F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
April 30, 2007
UNITED STATES CO URT O F APPEALS Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
U N ITED STA TES O F A M ER ICA,
Plaintiff-Appellee,
v. No. 06-3164
$252,300.00 IN U NITED STATES
CURRENCY, M ore or Less,
Defendant-Appellant,
LEVONZELL NOW DEN,
Claimant-Appellant.
A PPE AL FR OM T HE UNITED STATES DISTRICT COURT
FOR T HE DISTRICT OF KANSAS
(D .C . N o. 04-C V-1296-K M H )
Submitted on the briefs: *
Robert M . Lott, Robert M . Lott & Associates, Culver City, California for
Claimant-Appellant.
Colin D. W ood, Special Assistant United States Attorney, Eric F. M elgren, United
States Attorney, W ichita, Kansas for Plaintiff-Appellee.
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
Before LUC ER O, Circuit Judge, BROR BY, Senior Circuit Judge, and
M cCO NNELL, Circuit Judge.
L UC ER O, Circuit Judge.
The government brought this civil in rem forfeiture action pursuant to
21 U.S.C. § 881(a)(6) seeking forfeiture of $252,300 in U.S. currency. Section
881(a)(6) authorizes forfeiture of all proceeds traceable to a controlled-substance
exchange and all monies used or intended to be used to facilitate such an
exchange. Kansas Highway Patrol troopers found the money hidden in a locked
compartment under the sleeper area of a semi tractor-trailer truck driven by
claimant Levonzell Nowden. After a bench trial, the district court 1 entered a
judgment forfeiting the currency to the United States. Exercising jurisdiction
pursuant to 28 U.S.C. § 1291, we AFFIRM .
I
On M arch 25, 2004, Nowden was driving the truck westbound on Interstate
70 in Kansas when he was lawfully stopped for a traffic violation. His friend Lee
Pierce was a passenger and co-driver. Nowden informed the troopers that he had
driven a load of produce from California to New Jersey, and was returning to
California. He then consented to a search of the truck and trailer. W hen the
1
The parties consented to proceed before a magistrate judge. See 28 U.S.C.
§ 636(c)(1).
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troopers asked him about a locked compartment under the sleeper bed in the back
of the cab, he said he had never been under the sleeper and did not know how to
open the compartment. Upon locating the latch and opening the compartment, the
troopers found two sealed cardboard boxes, both addressed to “M abel Smith.”
One contained approximately $60,000 in cash, bundled in rubber bands, in a
plastic bag; the other contained a locked briefcase. Nowden and Pierce
disclaimed ownership of the briefcase and claimed ignorance of the lock
combination. Ultimately, the briefcase was opened to reveal approximately
$191,000 in cash, also arranged in bundles with rubber bands and sealed in plastic
bags. A certified Kansas H ighway Patrol dog alerted to the presence of a narcotic
odor on the currency. In addition, the troopers smelled the odor of marijuana
emanating from the currency.
The troopers reported that Nowden was extremely nervous during the
encounter. He gave inconsistent statements about how much money was in the
boxes, stating first that the amount was $140,000, then $160,000, and then
$156,000. He also stated that $71,000 belonged to him and $81,000 belonged to
Pierce. Pierce gave inconsistent information as well, first stating that $86,000
was his, but later stating that only $27,000 belonged to him.
The district court found “not credible” Nowden’s trial testimony about
where the $252,300 in currency came from. Nowden testified that its sources
were: “(1) a $200,000 loan from Terry Carter, (2) a $30,000 or $35,000 loan
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from Lee Pierce, (3) a $10,000 to $25,000 gift from Nowden’s mother, and (4)
Nowden’s personal savings.” Nowden provided no documentation pertaining to
the loans or his savings. Nor did he produce evidence to support his claim that
the cash was to be used to purchase a truck for his nascent trucking business.
Further, the district court found that the trucking business plan “was extremely
vague and made no business or economic sense.” In addition, the district court
refused to credit Carter’s deposition testimony that he loaned Nowden $200,000.
That testimony was incredible, in the district court’s estimation, because Carter’s
tax returns showed that he made less than $18,000 annually, he owed $27,000 in
back taxes at the time of the seizure, and his proffered documents did not support
his claim that he accumulated $200,000 through credit-card cash advances. The
court also found that Nowden’s testimony was “inconsistent with [his] earlier
statements to the [Kansas H ighway Patrol] and also inconsistent with Lee Pierce’s
testimony.” Pierce himself gave contradictory statements about how much of the
money belonged to him and where he got it.
II
“In an appeal from a bench trial, we review the district court’s factual
findings for clear error and its legal conclusions de novo.” Holdeman v. Devine,
474 F.3d 770, 775 (10th Cir. 2007). On appeal, Nowden does not challenge the
district court’s findings of fact. Rather, he maintains that those findings are
insufficient to establish that the currency at issue was traceable to drugs, and
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therefore the government failed to prove entitlement to forfeiture under
§ 881(a)(6). Nowden also argues that the government failed to show that the
currency is the type of asset that may be seized under 18 U.S.C. § 981, and that
the fact that he was never charged with a crime in connection with this incident
makes reliance on § 981 inappropriate.
This action is governed by § 2 of the Civil Asset Forfeiture Reform Act of
2000 (“CAFRA”), codified at 18 U.S.C. § 983, which places the burden of proof
on the government “to establish, by a preponderance of the evidence, that the
property is subject to forfeiture.” § 983(c)(1). Accordingly, the government
bears the burden to establish a “substantial connection between the property and
the offense.” § 983(c)(3). The government was entitled to use evidence gathered
after filing the forfeiture complaint to meet its burden of proof. § 983(c)(2). The
government’s theory of forfeiture is that the currency “was furnished or intended
to be furnished in exchange for a controlled substance, or constitutes proceeds
traceable to such an exchange, or was used or intended to be used to facilitate”
criminal acts.
A
W e first reject Nowden’s argument that he is entitled to relief because the
government failed to prove a case for forfeiture under 18 U.S.C. § 981. He did
not present this argument to the district court; consequently, we do not address it
on appeal. See W ilburn v. M id-South Health Dev., Inc., 343 F.3d 1274, 1280
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(10th Cir. 2003) (“An issue is waived if it was not raised below in the district
court.”).
B
Nowden argues in the alternative that the evidence was inadequate to
establish by a preponderance of the evidence a substantial connection between the
currency and a controlled substance. The result of this appeal depends upon the
legal significance given to the facts surrounding the forfeiture. Accordingly, w e
review those facts to determine if they are probative and we evaluate what weight
each is entitled to receive. In doing so, we employ a common-sense approach, see
United States v. $242,484.00, 389 F.3d 1149, 1167 (11th Cir. 2004), and
“consider the totality of the evidence as a whole and in the appropriate context,”
United States v. Funds in the Amount of $30,670.00, 403 F.3d 448, 469 (7th Cir.
2005).
(1) – N ow den’s nervousness. Nowden’s nervousness may be considered
probative, but we conclude that it is “of minimal probative value, given that
many, if not most, individuals can become nervous or agitated when detained by
police officers.” United States v. $10,700.00 in U.S. Currency, 258 F.3d 215, 226
(3d Cir. 2001). 2
2
$10,700.00 was decided under pre-CAFRA law, which required the
government initially to demonstrate only probable cause to forfeit assets. See
258 F.3d at 222. Pre-CAFRA cases continue to be relevant, however, because
“[f]actors that w eighed in favor of forfeiture in the past continue to do so now –
(continued...)
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(2) – Inconsistent statements. Nowden denied knowing how to open the
locked compartment under the sleeper bed and claimed he had no knowledge of
the briefcase or the combination for its lock. He then made inconsistent
statements about how much money was in the truck, as did Pierce. Nowden’s
initial statements about the currency are inconsistent with his later testimony that
the currency was carefully collected for a specific business venture. W e conclude
that the multiple changes in their stories are of significant probative value. See
$30,670.00, 403 F.3d at 467; $242,484.00, 389 F.3d at 1164.
(3) – Concealment of the currency. W e agree with the First and Third
Circuits’ observation that it is not particularly significant that a claimant
concealed his money, because it is customary for people to carry cash, especially
large amounts of cash, “concealed.” $10,700.00, 258 F.3d at 233; United States
v. One Lot of U.S. Currency ($36,634.00), 103 F.3d 1048, 1055 n.8 (1st Cir.
1997), superceded by statute on other grounds as recognized in United States v.
Lopez-Burgos, 435 F.3d 1, 2 (1st Cir. 2006).
(4) – Known drug route. The district court found it probative that Nowden
and Pierce were traveling through Kansas on a “known drug route.” W e do not
find it suspicious that a trucker hauling produce from California to New Jersey
2
(...continued)
with the obvious caveat that the government must show more or stronger evidence
establishing a link between forfeited property and illegal activity.” $30,670.00,
403 F.3d at 469.
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would travel on Interstate 70. 3 Consequently, “we cannot credit the fact that the
claimant[ was] using a major interstate to be probative of drug trafficking.”
$10,700.00, 258 F.3d at 228.
(5) – Currency amount and wrapping. The seized currency, amounting to
over a quarter of a million dollars in bills of various denominations, was bundled
in stacks held by rubber bands and wrapped in cellophane. A large amount of
currency, while not alone sufficient to establish a connection to a drug
transaction, is “strong evidence” of such a connection. United States v.
$149,442.43 in U.S. Currency, 965 F.2d 868, 877 (10th Cir. 1992). “A comm on
sense reality of everyday life is that legitimate businesses do not transport large
quantities of cash rubber-banded into bundles and stuffed into packages . . . .”
$242,484.00, 389 F.3d at 1161; see also $10,700.00, 258 F.3d at 226, 232.
M oreover, “[w]rapping cash in cellophane-type material is a technique known to
be used by drug dealers to prevent discovery by drug-sniffing dogs.”
3
Generalized allegations about “known drug sources,” “known drug
destinations,” and “know n drug routes” do not provide a nexus to drugs on these
facts. Surely produce trucks regularly travel between California and the east
coast, often using Interstate 70 as their route. W hen analyzing the more comm on
question of whether reasonable suspicion exists to search for drugs, we have
noted that this is an exceptionally weak basis to justify a search. See United
States v. W illiams, 271 F.3d 1262, 1270 (10th Cir. 2001). So many locales have
been labeled “known drug sources” by law enforcement that it appears nearly any
trip down the interstate would place one enroute to or from an alleged drug
source. See United States v. Beck, 140 F.3d 1129, 1138 & n.3 (8th Cir. 1998)
(cataloguing locales identified by law enforcement officials as a “known drug
source”).
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$242,484.00, 389 F.3d at 1162. Accordingly, this fact must be given significant
probative value.
(6) – Lack of evidentiary support for source claims. Although the amount
of currency is not dispositive, it is of greater significance when coupled with
Nowden’s inconsistent statements about the presence and amount of currency in
the truck and the utter lack of evidence to support his claims that the money came
from loans. Nowden contended that he borrowed the bulk of the currency,
$200,000, from Carter, yet he could produce no documents to substantiate the
transaction. See id. at 1164 (finding significant claimant’s “total lack of any
documentation to support [her stories]”). Nowden’s claim that he and Pierce each
contributed significant funds to the confiscated currency is similarly unsupported.
Instead, the evidence showed that both men had limited incomes and significant
debts during the relevant period. W e determine that this evidence is entitled to
considerable weight. See United States v. $174,206.00 in U.S. Currency,
320 F.3d 658, 662 (6th Cir. 2003) (giving controlling weight to evidence that “the
Claimants’ legitimate income w as insufficient to explain the large amount of
currency found in their possession”).
(7) – Odor of marijuana on the currency. The troopers detected a strong
odor of marijuana on the currency. In addition, a drug dog alerted to the
currency. The troopers’ report sufficiently connects the currency to marijuana.
Therefore, we need not join the debate over the significance of a drug-dog alert
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on currency. Compare $10,700.00, 258 F.3d at 229-30 (attaching no significance
to drug-dog alert to seized currency where record contained no evidence of dog’s
training and degree of accuracy in detecting narcotics on currency), with
$30,670.00, 403 F.3d at 455-62 (discussing scientific literature on drug-dog sniffs
and concluding evidence was sufficient to accord probative weight to dog alert in
case at bar). Together with the other factors surrounding the seizure, the smell of
marijuana on the currency is strongly probative of a link between the money and
drug trafficking. See, e.g., United States v. $117,920.00 in U.S. Currency,
413 F.3d 826, 829 (8th Cir. 2005) (relying in part on marijuana smell emanating
from bags of currency to affirm forfeiture).
Viewing these factors in context, and based on the totality of the
circumstances, we conclude that the government established by a preponderance
of the evidence that the $252,300 in U.S. currency Nowden was carrying in his
truck is substantially connected to illegal drug trafficking. Accordingly, the
district court properly ordered the currency forfeited to the government.
III
The judgment of the district court is AFFIRM ED.
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