Free Order on Motion for Summary Judgment - District Court of Arizona - Arizona

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IN THE UNITED STATES DISTRICT COURT 6 FOR THE DISTRICT OF ARIZONA 7 8 9 10 11 12 13 14 15 A. 16 On November 26, 2003, plaintiff filed this forfeiture action. 17 The Complaint alleges that the currency is subject to forfeiture 18 because it represents money furnished or intended to be furnished 19 by any person in exchange for a controlled substance. 20 § 881(a)(1)(A) and (B). (Doc. 1 at p. 1). 21 alleges the currency is subject to forfeiture as it was involved 22 in a transaction or attempted transaction in violation of 18 23 U.S.C. §§ 1956 or 1957. 24 was used and intended to be used to transport and facilitate the 25 transportation, sale, receipt, possession and concealment of a 26 controlled substance in violation of 21 U.S.C. § 801, et seq. 27 (Id. at p. 2.) 28 Case 2:03-cv-02345-VAM Document 64 Filed 01/23/2006 Page 1 of 19 Claimants Bruno and Camacho filed a Judicial Claim (Id.) The Complaint alleges the vehicle The Complaint also 21 U.S.C. PROCEDURAL HISTORY ) ) Plaintiff, ) ) v. ) ) $493,850.00 in U.S. Currency and) One 1993 Ford F350 Truck, ) ) Defendants, ) ) Roy Bruno and Miguel Camacho, ) ) Claimants. ) United States of America,

CIV 03-2345 PHX VAM O R D E R

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on December 22, 2003.

Claimant Bruno alleges he is the owner and

possessor of the currency and claimant Camacho the owner and possessor of the vehicle. Answer on that same date. (Doc. 4). (Doc. 5). Claimants also filed an The parties consented to (Doc.

proceed before a Magistrate Judge to trial and judgment. 6). On April 27, 2004, a new claim was filed. The only

difference between the new claim and the old claim is that the new claim is signed by the claimants themselves rather than their attorney. (Doc. 23).

On September 2, 2004, the Court granted a Motion to Suppress filed by claimants. (Doc. 27). In the Order, the Court

suppressed ". . .the evidence gained after Officer McFarland determined there was no impairment of the driver, handed him a warning and told him he was free to go. . ." (Id. at pp. 13-14).

In the Order granting the Motion to Suppress, the Court denied Cross Motions for Summary Judgment. (Doc. 27). In its

Motion for Summary Judgment, plaintiff challenged claimants' standing. The Court ruled, on the information available at that (Doc. 27 at p. 16). The Court

time, the claimants had standing.1

pointed out that the granting of the Motion to Suppress did not result in automatic summary judgment for claimants so long as the Government could prove the forfeiture through untainted evidence. Claimants have the burden of proving standing at each stage of this proceeding. At summary judgment, claimants have the burden of showing there is a genuine issue of material fact. United States v. $57,790.00, 263 F.Supp.2d 1239, 1241-2 (S.D.Cal. 2003)(citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992). Claimant Bruno filed a claim under penalty of perjury stating the money is his. The admissions indicate the money is Camacho's. 2 Case 2:03-cv-02345-VAM Document 64 Filed 01/23/2006 Page 2 of 19
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United States v. Real Property Known as 22249 Dolorosa Street, 167 F.3d 509, 513 (9th Cir. 1999). (Doc. 27 at p. 16). In support of

its summary judgment, plaintiff argued that claimants refusal to answer discovery requests, by claiming the Fifth Amendment privilege, automatically resulted in admissions which would support forfeiture. Plaintiff sent each of the claimants a series Rather than respond to the requests

of requests for admissions.

for admissions, claimants' attorney sent a letter indicating they would be invoking the Fifth Amendment to all discovery requests. Plaintiff took the position that Rule 36, F.R.Civ.P., automatically resulted in admissions. The Court pointed out that

Rule 36(a), F.R.Civ.P., leaves it to the Court as to whether or not the answers or objections in response to requests for admissions are sufficient and, whether the matter should be deemed admitted or an amended answer be required. (Doc. 27 at p. 18).

The Court denied the Cross Motions for Summary Judgment indicating it was unclear whether the Government had untainted evidence which would support forfeiture. (Doc. 27 at p. 19).

Shortly after this Order, claimants and plaintiff again filed Cross Motions for Summary Judgment. filed a Motion to Compel Disclosure. (Docs. 28-31). (Doc. 38). Claimants

In response, the

Government filed a Motion to Stay the Proceedings pursuant to 18 U.S.C. § 981(g)(1) and 21 U.S.C. § 881(i). (Doc. 39). The

Government also filed a Motion to Reargue the Suppression Issue based on a new Supreme Court ruling. Motions were set for oral argument. (Doc. 43). All these

In the interim, the Court

granted the Motion to Stay until further Order of the Court. 3 Case 2:03-cv-02345-VAM Document 64 Filed 01/23/2006 Page 3 of 19

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(Doc. 47). At the argument on the Motions for Summary Judgment, the Court denied the Cross Motions for Summary Judgment and denied without prejudice claimants' Motion to Compel Disclosure and Strike All Post-Deadline Information. (Doc. 50). The Court also The

denied plaintiff's Motion to Re-Argue the Suppression Issue. Court entered a stay based on plaintiff's Motion to Stay. 50).

(Doc.

The Court then required the Government to file a status (Id.). The

report or notice of disclosure by June 17, 2005.

Government filed its status report, indicated that previous affidavits filed under seal could be disclosed and that recording of intercepted telephone calls and investigative reports would be provided to claimants in response to their discovery requests. (Doc. 52). Plaintiff also asked that the stay be removed so that

discovery could be provided and the Court could consider appropriate motions by the parties. (Id.). On June 20, 2005, the

Court granted the Motion to unseal, removed the stay and ordered the Government to provide discovery to claimants. The Court also

indicated it would "entertain appropriate motions, based upon the release of discovery material described in plaintiff's Motion." (Doc. 53). demands. Plaintiff then responded to claimants' discovery (Docs. 54, 56).

Plaintiff filed a Motion to Amend Plaintiff's Statement of Facts and Second Motion for Summary Judgment. (Doc. 59).

Claimants have not opposed the Motion to Amend and it will be granted. Therefore, plaintiff's Motion for Summary Judgment (Doc. (Doc. 61).

57) will be considered with claimants' Opposition. 4 Case 2:03-cv-02345-VAM Document 64 Filed 01/23/2006

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B.

SUMMARY JUDGMENT STANDARD

Summary judgment is appropriate when the movant shows "there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Rule 56(c),

F.R.Civ.P.; California Architectural Building Products, Inc. v. Franciscan Ceramics, Inc., 818 F.2d 1466, 1468 (9th Cir. 1987), cert. denied, 484 U.S. 1006 (1988). "Summary judgment will not

lie if the dispute about a material fact is 'genuine,' that is, if the evidence is such that a reasonable jury could return a verdict for the non-moving party." U.S. 242, 248 (1986). Anderson v. Liberty Lobby, Inc., 477

The moving party bears the burden of

demonstrating that there is no material fact precluding summary judgment. (1970). Substantive law determines which facts are material. Anderson v. Liberty Lobby, 477 U.S. at 248; Jesinger v. Nevada Federal Credit Union, 24 F.3d 1127, 1130 (9th Cir. 1994). "Only Adickes v. S.H. Cress and Company, 398 U.S. 144, 157

disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson, 477 U.S. at 248.

Summary judgment is appropriate against a party who "fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. Celotex Corporation v. Catrett, 477 U.S. 317, 322 (1986); see also Citadel Holding Corporation v. Roven, 26 F.2d 960, 964 (9th Cir. 1994). Furthermore, the party opposing summary judgment "may not 5 Case 2:03-cv-02345-VAM Document 64 Filed 01/23/2006 Page 5 of 19

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rest upon the mere allegations or denials of the [party's] pleadings, but . . . must set forth specific facts showing that there is a genuine issue for trial." Rule 56(e), F.R.Civ.P.;

Celotex, 477 U.S. at 324; Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 585-88 (1986); Brinson v. Lind Rose Joint Venture, 53 F.3d 1044, 1049 (9th Cir. 1995). There is no genuine

issue for trial unless there is sufficient evidence favoring the non-moving party. If the evidence is merely colorable or if not

significantly probative, summary judgment may be granted. Anderson, 477 U.S. at 249-50. However, "the evidence of the non-

movant is to be believed and all justifiable inferences are to be drawn in his favor." Id. at 255.

C. PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT Plaintiff moved for summary judgment arguing that untainted evidence in the form of evidence obtained before the illegal search, evidence of a Miami investigation and claimants' claim of Fifth Amendment to requests for admissions (which plaintiff argues should be deemed admissions) support the forfeiture of both defendants. (Docs. 57, 58). Claimants oppose the Motion for

Summary Judgment by arguing (1) the Motion for Summary Judgment is untimely and should not be considered, (2) the Miami information should be barred as a violation of the disclosure deadline under Rule 26, F.R.Civ.P., (3) the Miami information and the requests for admissions should be barred as exploitations of the illegal search, and (4) there is no untainted evidence to support the Government's Motion for Summary Judgment. (Docs. 60, 61).

Claimants did not file an opposing statement of facts or 6 Case 2:03-cv-02345-VAM Document 64 Filed 01/23/2006 Page 6 of 19

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affidavits under Rule 56(e),F.R.Civ.P. 1.

See LRCiv. 56.1(a).

Timeliness of the Motion for Summary Judgment

Claimants argue this Motion for Summary Judgment is untimely as it is well beyond the deadline for filing dispositive motions. Because of the problems of responding to claimants' discovery requests, in light of an ongoing criminal investigation in Miami, this case was stayed by the Court. When the Court lifted the

stay, it indicated it would entertain appropriate motions based on the evidence obtained and disclosed in discovery. (Doc. 53). It

is not unusual for parallel civil and criminal proceedings to involve stays and disruption of the discovery process on both sides. As a result of the stay and ongoing proceedings in Miami, The

discovery was disclosed late but with the Court's approval.

Court can see no prejudice to the claimants as a result of the stay and the delay in the disclosure of the information from Miami. 2. The Motion for Summary Judgment will be considered. Use of the Miami Information

Claimants argue the Miami information should not be allowed as it is tainted by the illegal search. Claimants argue that but

for the illegal search, the authorities in Arizona would never have obtained information from Miami regarding claimant Camacho. In proceeding with this forfeiture, plaintiff may use evidence gathered after the filing of the Complaint to prove forfeiture. 18 U.S.C. § 983(c)(1)-(2). In addition, the granting The

of a motion to suppress does not end a forfeiture proceeding. Government may proceed as long as it can prove the forfeiture through untainted evidence.

United States v. Real Property Known 7

Case 2:03-cv-02345-VAM

Document 64

Filed 01/23/2006

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as 22249 Dolorosa Street, 167 F.3d at 513.

If claimants' argument

were correct, the Government would never be able to use afteracquired evidence in a forfeiture where the Court suppressed evidence. The Miami investigation began long before the authorities in Arizona obtained the truck and money which are the subject of this forfeiture. The fact that the Miami investigation was proceeding

completely independent of the Arizona forfeiture led to the need for the stay. (Doc. 40). If the Miami investigation had begun as

a result of this illegal search, claimants' argument would have some force. However, it is clear from plaintiff's Statement of

Facts and the information relied upon in that Statement of Facts, the actual occurrences which are relied upon by the United States to support its forfeiture occurred before the stop and illegal search. This information is clearly from an independent source There is some information in the

and is completely attenuated.

affidavit of Chris Jacobson (Doc. 58, Ex. H at par. 3) which was developed after the seizure. disregarded. The Court finds the affidavits by cooperating individuals and paragraphs 1, 2, 4-7 of Agent Jacobsen's affidavit are untainted and may be considered in support of the Motion for Summary Judgment. (Doc. 58, Exs. G, H, and I). The information provided However, this information will be

in affidavits of the cooperating individuals concerns events which occurred and are corroborated as occurring prior to the illegal search. The fact that this information is set forth in affidavits

prepared after the illegal search does not mean that the 8 Case 2:03-cv-02345-VAM Document 64 Filed 01/23/2006 Page 8 of 19

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information must be disregarded as tainted by an illegal search. Claimants also argue that even if the Court considers the Miami information, it only raises genuine issues of material fact which preclude summary judgment. However, claimants have failed

to file anything to rebut the Statement of Facts and supporting affidavits. 3. Plaintiff's Reliance on the Requests for Admissions

Claimants argue the requests for admissions are also tainted by the illegal search and cannot be considered by the Court. fact, claimants argue that based on the Court's earlier suppression ruling, nothing that occurred after the illegal search can be considered by the Court. Claimants do not cite any case in In

support of this proposition but simply argue but for the illegal search there would be no forfeiture. As pointed out earlier, a

forfeiture may proceed after an illegal search and after-acquired evidence may be used to support a forfeiture. United States v.

$191,910 In U.S. Currency, 16 F.3d 1051, 1062-63 (9th Cir. 1994); 18 U.S.C. § 983(c)(2). argument must fail. 4. Plaintiff's Burden of Proof and Evidence Given these two principles, claimants'

18 U.S.C. § 983(c) states: (c) Burden of proof.--In a suit or action brought under any civil forfeiture statute for the civil forfeiture of any property-(1) the burden of proof is on the Government to establish, by a preponderance of the evidence, that the property is subject to forfeiture; (2) the Government may use evidence gathered after the filing of a complaint for forfeiture to establish, 9 Case 2:03-cv-02345-VAM Document 64 Filed 01/23/2006 Page 9 of 19

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by a preponderance of the evidence, that property is subject to forfeiture; and (3) if the Government's theory of forfeiture is that the property was used to commit or facilitate the commission of a criminal offense, or was involved in the commission of a criminal offense, the Government shall establish that there was a substantial connection between the property and the offense. If the Government is successful in establishing by a preponderance of evidence that the property is subject to forfeiture, then claimants must come forward and satisfy the requirement under 18 U.S.C. § 983(d), i.e. that they are innocent owners. Plaintiff relies on three types of evidence to carry its burden of proving the defendants are subject to forfeiture. Plaintiff relies on evidence acquired prior to the illegal search, evidence of the Miami, Florida investigation and the requests for admissions sent by plaintiff to claimants and to which the claimants took the Fifth Amendment. Claimants argue plaintiff has

not carried its burden of proving by a preponderance of evidence that the defendants are subject to forfeiture. there is no evidence before the Court. Claimants argue

The Court has already

ruled that evidence prior to the illegal search may be considered; the Miami information is not tainted by the illegal search and evidence obtained by plaintiff during discovery is not tainted. Claimants argue the Court may not even acknowledge that one of the defendants is money but rather must deal with the defendant money as if it were a "widget." (Doc. 60 at p. 14). Claimants'

argument is based on United States v. $191,910 In U.S. Currency, 16 F.3d at 1062-1065. In this case, the Court held that once the

Court grants a motion to suppress, ". . .illegally seized property 10 Case 2:03-cv-02345-VAM Document 64 Filed 01/23/2006 Page 10 of 19

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could not be introduced as evidence in a forfeiture proceeding: Any evidence which is the product of an illegal search or seizure must be excluded in the forfeiture hearing. . .We must hold that the district court was correct in excluding the illegally seized money." (Id. at 1063). The Court's holding that the illegally

seized money may not be entered in evidence during a forfeiture proceeding would obviously prevent plaintiff from bringing the cash, which is the subject of this forfeiture, into court and putting it in evidence. However, the Court does not believe that exclusion of the cash means the Court must consider the defendant cash as a "widget." The Court believes it can still take notice of the fact This is obviously stated in the

that the defendant is cash. caption of the case.

Perhaps the denominations making up the

amount and the actual money itself cannot be put into evidence. However, there is no way for the Government to show that a "widget" is the product of a drug transaction and, therefore, the Court does not believe it has to disregard the fact that one of the defendants is cash. As to the truck, the Court knows from

untainted evidence prior to the seizure that it is a white Ford truck, with dual rear wheels, with a Florida license plate, registered to claimant Miguel Camacho who resides in Florida. The

Court also knows from untainted evidence that claimant Bruno was traveling south on I-17 outside of Phoenix with claimant Camacho in the Ford truck.2 As explained below, from the uncontested Statement of Facts in support of the Motion for Summary Judgment, the Court has 11 Case 2:03-cv-02345-VAM Document 64 Filed 01/23/2006 Page 11 of 19
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The Court's task is to determine whether the untainted evidence shows, by a preponderance of the evidence, that the defendant currency is subject to forfeiture because it represents money furnished or intended to be furnished by any person in exchange for a controlled substance (21 U.S.C. § 881(a)(1)) or it is subject to forfeiture as it was involved in a transaction or attempted transaction in violation of 18 U.S.C. § 1956 or 1957. (Doc. 1 at p. 1). The Court must make a determination with regard

to the truck as to whether it was used or intended to be used to transport and facilitate the transportation, sale, receipt, possession or concealment of a controlled substance in violation of 21 U.S.C. § 801, et seq. (Doc. 1 at p. 2).

The Miami evidence, in the form of affidavits from associates of claimant Camacho and a drug agent in Florida, is material, relevant and uncontradicted by claimants. A party opposing a

motion for summary judgment "may not rest upon the mere allegations or denials of the party's pleadings, but. . .must set forth specific facts showing that there is a genuine issue for trial." Rule 56(e), F.R.Civ.P.; Celotex, 477 U.S. at 342;

Matsushita v. Zenith Radio, 475 U.S. 574, 585-88 and Brinson v. Lind Rose Joint Venture, 53 F.3d at 1049. There is no issue for

trial unless there is sufficient evidence favoring the non-moving party. Because claimants have not submitted any disputed facts in

opposition to the Motion for Summary Judgment, the relevant and admissible evidence from Florida is unrebutted. A claimant cannot

additional information about the defendants. 12 Case 2:03-cv-02345-VAM Document 64 Filed 01/23/2006 Page 12 of 19

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avoid his burden, in a forfeiture action, under Rule 56, F.R.Civ.P., by invoking the Fifth Amendment. Baker v. United

States, 722 F.2d 517 (9th Cir. 1983); United States v. Certain Real Property 566 Hendrickson Blvd., 986 F.2d 990, 995-6 (6th Cir. 1993). The Miami evidence establishes that: 1. An individual known as Jairo Hernandez, during 2002 and

2003, worked for a Columbian cocaine dealer by the name of Roberto Guillo. Roberto Guillo wanted to sell cocaine to claimant Miguel At Mr. Guillo's direction, Jairo

Camacho in Miami, Florida.

Hernandez traveled to Miami, Florida and met with claimant Camacho in June, 2002. Mr. Hernandez was picked up at the airport by Mr. Mr.

Camacho driving a white, dual rear wheeled pickup truck.

Jairo Hernandez was taken to claimant Camacho's house where he saw cocaine and a hidden storage facility large enough to accommodate 1000 kilograms of cocaine. During this visit, claimant Camacho

told Mr. Hernandez he was in the business of selling cocaine and sold approximately 1000 kilograms of cocaine in the Miami area every 15-20 days. The two negotiated for the purchase of cocaine

from Mr. Guillo but Mr. Camacho thought the price was too high. (Doc. 58 at Exs. G, H). 2. Mr. Jairo Hernandez met with claimant Camacho at his home At that time,

in Miami, Florida again in May or July, 2003.

claimant Camacho told Mr. Hernandez that his cocaine business was doing well and he was transporting cocaine from Mexico to Miami. While at claimant Camacho's house, Mr. Hernandez met claimant Bruno. Claimant Bruno was introduced to Mr. Hernandez as the 13 Case 2:03-cv-02345-VAM Document 64 Filed 01/23/2006 Page 13 of 19

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husband of claimant Camacho's niece. the name of the husband of the niece. 3.

Mr. Hernandez did not know (Doc. 58 at Exs. G, H).

Leonardo Maya-Martinez, Sr. was introduced to claimant

Camacho in approximately March, 2002 by cocaine dealer Alfredo Navarro. Claimant Camacho visited Mr. Maya-Martinez' home in

Miami, Florida for the purpose of discussing the importation of cocaine from Columbia to the United States for sale. Mr. MayaThe last During

Martinez met with claimant Camacho three to five times. meeting was in approximately February or March of 2003.

these meetings, claimant Camacho told Mr. Maya-Martinez he is in the business of selling cocaine and his source is in Columbia. Claimant Camacho stated the cocaine was transported through Mexico and into the United States where it was sold in Florida and New York. Although Mr. Maya-Martinez and claimant Camacho agreed on a

price of $16,000.00 per kilogram for cocaine delivered to Miami, claimant Camacho never delivered any cocaine to Maya-Martinez. Claimant Camacho told Mr. Maya-Martinez he imports 2,000-3,000 kilograms of cocaine every three months and the cocaine is stored on a ranch near the United States/Mexico border. Claimant Camacho

told Mr. Maya-Martinez he utilizes several types of vehicles to transport his drugs and currency. Claimant Camacho told Mr. Maya-

Martinez that he personally drives large amounts of cash to Mexico to make payments to the transportation organizations. added). (Doc. 58 at Ex. I). 4. The Ford F-350 truck which is the subject of this (Emphasis

forfeiture action was seen by drug agents while they were conducting surveillance in the Miami, Florida case. 14 Case 2:03-cv-02345-VAM Document 64 Filed 01/23/2006 Page 14 of 19 Both Jairo

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Hernandez and Leonardo Maya-Martinez, Sr. were charged, arrested and plead guilty to drug charges arising from the investigation in Miami, Florida. They provided the affidavits in this case as part

of a cooperation agreement in Miami, Florida. 5. The Requests for Admissions

The requests for admissions sent to claimants Bruno and Camacho are set forth in plaintiff's Amended Statement of Facts at paragraphs 65-76. (Doc. 58 at pp. 11 and 12). Claimants decided

to invoke their Fifth Amendment privilege and not respond to these discovery requests. (Doc. 58 at Ex. B).

Plaintiff argues the requests for admissions may be considered in determining whether the Government has carried its burden of proof. The requests for admissions to claimant Camacho

asked him to admit (1) he concealed or caused to be concealed the money in the Ford truck, (2) he altered the defendant Ford truck so drugs and cash could be concealed in one of the two fuel tanks, (3) the defendant Ford truck was used in drug trafficking, (4) the defendant money is his, (5) he knew the money was concealed in the defendant truck on June 3, 2003 and (6) he knew the money was to be used to acquire controlled substances. The requests for admissions to claimant Bruno asked him to admit (1) he concealed or caused the money to be concealed in the defendant truck, (2) the money was to be used to purchase controlled substances or was the proceeds from the sale of controlled substances, (3) the money was acquired by claimant Camacho and (4) claimant Camacho acquired the funds from the "illegal exchange of controlled substances." 15 Case 2:03-cv-02345-VAM Document 64 Filed 01/23/2006 Page 15 of 19

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As pointed out above, both claimants asserted the Fifth Amendment to all discovery requests by plaintiff. A blanket

assertion of the Fifth Amendment is no defense to a forfeiture. United States v. Certain Real Property, 986 F.2d at 996. Plaintiff now asks the Court to determine the sufficiency of claimants' blanket invocation of the Fifth Amendment in response to the requests for admissions. Rule 36(a), F.R.Civ.P. The Court

cannot conclude that invoking the Fifth Amendment as to all of the requests for admissions is proper. Clearly some of the requests

could provide a link to proof of criminal activity but some of the requests are not facially incriminating. This is the problem with For

a claimant's blanket invocation of the Fifth Amendment. example, claimant Bruno filed a claim to the money.

However, he

took the Fifth Amendment rather than deny the money was Camacho's. The Court finds the blanket invocation of the Fifth Amendment is an insufficient response under Rule 36, F.R.Civ.P., and the requests for admissions must be deemed admitted.3 Further, even if the Court were to find the blanket Fifth Amendment assertion proper under Rule 36, F.R.Civ.P., and the requests not deemed admitted, the Court may draw a negative inference from the invocation of the Fifth Amendment in this civil proceeding. Baxter v. Palmigiano, 425 U.S. 308, 318-20 (1976);

United States v. Rylander, 460 U.S. 752, 758 (1983); LiButti v.

In addition, by not submitting any evidence in opposition to plaintiff's Statement of Facts and the Court finding those statements supported by evidence, claimants have failed to raise a genuine issue of material fact as to those assertions found in claimants' Statement of Facts. 16 Case 2:03-cv-02345-VAM Document 64 Filed 01/23/2006 Page 16 of 19

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United States, 107 F.3d 110, 121-125 (2nd Cir. 1997); United States v. Stelmokas, 100 F.3d 302, 310-311 (3rd Cir. 1996), cert. denied, 520 U.S. 1242 (1999); Brink's, Inc. v. City of New York, 717 F.2d 700 (2nd Cir. 1983); United States v. A Single Family Residence and Real Property Located at 900 Rio Vista Blvd., 803 F.2d 625, 629 at n.4 (11th Cir. 1986). Some courts have held the negative inference cannot be the sole basis for ruling against the party invoking the privilege. Butler v. Oak Creek-Franklin School District, 172 F.Supp.2d 1102, 1126 (E.D.Wisc. 2001); Kontos v. Kontos, 968 F.Supp. 400, 408 (S.D.Ind. 997). Many courts have held the negative inference

applies to those matters on which the party invoking the privilege has the burden of proof/production. SEC v. Navin, 97 F.3d 1460

(9th Cir. 1996) (unpublished opinion); United States v. All Assets and Equipment of Westside Building Corp., 843 F.Supp. 377 (N.D.Ill. 1994); United States v. One 1985 Plymouth Colt, 644 F.Supp. 1546 (N.D.Ill. 1986). In this forfeiture, plaintiff has produced untainted, uncontested evidence which proves by a preponderance of the evidence a substantial connection between the defendants and cocaine purchases and sales, i.e. that the defendant money is proceeds of cocaine sales and/or intended to be furnished to buy additional cocaine and that the defendant Ford truck was used and intended to be used to transport cocaine and money derived from cocaine sales. 21 U.S.C. § 881(a)(4) and (6). In short,

plaintiff has carried its burden even without considering the requests for admissions. The Court comes to this conclusion based 17 Case 2:03-cv-02345-VAM Document 64 Filed 01/23/2006 Page 17 of 19

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on the untainted evidence obtained prior to the illegal search and the information specifically referenced above regarding the Miami investigation (i.e. affidavits of two drug dealers and portions of the affidavit of the drug agent). Since plaintiff has fulfilled its burden of proof, claimants have the burden of producing evidence that they are "innocent owners." Claimants have not produced any evidence that they are In addition, the negative inference which may

"innocent owners."

be drawn from invoking the Fifth Amendment precludes such a finding. Baxter v. Palmigiano, 425 U.S. at 318-20; United States

v. Rylander, 460 U.S. at 758; United States v. A Single Family Residence, 803 F.2d at 629 n. 4; United States v. Stelmokas, 100 F.3d at 310-311; LiButti v. United States, 107 F.3d at 121-125; United States v. All Assets and Equipment, 843 F.Supp. at 377; United States v. One 1985 Plymouth Colt, 644 F. Supp. at 1546. Because plaintiff has come forward with untainted and uncontested evidence to prove by a preponderance of the evidence that the defendants are subject to forfeiture and claimants have come forward with no evidence they are innocent owners, there is no genuine issue of material fact and plaintiff is entitled to judgment as a matter of law. IT IS THEREFORE ORDERED granting plaintiff's uncontested Motion to Supplement or Amend Plaintiff's Statement of Facts and Second Motion for Summary Judgment. (Doc. 59).

IT IS FURTHER ORDERED granting plaintiff's Second Motion for Summary Judgment. United States. 18 Case 2:03-cv-02345-VAM Document 64 Filed 01/23/2006 Page 18 of 19 (Doc. 57). The defendants are forfeited to the

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IT IS FURTHER ORDERED that the Clerk shall enter judgment for plaintiff. DATED this 23rd day of January, 2006.

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