. $9,041,598.68

Revised January 8, 1999

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
________________________

No. 97-20413
________________________

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.

$9,041,598.68 (NINE MILLION FORTY ONE THOUSAND FIVE HUNDRED
NINETY EIGHT DOLLARS AND SIXTY EIGHT CENTS),

Defendant,

MARIO RUIZ MASSIEU,

Claimant-Appellant.

_________________________________________________________________

Appeal from the United States District Court for the
Southern District of Texas
_________________________________________________________________
December 15, 1998
Before JOLLY, BARKSDALE, and BENAVIDES, Circuit Judges.

BENAVIDES, Circuit Judge:

This is an appeal from a judgment of forfeiture, pursuant to

21 U.S.C. § 881(a)(6) and 18 U.S.C. § 981, of $9,041,598.68 in

United States currency. Appellant, Mario Ruiz Massieu

(“Massieu”), contends that he is the owner of the forfeited funds

and that the district court erred in (1) entering judgment in

favor of the Government as to the entire amount of the defendant

currency, (2) finding post-verdict that he had no standing to

contest the forfeiture, and (3) determining that the Government

established probable cause for the forfeiture. Additionally, he
argues that the cumulative effect of the district court’s

discovery and procedural rulings--e.g., denial of Massieu’s

request for an unredacted copy of the seizure affidavit (in order

to seek suppression), ex parte examination of materials presented

in support of Government’s application for stay, failure to

exclude testimony of last-minute Government witnesses, and

failure to bifurcate the trial--deprived him of due process. For

the reasons set forth below, we AFFIRM the district court’s April

25, 1997 order for forfeiture.

I. PROCEDURAL BACKGROUND

On March 13, 1995, United States Magistrate Judge Frances

Stacy, acting pursuant to a sealed affidavit, issued a warrant

for the seizure of $9,041,598.68 in U.S. currency from an account

at Texas Commerce Bank (TCB). Approximately three months later,

on June 15, 1995, the United States filed a complaint for

forfeiture in rem against the seized currency. The complaint

alleged that the money constituted narcotics trafficking proceeds

given to facilitate the movement of drugs into the United States.

At the time the complaint was filed, Massieu, a former Deputy

Attorney General for the Republic of Mexico, was in federal

custody in New Jersey.1

On June 26, 1995, Massieu filed a Notice of Claim. He

served the United States with 18 multi-part interrogatories and a

1
Massieu had been arrested in Newark on March 3, 1995, for
violating 31 U.S.C. § 5316 by failing to declare that he was carrying
currency in excess of $10,000.

2
request to produce 52 categories of documents.2 He followed this

on July 6, 1995 with his answer denying the factual recitations

in the United States’ complaint and a motion to dismiss for

failure to state a claim. He also moved for a protective order

to relieve him of the duty to respond to the United States’

interrogatories, which was denied on July 28, 1995. Massieu

alleged ownership of the seized currency, claiming that he had

received the money from his brother.

On July 28, 1995, the United States moved for a protective

order and to quash the interrogatories served by Massieu. United

States District Judge Nancy Atlas granted both motions on

November 6, 1995. On the same day, the Government requested that

it be permitted to take Massieu’s deposition to determine his

claim of ownership. Judge Atlas ordered the deposition to occur

forthwith.

On March 31, 1996, the district court found that Massieu had

standing and granted his February 20, 1996, motion to expedite.

The court further addressed his motion to reconsider a January

11, 1996, order that sealed a United States’ affidavit which had

acquainted the court with informant information. The court found

that the interests of the United States in ongoing criminal

investigations continued to justify the ex parte filing of the

sealed affidavit.

2
The Government, in comparison, served Massieu with nine
interrogatories with the complaint.

3
 On April 12, 1996, the Government moved the district court

pursuant to 21 U.S.C. § 881(i) to stay civil discovery pending

the criminal trial of narcotics trafficker Juan Garcia Abrego in

United States v. Abrego. At the May 31, hearing on the stay,

Massieu’s counsel requested copies of the sealed affidavits that

had formed the basis for the stay. Judge Atlas denied the

request and granted the United States’ motion to stay.

The Abrego prosecution was completed in October 1996.

Massieu moved on November 18, 1996, to vacate the stay, to unseal

documents, for an expedited pretrial conference, and for a speedy

trial. The court vacated its stay on December 11, 1996, granted

the request for a speedy trial, and set the case for trial on

March 10, 1997. The court further advised the parties that

discovery disputes would be resolved promptly.

The Government filed its amended complaint on December 16,

1996, and one week later apprised the district court that it had

answered Massieu’s interrogatories and produced over 350

documents. The Government also supplemented its production with

additional documents in January 1997.

In a hearing on January 31, 1997, Judge Atlas ordered the

Government to list its witnesses and to provide detailed witness

information to Massieu. The Government provided Massieu with a

witness list on February 9, 1997. The next day, on February 10,

1997, the district court ordered that depositions of the

Government’s witnesses begin on February 11, 1997, with the

4
Government making a rolling production of documents. At the

February 10 hearing, the parties agreed that discovery would not

be disclosed outside their respective staffs.

On February 18, 1997, the court held a hearing on the

Government’s motion for sanctions based on the dissemination of

the Government’s discovery, including the identity of its

informants and agency reports, which was the subject of a cover

story of “Processo,” a weekly Mexican magazine.3 Both parties

asserted prejudice from the leak and attributed responsibility

for the leak to the other party. Judge Atlas stated that she

could not make a decision as to the source of leaks based on the

current record and that as far as she was concerned the leak was

of unknown origin. As a security precaution, the court ordered

that the Government witnesses’ depositions be taken and filed

under seal, without copy to either party. The court, however,

did authorize both parties to review the sealed transcript in the

courthouse. Although such a limitation was no hardship for the

Government, which had offices in the courthouse, Massieu charged

that the court-imposed limitation was an enormous burden on his

out-of-town counsel. Consequently, on February 26, 1997, he

moved to obtain copies of the sealed witness depositions. The

court approved release of only those portions of informant

3
The article featured an interview with Juan Collado, Massieu’s
lawyer in Mexico, who received the Government’s discovery from Mr.
Canales, Massieu’s trial attorney.

5
depositions that the Government designated as no longer necessary

to keep under seal.

The following day, February 27, 1997, Massieu moved to

exclude evidence obtained after June 15, 1995 (the date the

forfeiture complaint was filed). On March 3, 1997, he moved to

bifurcate the proceeding into a bench trial to determine probable

cause and a subsequent jury trial on defenses to the forfeiture.

The court denied the motion but did require that the Government

present its hearsay evidence, admissible only for the purposes of

probable cause, outside the presence of the jury.

At 5:00 p.m. on March 5, 1997, two business days and less

than five full days before trial, the United States disclosed the

names of four additional informant witnesses, two of whom would

testify at trial. On March 7, Massieu moved to exclude the

witnesses. The court denied the motion and limited the

depositions of the new witnesses to four hours if in Spanish or

three hours if in English.

The jury trial proceeded on March 10, 1997. The morning of

trial, the district judge denied Massieu’s motion to limit the

Government’s proof to June 15, 1995, yet informed the parties

that she would make two probable cause rulings, one based on the

Government’s pre-complaint evidence and the other based on the

evidence in its entirety.

During trial, the court found that probable cause to forfeit

the currency existed both as of June 15, 1995, and as of the

6
forfeiture hearing. The jury returned what appeared to be a

mixed verdict, awarding Massieu $1,100,000 despite having

resolved most issues in favor of the Government. On April 25,

1997, the district court granted the Government’s motion for

judgment as a matter of law and set aside the $1,100,000 jury

award. Massieu appeals from that judgment.

II. FACTUAL BACKGROUND

Massieu was Deputy Attorney General of Mexico from June 1993

to January 1994 and then from July 1994 through November 1994.

Initially, he was in charge of “delegations,” the delegates to

the 31 United Mexican States (the equivalent of United States

Attorneys).4 Massieu’s duties, however, expanded in August 1993

when the Director of the Mexican Federal Judicial Police (MFJP)

began reporting to him.5

Sometime after his return to the Attorney General’s Office

in July 1994, Claimant instructed his associate, Jorge Stergios,

to begin special investigations of drug cartel leaders. Stergios

sought out Agent Stanley Pimentel of the Federal Bureau of

Investigation (FBI), who at that time was assigned as the legal

attache to the United States embassy in Mexico City, and

requested FBI agency intelligence on drug cartels. Stergios’

request was unusual given that the Drug Enforcement

4
Jorge Stergios, Massieu’s trusted associate, served as a
coordinator between Massieu and the delegates.
5
On August 25, 1993, Adrian Carrera Fuentes was appointed Director
of the MFJP.

7
Administration, not the FBI, was in charge of drug matters in

coordination with the Mexican National Institute to Combat Drugs.

More than unusual, Stergios’ request, in hindsight, was

suspect. Earlier in December 1993, Stergios had accompanied

Massieu to Houston, where Massieu opened an account at Texas

Commerce Bank. Between March 2, 1994, and February 14, 1995,

Stergios made 25 cash deposits to Massieu’s account, depositing

more than $9 million. The currency bundles that Stergios

deposited at TCB were secured by paper wrapper, rubber bands, or

cellophane. Of the 25 deposits, 18 deposits did not contain any

$100 bills; the majority of the currency was in $20 dollar bills.

On March 2, 1995, Massieu was questioned by Mexican

authorities. After the interview, he, his wife, and his daughter

flew from Mexico to Houston. Their baggage declaration stated

that they would be at a Holiday Inn in Houston for three weeks

for pleasure. However, the Massieus checked into the Holiday Inn

and left the next day.

On March 3, 1995, U.S. Customs Agent Marcy Foreman was

contacted by FBI Agent George Smith and asked to maintain a look-

out for Massieu. According to Foreman, the request for

assistance in locating Massieu originated from the FBI office in

Mexico City. In checking flight manifests, Customs determined

that Massieu was traveling to Spain via Newark, New Jersey. He

was arrested in Newark after he failed to declare the amount of

8
currency he was carrying in excess of $10,000. The charges were

later dismissed.

III. DISCUSSION

A. Standing

As a predicate to any action before a federal court, parties

must establish that they have proper standing to raise a claim.

See United States v. $321,470 in U.S. Currency, 874 F.2d 298, 302

(5th Cir. 1989). The issue of standing is one of law, and review

is plenary. See United States v. $38,570 in U.S. Currency, 950

F.2d 1108, 1111 (5th Cir. 1992). “This Circuit has held that the

burden of establishing standing to contest forfeiture is on the

claimant seeking to come before the court.” United States v. One

18th Century Colombian Monstrance, 797 F.2d 1370, 1374-75 (5th

Cir. 1986). A claimant need not prove the merit of his

underlying claim. See id. He must, however, be able to show at

least a facially colorable interest in the proceedings sufficient

to satisfy the case-or-controversy requirement and the

“prudential considerations defining and limiting the role of the

court.” Id. This principle applies to all forfeitures.

The present appeal is complicated by the district court’s

post-verdict determination that Claimant lacked standing. Prior

to trial, Judge Atlas had twice found that Massieu had standing

to contest the forfeiture of the $9,041,598.68. It was only

after the court submitted the case to the jury, reconciled the

jury’s facially inconsistent verdict, and granted judgment in

9
favor of the Government as to the entire amount of the defendant

currency that the district court inexplicably revisited the issue

of Article III standing.

Although we recognize that standing is “an indispensable

part of the plaintiff’s case” and as such, the plaintiff must

demonstrate standing in “the same way as any other matter on

which the plaintiff bears the burden of proof, i.e., with the

manner and degree of evidence required at the successive stages

of litigation,” Meadowbriar Home For Children Inc. v. G.B. Gunn,

81 F.3d 521, 529 (5th Cir. 1996) (quoting Lujan v. Defenders of

Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 2136 (1992)), we

note that a tension exists between a district court’s

post-verdict, merits-based determination of standing and the

requirement that an appellate court review standing as a

threshold matter. In finding that Massieu lacked standing, the

district court reasoned that the jury’s responses to Special

Interrogatories 1, 2, and 4--its finding that the $9,041,598.68

in its entirety constituted illegally acquired funds--necessarily

negated any theory of ownership which Massieu might have offered.

In other words, because the jury believed that all the money was

in some way tied to the facilitation of narcotics trafficking,

the court reasoned that the jury could not have, at the same

time, believed that Massieu had acquired the funds from his

family members apart from any illegal conduct.

10
 Because the district court’s determination that Massieu did

not have standing to contest the forfeiture was based entirely on

the jury’s verdict, that finding can only be upheld if this Court

were to determine: (1) that the district court properly

interpreted the jury’s responses to the Special Interrogatories

as supporting a finding that the total sum of $9 million U.S.

currency was tied to illegal narcotics activity, and (2) that

none of Massieu’s claims on appeal require reversing or

invalidating the jury verdict. And so, in the present case, a

threshold review of the issue of standing without a consideration

of the merits becomes an impossibility. Allowing a district

court to revisit the question of standing post-verdict

necessarily invites this Court to chase its tail--we ought review

standing as a threshold matter yet in order to do so we must

review the merits. For this reason, we consider Judge Atlas’

post-verdict discussion of standing as no more than a recognition

of the fact that the jury verdict defeated all possible claims of

Massieu on the merits, and we find the trial court’s earlier

determinations that Massieu had standing to be dispositive of

that issue.6

B. Probable Cause

6
As such, it is unnecessary for this Court to address
Massieu’s claim on appeal that the district court erroneously
granted the Government’s Motion for Summary Judgement on the
issue of gift.
11
 In a forfeiture action, the Government bears the initial

burden of demonstrating probable cause for belief that a

substantial connection exists between the property to be

forfeited and the criminal activity defined by the statute. See

United States v. One 1986 Nissan Maxima GL, 895 F.2d 1063, 1064

(5th Cir. 1990). The probable cause threshold in this context 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.” United States v. $364,960 in United

States Currency, 661 F.2d 319, 323 (5th Cir. 1981). The

government may prove the requisite probable cause by both

circumstantial and hearsay evidence. See One 1986 Nissan, 895

F.2d at 1065. Although this Court reviews the district court’s

findings of fact for clear error, “[whether] the facts [are]

sufficient to constitute probable cause is a question of law,”

which we review de novo. United States v. 1988 Oldsmobile

Supreme, 983 F.2d 670, 674 (5th Cir. 1993).

Here, the Government proceeded to trial on four separate

theories of forfeiture. First, the Government argued that the

currency represented proceeds of drug trafficking activities in

the United States and was thus forfeitable under § 881(a)(6).

Second and third, the Government argued that the proceeds were

involved in financial transactions in violation of § 1956(a) that

occurred in the United States in furtherance of an overarching

conspiracy and were thus forfeitable pursuant to § 981. The

12
fourth theory was based on Stergios’ transportation of the drug

proceeds from Mexico City for deposit to the TCB account, which

would again make the money forfeitable under § 981 as involved in

an § 1957(a) offense.

Massieu argues first that the Government should have been

required to establish probable cause utilizing only that evidence

which the Government had obtained prior to June 15, 1995, the

date the complaint was filed, and second that the evidence at

trial was insufficient to support the district court’s findings

of probable cause. In denying Massieu’s motion to limit the

Government’s proof to pre-complaint evidence, the district court

relied upon United States v. Monkey, 725 F.2d 1007 (5th Cir.

1984). The district court’s reliance, however, is misplaced.

This Court in United States v. Monkey did not have before it the

issue with which we are presently confronted--whether post-

complaint evidence is admissible to establish probable cause for

forfeiture.

In United States v. Monkey, the Government sought forfeiture

of a vessel on the grounds that it was used for importing

controlled substances. See id. The issue before the court in

that case was whether probable cause existed for the warrantless

seizure and what effect, if any, an unlawful seizure would have

on the forfeiture proceeding. See id. at 1011-12. We held that

improper seizure does not jeopardize the Government’s right to

secure forfeiture if probable cause to forfeit the vessel can be

13
supported with untainted evidence. See id. at 1012. The

unlawful seizure would only result in the inadmissibility of

evidence obtained through the seizure. See id.

The confusion over the precedential effect of the Monkey

decision results from the fact that, in finding probable cause

for the forfeiture, we explicitly relied on evidence obtained by

the Government after the forfeiture complaint was filed. This

Court’s past reliance on post-complaint evidence, although

instructive, is not binding. The issue of the admissibility of

post-complaint evidence was not subjected to scrutiny in Monkey.

We also note that here, unlike in Monkey, the defendant currency

was seized pursuant to a valid warrant, and the Government at no

time sought to introduce evidence obtained from the seizure,

namely the $9 million U.S. currency.

In the thirteen years since Monkey, we have not addressed

the precise issue of whether the Government may rely upon

evidence acquired after institution of forfeiture proceedings in

showing probable cause. Because this is a matter of first

impression in this Circuit, we look to our sister circuits for

guidance. At present, there is a split on the issue of the

admissibility of post-complaint evidence with respect to the

probable cause showing. The Ninth, First, and Eighth Circuits

have held that the Government is restricted to evidence acquired

14
at the time of the complaint, while the Second and Sixth Circuits

have reached the opposite conclusion.7

In the instant case, however, we do not reach the issue of

whether post-complaint evidence is admissible to establish

probable cause for forfeiture and, therefore, do not take sides

in this circuit conflict. Because the district court separately

considered whether probable cause existed as of June 15 and

because we agree with its conclusion that probable cause existed

as of that date, we address only the district court’s finding of

probable cause as of June 15, 1995.

The district court based its probable cause determination on

the following factual findings:

First of all, the circumstances of the
$9 million . . . . I rely on Jose Nieto’s
testimony with respect to the manner in which
the money was delivered to the bank, the way
it was bundled . . . and at least on one or
more occasions wrapped in cellophane . . .
and that the cash deposits did not contain
any 100-dollar bills, in Nieto’s experience,
was unusual. The cash deposits he said of
more than $100,000 were extremely unusual and
the number of 20s he found unusual in
commercial matters . . . .

7
For the propostion that post-complaint evidence is not
admissible, see e.g., United States v. $191,910.00 in United
States Currency, 16 F.3d 1051, 1066-67 (9th Cir. 1994); United
States v. One Lot of U.S. Currency ($36,634), 103 F.3d 1048,
1053-54 (1st Cir. 1997); United States v. Parcels of Property, 9
F.3d 1000, 1003 (1st Cir. 1993); United States v. $91,960.00, 897
F.2d 1457, 1462 (8th Cir. 1990).
For the proposition that evidence acquired up to trial could
be used to show probable cause, see, e.g., United States v.
$67,220.00 in United States Currency, 957 F.2d 280, 284 (6th Cir.
1992); United States v. Premises and Real Property at 4492 S.
Livonia Rd., 889 F.2d 1258, 1268 (2d Cir. 1989).
15
 Robert Rutt testified that . . . there
were different stories given by Stergios and
absolutely no documentation for his
explanations . . . .
With respect to the TCB deposits . . .
within one week . . . three deposits of
almost $1 million were made . . . Mr. Massieu
was Deputy Attorney General of PGR delegates
. . . from June 1993, to January, 1994, and,
in March the substantial deposits began . . .
The fact that the money was not immediately
deposited is not material for the purposes of
probable cause . . . .
With respect, though, to the timing of
the money, in March, 1994, 1.5 million was
deposited; in April, 1,650,000; in May,
650,000; in June, 500,000; in August, 300,000
[listing several more deposits]. . .
There is no meaningful explanation to
the bankers or the Customs Service for the
vast sums of money deposited . . . . And,
so, the size of the deposits in such a short
period of time in the condition it existed
would be one factor to consider on probable
cause to believe the money was drug proceeds
. . . .
Mr. Menger testified that he was in the
Customs Service and . . . that it was very
rare for people to carry over $100,000 and
the only people doing so were money
exchangers . . . .
As to Massieu’s taking of payments, the
payments—the testimony of Robert Rutt and the
matters in which he relied are of great
significance. The Court does rely on Agent
Munks’ work prior to June 15 . . . who met
with informants [like] Juan Antonio Ortiz
. . . . Munks met with informants and
learned that Carrera Fuentes . . . had
delivered bribe money from drug traffickers .
. . to Massieu . . . . Munks told Rutt that
those informants were reliable. Rutt also
said that he had information from an
informant in touch with Agent Hanna that drug
trafficking organizations in Mexico were
paying bribes to Mexican law enforcement,
although Mr. Massieu was not specifically
mentioned . . . .
The other evidence is Adrian Carrera
Funetes’ statement . . . [that] implicates
16
 Massieu and Stergios having information from
traffickers or others with knowledge of the
[cocaine] shipment . . . .
Stergios’ odd request for assistance and
information on the cartels to Pimentel, the
FBI Agent . . . was known to the Government
prior to June, 1995 . . . .
In sum, while this evidence clearly
would be insufficient for any finding other
than probable cause . . . it just barely gets
over the line as to this defendant currency,
but I find that it is sufficient as of June
15, 1995.

We agree with the district court’s conclusion. Our review

of the record leaves us with no doubt that the testimony of TCB

bank representative Nieto with respect to the manner in which the

money was bundled, the testimony of informant Tony Ortiz

regarding his first-hand knowledge of the Abrego drug

organization’s practice of paying bribes to Mexican law

enforcement, the hearsay testimony of Agent Rutt that bribe money

had been paid from drug traffickers to Massieu, the statement of

Adrian Carrera Fuentes implicating Massieu with knowledge of a

cocaine shipment, and the records of Massieu’s bank deposits

revealing substantial cash deposits of largely twenty dollar

bills could reasonably support a belief that the seized currency

was derived from illicit drug transactions. This Court has found

probable cause under less implicating circumstances. See, e.g.,

United States v. $400,000.00 in United States Currency, 831 F.2d

84 (5th Cir. 1987) (affirming the district court’s determination

of probable cause on the basis of the defendant’s failure to

report currency transported into the United States, a lack of

17
evidence of any completed report, and nervousness while currency

was being counted). Accordingly, we hold that the district court

did not err in finding that the Government’s evidence as of June

15 satisfied the requirement of probable cause.

C. Judgment as to Entire Amount of Defendant Currency

Post-verdict judgments as a matter of law are examined de

novo. See Fed.R.Civ.P. 50. In reviewing the district court's

decision to grant a judgment as a matter of law, this Court

employs the same standard that guided the district court:

We consider all the evidence with all
reasonable inferences in the light most
favorable to the party opposed to the motion.
If the facts and the inferences point so
strongly and overwhelmingly in favor of [the
movant] that reasonable jurors could not
arrive at a contrary verdict, then the motion
was properly granted. If there is
substantial evidence--that is, evidence of
such quality and weight that reasonable and
fair-minded jurors might reach a different
conclusion--then the motion should have been
denied.

Robertson v. Bell Helicopter Textron, Inc., 32 F.3d 948 (5th

Cir.1994) (citations omitted).

Massieu asserts that the district court erred in denying his

Motion For Judgment on Jury Question 5 and in entering judgment

in favor of the Government as to the entire amount of the

defendant currency. He claims that Judge Atlas disregarded the

jury’s finding in response to Special Interrogatory Number 5.

The Government, in response, argues that the district court did

not disregard the jury’s response to Special Interrogatory

18
Number 5. Instead, it argues the court attempted to reconcile

the apparently inconsistent answers provided by the jury to the

five submitted special interrogatories.8

8
Question No. 1
Do you find from a preponderance of the evidence that the
Defendant $9,041,598.68, in whole or in part, was not the proceeds of
and was not used to facilitate drug trafficking activity?
Answer “yes” or “no”: ___________

Proceed to Question No. 2.

Question No. 2
Do you find from a preponderance of the evidence that the
Defendant $9,041,598.68, in whole or in part, was not involved in a
financial transaction that was conducted or attempted to be conducted
with the intent to promote the carrying on of drug trafficking activity?
Answer “yes” or “no”: __________

Proceed to Question No. 3.

Question No. 3
Do you find by a preponderance of the evidence that the Defendant
$9,041,598.68, in whole or in part, was not transported or transferred
from a place inside the United States to or through a place outside the
United States with the intent to promote drug trafficking activity?
Answer “yes” or “no”: __________

Proceed to Question No. 4.

Question No. 4
Do you find by a preponderance of the evidence that any one or
more of the deposits to the account at Texas Commerce Bank is/are not a
monetary transaction in criminally derived property of a value greater
than $10,000.00 in United States currency derived from drug trafficking
activity?
Answer “yes” or “no”: __________

Proceed to Question No. 5.

Question No. 5
If you have answered “yes” to any of the above questions, then
answer Question No. 5. If you have answered “no” to all of the above
questions, then do not answer Question No. 5.

Question No. 5
To the extent, and only to the extent, you have found in answer to
the foregoing questions
that all or part of the defendant $9,041,598.68, if any, was:
• money used to facilitate drug trafficking activities or the

19
 This Circuit has long held that a district court judge has a

duty to attempt to reconcile a jury’s apparently inconsistent

responses to special interrogatories. See Davis v. West

Community Hosp., 755 F.2d 455, 465 (5th Cir. 1985). Federal

district courts are granted considerable latitude in interpreting

special interrogatories because a judge is in the best position

“to analyze the jury’s intention and thus is charged, in the

first instance, with the obligation of giving effect to those

intentions in light of the surrounding circumstances.” P & L

Contractors, Inc. v. American Norit Co., Inc., 5 F.3d 133, 138

(5th Cir. 1993) (citing McVey v. Phillips Petroleum Co., 288 F.2d

53, 59 (5th Cir. 1961)).

In the present case, the district court properly exercised

its discretion by adopting a view of the case which made the

jury’s answers consistent. See, e.g., Mercer v. Long MFG. N.C.,

Inc., 671 F.2d 946, 948 n.1 (5th Cir. 1982) (explaining that

proceeds of drug trafficking activities;

• a financial transaction that was conducted or attempted to be
conducted with the intent to promote the carrying on of drug
trafficking activity;

• money transported or transferred from a place inside the United
States to or through a place outside the United States with the
intent to promote drug trafficking activity; and/or,

• monetary transaction(s) in criminally derived property of a value
greater than $10,000.00 in United States currency derived from
drug trafficking activity,

what amount of the Defendant $9,041,598.68, if any, do you find from a
preponderance of the
evidence was from a source other than the above sources?
Answer in dollars and cents: _______________

20
“[i]f there is a view of the case which makes the jury’s answers

consistent, the court must adopt that view and enter judgment

accordingly”). In order to give proper effect to all of the

jury’s responses, the court had to reconcile the jury’s negative

responses to Questions No. 1, 2, and 4, indicating that all of

the defendant currency came from drug-related sources, with the

jury’s answer to Special Interrogatory Number 5 which could be

construed as awarding Claimant $1,100,000. Because the jury was

not to answer Question No. 5 unless it had answered “yes” to any

of the previous interrogatories, the court properly reasoned that

the jury’s answer to Question No. 5 served as an explanation of

its answer to Question No. 3, the only interrogatory to which the

jury had answered “yes.” According to the court, the response to

Special Interrogatory Number 5 therefore only indicated that

Massieu proved to the jury’s satisfaction that $1,100,000 was not

money “transported or transferred from a place inside the United

States to or through a place outside the United States with the

intent to promote drug trafficking activity,” as referenced in

Question No. 3. Thus, the court reasoned that because the answer

of $1,100,000 to Question No. 5 applied to only one of the

government’s four theories of forfeiture, it was academic and

Massieu was not entitled to the $1,100,000.

Furthermore, Judge Atlas properly reconciled the jury’s

responses “in light of the surrounding circumstances, including

the instructions of the court.” Davis v. West Community Hosp.,

21
755 F.2d 455, 465 (5th Cir. 1985). Here, the court supplied the

parties with a copy of the “Court’s Instructions to the Jury” and

the Verdict Form prior to closing arguments. The Government and

Massieu both argued directly from the Verdict Form during their

closing arguments, going so far as to indicate to the jury

whether they desired a “yes” or “no” response to each question.

For these reasons, Judge Atlas upheld the jury verdict and

entered judgment in favor of the Government as to the entire

$9,041,598.68.

Because we find the district court’s reconciliation

persuasive, we hold that the district court properly denied

Massieu’s Motion For Judgment on Jury Question 5 and properly

entered judgment in favor of the Government as to the entire

amount of the defendant currency.

D. Due Process

The Due Process Clause of the Fifth Amendment guarantees that

“[n]o person shall . . . be deprived of life, liberty, or

property, without due process of law.” U.S. Const. Amend. V.

The established rule is that claimants whose property is subject

to forfeiture are entitled to due process including the right to

reasonable notice of the basis on which forfeiture is sought and

a reasonable opportunity to defend. See United States v. James

Daniel Good Real Property, 510 U.S. 43, 48-63, 114 S.Ct. 492,

498-506 (1993); United States v. Marsh, 105 F.3d 927, 930-31 (5th

Cir. 1997). This Court has held, “[w]here the Government seeks

22
the traditionally disfavored remedy of forfeiture, due process

protections ought to be diligently enforced, and by no means

relaxed . . . .” Armandariz-Mata v. U.S. Dept. of Justice, 82

F.3d 679, 683 (5th Cir.) cert denied, 117 S.Ct. 317 (1996).

Massieu submits that the district court’s discovery and

procedural rulings, either individually or cumulatively, deprived

him of due process and asks this Court to review those rulings de

novo. Massieu, however, provides no authority for altering the

usual abuse of discretion standard. We note that a ruling which

does not rise to the level of an abuse of discretion cannot alone

constitute a due process deprivation. Therefore, the appropriate

standard of review for the individual discovery and procedural

rulings remains an abuse of discretion. See Mills v. Beech

Aircraft Corp., 886 F.2d 758, 761 (5th Cir. 1989).

Moreover, Massieu requests that this Court utilize a

cumulative error analysis. Such an approach, however, is

employed only in those cases where individual rulings are

erroneous--where the appellant has “ . . . [some]thing to

cumulate.” Derden v. McNeel, 938 F.2d 605, 609 (5th Cir. 1991)

(applying cumulative error analysis in the context of a habeas

proceeding). In Massieu’s view, the district court committed

reversible error in denying his request for an unredacted copy of

the seizure affidavit (in order to seek suppression), conducting

ex parte examination of Government exhibits presented in support

of its application for stay, failing to exclude testimony of

23
last-minute Government witnesses, and failing to bifurcate the

trial. We shall examine each of these claims of error in turn.

1. Denial of request for unredacted copy of the
seizure affidavit.

Massieu argues that the district court erred in denying his

request for an unredacted copy of the court-sealed seizure

affidavit. He claims that without access to the affidavit he was

unable to ascertain the basis for the seizure in order to contest

its legality. Massieu’s claim lacks merit. First, Federal Rule

of Civil Procedure 26(c) provides for the sealing of records upon

a showing of “good cause” by the moving party. Fed.R.Civ.P. Rule

26(c). A corollary to Rule 26(c) is that, once a district court

has sealed a document, it is well within its discretion to deny a

party’s request for an unredacted copy of that same document.

Second, even assuming arguendo an “illegal” seizure of the

defendant currency, because the Government did not seek to

introduce the actual currency at trial, there was no evidence in

the present case that Massieu could have sought to suppress. See

United States v. Monkey, 725 F.2d 1007, 1011-12 (5th Cir. 1984)

(explaining that a lack of probable cause for the seizure would

“only result in the suppression of evidence obtained by the

wrongful seizure and would have no further bearing on the

forfeitability of the property.”). Accordingly, Massieu cannot

show any prejudice to his “substantial rights” that would justify

reversal. See Fed.R. Civ.P Rule 61.

24
 2. Ex parte examination of materials in support of
application for stay.

Generally, the power to stay a pending matter derives from a

trial court’s wide discretion to control the course of

litigation. In the present case, however, this inherent

discretion has been explicitly circumscribed by statute. The

plain language of both 18 U.S.C. § 981(g) and 21 U.S.C. § 881(i)

requires a district court to find two elements in order to grant

a stay: (1) that forfeiture proceedings be “related to” an

offense for which there has been an indictment,9 and (2) that the

Government show “good cause” for the stay. See In re Ramu, 903

F.2d 312, 319 (5th Cir. 1990) (considering appropriateness of

stay in context of 21 U.S.C. § 881(i)). Fifth Circuit precedent

additionally mandates that a district court make express findings

of fact and conclusions of law concerning the existence of the

statutory prerequisites. See Id.

The district court granted a stay of litigation until the

conclusion of the Abrego trial on the basis of oral argument by

both the Government and Massieu, as well as two sealed affidavits

which the court examined ex parte. Massieu argues that the

district court’s denial of his request for copies of the two

sealed affidavits deprived him of the opportunity to rebut

9
21 U.S.C. § 881(i) requires that the indictment be for a drug
offense. 18 U.S.C. §981(g) mandates that the indicted offense be a
violation of federal, state, or local law.

25
meaningfully the contentions of the Government at the May 31,

1996, hearing.

It is well established in this Circuit that district courts

have an inherent power to receive in camera evidence and place

such evidence under seal. See United States v. De Los Santos,

810 F.2d 1326, 1331-1333 (5th Cir. 1987). In the criminal

context, we have recognized that the receipt of evidence ex parte

permits the court to balance the interests of the Government--in

safeguarding its confidential informants and in ensuring the

viability of its ongoing investigations--against the interests of

defendants in confronting adverse witnesses. See United States

v. Singh, 922 F.2d 1169, 1172 (5th Cir. 1991) (holding that

district court’s in camera review was appropriate, and that

furnishing the appellant with a copy of the transcript of that

review “would defeat the very purpose of the in camera

procedure.”). Unlike criminal defendants, civil forfeiture

claimants are not afforded the protections of the Sixth

Amendment’s Confrontation Clause. See Austin v. United States,

509 U.S. 692, 608 n.4, 113 S.Ct. 2801, 2804 n.4 (1998). As a

result, submission of evidence ex parte is more readily justified

in a civil forfeiture action than in a criminal case.

Because courts routinely balance the interests of the

Government in anonymity against that of civil litigants in full

disclosure and have permitted the submission of evidence ex

parte, see, e.g., Abell v. Potomac Insurance Co., 858 F.2d 1104,

26
1143 (5h Cir. 1988), vacated on other grounds, 492 U.S. 914, 109

S.Ct. 3236 (1989) (sealing the record of in camera discussions

with FBI agent about attempts to bribe jury members); In re Grand

Jury Witness, 835 F.2d 437, 441 (2d Cir. 1988) (permitting

Government to file a sealed ex parte affidavit and to adjourn to

chambers for ex parte discussion in closed civil contempt

hearing), we find no abuse of discretion in the present case.

Moreover, Massieu has not demonstrated any prejudice to his

“substantial rights” that resulted from the imposition of the

stay. See Fed.R. Civ.P Rule 61. In particular, it is

interesting to note that less than one month after he

unsuccessfully sought a writ of mandamus from this Court to be

relieved of the hardship of what he deemed court-indulged blanket

non-disclosure by the Government, Massieu moved the district

court for a speedy trial. Upon agreement of the parties, the

case was set for trial on March 10, 1997, approximately three

months following the district court’s lift of the stay.

3. Failure to exclude testimony of last-minute witnesses.

Massieu’s next point of error is that the district court

erred in failing to exclude the trial testimony of Cesar

Dominguez10 and Raul Macias,11 who were two of the four

10
Cesar Dominguez was a city policeman commissioned by the
MFJP until 1995. As a police officer assigned to the MFJP,
Dominguez would deliver “quotas” (payoffs in the form of either
cash or drugs) from drug traffickers to the MFJP office. He
testified that drug traffickers also delivered money to the
office in boxes, briefcases, or bags. The money was wrapped in
27
prospective witnesses that the Government disclosed less than

five full days before trial. According to Massieu, the last-

minute witness disclosure violated Federal Rule of Civil

Procedure 26(a)(3)(A)12 and should have prompted mandatory

cellophane or secured by rubber bands. The most money Dominguez
was involved in counting was a little more than $6 million.
Beginning in 1991, Dominguez began working for the Amado
Carillo Fuentes organization. In 1993, Dominguez on four
different occasions transported money to the airport. Once at
the airport the money would be loaded onto a plane belonging to
the Attorney General’s office. While Dominguez was a police
officer, money continued to be brought to the airport destined
for the Attorney General’s office regardless of who held the
position. Dominguez quit in 1995 because over 17 of his co-
workers were murdered.
11
Raul Macias was a police officer in Mexico from 1989 to
1995. In 1994, he was assigned to work under the direction of
Commander David Grajeda Lara in Zacatecas, Mexico. Macias
testified that on August 4, 1994, an airplane loaded with cocaine
landed at an airstrip near the city of Sombrerete, Mexico, where
the cocaine was unloaded and taken to the local MFJP’s office in
two trucks. At the office the cocaine was weighed. Eight tons
of the approximately 10 tons of cocaine were loaded into a truck
and driven away by Commander Lara under escort. The remaining
two tons along with bricks of fake cocaine were taken elsewhere
and burned the next day.
Macias returned to the airport that same night and observed
approximately 15 Suburbans parked near the airport entrance.
Lara instructed Macias to load 12-15 suitcases into Lara’s
Suburban. While guarding two of the suitcases at a hotel that
night, Macias opened the suitcases and saw that they contained
United States Currency in denominations of 50's, 20's, and 10's.
The following day, Lara picked up Macias, the suitcases, two
other agents and they went to Mexico City. The next morning the
men drove to the offices of the MFJP where Lara began talking to
the passenger of a blue Marquis. Lara signaled to Macias, who
took the suitcases with the currency from the Suburban and placed
them in the trunk of the Marquis. Macias recognized the
passenger who Lara was speaking with in the blue Marquis as
Massieu.
12
According to Rule 26(a)(3)(A), a party shall provide to other
parties the name, address, and telephone number of each witness that it
may present at trial other than solely for impeachment purposes,

28
exclusion under Rule 37. Specifically, he complains that the

late disclosure forced inadequate depositions of other witnesses

and precluded investigation of the witnesses’ allegations as well

as development of impeachment and rebuttal testimony.

Federal Rule of Civil Procedure 37(c)(1) provides that a

party who “without substantial justification fails to disclose

information required by Rule 26(a) or 26(e)(1) shall not, unless

such failure is harmless, be permitted to use as evidence at a

trial, at a hearing, or on a motion any witness or information

not so disclosed.” Fed.R. Civ.P. 37(c)(1). In determining

whether a violation of Rule 26(a) or (e)(1) is harmless, the

trial court’s discretion is to be guided by the consideration of

four factors: (1) the importance of the witness's testimony;

(2) the prejudice to the opposing party of allowing the witness

to testify; (3) the possibility of curing such prejudice by

granting a continuance; and (4) the explanation, if any, for the

party's failure to identify the witness. See Bradley v. United

States, 866 F.2d 120, 125 (5th Cir. 1989).

We uphold the district court’s decision not to exclude the

witness testimony. First, the applicable standard of review for

a trial court’s decision in a matter relating to discovery is

abuse of discretion. See Harris v. Amoco Production Co., 768

F.2d 669, 684 (5th Cir. 1985). We will not substitute our

“separately identifying those whom the party expects to present and
those whom the party may call if the need arises . . . .” Fed.R. Civ.P.
Rule 26(a)(3)(A).

29
judgment for that of Judge Atlas; instead, we must only decide

whether the district court “could have entered the order which

[it] did.” See id. Second, neither Rule 37 and the Advisory

Committee Notes to Rule 37 nor Fifth Circuit case law requires

that a district court make express findings of fact or

conclusions of law concerning the existence of substantial

justification or harmless failure to disclose. Accordingly,

Judge Atlas’ statements in open court on March 10, 1997,

regarding witness safety concerns and minimal prejudice as well

as the reasons asserted by the Government in justification for

its three week delay in providing the discovery, which was

nonetheless disclosed in advance of trial, are sufficient to

support the district court’s determination that Rule 37 sanctions

were not in order.13

4. Failure to bifurcate the trial.

A motion to bifurcate “is a matter within the sole

discretion of the trial court, and we will not reverse the

court’s decision absent an abuse of that discretion.” First Tex.

Sav. Ass’n v. Reliance Ins. Co., 950 F.2d 1171, 1174 n.2 (5th

Cir. 1992). Massieu asserts that the district court abused its

discretion when it failed to bifurcate the proceeding into a

13
Before the district court, the Government justified its
tardy disclosure of Cesar Dominguez and Raul Macias as follows:
(1) the loss of anticipated trial witnesses as a result of the
leaked “Processo” story and (2) the difficulty in arranging the
lawful entrance of Dominguez and Macias, both Mexican citizens,
into the United States.
30
bench trial to determine probable cause and a subsequent jury

trial on defenses to the forfeiture. Massieu argues that, as a

result of the one proceeding, hearsay evidence offered to show

probable cause was placed before the jury. According to Massieu,

the admission of this otherwise inadmissible evidence was highly

prejudicial and deprived him of a fair trial.

Massieu’s argument is without merit. Judge Atlas restricted

hearsay before the jury to only those instances where an

exception under Rules 803 or 804 of the Federal Rules of Evidence

applied. All hearsay, which was not otherwise admissible but for

purposes of probable cause, was heard outside the presence of the

jury. Accordingly, the district court’s failure to bifurcate

Massieu’s forfeiture proceeding was not an abuse of discretion.

5. 0 + 0 + 0 + 0 =0

In order for cumulative error analysis to apply, Massieu

must have “ . . . [some]thing to cumulate.” Derden v. McNeel,

938 F.2d at 609. Because the foregoing analysis has revealed no

ground for reversal, he has nothing to cumulate. Accordingly, we

deny Massieu relief on his cumulative due process claim.

E. Admissibility of Ortiz and Iglio Testimony

Massieu additionally claims that the district court erred in

admitting the testimony of two witnesses: Government informant

“Tony” Ortiz and money laundering expert Agent Vincent Iglio.

Evidentiary rulings are accorded considerable deference on
31
appeal; “error may not be predicated upon a ruling which admits

or excludes evidence unless a substantial right of the party is

affected.” Fed.R. Evid. 103(a); see General Electric Co. v.

Joiner, 118 S.Ct. 512 (1997); Mills v. Beech Aircraft Corp., 886

F.2d 758 (5th Cir. 1989). We first examine the testimony of Tony

Ortiz.

1. Testimony of Tony Ortiz

Massieu argues that the district court erred by failing to

exclude “Tony” Ortiz’s testimony and that the admission of such

testimony invited the conclusion that all Mexican law enforcement

officials are corrupt. Specifically, he asserts that Ortiz’s

testimony was irrelevant and unfairly prejudicial. See Fed.R.

Evid 402 and 403.

At trial, Ortiz testified about the payment of drug proceeds

to Mexican officials for the purpose of facilitating the movement

of cocaine through Mexico into the United States. He explained

that he had joined the Juan Garcia Abrego drug trafficking

organization in 1989 and had been in charge of a transportation

arm of the organization until his arrest in 1993. According to

Ortiz, his job included responsibility for transporting cocaine

from Brownsville to Houston and then to New York as well as

responsibility for transporting the drug proceeds from the United

States to Matamoros, Mexico.

Ortiz also testified that his ability to move drugs without

incident in Mexico depended upon paying commandants and other

32
Mexican officials. He testified that there were times that he

would have to wait for cocaine to arrive in Brownsville because

the commandants of the district had not yet been paid. According

to Ortiz, when commandants changed, payment would not stop.

Other arrangements would be made. As to the mode of payment,

Ortiz explained that commandants would be paid from the drug

proceeds which Ortiz would collect in the United States. He

testified that he knows that Abrego continued to move cocaine

after Ortiz’s arrest and that the only way to stay in business

was to pay bribes “all the way to the top.”

Rule 401 of the Federal Rules of Evidence defines relevant

evidence as evidence “having any tendency to make the existence

of any fact that is of consequence to the determination of the

action more probable or less probable than it would be without

the evidence.” Fed.R. Evid. 401. Rule 403, however, provides

that “[a]lthough relevant, evidence may be excluded if its

probative value is substantially outweighed by the danger of

unfair prejudice . . . .” Fed.R. Evid. 403. In United States v.

Pace, 10 F.3d 1106, 1115-16 (5th Cir. 1993), the Fifth Circuit

explained, however, that “[u]nless trials are to be conducted on

scenarios, on unreal facts tailored and sanitized for the

occasion, the application of Rule 403 must be cautious and

sparing. Its major function is limited to excluding matters of

scant or cumulative probative force, dragged in by the heels for

the sake of its prejudicial effect.” Id.

33
 There is no doubt that the testimony of Tony Ortiz was

relevant to the forfeiture proceeding. Under 18 U.S.C.

§ 981(a)(1), the seized currency would be forfeitable if it was

involved in a transaction violating 18 U.S.C. § 1956. With

regard to § 1956(a)(2)(A), the Government must demonstrate that

there was a transportation or transfer or attempt to transfer

“monetary instruments or funds from a place . . . outside the

United States to a place inside the United States with the intent

to promote the carrying on of specified unlawful activity.”

Ortiz’s testimony was relevant to whether money and cocaine

readily flowed between Mexico and the United States and that some

Mexican officials were given pay-offs in order to facilitate

narcotics trafficking. Additionally, Ortiz provided first-hand

knowledge about the operation of the Abrego drug organization--

one of the groups from which the Government alleged Massieu

received pay-off money. In order for the district court to

properly find Ortiz’s testimony to be relevant, it was not

necessary for Ortiz to provide the conclusive link between Abrego

and Massieu.

Furthermore, Ortiz’s testimony was not so unfairly

prejudicial that it should have been excluded. In conducting an

inquiry into the prejudicial effect of contested testimony, we

have recognized that “[t]estimony presented by the Government

will invariably be prejudicial to a criminal defendant or

forfeiture claimant. But Rule 403 only excludes evidence that

34
would be unfairly prejudicial to the defendant.” United States

v. Townsend, 31 F.3d 262, 270 (5th Cir. 1994). While there is no

doubt that Tony Ortiz’s testimony was harmful to Massieu, its

prejudicial effect did not substantially outweigh its probative

value.

For the reasons stated above in analyzing the relevance of

Ortiz’s testimony, the district court properly found that it was

not unfairly prejudicial.

2. Testimony of Vincent Iglio.

Claimant next argues that the district court erred by

admitting the testimony of Vincent Iglio as an expert on money

laundering. Massieu does not contest Iglio’s qualifications to

testify as an expert, rather he asserts that Iglio’s testimony

constituted inadmissible legal conclusion. See Fed.R. Evid 702

and 704.

The admission or exclusion of expert testimony will not be

disturbed on appeal unless it is “manifestly erroneous.” First

Natl. Bank of Durant v. Trans Terra Corp. Intl., 142 F.3d 802,

811 (5th Cir. 1998). Rule 702 of the Federal Rules of Evidence

states: “If scientific, technical, or other specialized knowledge

will assist the trier of fact to understand the evidence or to

determine a fact in issue, a witness qualified as an expert by

knowledge, skill experience, training, or education, may testify

thereto in the form of an opinion or otherwise.” Fed.R. Evid.

702. With regard to the permissible scope of expert testimony,

35
Rule 704 explicitly provides that “testimony in the form of an

opinion or inference otherwise admissible is not objectionable

because it embraces an ultimate issue to be decided by the trier

of fact.” Fed.R. Evid. 704. This Court, however, has repeatedly

held that Rule 704 does not allow an expert to render conclusions

of law. See Snap-Drape, Inc. v. Commissioner of Internal

Revenue, 98 F.3d 194 (5th Cir.1996).

Massieu charges that Iglio’s statement to the jury--that the

testimony he had heard so far in the case was consistent with

money laundering--supplanted Iglio’s judgment for their own.

Where an expert’s trial testimony included the bases for the

expert’s conclusion, and the conclusion was supported by the

overwhelming evidence, as is true in the present matter, Fifth

Circuit case law supports a determination that there was not

significant risk that the expert’s testimony "supplant[ed the]

jury's independent exercise of common sense." United States v.

Willey, 57 F.3d 1374, 1389 (5th Cir. 1995) (quoting Scott v.

Sears, Roebuck & Co., 789 F.2d 1052, 1055 (4th Cir.1986)). We

find no error in allowing Iglio’s testimony.

Cases from the Fourth and Eighth circuits bolster the

determination that the district court properly allowed Agent

Iglio to testify. The Fourth and Eighth Circuits when confronted

with the admissibility of expert testimony on questions involving

money laundering each found that such testimony was admissible

and did not present problems of experts acting as an additional

36
juror. See United States v. Barber, 80 F.3d 964 (4th Cir. 1995)

(noting that the district court did not abuse its discretion in

allowing the Government’s agent to testify and explain how the

defendant’s activities constituted concealment for purposes of

money laundering); United States v. Acty, 969 F.2d 652 (8th Cir.

1992), aff’d on other grounds, 511 U.S. 513, 114 S.Ct. 1747

(1994) (admitting, as permissible under rule 704(a), expert

testimony that deposited checks affect interstate commerce under

§ 1956(a)(1)(B), that banks into which defendant deposited money

were financial institutions under statute and that defendant’s

activities constituted concealment of money under

§ 1956(a)(1)(B)). Accordingly, we hold that the district court

properly admitted the expert testimony of Agent Vincent Iglio.

CONCLUSION

For the foregoing reasons, the judgment of the district

court is AFFIRMED.

37