Free Response in Opposition to Motion - District Court of Arizona - Arizona

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Law Office of

273 S. Scott Avenue Tucson, Arizona 85701 (520) 884-1234 [email protected] AzBar:009144
Attorney for Claimants

RICHARD B. JONES

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA ) ) Plaintiff, ) v. ) ) (1) $493,850 in U.S. Currency, and ) (2) One 1993 Ford F-350 Truck, ) ) Defendants. ) ******************************** ) Roy Bruno, and ) Miguel Camacho, ) Claimants. ) ) UNITED STATES OF AMERICA, CV03-2345 PHX VAM CLAIMANTS' RESPONSE TO PLAINTIFF'S AMENDED SECOND SUMMARY JUDGMENT MOTION

The Claimants, through counsel, hereby respond to the Government's Amended Second Motion for Summary Judgment. The current version, which is really the Government's Third Motion for Summary Judgment in this matter, reargues many issues that have already been decided by this court. Those issues the Government seeks to be reconsidered will be identified, and the Claimants, consistent with Local Rule §7.2(g), will not respond to them absent an order to do so by this court. The only new information in the current Motion for Summary Judgment is the information from Miami. Yet even the recent vintage of this information is in doubt in that it first publically appeared in summary form in the Government's November 10, 2004 Response to the Claimant's Motion for Summary Judgment and was known to Arizona
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investigators as early as June 3, 2003, latter in the day after the illegal seizure. 1 Nevertheless, this Response will focus on 2 aspects of the Miami information. First, should it be considered at all? Should it be barred as a violation of the disclosure deadline? Should it also be barred as an exploitation of the illegal search? Second, if considered by the court, does information that Miguel Camacho is a suspected drug dealer provide a substantial nexus between the suspected drug activity and the res? And is not that determination a clear example of a material factual issue - thus frustrating summary judgment? Finally, although Claimants are asking this court to deny the motion of summary judgment for several reasons, if this court does so, and this matter necessarily goes to trial, counsel would request that this court specifically rule on the 2 challenges to the Miami information. Those challenges, disclosure violation and exploitation of illegal search, are included in this pleading for the convenience of the court given the large number of separate pleadings already generated in this matter. The court's ruling on those 2 issues will dictate the nature of the evidence to be presented at trial.

THE MOTION FOR SUMMARY JUDGMENT IS UNTIMELY As a preliminary matter, by its Order of September 2, 2004, this court set a deadline of October 29, 2004 for filing motions for summary judgment. This latest motion was filed August 24, 2005. The prior deadline for filing dispositive motions

1

Electronic Docket Report, Document 34, Ex. 2 (affidavit of DEA Agent Jacobsen).

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expired in July 2004. The litigation in this matter will grind on forever if the parties are allowed to file multiple dispositive motions. It should also be noted that the Government could have included the nature of the Miami information in its second motion for summary judgment but choose not to do so at that time.

ISSUES SOUGHT TO BE RECONSIDERED BY THE GOVERNMENT The following issues previously have been ruled upon by the court: · · · The manner of the invocation of rights by the Claimants. Standing of the Claimants (termed "innocent owners" in the latest motion). Use in the motion and statement of facts of information obtained directly as a result of the illegal search such as the altered fuel tank, stored numbers in Camacho's cellphone, the location of the currency, and even that the res is currency at all.

SUMMARY OF ARGUMENTS 1. The court set a discovery deadline for June 2004. Yet the Government did not

disclose the Miami information until including it as an attachment to a pleading 5 months after the deadline. The Government violated its disclosure obligation and an appropriate remedy should be barring the use of any post-deadline information. 2. The use of the Miami information is also exploitative of the illegal search here in

Arizona. The illegal search "significantly directed" the investigation to Miami. Had the Camacho and Bruno been allowed to continue on down the highway on June 3, 2003, Officer McFarland would never have contacted local DEA about Camacho, and local

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DEA would have never contacted Miami DEA about Camacho. Authorities here in Arizona would never have known of the Miami activities and Miami authorities would never have known of the money here in Arizona. The Government bears the burden of showing that the proffered Miami information is totally untainted by the illegal search. This it cannot do. 3. Finally, the Government cannot meet its burden to show that this particular

property was involved in drug activity. At best, even if the Miami information is considered, all the Government can show is that Camacho is suspected of drug activity. Yet the burden requires more than mere suspicion, and more importantly, it also requires a substantial connection to the particular property at issue.

Argument I:

DISCOVERY VIOLATION 2

The Government has a disclosure obligation under Fed. R. Civ. Pro. 26(a)(1). There is no doubt that the substance of the Miami information about Claimant Camacho is within the scope of the type of information that must be disclosed even in the absence of a discovery request. The only remaining question goes to the timing of that disclosure. Rule 26 requires that the disclosure be made within 14 days after a scheduling conference. The Rules of Civil Procedure anticipate that a scheduling conference will led to a scheduling order under Rule 16. Yet the Rules of Civil Procedure also specifically a

2

In its order of March 16, 2005, this denied the Claimants' motion to strike post-deadline information without prejudice. So this particular issue is not precluded by prior ruling.

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provide that this process may be affected by court order or local rule. 3 On December 3, 2003, Judge McNamee issued a scheduling order under Local Rule 2.12 (now LR16.2).4 In essence, the District of Arizona's Differentiated Case Management Practice obviates the need in forfeiture cases to have a scheduling conference and the resulting scheduling order. Rather, the court imposes a scheduling order on the parties without first having the conference. Since local rule and practice has eliminated the need for the conference in all forfeiture cases, a party's disclosure obligation is necessarily generated by the date of the scheduling order. A party cannot shirk its obligation by claiming that none exist until the conference when the process is such that the conference will never occur. At a minimum, a party's disclosure obligation must be satisfied at some point during the court-ordered 6 month discovery period. Here, the Government's mandatory disclosure was made over 5 months beyond that deadline and nearly a year after the scheduling order. Notably, Rule 26 also provides that a party "must make its initial disclosures based on the information reasonably available to it and is not excused from making its disclosures because it has not fully completed its investigation or because it challenges the sufficiency of another party's disclosure or because another party has not made it disclosures."5

3 4 5

Fed. R. Civ. Pro. 16(b) and 26(f). Electronic Docket Report, Document 2. Fed. R. Civ. Pro. 16(b) 26(a).

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Argument II:

EXPLOITATION OF FOURTH AMENDMENT VIOLATION

The exclusionary rule applies to all seized items - including anything indirectly derived from the prior illegality. To prove its case the Government is attempting to use 2 types of information: any adverse inference from the invocation and the Miami investigation. Yet, but for the illegal seizure there would be no notice of forfeiture, no complaint for forfeiture, no discovery requests, and no invocation. In this regard any adverse inference from the invocation is a creature of the Government's exploitation of its earlier illegality. Unless, of course, the Government can first prove that this forfeiture lawsuit would have been initiated even if the illegal search had not occurred, then the Government has exploited that illegality. Similarly, the Government must also show that the Miami information is untainted. This is slightly different analysis than that regarding the initiation of the lawsuit. As to the Miami information the question is not only whether the Government would have initiated a forfeiture action against this res based on the Miami information, but also whether the Government would have even been aware of the Miami information in the absence of the illegal search. Stated differently, did the illegality "significantly direct" the Arizona investigator to the Miami information.? The Government must show that the information it wants considered by the court is untainted by the prior illegality. 6 It can do so only by satisfying at least one of the doctrines of inevitable discovery, independent source, or sufficient attenuation. It is not

6

Nardone v. United States, 308 U.S.338 (1939).

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the Claimants' burden to show the presence of the taint; rather, it is the Government's burden to prove its absence.7 Both types of Government evidence, adverse inference and Miami investigation, must be tested under each of the following doctrines. Independent Source The "independent source" doctrine applies to evidence that is actually found through legal sources unrelated to the illegal search. 8 Would there even be a forfeiture action in the absence of the illegal search? The answer is no because the Government used the knowledge it gained from the illegal search to initiate this action. But the Miami investigation itself was not illegal? Yet the proper question for purposes of this "taint" analysis in not whether the police actually developed the Miami information independently from the traffic stop - but whether this forfeiture case would have been filed independently from the traffic stop. Can the Government show that the Miami investigation, as opposed to the traffic stop, caused the initiation of this lawsuit? The answer is no for 2 reasons: first, the Miami investigation did not reveal the existence of the particular res; and second, Arizona authorities would have been unaware of the Miami investigation had they not illegally searched and subsequently arrested and investigated Miguel Camacho. In short, Arizona investigators would never have known of the Miami investigation if Officer McFarland had let Bruno and Camacho travel on down the road.

7 8

United States v. Johns, 891 F.2d 243, 245 (9th Cir. 1989). United States v. Smith, 155 F.3d 1051,1060 n.16. (9th Cir. 1998).

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The relevant sequence of events is as follows: · · · · Officer McFarland makes a traffic stop on June 3, 2003. McFarland's investigation exceeds it limited purpose rendering the continued detention and subsequent search illegal. 9 After the discovery of the money, state agents contacted DEA in Flagstaff. Flagstaff based DEA Agent Chris Jacobson, later in the day on June 3rd, learned that Camacho was a suspect in a Miami drug investigation. 10 In short, had McFarland not illegally searched the truck, DEA would not have been contacted, and DEA would not have searched for and accessed the Miami information. Inevitable Discovery The "inevitable discovery" doctrine applies to that which would have been discovered through legal means regardless of the illegal search. 11 This court held that the traffic stop, at its inception, violated State v. Livingston 12 but that Officer McFarland had reasonable suspicion to investigate driver impairment. 13 The Court further held that the reason for the stop evaporated almost immediately thereafter. 14 So there was no legitimate purpose to continue the contact and ask questions of both men unrelated to the ostensible impairment investigation. The illegal prolonged contact included questions about the relationship of the driver and passenger, and both their travel route and plans. 15
9 10

Court Order of September 2, 2004, p. 13. Electronic Docket Report, Document 34, Ex. 2 (affidavit of DEA Agent Jacobsen) United States v. Smith, 155 F.3d 1051,1060 n.16. (9th Cir. 1998). State v. Livingston, 75 P.3d 1103 (Ariz.App. 2003). Court Order of September 2, 2004, p. 10. Id., p. 11. Id., p. 11.

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In short, the moment that Officer McFarland determined the driver was not impaired, as evidenced by the officer's abandonment of any impairment investigation as soon as Camacho got out of the truck and provided the appropriate paperwork, the contact should have ended and the truck and its occupants would have been free to continue down the road. Under that scenario nothing, be it cash or even the Miami information, would have been inevitably discovered. Sufficient Attenuation The final test for determining whether the primary taint of a prior constitutional violation has been purged is called an "attenuation test." 16 The test involves 3 factors: 1) temporal proximity between the illegality and the event being analyzed for taint; 2) the presence of intervening circumstances; and 3) the purpose and flagrancy of the misconduct. 17 Generally, the event being analyzed for taint is a confession or a search consent and the question is whether the decision to confess or to consent is sufficiently removed from whatever illegality preceded it. Here, however, the first event being analyzed for taint is the filing of the forfeiture complaint (and related discovery requests). There was a 5 month time gap between those events. On the other hand, there were no intervening events. The decision to file the complaint and send out discovery requests was a unilateral action on by the Government. Unlike a consent or confession, it did not involve

United States v. Washington (Ninth Cir. 02-10526, slip opn. filed Nov. 2, 2004, p.15583. ) Id.

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some sort of independent, subjective evaluation by the person who had been affected by the earlier illegal search or seizure - `"an unrestrained, independent decision" completely unrelated to the initial unlawfulness.' 18 The Government just did it and the Claimants had no say at all. There can be no attenuation where there are no intervening circumstances. Similarly, the time gap between the illegality and the event analyzed is meaningless where that factor itself has no impact on the person suffering the earlier illegality. The second event for analysis, the discovery of the Miami investigation, was sameday product of the illegal search. It was almost an immediate consequence. And there were no intervening events between the illegality and the discovery of the information. A determination of sufficient attenuation requires the Government to satisfy every factor and here the Government has already failed as to the first two as to each category of proffered evidence. Yet this pleading will still discuss the third factor - the purpose of the misconduct. This court has already determined that, while the officer's testimony was truthful, he still stopped the truck because he was suspicious of drug activity, he tried to ask questions to justify his suspicion and provide himself with probable cause to search, and he searched only after he though he had probable cause. 19 While Officer McFarland may have exhibited some degree of good faith in resisting the desire to actually search the truck until he felt he had probable cause, there is no doubt that prior to that point he

18 19

United States v. George, 883 F.2d 1407, 1416 (9th Cir. 1989). Court Order of September 2, 2004, p. 10.

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intentionally and improperly prolonged an ostensible traffic stop in order to attempt to get probable cause, which of course, presupposes he had no probable cause prior to that. Recently, in United States v. Washington the Ninth Circuit dealt with analogous situation.20 There, officers were investigating information that the defendant was dealing drugs from his apartment. They had no probable cause, only suspicion. They contacted the defendant who exited his room and did not allow them to enter. Nothing about that contact generated any more information about drug activity. Nevertheless, the officers threatened to arrest him on an unrelated misdemeanor charge (but never did), tried to peer into the room when they beckoned the roommate to exit, and eventually obtained "consent" to search the room from the defendant. The Ninth Circuit, overruling the district court's determination that the consent was untainted, noted that the officers had no probable cause to search the apartment when they contacted the defendant in the hallway but they did have some lesser justification to make contact the defendant. 21 Here, Officer McFarland had no probable cause - only suspicion - when he initiated contact at the side of the road even though he did have some initial justification to make the stop. In Washington, the officers continued to detain the defendant long after they had accomplished - without results - the narrow, legitimate reason for the initial contact. 22 The exact same is true in the present case and the

20 21 22

United States v. Washington 387 F.3d 1060(9th Cir.2004) Id. at 1076-77 Id.

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Government even admits. 23 On this point, the Ninth Circuit held that officers capitalized on their earlier violation of that defendant's rights, that the purpose of that encounter was to "detect evidence of ordinary criminal wrongdoing," and that by doing so they did not act in good faith. 24 As such, the "purpose" factor weighed toward suppression. 25 In the present case, the purpose of Officer McFarland's contact after eliminating the driver as impaired was to search the truck for criminal activity not at all related to the narrow, lesser purpose of the original stop. In this sense he did not act toward the claimants "in good faith." That factor also weighs toward suppression of the both any adverse inference and the Miami investigation. Finally, another form of the attenuation test is articulated as the "significant direction" test. For example, in United States v. Johns, Customs agents were investigating possible illegal activity related to the landing of a small airplane at a private drag strip outside of Tucson.26 They illegally stopped a car leaving the area in order to obtain the identity of the occupants. Armed with the name of the driver an investigation soon began which resulted in the discovery of marijuana at a house of an associate of the driver. 27
23 24 25 26 27

Electronic Docket Report, Document 34, Gov't Response to Summary Judgment, ¶ 20 Id. at 15590-91. Id. United States v. Johns, 891 F.2d 243 (9th Cir. 1989). United States v. Johns, 891 F.2d 243, 244 (9th Cir. 1989).

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The Ninth Circuit reversed the district court's denial of the motion to suppress holding that "the illegally obtained identification significantly directed the investigation which led to the marijuana."28 To "significant direct" an investigation the nexus between the original illegality and the challenged evidence must be a very close one.29 Here, the illegal search and the discovery of the Miami investigation could not be more closely connected. It all occurred on the same day. There can be no doubt that the illegal discovery of the money significantly directed the investigation to Camacho's alleged activities in Miami.

Argument III.

HAS THE GOVERNMENT PROVEN BY A PREPONDERANCE OF THE EVIDENCE A SUBSTANTIAL NEXUS BETWEEN THE PROPERTY AND DRUG ACTIVITY?

In a civil forfeiture proceeding under 21 U.S.C. §881 seized money or other property is subject to forfeiture if the government can show it to be the proceeds of drug activity or intended to facilitate a drug crime. 30 The government bears the burden of showing by a preponderance of evidence a substantial connection to drug activity. 31 A mere suspicion is not enough.32

891 F.2d at 245 (emphasis added). United States v. Smith, 155 F.3d 1051,1061. (9th Cir. 1998). United States v. $191,910 in U.S. Currency, 16 F.3d 1051, 1071 (9th Cir. 1994). Id. United States v. $405,089.23, 122 F.3d 1285, 1290 (9th Cir. 1997); United States v. $30,060.00, 39 F.3d 1039, 1041 (9th Cir. 1994).

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Before we begin to discuss whether the Government has proven its case, it is first necessary to consider one of the very important differences between civil and criminal forfeiture actions. A civil forfeiture action is an in rem proceeding against particular property as opposed to a particular person. 33 As such, the focus is on the illegality of the property itself. A criminal forfeiture action is an in personam action against a particular person. If convicted, that person's property is forfeited as punishment for his crimes. 34 The latter focuses on the criminal activity of the person while the former concerns itself with the illegal involvement of the property itself. The proper inquiry in an in rem forfeiture action is not so much: did Camacho commit a crime; as opposed to, was this particular property involved in criminal activity? So what do we know about this particular res? Nothing. We do not know where it was found. We do not know how it was packaged. We do not know its quantity. We do not know whether a dog alerted to it. We do not know that the res is even currency. While an order of suppression does not immunize the res from the potential of forfeiture, it does prohibit the use of the characteristics of the res as evidence. 35 Analytically, it is best to consider the res as featureless "widget." And the question becomes: from the available untainted information, can the Government prove that this widget is substantially related to drug activity?

Calero-Todedo v. Pearson Yacht Leasing Co., 416.U.S. 663,680-84 (1974). United States v. $39,000 in Canadian Currency, 801 F.2d 1210, 1218 (10th Cir. 1986). United States v. $191,910 in U.S. Currency, 16 F.3d 1051, 1071, 1065 (9th Cir. 1994); United States v. $277,000, 941 F.2d 898, 902 (9th Cir. 1991).

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Since the Government can prove nothing about the res, it instead has chosen to attempt to prove that Camacho, one of the people associated with the res, is a drug suspect. In United States v. $215,300 money was taken from the claimant at the L.A. Airport. 36 The district court ordered it forfeited due to its large amount, a positive dog sniff, and NADDIS (Narcotics and Dangerous Drugs Information System) information that the claimant was a drug dealer from Miami. The Ninth Circuit affirmed, but did so without consideration of the NADDIS information, holding that such information is "not probative."37 The court held that to meet its burden the Government must present "credible" evidence associating the money with drug activity. 38 The court noted that in the past it has refused to find probable cause despite NADDIS information linking a defendant to drug trafficking and that the Government itself has admitted such reports are "unreliable." 39 The other factors used in that case, the quantity of money and a positive dog hit, are not present in this case. And $215,330 was decided before the Government's burden was increased from probable cause to a preponderance. The Miami information presented here is no different in character than the typical NADDIS information. It consists principally of statements of 2 Florida convicts who
36

United States v. $215,300, 882 F.2d 417 (9th Cir. 1989).
882 F.2d at 419. Id.

882 F.2d at 419, n.2.; see also, United States v. $242,484.00, 2004 WL 2434993 (11th Cir., Nov. 2, 2004) [the negligible value of NADDIS information necessitates a greater amount of other, reliable information.

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have made some sort of deal with authorities. The self-interest behind these statements is obvious. The general reliability is itself a genuine issue of fact. Notably, neither of the Government sources of information actually claims to have committed drug offenses with Camacho. They would have no first hand knowledge of Camacho's alleged activities. Independent corroboration of the allegations by these sources consists of 2 types. The first involves visual surveillance of Camacho meeting with the sources at a private residence on May 21, 2003.40 Yet this meeting was apparently of no import in that neither source makes mention of its purpose - or that it even happened. Maya talks of meeting with Camacho in for the "last time" in February or March of 2003.41 Hernandez talks of meeting with Camacho in July 2003.42 The second type of corroboration consists of a handful of wiretap generated phone conversation supposedly between Camacho and the 2 sources. The Government claims these conversations were drug-related and conducted in code. The agents themselves have provided an explanation of what these "codes" mean.43 Curiously, even though the Government has access to sources Maya and Hernandez, and Maya and Hernandez were allegedly actual participants in many of these conversations, these sources themselves make no mention of either conversation or the "codes." This absence of input from those supposedly with first-hand information about
40 41 42 43

Exhibit H, Government SOF filed August 24, 2005 (Bechard Report). Exhibit I, Government SOF filed August 24, 2005 (Maya Affidavit). Exhibit G, Government SOF filed August 24, 2005 (Hernandez Affidavit). Exhibit H, Government SOF filed August 24, 2005 (Moran Report).

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these conversations bring up several questions. Were these sources actually participants in these particular conversations? If so, why did they not mention them in their affidavits and why did they not provide the "decoding" instead of the agents. If the sources were not involved in these conversations, does that not significantly contradict either the conclusions related to the wiretap reports or the reliability of the sources. And if the sources were not actual participants, as stated by the agents, then is it not just as likely that the wiretap reports are also incorrect about Camacho presence on the phone as well? Keep in mind that Miguel Camacho has not been indicted, much less convicted of anything. But even if the Government successfully proves that Camacho is a drug dealer, that does not prove that the res here is substantially related to drug activity. In United States v. $405,089.23, the Ninth Circuit dealt with the civil forfeiture of various items including $400,000 in a bank account.44 Although the owner of the money had been convicted of drug dealing, the Court did not consider that fact since the convictions occurred after the forfeiture complaint, and the state of the law, pre-CAFRA, was that after-acquired information could not be used. Therefore, as in the present case, the Government relied on an affidavit by a agent outlining various suspicious factors related to the money and to the claimants. As to the money, these factors included that the money in the account had been converted from cash by the claimants, that it was a large amount of money, that it had recently been wired from a Luxembourg account to a third party account in the United States, and that the owner of the U.S. account told the

44

United States v. $405,089.23, 122 F.2d 1285 (9th Cir. 1997).

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agent that the claimant "was trying to hid money " in the account and that he "suspected the money was not from a legal source."45 Nevertheless, the Ninth Circuit held that this information was "not sufficient to support a finding of probable cause that the money was connected to [claimant's] illegal narcotics activities." 46 The Court held that there was "no evidence of a connection between this particular money and drug activity."47 The Mullins affidavit contains a detailed account of the various activities of Arlt, Wren, and others in organizing and managing a large narcotics operation. There can be little doubt that the Government has presented sufficient evidence to establish probable cause for the belief that Arlt and Wren were heavily involved in the illegal acquisition and distribution of derivative chemicals used in the manufacture of and distribution of methamphetamine. What the Mullins affidavit lacks, however, is a sufficient connection between the detailed narcotics activity and the particular assets targeted by the Government's forfeiture proceeding. 48 In the present case, even if the Government can show that Camacho is involved in drug activity, it cannot connect specifics of that activity with this particular res. The Government's hurdle here is even greater than that it faced in $405,089.23 for 2 reasons beyond the lack of information about specific drug activities. First, in the present case the Government cannot even prove anything about the res itself, including the fact it is even currency. Second, since $405,089.29 was decided, the Government's burden has been increased from probable cause to preponderance. If the information in $405,089.23 does not add up to probable cause, then the lesser information here does not even

45 46 47 48

United States v. $405,089.23, 122 F.2d 1285, 1290 (9th Cir. 1997). 122 F.2d at 1290. Id. (Emphasis added). 122 F.2d at 1291 (Emphasis added).

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approach a preponderance. In sum, whatever the Government can or cannot prove about Camacho, there is no association - substantial or otherwise - with June 3, 2003, the widget, or Claimant Roy Bruno. CONCLUSION The Government has not, and can not, show a substantial connection between this res and drug activity. Mere suspicion is not enough. The Motion for Summary Judgment should be denied. If the motion is denied, and this matter necessarily must proceed to trial, counsel still requests that this court still rule on the issues presented in Arguments I and II of this pleading for the reason that such ruling will significantly shape the evidence to be presented at trial. RESPECTFULLY SUBMITTED September 19, 2005. s/ Richard B. Jones Attorney for Claimants Certificate of Service I hereby certify that on September 19, 2005, I electronically transmitted this document to the Clerk's Office using the CM/ECF system for filing and transmittal of a Notice of Electronic Filing (NEF) to the following CM/ECF registrants: · Reid C. Pixler, Assistant United States Attorney I also provided, via U.S. Mail, a paper copy of this pleading and the NEF to the Chambers of Magistrate Judge Virginia A. Mathis.

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