USCA1 Opinion
United States Court of Appeals
For the First Circuit
____________________
No. 96-1753
UNITED STATES OF AMERICA,
Plaintiff, Appellant,
v.
ONE LOT OF U.S. CURRENCY ($36,634),
Defendant, Appellee,
_____
SALVATORE L. MELE, JR.,
Claimant.
____________________
ERRATA SHEET ERRATA SHEET
The opinion of the court in the above-captioned case, issued on
January 8, 1997, is corrected as follows:
On the cover page, change the dollar figure in the title to "36,634"
On the cover page, just beneath the case caption, change "Lindsey" to
"Lindsay"
On page 8, line 3, insert "he" between "that" and "was"
On page 14, line 1, replace "Degan" with "Degen" _____ _____
United States Court of Appeals United States Court of Appeals
For the First Circuit
____________________
No. 96-1753
UNITED STATES OF AMERICA,
Plaintiff, Appellant,
v.
ONE LOT OF U.S. CURRENCY ($36,634),
Defendant, Appellee,
___
SALVATORE L. MELE, JR.,
Claimant.
____________________
APPEAL FROM UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Reginald C. Lindsay, U.S. District Judge] ___________________
___________________
Before
Cyr, Boudin, and Lynch,
Circuit Judges. _______________
____________________
Richard L. Hoffman, Assistant United States Attorney, with whom __________________
Donald Stern, United States Attorney, was on brief, for appellant. ____________
Terri Klug Cafazzo for claimant. __________________
____________________
January 8, 1997
___________________
LYNCH, Circuit Judge. The United States appeals LYNCH, Circuit Judge. _____________
from the entry of summary judgment against it in its action
to forfeit one lot of currency totalling $36,634. The
currency was seized from Salvatore Mele, Jr. at Logan Airport
in Boston. The district court held that while there was
adequate reason to believe that the money was connected to
some unlawful activity, there was insufficient evidence that
the unlawful activity involved drugs. Accordingly, the court
held that the currency is not forfeitable under 21 U.S.C.
881(a)(6), which requires that the moneys be "in exchange for
a controlled substance . . ., proceeds traceable to such
exchange . . . [or moneys] used or intended to be used to
facilitate [a] violation of [federal drug laws] . . . ." The
court reasoned that the government had shown nothing more
than that Mele met the profile of a drug courier, which was
not enough.
Attempting to defend his victory, Mele argues that
certain of the district court's predicate rulings were too
favorable to the government. Contrary to the district
court's holdings, Mele says, he was detained at Logan in
violation of his Fourth Amendment rights, and so the entire
forfeiture fails. Alternatively, he denies the government
has met its burden of establishing probable cause to support
the forfeiture.
-2- 2
We agree with the district court that there was no
Fourth Amendment violation. On the forfeiture issue, the
evidence, which went beyond mere profile evidence,
established a sufficient nexus between the currency and
illegal drug activity, and it provided probable cause for
forfeiture. Accordingly, we vacate and direct entry of
judgment for the government.
I
Agents of the U.S. Drug Enforcement Agency ("DEA")
seized the money from Mele on November 1, 1994. Mele filed a
motion under Fed. R. Crim. P. 41(e) seeking return of the
money. On March 2, 1995, the United States filed a complaint
for forfeiture in rem, supported by three affidavits which
spelled out the government's version of the agents' airport
encounter with Mele. The district court issued the
forfeiture warrant and monition on March 23, and dismissed
Mele's Rule 41(e) motion shortly thereafter.
Mele then filed his claim of ownership, accompanied
by an affidavit which asserted only that the money belonged
to him, that he had kept it at his business, and that it had
been seized illegally from him. The affidavit did not
address any specific factual allegations about the airport
encounter. Mele's answer to the government's complaint
contained only general denials and admissions.
-3- 3
The government filed a motion for summary judgment
on August 14, supported by the three affidavits filed earlier
and one additional affidavit. Mele responded with a
submission captioned as a "Motion in Opposition to United
States' Motion for Summary Judgment,"1 which contained
neither a statement of disputed facts nor any accompanying
affidavit.
Six months later, on March 4, 1996, the parties
argued the summary judgment motions. Mele's attorney
attempted for the first time to contradict several of the
government's asserted facts, and offered to have Mele testify
on the spot as to his version of the facts. The district
judge declined to permit either of these efforts because Mele
had not properly put his version of the facts into evidence.
He also denied counsel's oral motion for leave to supplement
the record because Mele had had adequate time to submit
evidence. The judge, consequently, decided the case solely
on the basis of the facts in the government's affidavits and
Mele's initial affidavit. Despite Mele's failure to offer
any rebuttal evidence, however, the judge ordered summary
judgment in his favor.
Mele has not argued on appeal that the district
court erred in denying his motion for leave to supplement the
____________________
1. Although Mele did not file a cross-motion for summary
judgment, the district court treated the case as if he did.
-4- 4
record. Such an argument would fail in any event. The
decision whether to allow a motion for leave falls within the
district court's discretion, Manzoli v. Commissioner, 904 _______ ____________
F.2d 101, 103 (1st Cir. 1990), and there was no abuse of
discretion here.
After losing on summary judgment, the government
filed a motion to reconsider, which Mele opposed. Along with
his opposition, Mele filed a new affidavit in which he
contested many of the facts presented in the earlier
government affidavits. The district court did not expressly
rule on the admissibility of this new affidavit. In denying
the government's motion, on the grounds that the government
had failed to show probable cause to forfeit, the court made
no reference to Mele's proffer. Given this and the court's
earlier rulings, we believe the court did not allow the
affidavit.
Mele has not argued on appeal that the district
court erred in refusing to consider his late-filed affidavit
or that it was required to consider it.2 Such an argument
too would fail. District court rulings pertaining to motions
for reconsideration are reviewed for abuse of discretion,
Gross v. Summa Four, Inc., 93 F.3d 987, 996 n.9 (1st Cir. _____ ________________
1996), and there was no abuse here. Accordingly, on appeal,
____________________
2. Nor does he argue that the court did consider the ___
affidavit.
-5- 5
we take the facts as presented to the court before the motion
for reconsideration and the opposition were filed.
II
On November 1, 1994, DEA Transportation Task Force
Agents Peter McCarron and Michael Cauley were stationed in
Boston's Logan Airport. They were observing passengers
checking in for a 10:20 p.m. "red-eye" flight to Los Angeles
at the America West Airlines ticket counter. They observed a
man, Salvatore Mele, Jr., pay for his ticket with $972 in
cash, mostly twenty dollar bills. The man seemed nervous and
"continuously scanned" the area. He was carrying only a
nylon bag, which appeared to be mostly empty, and he did not
check any luggage.
After Mele purchased his ticket, the agents
approached him and asked if they could speak with him. Mele
agreed, trembling and with a look of panic on his face.
Agent McCarron asked to see Mele's ticket. It was a round-
trip ticket from Boston to Los Angeles, with a brief middle-
of-the-night layover in Las Vegas on the outbound part of the
trip. The return trip was for four days later, on a Saturday
night red-eye flight, America West flight 68.
Seeing the name "Sal Mele" on the ticket, McCarron
recognized Mele as an associate of Anthony Bucci and Ralph
Penta, two men known to McCarron as marijuana traffickers.
Bucci and Penta had been arrested six weeks earlier, on a
-6- 6
Sunday morning in September, at Logan Airport for possession
of thirty pounds of marijuana with intent to distribute.
Penta had flown in from Los Angeles on the same overnight
America West flight 68 that Mele intended to take. Upon
Penta's arrival at Logan Airport, he had delivered the
marijuana to Bucci, who was waiting for him. At his booking,
Bucci had said that he lived at 500 Salem Street, Medford,
Massachusetts and that he was a business partner of Mele.
Penta had told his parole officer that he was working in
Mele's pizza shop. McCarron also recognized Mele as the man
who had come that Sunday morning to bail Penta out after the
arrest, paying $10,000 in cash.
With this history in mind, McCarron began
questioning Mele about his trip. Mele told McCarron that he
was going to Las Vegas to visit his ex-wife and children. He
appeared nervous and was sweating. McCarron asked him if he
was carrying any narcotics or large sums of money. Mele
responded that he was not, but stuttered in his response.
McCarron repeated the question, and this time Mele said that
he had "some money." When McCarron asked him how much, Mele
answered "about $30,000." McCarron asked him why he was
carrying so much money, and Mele replied that he planned to
do some gambling in Las Vegas and look around for a pizza
shop to buy there. McCarron had already seen Mele's ticket,
-7- 7
which provided only a brief layover in Las Vegas en route to
Los Angeles.
McCarron then asked Mele if he would mind going
with them to the DEA's airport field office to discuss the
money further. Mele agreed, and they went to the field
office. Agent Thomas G. Quin joined Mele and McCarron in the
office shortly after their arrival. One of the agents asked
Mele to show them the money. As Mele removed the money from
a fanny pack he wore around his waist, McCarron noticed four
valium tablets in the plastic wrapper of a cigarette package.
Mele stated that he had been prescribed valium for his back.
When asked why the valium was not in the prescription bottle,
Mele said that he had brought just a few pills for his trip.
Quin told Mele that he was going to seize the valium and
summons Mele to court if Mele did not bring evidence the
following day to prove that the valium was properly
prescribed.
The agents then counted the money and questioned
Mele more about his plans. Mele reiterated his claim that he
was going to Las Vegas to visit his ex-wife and children and
to look for a pizza place. He would not provide the agents
with his ex-wife's address or with any information about
hotel reservations in Las Vegas. When asked the source of
the money, Mele first said he had gotten the money from his
-8- 8
pizza shop, where he kept it hidden, and then said it was
from his savings and a court settlement.
The agents asked Mele where he had been before his
arrival at the airport. Mele stated that a friend, whom he
refused to name, had driven him to a restaurant in Saugus,
where he had dinner with his girlfriend. After dinner, he
had his girlfriend drive him from the restaurant to an Osco
drugstore on Salem Street in Medford and drop him off there.
When asked why he had her drop him off at the Medford
drugstore, Mele replied that he had to get "a few things,"
specifically, a few packs of gum. Mele was, however, unable
to produce the gum. Mele stated that after leaving the
drugstore, he flagged down a taxi and went to the airport.
Quin knew that the drugstore in Medford was
directly across the street from 500 Salem Avenue, the address
Anthony Bucci had given when arrested six weeks earlier. At
this point, Quin told Mele that his story was not believable.
Quin stated that he thought the money was from drug proceeds
and that Mele was going to Los Angeles to purchase more
drugs. He informed Mele that the money was therefore being
seized and he gave Mele a receipt.
The next day Mele arrived at the DEA office with
his attorney. He was unable to provide sufficient
documentation to show that the valium was validly prescribed
to him, as Quin had demanded. One of the agents noticed
-9- 9
Bucci waiting outside in the car while Mele and his attorney
were in the office. Later that day, the seized money was
placed in a bag and, along with several other similar bags,
was presented to a narcotics-detection dog. To use the
jargon of the genre, the dog "alerted" to the bag containing
the money.
III
Mele mounts two separate attacks. First, he
contends that the government's entire case must fail because
the initial seizure of the money, as well as much of the
questioning, was tainted by a violation of his Fourth
Amendment rights.3 Alternatively, he disputes the existence
of probable cause at the forfeiture stage, which the
government must show in order to forfeit the money.4
Review here is de novo for two reasons. The
district court's grant of summary judgment is reviewed de
____________________
3. While evidence seized or gathered in violation of the
Fourth Amendment may not be relied on to sustain a
forfeiture, One 1958 Plymouth Sedan v. Pennsylvania, 380 U.S. _______________________ ____________
693, 702 (1965), it is not the case that Mele's money itself _____ ______
is immune from forfeiture if it was unconstitutionally
seized. See United States v. $7,850, 7 F.3d 1355, 1357 (8th ___ _____________ ______
Cir. 1993) ("The fact that the monies may have been illegally
seized does not immunize them from forfeiture."). However,
evidence obtained from the money -- such as the precise ____
amount Mele was carrying or the dog reaction -- could be
suppressed if the seizure was unconstitutional.
4. Probable cause is a term with multiple offices. Here,
there is no occasion to consider the standard of probable
cause for arrest, because Mele's Fourth Amendment claim is ______
resolved on voluntariness grounds. Probable cause for
forfeiture is considered later. __________
-10- 10
novo. Wood v. Clemons, 89 F.3d 922 (1st Cir. 1996). ____ _______
Additionally, the Supreme Court held last term that review by
the courts of appeals of conclusions as to whether there had
been a violation of the Fourth Amendment is de novo. Ornelas _______
v. United States, 116 S. Ct. 1657 (1996). _____________
A. Fourth Amendment
Mele argues that his Fourth Amendment rights were
violated because the agents brought him to the DEA airport
field office from the ticket counter, transforming the
initially consensual encounter into a stop. This stop, he
says, lacked the reasonable and articulable suspicion
necessary to justify it. See generally Terry v. Ohio, 392 ___ _________ _____ ____
U.S. 1 (1968); United States v. McCarthy, 77 F.3d 522 (1st _____________ ________
Cir. 1996), cert. denied, 65 U.S.L.W. 3368 (U.S. Nov. 18, ____________
1996) (No. 95-9302). Further, he contends, the stop became a
de facto arrest because of its duration and because of the
nature of the place to which he was taken by the agents. The
probable cause necessary to uphold an arrest, he argues, is
similarly lacking.
The government affidavits say that Mele went with
the agents to the DEA field office voluntarily and that he
was not told the money would be seized until some time after
they had arrived at the office. Mele, on such evidence,
plainly consented to going to the DEA office, and his Fourth
-11- 11
Amendment arguments are baseless.5 There are no colorable
Fourth Amendment concerns where an officer simply asks a few
questions to a civilian, who voluntarily allows the encounter
to continue. See, e.g., Florida v. Bostick, 501 U.S. 429, ___ ____ _______ _______
434 (1991) ("The encounter will not trigger Fourth Amendment
scrutiny unless it loses its consensual nature."); Florida v. _______
Rodriguez, 469 U.S. 1, 5-6 (1984); Florida v. Royer, 460 U.S. _________ _______ _____
491, 497 (1983) (plurality opinion). Nor is an otherwise
consensual encounter stripped of its consensual nature by the
mere act of moving to a police office. See, e.g., United ___ ____ ______
States v. Mendenhall, 446 U.S. 544, 557-58 (1980) (plurality ______ __________
opinion); United States v. Jodoin, 672 F.2d 232, 234 (1st ______________ ______
Cir. 1982).
The agents did not violate Mele's Fourth Amendment
rights during their Logan Airport encounter with him. Mele's
money was lawfully seized, and thus the forfeiture proceeding
that followed was not tainted by unconstitutional conduct.
The dispositive issue with respect to the government's
____________________
5. The voluntariness of Mele's verbal consent might be
called into question if the agents had seized his money, or
told him they intended to seize it, prior to his agreeing to
accompany them to the DEA field office. Cf. United States v. ___ _____________
$83,900, 774 F. Supp. 1305, 1317 (D. Kan. 1991) ("The seizure _______
of the currency by [the officer] and [the officer's]
expressed intention to keep the currency until its legality
could be determined were objective reasons rendering the
encounter nonconsensual from that point on. No reasonable
person would voluntarily leave such a large sum of money with
a law enforcement officer with the promise that it would be
returned later if it all checked out."). This issue is not
presented here.
-12- 12
forfeiture case, then, is whether there was probable cause
for forfeiture.
B. Probable Cause for Forfeiture
The district court correctly found that there was
probable cause to believe that Mele was involved in some kind
of illegal activity, but erred in finding that the government
had failed to establish a sufficient nexus between his
suspicious activity and the illegal drug trade, which the
forfeiture statute, 21 U.S.C. 881, requires.
In civil forfeiture cases brought by the government
under 881, U.S. Customs procedures control the allocation
of the parties' burdens of proof. 21 U.S.C. 881(d)
(incorporating by reference U.S. Customs procedures). Those
procedures employ a burden shifting mechanism. See 19 U.S.C. ___
1615; United States v. $5,644,540, 799 F.2d 1357, 1362 (9th _____________ __________
Cir. 1986). Under this mechanism, the government must at the
outset demonstrate that it has probable cause to institute
the forfeiture proceeding. United States v. 255 Broadway, 9 _____________ ____________
F.3d 1000, 1003-04 (1st Cir. 1993). More specifically, the
government must show that it has probable cause to believe
"that the property had the requisite nexus to a specified
illegal purpose." United States v. $68,000, 927 F.2d 30, 32 _____________ _______
(1st Cir. 1991).6 When the government seeks to forfeit
____________________
6. This circuit has most recently described the government's
burden as being one of showing a "nexus." See $68,000, 927 ___ _______
F.2d at 32. Earlier cases used the term "substantial
-13- 13
money, the nexus can be shown by demonstrating probable cause
to believe either that the money represented the proceeds of
a drug sale, see 255 Broadway, 9 F.3d at 1004, or that it was ___ ____________
intended to be used in the purchase of drugs, see $68,000, ___ _______
927 F.2d at 32. The government need not trace the money to
any particular drug transaction. 255 Broadway, 9 F.3d at ____________
1004; United States v. Parcels of Land, 903 F.2d 36, 38 (1st _____________ _______________
Cir. 1990); United States v. $250,000, 808 F.2d 895, 899-900 _____________ ________
(1st Cir. 1987). Once the government has made the nexus
showing, the burden then shifts to the claimant to show by a
preponderance of the evidence that the property is not
subject to forfeiture. 255 Broadway, 9 F.3d at 1004; ____________
$68,000, 927 F.2d at 32; $250,000, 808 F.2d at 897; cf. Degen _______ ________ ___ _____
v. United States, 116 S. Ct. 1777, 1781 (1996) ("The ______________
Government has shown probable cause to forfeit the property,
and [claimant] must refute the showing or suffer its loss.").
Burden shifting aside, probable cause for
forfeiture may be measured by what the government knew at the
time of the institution of the forfeiture proceedings, not
____________________
connection." United States v. 28 Emery St., 914 F.2d 1, 3-4 _____________ _____________
(1st Cir. 1990) (citing cases). We need not resolve whether,
as some cases suggest, "nexus" means something less than
"substantial connection." Cf. United States v. West Side ___ ______________ _________
Building Corp., 58 F.3d 1181, 1188 n.13 (7th Cir. 1995) _______________
(comparing the two standards and endorsing "nexus" standard);
United States v. Daccarett, 6 F.3d 37, 55-56 (2d Cir. 1993) _____________ _________
(same), cert. denied, 510 U.S. 1191 and 510 U.S. 1192 (1994). ____________ ___
The facts adduced here are more than adequate to establish a
"substantial connection."
-14- 14
just what it knew at the time of the seizure. 255 Broadway, ____________
9 F.3d at 1004; United States v. $191,910, 16 F.3d 1051, 1066 _____________ ________
(9th Cir. 1994); United States v. $12,390, 956 F.2d 801, 806 _____________ _______
n.5 (8th Cir. 1992).
Probable cause for the purpose of 881 forfeiture
means a "reasonable ground" for believing that the money is
connected with illegal drug transactions. 255 Broadway, 9 _____________
F.3d at 1004; 28 Emery St., 914 F.3d at 3; $250,000, 808 F.2d ____________ ________
at 897. This standard requires more than "mere suspicion,"
but less than "prima facie proof." 255 Broadway, 9 F.3d at ____________
1004; 28 Emery St., 914 F.3d at 3; $250,000, 808 F.2d at 897. ____________ ________
And "'[b]ecause there are so many variables in the probable
cause equation, probable cause findings are not invariably
bound by precedent.'" 255 Broadway, 9 F.3d at 1004 (quoting ____________
United States v. Maguire, 918 F.2d 254, 258 (1st Cir. 1990), ______________ _______
cert. denied, 499 U.S. 950 and 501 U.S. 1234 (1991)). ____________ ___
The evidence shows the government met its burden
for establishing a nexus to drug activity:
(1) Mele is associated with two persons known to
the agents as accused drug traffickers, Bucci (Mele's
business partner) and Penta (Mele's employee). Mele's
nonsensically roundabout route to Logan Airport the night his
money was seized -- from Saugus, via Medford, to East Boston
-- indicated that he probably stopped at Bucci's house en
-15- 15
route.7 Further, Bucci accompanied Mele and his attorney
when they returned to the DEA field office the morning after
the seizure. And Mele had bailed out Penta after Penta's
earlier arrest for drug trafficking;
(2) Mele was carrying $36,634 in cash;
(3) He purchased a cash ticket on a "red-eye"
flight to a "source city" and traveled with only a nearly
empty carry-on bag;
(4) He appeared to be very nervous as he bought his
ticket, and became even more nervous when questioned by the
agents, to whom he gave evasive, implausible, and false
answers as to what he planned to do on his trip;
(5) Mele's associate Penta had recently been
apprehended at Logan Airport after arriving with drugs from
the same city on the same flight on which Mele intended to
return; and
(6) A trained narcotics-detection dog "alerted" to
Mele's money the day after the money was seized, indicating
that the money had come into contact with illegal drugs.
The government aptly likens probable cause to a
wall, each of whose bricks represents a piece of evidence in
the overall probable cause equation. Courts "'review each
piece of evidence only to determine whether it is probative,
____________________
7. A traveler taking a normal route from Saugus to the
airport, which is southeast of Saugus, would not pass through ____
Medford, which is southwest of Saugus. ____
-16- 16
not whether it establishes probable cause standing alone.'"
255 Broadway, 9 F.3d at 1004 (quoting United States v. _____________ _____________
$67,220, 957 F.2d 280, 285 (6th Cir. 1992)). Even where "no _______
particular circumstance is conclusive," it is "the
'aggregate' of the facts" that is examined. $250,000, 808 ________
F.2d at 899 (quoting United States v. $93,685.61, 730 F.2d ______________ __________
571, 572 (9th Cir.), cert. denied, Willis v. United States, _____________ ______ _____________
469 U.S. 831 (1984)). Mele attacks each brick alone, but
fails effectively to attack the wall of probable cause.
Taken as a whole, the facts here are more than adequate.
We start with Mele's ties to Bucci and Penta.
Association with known criminals, without more, is, of
course, not enough to establish probable cause. See United ___ ______
States v. Coggins, 986 F.2d 651, 655 (3d Cir. 1993) ("Mere ______ _______
association with a known criminal cannot on its own be a
basis for a 'reasonable suspicion.'" (citing Ybarra v. ______
Illinois, 444 U.S. 85, 91 (1979))); 2 LaFave, Search and ________ ___________
Seizure, 3.6(c), at 308 n. 100 (3d ed. 1996). But here _______
there are additional facts that deepen the probative value of
Mele's association with the accused drug traffickers Bucci
and Penta: Mele's strange route to the airport; Mele's and
Penta's nearly identical itineraries; Bucci's appearance with
Mele at the DEA office; and Mele's bailing out of Penta with
a large sum of cash when banks were closed. This is more
than "an incidental or fortuitous connection," United States _____________
-17- 17
v. 1933 Commonwealth Avenue, 913 F.2d 1, 3 (1st Cir. 1990), ________________________
to known drug trafficking activity.
Mele was also carrying an extremely large sum of
cash.8 See United States v. $37,780, 920 F.2d 159, 163 (2d ___ _____________ _______
Cir. 1990) ("Hernandez was carrying an extremely large sum of
cash [$37,780] in small denominations, demonstrating that he
was either inordinately carefree with his money or was
involved in illegal activity."); United States v. $175,260, _____________ ________
741 F. Supp 45, 47 (E.D.N.Y. 1990) (carrying $175,000 in
airport contributes to probable cause for forfeiture because
that is far more than the average person carries). Given the
other facts here, it is not fatal to the government's case
that Mele was not carrying drugs or drug paraphernalia at the
time the money was seized from him. See United States v. ___ ______________
$215,300, 882 F.2d 417, 419 (9th Cir. 1989) ("Carrying a ________
large sum of cash is 'strong evidence' of [a connection to
illegal drug activity] even without the presence of drugs or
drug paraphernalia." (quoting United States v. $83,310.78, _____________ __________
851 F.2d 1231, 1236 (9th Cir. 1988))), cert. denied, 497 U.S. ____________
1005 (1990).
Indeed, Mele's behavior at the airport only deepens
the probable cause. See generally 2 LaFave, supra, ___ _________ _____
____________________
8. Contrary to the government's argument, however, there is
little significance in the fact that Mele's cash was
"concealed," i.e., that it he carried it in a fanny pack.
Few people carry money, especially large sums, in any way
other than "concealed."
-18- 18
3.6(e), at 327-33 (false, evasive, or misleading responses to
officers' questions can contribute to probable cause). In
particular, his claims that he intended to gamble in Las
Vegas and look for a pizza shop to buy there made no sense in
light of the fact that his ticket provided only a brief,
middle-of-the-night layover in that Nevada city. As the
Second Circuit has rightly observed, an "evasive, confused
explanation for carrying such a large sum" serves only to
"further arouse[] . . . suspicion[]." $37,780, 920 F.2d at _______
163.9
Mele's obvious nervousness, evident both before the
agents approached him and during the interview, although not
____________________
9. We do not, however, agree with the Second Circuit's
suggestion that "[i]t may well be that through the byzantine
world of forfeiture law, [C]ongress and the courts have
implicitly created a rebuttable presumption that the
possession of large amounts of cash is per se evidence of
illegal activity." $37,780, 920 F.2d at 162. _______
As for Mele's cash purchase of the ticket, this has
limited probative value. But see United States v. Sokolow, ___ ___ ______________ _______
490 U.S. 1, 8-9 (1989) ("Most business travelers, we feel
confident, purchase airline tickets by credit card or check
so as to have a record for tax or business purposes, and few
vacationers carry with them thousands of dollars in $20
bills."). The designation by the government of Los Angeles
as a "known source city" for narcotics is also of little
importance. See United States v. Glover, 957 F.2d 1004, 1017 ___ _____________ ______
(2d Cir. 1992) (Oakes, C.J., dissenting) ("As cases too
numerous to cite have pointed out, 'source cities,' as
testified to by law enforcement officers, include virtually
every city in the United States of any size. . . . 'Source
city' is essentially a meaningless term.").
Like the factors discounted by the Supreme Court in Reid ____
v. Georgia, 448 U.S. 438 (1980), these two factors do not _______
meaningfully "relate[] to [Mele's] particular conduct," and
they are also evident in "a very large category of presumably
innocent travelers." Id at 441. __
-19- 19
alone of much probative value, see Jones v. DEA, 819 F. Supp. ___ _____ ___
698, 702 (M.D. Tenn. 1993) (noting that air travelers are
"often nervous about their trip and the dangers, real or
imagined, which air travel poses to them"), does have some
probative value when seen in combination with the rest of the
story. See 2 LaFave, supra, 3.6(f), at 327-33 & n.160. ___ _____
Finally, the dog's reaction, indicating that Mele's
money had at some point come into contact with narcotics,
weighs some, but not a great deal, on the scale. See United ___ ______
States v. $30,060, 39 F.3d 1039, 1042 (9th Cir. 1994) ______ _______
(declining to find probable cause where government
essentially based entire case on dog reaction). "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 experience suggests
that currency used to purchase narcotics is more likely than
other currency to have come into contact with drugs." United ______
States v. Saccoccia, 58 F.3d 754, 777 (1st Cir. 1995), cert. ______ _________ _____
denied, 116 S. Ct. 1322 (1996). ______
Thus, both Mele's conduct and the money itself
provide probable cause for the government to obtain
forfeiture of the money.
The judgment of the district court is vacated and _______
the case is remanded with instructions to enter judgment for ________
the United States.
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