Free Reply to Response to Motion - District Court of Arizona - Arizona

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PAUL K. CHARLTON United States Attorney District of Arizona REID C. PIXLER Assistant U.S. Attorney Arizona State Bar. No. 12850 Two Renaissance Square 40 North Central Avenue, Suite 1200 Phoenix, Arizona 85004-4408 Telephone: (602) 514-7500 [email protected]

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA

United States of America, Plaintiff, v. 1) $493,850.00 in U.S. Currency, and 2) One 1993 Ford F350 Truck, Defendants, And Regarding the Interest of Roy F. Bruno and Miguel Camacho, Claimants.
CIV 03-2345-PHX-VAM REPLY IN SUPPORT OF AMENDED SECOND MOTION FOR SUMMARY JUDGMENT

NOW COMES Plaintiff, United States of America, by and through its attorney, PAUL K. CHARLTON, United States Attorney for the District of Arizona, and Reid Pixler, Assistant United States Attorney, pursuant to Fed.R.Civ.P. 56, and respectfully files this Reply in support of the Amended Motion for Summary Judgment. I. PRELIMINARY STATEMENT Plaintiff sought approval to file an Amended Second Motion For Summary Judgment, based upon receipt of the evidence from the related Miami investigation. The case had to be stayed when claimants moved to compel the production of this discovery to which plaintiff had no access. Plaintiff did not possess this evidence; the evidence was unavailable due to the continuing criminal investigation; and plaintiff had no access to the cooperating defendants. Once the case in Florida, a state court prosecution over which plaintiff exerted no control, progressed to a point where discovery was allowed, then the evidence was provided based upon

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an order by the Court, and plaintiff sought leave to amend the previously filed Summary Judgment Motion with the inclusion of the newly obtained evidence. This is not a third motion for summary judgment as alleged by counsel for claimants. Further, the motion does not ask the Court to reconsider issues previously presented, as counsel for claimants is fully aware. It is simply a prevarication to suggest that plaintiff knew all of the details presented in the summary judgment motion filed August 25, 2005, on the day after the seizure, June 3, 2003.1 As has been adequately set out, those involved in the investigation knew only that there was an ongoing criminal investigation in Miami in which CAMACHO had been identified. Plaintiff certainly had no access to that evidence, as is evident in the Motion to Stay, which was required when claimants sought to compel the production of evidence from the related case, but over which plaintiff had no control. Claimants' Response appears less a dispute about the facts, but solely an argument of law, specifically suited to resolution upon summary judgment. Further, these issues have largely already been briefed.

II.

ARGUMENT 1. Claimants allege the Amended Motion for Summary Judgment is untimely. This allegation is baseless for a number of reasons. Claimants fail to address the language

of the Order entered on June 20, 2005, which allowed the filing of "appropriate motions, based upon the release of the discovery material described in plaintiff's motion." Plaintiff has provided affidavits, including those filed under seal, to demonstrate the nature of the evidence which was disclosed in the Florida State action and which was not available for public release. It is absolutely false to suggest that any of the evidence submitted with the Amended Second Motion for Summary Judgment was available to plaintiff on October 29, 2004, the new date set by the Court for the filing of dispositive motions. Plaintiff admits that it took the Minute Order of March 16, 2005, which granted the stay to allow plaintiff to collect the Florida evidence, as staying the consideration of the pending summary judgment motions until such time as the

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Claimants Response at page 2.
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evidence could be obtained and the dispositive motions amended to address the new evidence. Plaintiff did not consider that any ruling on the merits of the motions had been entered by that Order. That conclusion is consistent with the language contained in the June 20, 2005 Order removing the matter from the stay and unsealing the pleadings for the purpose of providing discovery. It is logically to conclude that the Court intended to consider the merits of the respective motions only after discovery could be provided. Therefore, plaintiff's motion or amended second motion for summary judgment is timely and should be considered by the Court.

2. Claimants allege plaintiff seeks to reconsider issues ruled upon by the Court. A. The Court has previously held that the refusal to answer requests for admissions cannot be deemed admitted when the claimants objected to the questions. The Court found that plaintiff had not adequately alleged the alternative argument that the claimants were not privileged to assert a blanket Fifth Amendment objection against all of the discovery requests. Plaintiff has now squarely placed that objection before the Court and claimants decline to address this issue at their peril. Claimants have never attempted to correct their error by submitting appropriate responses to the discovery tendered to them. B. Claimants continue to ignore their obligation to establish the affirmative defense of innocent owner status as required in 18 U.S.C. § 983(d). Once plaintiff has established that the funds are subject to forfeiture, claimants may prevent forfeiture only by establishing the affirmative defense. Of course, because they have refused to engage in the production of any evidence, they cannot meet this burden and plaintiff is entitled to judgment, i.e. the sole point of the motion. C. The case law is clear that the seized res in this action, both the truck and the currency, are not suppressed. Counsel for claimants has continued to argue, without support, that the physical characteristics of the truck and currency are suppressed as well. Plaintiff is unaware of any order from this Court which has made such a finding.

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3. Claimants allege plaintiff has failed to timely provide discovery. This issues was fully briefed, and claimants' previous motion related to the novel allegations were denied without prejudice by the Court. It is interesting to note that claimants did not seek to collect any discovery until well after the deadline passed. Once the discovery was delivered to claimants, after the required stay, and after claimants had an opportunity to determine the evidence was compelling and could not be contradicted, then they return to the silly argument that this after acquired evidence should have been disclosed before it was even obtained by plaintiff. This issue is fully briefed at pages 4-7 of plaintiff's Opposition To Claimants' Motion To Compel Disclosure, filed on or about December 14, 2004, which is fully incorporated herein by this reference. The short answer is evidence acquired during the course of the litigation is available to plaintiff to submit at trial. See 18 U.S.C. §983(c)(2). United States V. Real Property Located at 5208 Los Franciscos Way, 385 F.3d 1187, 1193 (9th Cir. 2004). Claimants have had sufficient access to this evidence and have not been prejudiced by the delay, particularly because they have not produced any evidence. Further, it would be oddly inconsistent for this Court to grant a stay to allow plaintiff to produce this evidence from previously unavailable cooperating defendants, and then find the production required by the discovery motion of claimants was too late for consideration in support of a summary judgment motion filed in obedience to the Order of June 20, 2005. Suffice it to say claimants view of how forfeiture cases are litigated is not consistent with the practice in the District of Arizona.

4. Claimants allege plaintiff seeks to exploit the Fourth Amendment. This argument was previously fully briefed by plaintiff in a pleading filed on or about November 10, 2004. The argument submitted in that pleading is fully incorporated by this reference. Counsel asserts, without authority, that all evidence obtained from the investigation in Miami, Florida, is inadmissible in this matter because, but for the identification of CAMACHO by the DPS officer, the Arizona authorities would have never known about the investigation of criminal conduct by CAMACHO in Florida. This is a silly argument which fails to be supported by the very cases cited by claimants.
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The identification of CAMACHO lead to a computer run of his name in a data base. Such decisions are made virtually every day, on the basis of good police work. The fact CAMACHO had been identified in an ongoing investigation in Florida, contributed nothing to the handling or presentation of this case other than insight regarding the preparation of discovery severed upon counsel for claimants. In a similar manner, the discovery of the Ford truck and nearly a half million dollars did not direct or control any aspect of the Florida case. Although related through CAMACHO, each case proceeded its own way until the suppression order elevated the need to collect evidence from the Florida investigation. With the eventual cooperation of the Florida authorities, plaintiff obtained some initial discovery materials which have been presented in support of a summary judgment by plaintiff. It is important to note that the production of this evidence was occasioned by a motion seeking to compel this evidence file by claimants. However, there can be no question the Florida case is an independent source of untainted evidence. Similarly, there is no question that there is sufficient attenuation between the two judicial proceedings. Counsel for claimants continually attempts to define the subsequent prohibited act as the filing of the civil forfeiture complaint. The question is whether the evidence obtained in Florida is somehow tainted by the traffic stop in Arizona. One case cited by claimants in the Response provides a great summary of the law. Plaintiff commends pages 1060 to 1063 of United States v. Smith, 155 F.3d 1051 (9th Cir. 1998) for a particularly detailed explanation of the development of the law related to the issue of attenuation. This case does not support the position asserted by claimants. In Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963), the Supreme Court articulated the basic standard for analyzing "fruit of the poisonous tree" issues. The ... question in such a case is `whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.'" Id at 488, 83 S.Ct. 407(quoting John McArthru Maguire, Evidence of Guilt 221 (1959)). Id at 1060. There is no question that the actions of the DPS officer did not lead to the discovery of evidence of criminal activity by BRUNO and CAMACHO, in Florida. There is no argument to
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that effect. The discovery of the concealed currency lead to the discovery of the existence of an ongoing criminal investigation which produced its own evidence. That separate case is an independent source and the discovery of that evidence is sufficiently attenuated. The "attenuated basis" exception is, at bottom, the manifestation of the courts' consistent rejection of a "but for" causation standard in "fruit of the poisonous tree" doctrine. As the Supreme Court put the matter in United States v. Ceccolini, 435 U.S. 268, 98 S.Ct. 1054, 55 L.Ed.2d 268 (1978): Even in situations where the exclusionary rule is plainly applicable, we have declined to adopt a "per se or `but for' rule" that would make inadmissible any evidence, whether tangible or live-witness testimony, which somehow came to light through a chain of causation that began with an illegal arrest. Id at 276, 98 S.Ct. 1054 (citing Brown v. Illinois, 422 U.S. 590, 603, 95 S.Ct. 2254, 45 L.Ed2d 416 (1975)); accord United States v. Cales, 493 F.2d 1215, 1215 (9th Cir. 1974)("Evidence need not be suppressed merely because it would not have come to light but for the illegal wiretap.") Rather, the taint inquiry is more akin to a proximate causation analysis. That is, as some point, even in the event of a direct and unbroken causal chain, the relationship between the unlawful search or seizure and the challenged evidence becomes sufficiently weak to dissipate any taint resulting from the original illegality. See Nardone v. United States, 308 U.S. 338, 341, 60 S.Ct. 266, 84 L.Ed 307 (1939). In other words, at some point along the line, evidence might be "fruit," yet nonetheless be admissible because it is no longer "tainted" or "poisonous." .... Whether derivative evidence is admitted or excluded "will depend upon the precise role the illegal seizure in fact played in the subsequent discovery/" United States v. Bacall, 443 F.2d 1050, 1057 (9th Cir. 1971). Id at 1060. Claimants erroneously equate the discovery by DPS of the mere existence of the Florida investigation with a direct discovery of additional evidence of criminal conduct exploited by the plaintiff in this action. The argument simply falls apart when the analysis discloses that no evidence was specifically found as the result of the DEA inquiry of a computer database. All of the evidence obtained in the Florida case was obtained as the result of that investigation, unrelated in any way to the Arizona seizure. Despite reliance upon the Smith , counsel for claimants makes the same argument reject by the Smith court. Smith relies upon this court's decision in United States v. Johns, 891 F.2d 243 (9th Cir. 1989), in support of his proposed "impetus" standard. His reliance, however, is misplaced. Although there is loose language in the Johns opinion to the effect that "[t]he illegal stop was the impetus for the chain of events leading to the [incriminating evidence] and thus [was] too closely and inextricably linked to the
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discovery for the taint to have dissipated," id. at 245-46, the statement is clearly dictum. The Johns court premised its holding upon a much narrower ground, namely upon the district court's "express finding" that the investigation occurred as a "direct result" of an initial illegal identification. See id. At 245. What is more, prior to Johns, in United States v. Cella, 568 F.2d 1266 (9th cir. 1978), we had specifically rejected "impetus" as the linchpin of taint analysis. Id at 1061.

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Claimants' argument is nothing more than a reworked "impetus" argument applied, not
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to suppress subsequently obtained evidence, but an entire criminal investigation which has
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independently produced its own evidence. The standard cannot be what caused the government
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to file the civil forfeiture action, but whether the suppressed evidence significantly directed any
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investigation to the discovery of the evidence obtained from the Miami investigation.
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... the baseline inquiry in evaluating taint is not whether an unlawful search was the "impteus" for the investigation or whether there exists an unbroken "casual chain" between the search and the incriminating evidence; rather courts must determine whether "anything seized illegally, or any leads gained from illegal activity tend[ed] significantly to direct the investigation toward the specific evidence sought to be suppressed." Cales, 493 F.2d at 1216 (emphasis added). And although it is by no means clear precisely what constitutes "significant direction" sufficient to trigger the exclusion remedy, courts have deemed it probative whether the initial illegaltiy "led directly to any of the evidence actually used against the defendant at trial," Carsello, 578 F.2d at 203 (emphasis added), or to put the matter slightly differenty, whether the government's evidence was the "direct result" of an unlawful search or seizure, Johns, 891 F.2d at 245... The nexus between the original illegality and the specific evidence subject to challenge must be a close one. Id at 1061. According to this analysis, no evidence obtained in Miami could reasonably be

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alleged to be tainted by the Arizona traffic stop. Claimants argument is not supported by the
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very authority cited in the Response.
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5. Claimants allege plaintiff has failed to prove a substantial connection between defendants and illegal controlled substances Claimants have altered their previous approach to this case, based upon the uncontradicted evidence from the Florida investigation has disclosed that CAMACHO is the head of a substantial drug trafficking enterprise which includes BRUNO as one of his coconspirators. These undisputed facts are not disputed with contradictory evidence, such as a legitimate source of the seized funds, nor any basis to believe that BRUNO is the real owner of
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the funds. Rather than attempt to refute these facts, claimants would now have the Court decline to consider the criminal source of the funds in the truck on the basis there exists no connection between the criminal activity of CAMACHO and the funds which were in the truck but not claimed by him. Recall that BRUNO is the only claimant to these funds. The undisputed facts are that the funds are proceeds of the criminal enterprise operated by CAMACHO, not BRUNO. At most, BRUNO is a mere bailee of the funds for his undisclosed bailor, CAMACHO. As such, BRUNO can never qualify as an innocent owner defined in 18 U.S.C. §983(d)(6)(B)(ii). Once again, claimants urge an argument which is not supported by the case law. Claimants argue again that the Ford truck and the currency become widgets as the result of the suppression of evidence obtained from the stop. The case law cited does not support this proposition. Both cases cited by claimants hold: As we noted in One 1977 Mercedes Benz, the mere fact that property was illegally seized does not immunize that property from forfeiture; however, any evidence which is the product of an illegal search or seizure must be excluded in the forfeiture hearing. The Government must satisfy forfeiture requriements with untained evidence. United States v. $277,000, 941 F.2d 898, 902 (9th Cir. 1991). See also United States v. $191,910, 16 F.3d 1051, 1063 (9th Cir. 1994), quoting the same passage. In short, the res is not suppressed merely because someone claims that it has evidentiary value. The point of both of the opinions is evidence from a source other than the actions which caused suppression of the evidence must be used to support the forfeiture of the res. As related to the truck, its physical characteristics and association with the surveillance in Florida, including the description by CAMACHO of the use of such vehicles to transport money to Mexico and cocaine to Miami, is not inadmissable in this action because the Court found the traffic stop lasted too long. The case law cited by claimants simply does not support this argument. Similarly, the evidence associated with the currency, such as the dog alert, has been suppressed. The amount of the currency or the fact that it is currency cannot be suppressed. The issue of the location of the currency depends on other issues previously separately briefed and pending before the Court. However, if claimants were correct that nothing about the physical characteristics may be considered by the Court, then it would be impossible to ever seek
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forfeiture with untainted evidence simply because plaintiff could never even describe the res sought to be forfeited. Clearly, that is not the holding of the cases cited by claimants and there is no authority which so holds. Claimants next seek to convince this Court that the substantial evidence presented by plaintiff, including the affidavits of two individuals who have negotiated with CAMACHO about the international smuggling of thousands of kilograms of cocaine over several years, including the period of time involved in the litigation of this case, "... is no different in character than the typical NADDIS information.) Responsive brief at page 15, lines 20-21. This is shameful. NADDIS records are often unsupported or unattributed conclusions of agent or analysts who either cannot be produced or which are based entirely upon hearsay. The evidence presented demonstrates that both Maya and Hernandez personally knew CAMACHO, engaged CAMACHO in conversations related to international drug trafficking, and heard his representations, now called admissions, during the course of their conspiracies, related to movement of substantial sums of currency from Miami to Mexico and substantial amounts of cocaine from Mexico to Miami and other locations within the United States. The activities and involvement of Maya, Hernandez, and CAMACHO is corroborated by surveillance and the recorded conversations obtained by the Court approved wire taps. The coded language and odd conversations are absolutely consistent with the activities of a criminal enterprise engaged in drug trafficking. The most that counsel for claimants does in his response is ask questions which would be appropriately addressed to Maya and Hernandez in a deposition. In no respect do these questions refute or contradict the substantial evidence that CAMACHO was on a drug run, rather than celebrating his "birthday," as the coded language included in the recorded conversation indicated. For example, there is no indication that either Maya or Hernandez was either aware of or had seen the transcripts of the wire tap conversations submitted in the later submitted affidavits. Such rank speculation hardly rises to the status of a materially disputed fact. The question claimants refuse to address is, if CAMACHO and BRUNO were not engaged in a trip for the purposes of purchasing nearly a half million dollars worth of cocaine
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in Mexico, why were the wire tap conversations coded? The evidence presented to this Court is substantially more specifically related to trafficking in controlled substances than were the affidavits criticized by the Ninth Circuit in United States v. $405,809.29, 122 F.2d 1285 (9th Cir. 1997). The government has established a "substantial connection" between the activity of CAMACHO, the Ford truck, the currency, and international trafficking of controlled substances. Both the truck and currency have been shown to have more than an incidental or fortuitous connection to criminal activity. See, e.g., United States v. One 1986 Ford Pickup, 56 F.3d 1181 (9th Cir. 1995); United States v. Borromeo, 995 F.2d 23 (4th Cir. 1993); United States v. Real Property and Residence at 3097 S.W. 111th Avenue, 921 F.2d 1551 (11th Cir. 1991); United States v. Parcel of Land & Residence at 28 Emery St., 914 F.2d 1 (1st Cir. 1990); United States v. Twelve Thousand Five Hundred and Eighty Five Dollars, 869 F.2d 1093 (8th Cir. 1989). However, as the Fourth Circuit has explained, "The hurdle posed by the `substantial connection' requirement is not . . . a particularly high one." Borromeo, 995 F.2d at 26. Under this test: the property either must be used or intended to be used to commit a crime, or must facilitate the commission of a crime. At minimum, the property must have more than an incidental or fortuitous connection to criminal activity. United States v. Schifferli, 895 F.2d 987, 990 (4th Cir. 1990); see also United States v. One Parcel Property Located at 7079 Chilton County Road, 123 F.Supp.2d 602, 608 (M.D. Ala. 2000) (finding no requirement that the United States present evidence of a "continuing" illegal activity or "ongoing operation" to show substantial connection). Claimants have not disputed that CAMACHO is the head of a substantial international drug trafficking enterprise based in Florida which moves substantial quantities of cocaine from Mexico, through Arizona, for sale in locations such as New York and Miami SOF 77-102; nor that CAMACHO produces a huge gross profit or cash flow each week SOF 103; nor that CAMACHO has been engaged in this criminal activity for a substantial period of time, based upon the personal experience of both Jairo Hernandez and Leonardo Maya Martinez, Sr. with whom CAMACHO frequently conversed about opportunities available for continued criminal activities. SOF 77-82; 86-89; 94-98. Based upon this recently acquired evidence it is
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absolutely clear that BRUNO is nothing more than a family member, by virtue of the pregnancy of a niece of CAMACHO, assigned to aid and support the criminal enterprise by driving specially altered vehicles to conceal cocaine and currency used to acquire the illegal controlled substances. SOF 90; 99. As such, BRUNO is nothing more than a courier/baillee with no ownership interest in the currency, lacking standing to make a claim to the res, pursuant to the terms of the statute, 18 U.S.C. §983d(6)(B)(ii). CAMACHO is the true owner of the currency and the truck, but has made a claim only to the truck, defendant #2, which was also identified as a vehicle present at the compound in Miami used as a base of operations and communication center for the criminal enterprise. Defendant #2 is exactly the type of vehicle described by CAMACHO as employed to further his criminal enterprise, i.e. one altered to provide space to conceal controlled substances or currency. SOF 99. The evidence from the Florida investigation, the evidence in this matter which has not been suppressed by the Court supports the conclusion that there is a substantial connection between the defendant property and the illegal trafficking of controlled substances. Based upon the totality of the circumstances, the defendant truck is subject to forfeiture pursuant to 21 U.S.C. §881(a)(4) as a vehicle used and intended to be used to transport, or in any manner to facilitate the transportation, sale, receipt, possession, or concealment of controlled substances or proceeds of the illegal exchanges for controlled substances. The defendant currency in the approximate amount of $493,850 is the proceeds of drug trafficking and was intended to be used to purchase or facilitate the purchase of more cocaine in Mexico. The currency is subject to forfeiture pursuant to 21 U.S.C. §881(a)(6). Once the substantial connection has been established between the res and drug trafficking, claimants may prove each res is not subject to forfeiture if they can establish they are innocent owners. As a result of a blanket Fifth Amendment privilege, this Court may draw adverse inferences from the refusal to engage in discovery. Every litigant is obligated to

respond to the burden of production of evidence in response to the discovery requests of another party. Every plaintiff has the ability to call the defendant as a witness and produce evidence from the defendant as part of the plaintiff's case in chief. The defendant is never permitted to

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simply refuse to participate in discovery until such time as plaintiff proves a prima facie case, and then elect to produce evidence. It is this refusal to respond to all discovery requests which is at issue in this case. A civil litigant alleged to have participated in activities which lead to the seizure of property for violations of federal law, should not be immune from discovery obligations merely by asserting a blanket Fifth Amendment claim. Claimants cannot assert both that they are innocent owners and that they cannot answer discovery questions without convicting themselves. In short, the logic is inescapable. If claimants cannot answer without convicting themselves, then they are not innocent owners. The res is forfeited to plaintiff. III. SUMMARY For the reasons stated in the Amended Second Motion for Summary Judgment, this Reply, and the other pleadings referenced and pending before the Court, plaintiff has established that each res is substantially connected to the Miami based trafficking enterprise headed by CAMACHO, based upon the affidavits of his associates in Miami. This showing is sufficient for the government to prevail and require claimants to meet the burden of proof to establish they are "innocent owners," regardless of whether the Court draws adverse inferences from the assertion of the Fifth Amendment privilege. Claimants have failed to allege and prove any basis upon which this Court could determine a legitimate interest exists in the res. Plaintiff's motion for summary judgment should be granted. Respectfully submitted this 4th day of October, 2005. PAUL K. CHARLTON United States Attorney District of Arizona S/ Reid C. Pixler REID C. PIXLER Assistant U.S. Attorney

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X I hereby certify that on October 4, 2005, I served the attached document by U.S. Mail on the following, who are not registered participants of the CM/ECF System:

CERTIFICATE OF SERVICE
X I hereby certify that on October 4 , 2005, I electronically transmitted the attached document to the Clerk's Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: Richard B. Jones [email protected]

S/ Victoria Tiffany

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