Opinion
2:21-cv-09396-CAS-MAAx
07-31-2023
UNITED STATES v. $76,000.00 IN U.S. CURRENCY
Present: The Honorable CHRISTINA A. SNYDER
CIVIL MINUTES - GENERAL
Proceedings: (IN CHAMBERS) - PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT (Dkt. 38, filed on June 5, 2023)
I. INTRODUCTION
On December 3, 2021, plaintiff United States (“government”) initiated this civil forfeiture action by filing a verified complaint against defendant $76,000.00 in U.S. currency (“defendant currency”), pursuant to 21 U.S.C. § 881(a)(6). Dkt. 1 (“Compl.”). Defendant currency was seized during a traffic stop of Carlos Gomez-Munoz (“claimant”) on March 23, 2021, in San Dimas, California. Id. ¶ 5.
On January 20, 2022, claimant filed an answer to plaintiff s complaint and asserted numerous affirmative defenses. Dkt. 11.
On April 4, 2022, claimant failed to appear at a Court-ordered scheduling conference. Dkt. 15. Accordingly, the Court continued the hearing to April 25, 2022, and ordered claimant to show cause in writing, no later than April 18, 2022, why his answer should not be stricken for failure to appear at a Court-ordered hearing. Id. However, claimant neither responded to the order to show cause nor attended the Court-ordered April 25, 2022 hearing. Dkt. 16. Accordingly, on April 25, 2022, the Court struck claimant's answer and ordered the Clerk to enter default against claimant. Id. On May 3, 2022, the Clerk entered default as to claimant. Dkt. 17.
On June 24, 2022, claimant filed an initial motion to set aside entry of default pursuant to Rule 55(c), the government opposed. Dkts. 18, 20. On July 25, 2022, the Court held a hearing on claimant's prior motion to set aside entry of default. At that hearing, claimant's counsel requested that the Court provide claimant with an opportunity to resubmit his motion, representing that he would include additional evidence related to the existence of a meritorious defense and possibly related to claimant's lack of culpable conduct. See Dkt. 23 at 2. The Court denied claimant's motion to set aside the entry of default without prejudice, and directed claimant to file his renewed motion. IT
On August 8, 2022, claimant filed a renewed motion to set aside entry of default. Dkt. 24. On September 19, 2022, the Court granted claimant's motion and set aside the default entered on May 3, 2022. Dkt. 30.
On February 6, 2023, the Court held a telephonic status conference at which no appearance was made by the govermnent or on the government's behalf. The Court thereafter ordered the govermnent to show cause in writing why this action should not be dismissed based on the government's failure to appear at the telephonic status conference. Dkt. 35. On February 9, 2023, the govermnent filed a response indicating that its counsel had inadvertently failed to attend the hearing but had otherwise been prosecuting the action. Dkt. 36. On February 27, 2023, the Court held a further telephonic status conference at which it discharged its order to show case, Dkt. 37.
On June 5, 2023, the government filed the instant motion for summary judgment, noticing a hearing for July 3, 2023. Dkt. 38 (“Mot.”). Claimant did not file an opposition before the hearing. At the July 3, 2023 hearing, counsel for claimant requested that the Court schedule a subsequent, supplemental hearing, and that claimant be given leave to file an opposition. The Court granted counsel's request. Dkt. 41. On July 24, 2023, claimant filed an opposition. Dkt. 43 (“Opp.”). On July 26, 2023, the government filed a reply. Dkt. 44 (“Reply”).
On July 31, 2023, the Court held a final hearing on the instant motion for summary judgment. Having carefully considered the parties' arguments and submissions, the Court finds and concludes as follows.
II. BACKGROUND
Unless otherwise noted, the Court references only facts that are uncontroverted and to which evidentiary objections, if any, have been overruled.
A. Drug Enforcement Administration investigation into narcotics trafficking
This case stems from an investigation conducted by the Drug Enforcement Administration (“DEA”), in cooperation with the Fontana Police Department (“FPD”), into the narcotics trafficking activities of an identified subject, UM22, who was based in Los Angeles County. Dkt. 38-1, ¶ 1. DEA agents determined that UM22 was coordinating the distribution of methamphetamine and cocaine in California, and sending remittances to sources in Mexico. Id. ¶ 1. On March 19, 2021, Judge Larry P. Fidler of the Los Angeles County Superior authorized the interception of all wire and telephone data used by UM22. Id. ¶ 2.
B. Intercepted calls between claimant and UM22
The investigation intercepted calls between claimant and UM22. On March 20, 2021, UM22 received an incoming call at approximately 1:13 p.m., from 414-712-0894, used by claimant. During the conversation, UM22 said his “buddy” called and asked for Gomez-Munoz. UM22 told Gomez-Munoz that UM22 had relayed to his “buddy” that Gomez-Munoz sent UM22 a text message the prior night but that he had not able to talk to Gomez-Munoz. UM22 said to Gomez-Munoz that UM22's “buddy” wanted to know about the “invoice.” UM22 recounted to Gomez-Munoz how UM22 told his “buddy” what Gomez-Munoz had said the other day, and that his “buddy” just called asking when the “invoice” was going to be available. Dkt. 38-1, ¶ 4.
According to plaintiff, “buddy” means UM22's narcotics supply source. In addition to a translated transcription of the intercepted conversation, plaintiff also filed a declaration by Mario Martinez, a DEA Task Force Officer with the FPD, who provided an “interpretation of the conversations based on my training and experience with regard to the coded communications often used by narcotics traffickers over the telephone.” See Dkt. 38-2 at 1-2.
According to Martinez, “invoice” means narcotics proceeds. See id.
Gomez-Munoz asked if UM22 remembered that Gomez-Munoz had sent some “windows” to Minnesota. UM22 said yes, and Gomez-Munoz stated that he went over to get the “paper” himself because it was taking too long. Gomez-Munoz said that a guy handed over “paper” to Gomez-Munoz on March 18, 2021, another one on March 19, 2021, and was on his way with another portion. Gomez-Munoz said he wanted to take advantage of it and go back next week. Gomez-Munoz said the man was going to hand over more next week. Gomez-Munoz said he was leaving that night and would be arriving home the next evening, March 21, 2021, and available on March 22, 2021. Id. ¶ 5.
According to Martinez, “windows” means pounds of methamphetamine. See id. at 3.
According to Martinez, “paper” means narcotics proceeds. See id.
According to Martinez, the guy mentioned by Gomez-Munoz is a narcotics customer. See id.
UM22 said he was “outside” but wanted to let Gomez-Munoz know that there were going to be “cars” available “for what I had told you about.” UM22 said that his “buddy” needed the “invoice” to pay for expenses “outside.” UM22 asked Gomez-Munoz if he could let “buddy” know about the March 22, 2021 date. Gomez-Munoz agreed and stated that he was just waiting to finish with the guy in Minnesota. UM22 said that he was going to tell his “buddy” about the March 22 date. Id. ¶ 6. Gomez-Munoz stated that the “long one” was experiencing a lot of delays, but “Largo” told him that he could “pick up” the “freight [UM22] had told [Gomez-Munos] about” from UM22's “buddy.” Idi¶7.
According to Martinez, “outside” means outside the United States and in Mexico. See id.
According to Martinez, “cars” means kilograms of cocaine. See Id.
According to Martinez, “long one” means truck driver. See id. at 4.
The following day, on March 21, 2021, agents intercepted another conversation between UM22 and Gomez-Munoz. In a conversation starting at approximately 9:32 a.m., Gomez-Munoz told UM22 that “three cars” were stolen from him by a “client of ten years,” and that as a result, Gomez-Munoz had to gather $70,000 out of his “own pocket.” Gomez-Munoz then told UM22:
[I]ts not like I can go kill his family. The family knows my name, they mow everything, and they know he stole from me. His mom already told me that, that if anything... because the . . . they have . . . she's going to tell the police in case of anything happening. [. . .] I already spent a week looking for him here and there and over there... And nothing with the
family... In the end the family was mad and were going to send the police after me.”Id.¶8.
Gomez-Munoz then stated that he had to “move to Minnesota to go see about my stuff over there, the windows” he had. He explained, “I picked up everything I had over there and. and my wife withdrew money that she had in the bank and ... I've just been doing that, putting everything together.” Gomez-Munoz told UM22 that “right now ... I have about seventy put together” and that “in the meantime, I'm going to pay” because “I don't want to get work on credit.” Gomez-Munoz told UM22 “the only thing I can do right now is help you guys bring work up and take paper down.” Id. ¶ 9.
C. March 2021 traffic stop of claimant
On March 23, 2021, DEA agents determined that Gomez-Munoz was traveling from St. George, Utah, towards California, and directed the FPD investigators to locate Gomez-Munoz as he traveled southbound towards Los Angeles. Id. ¶ 10. At approximately 1:20 p.m., FPD officers stopped a white Jeep Cherokee on the 210 freeway in the city of San Dimas, California. The officers identified Gomez-Munoz who possessed a Wisconsin driver's license. Id. ¶ 11.
During the traffic stop, Gomez-Munoz denied having anything illegal inside the vehicle and consented to a search by FPD officers. During the search, the FPD officers observed that the front dashboard of the vehicle had scratch and pry marks. FPD officers then removed the radio attached to the dashboard and found several bundles of currency hidden within the dashboard. The amount was later determined to be $76,000.00 in U.S. currency (i.e., the defendant currency). Id. ¶ 12.
D. Claimant's statements made in his August 8, 2022 declaration
In a declaration submitted August 8, 2022, in connection with his motion to set aside entry of default, Gomez-Munoz provided an explanation for the source of the defendant currency. He states he is “self-employed in the construction industry as a dry wall installer” and the defendant currency seized during the traffic stop was “from my savings and work income and were for the purpose of purchasing property in Mexico.” Dkt. 38-7 at 1. “During the period of time right before the seizure, the only people I was in contact in regards to the purchase were my wife, other family members and the seller of the property in Baja California.” Id. at 2. Claimant states that “the person I was speaking with about the purchase in Mexico was [a] gentleman by the name of Gilberto Figueroa, who also went by the name of ‘Tito.' ” Id. Gomez-Munoz claims that Figueroa is a family friend of his brother-in-law.
Gomez-Munoz explains that most of his communication with Figueroa was through phone calls, and “before leaving to drive to Los Angeles to complete the purchase of the property, I was given another number to call and an address in Los Angeles] by Mr. Figueroa which would be the location where we would transfer money and title” to the property. Id. at 3.
According to his declaration:
Around this time, I noticed that Mr. Figueroa, started to sound desperate over our phone calls and it was apparent that he desperately wanted and needed the money. I kept telling him that I needed some time to collect the money by selling some cars I owned at the time because I was several thousand dollars short. I also attempted to offer him the vehicles in lieu of the cash in order to complete the purchase but he rejected this offer. I remember in our phone calls, Mr. Figueroa mentioned the phrase “el papel” many times when he was referring to the money to purchase the property and he also never wanted to discuss the amount of money over the phone as he would always speak in a cryptic manner that now with the benefit of hindsight I now know why.Id.
Inconsistent with his earlier statement in the declaration that he has “never met Mr. Figueroa in person,” claimant later contends that “I only saw him about two times in Los Angeles, California before the seizure of my money and once again, I was completely unaware of his affiliation with any criminal organization or activity.” Compare id. at 2; with Id. at 4.
In this declaration, claimant states that the defendant currency was intended as funds to purchase the property in Mexico from Figueroa, and that he received “the initial $55,000 to purchase the property in 2019 when me and my wife refinanced our home.” Id. at 4. Gomez-Munoz also explained that when the opportunity purchase the property from Figueroa arose, “we were still approximately $7,000 short on the funds required.” According to him:
While I was working in Wisconsin several years, I worked with a person who as a way to make extra money would buy cars at auctions, fix them and resell them. During this time, I was doing the same and I was in possession of several vehicles that I was going to [sell] in order to raise the funds to purchase the property. In order to get the last amount of money needed to purchase the property, I pawned one of vehicles for the last $7,000.Id. at 4.
E. Claimant's responses to discovery requests
After the Court set aside entry of default, the parties conducted discovery. In his responses to the government's discovery requests, Gomez-Munoz admitted that he possessed “no documents” to support the claim that intended to purchase property in Mexico with the defendant currency nor did he know the address of the property, only an “approximate location” with GPS coordinates. See Dkt. 38-6 at 2; Dkt. 38-5 at 3.
Gomez-Munoz identified the seller of the property only as Humberto or Gilberto Figueroa but could not produce any contact information (address, phone number, e-mail) for Figueroa, other than stating that Figueroa “lives about 15 minutes away from Jacume Baja, California, Mexico.” Dkt. 38-5 at 5.
Additionally, the government propounded an interrogatory on Gomez-Munoz, requesting that he “identify the user (as of the time of the seizure of the defendant currency) of cell phone number (562) 450-7090,” the same phone number used by UM22 in the intercepted conversations described above. Gomez-Munoz responded, “[t]his was the number I used to communicate with Nando in order to arrange the purchase of a parcel of property in Mexico.” Claimant provided no other identifying information as to who Nando is. Id. at 4.
Finally, the government asked Gomez-Munoz to “[i]dentify all 2021 deliveries (either by you or done on your behalf) of windows to Minnesota.” He responded, “I did not do any work involving windows in the state of Minnesota as it was a job opportunity for me to go out there and work on a large job in order to get the remaining $4,000 needed to pay for the purchase of a parcel of property in Mexico.” Id. at 6.
III. LEGAL STANDARD
A. Summary Judgment
Summary judgment is appropriate where “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). The moving party bears the initial burden of identifying relevant portions of the record that demonstrate the absence of a fact or facts necessary for one or more essential elements of each claim upon which the moving party seeks judgment. See Celotex Corp, v. Catrett, 477 U.S. 317, 323 (1986).
If the moving party meets its initial burden, the opposing party must then set out specific facts showing a genuine issue for trial in order to defeat the motion. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986); see Fed.R.Civ.P. 56(c), (e). The nonmoving party must not simply rely on the pleadings and must do more than make “conclusory allegations [in] an affidavit.” Lujan v. Naf 1 Wildlife Fed'n. 497 U.S. 871, 888 (1990); see Celotex, 477 U.S. at 324. Summary judgment must be granted for the moving party if the nomnoving party “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. 477 U.S. at 322; see Abromson v. Am. Pac. Corp., 114 F.3d 898, 902 (9th Cir. 1997).
In light of the evidence presented by the nomnoving party, along with any undisputed facts, the Court must decide whether the moving party is entitled to judgment as a matter of law. See T.W. Elec. Serv., Inc, v. Pac. Elec. Contractors Ass'n, 809 F.2d 626, 631, 631 n.3 (9th Cir. 1987). When deciding a motion for summary judgment, “the inferences to be drawn from the underlying facts . . . must be viewed in the light most favorable to the party opposing the motion.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp.. 475 U.S. 574, 587 (1986) (citation omitted); Valley Nat'l Bank of Ariz. v. A.E. Rouse & Co.. 121 F.3d 1332, 1335 (9th Cir. 1997). Summary judgment for the moving party is proper when a rational trier of fact would not be able to find for the nonmoving party on the claims at issue. See Matsushita. 475 U.S. at 587.
B. Civil Forfeiture Pursuant to 21 U.S.C. § 881(a)(6)
“To prevail in an action under 21 U.S.C. § 881(a)(6), the government must prove by a preponderance of the evidence that the property was (1) furnished or intended to be furnished in exchange for a controlled substance; (2) traceable to such an exchange; or (3) used or intended to be used to facilitate a violation of federal drug laws.” United States v. $23,100 in U.S. Currency. No. 2:19-cv-00190-CAS-JPR, 2019 WL 3237508, at *4 (C.D. Cal. July 15, 2019). When 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, it must also establish a substantial connection between the property and the offense. 18 U.S.C. § 983(c)(3). “The determination [of] whether the government has met its burden of proof is based on the aggregate of the facts, including circumstantial evidence.” United States v. $49.790 in U.S. Currency, 763 F.Supp.2d 1160, 1166 (N. D. Cal. 2010) (citing United States v. $42,500 in U.S. Currency, 283 F.3d 977, 980 (9th Cir. 2002)).
IV. DISCUSSION
A. Government's Prima Facie Case
As described above, the government must prove by a preponderance of the evidence that the defendant currency was (1) furnished or intended to be furnished in exchange for a controlled substance; (2) traceable to such an exchange; or (3) used or intended to be used to facilitate a violation of federal drug laws. Accordingly, summary judgment is appropriate if there is no genuine issue of fact as to whether the defendant currency was not subject to forfeiture. See United States v. $80.180.00 in U.S. Currency, 46 Fed.Appx. 564, 566 (9th Cir. 2002). For example, in United States v. $42,500 in U.S. Currency, the Ninth Circuit affirmed the district court's grant of summary judgment in a civil forfeiture action where the claimant had “failed to produce any evidence from which a reasonable fact finder could conclude that the money was not related to drug activities.” 283 F.3d at 984
Specifically, the court there held, “After examining the facts advanced by Hysell in response to the government's motion for summary judgment, including her refusal to produce any useful evidence that might illuminate and verify her story, we hold that no reasonable person could possibly find worthy of serious consideration Hysell's everexpanding, contradictory, sophistical, and impenetrable story about the initially unknown and now effectively unidentified and hidden, alleged owner of the money. A reasonable person could not return a verdict for Hysell by a preponderance of the evidence based on the insubstantial ‘facts' presented, nor could a judge allow such a verdict to stand.” Id. at 983-84; see also United States v. Approximately $1.67 Million (US) in Cash. Stock & Other Valuable Assets Held by or at 1) Total Aviation Ldt., 513 F.3d 991, 1000 (9th Cir. 2008) (affirming district court's grant of summary judgment in a civil forfeiture action where the “claimant's bare assertion that he came into an unspecified amount of cash after his father's death falls well short of the requisite preponderance of the evidence standard [and n]or does this inherently untrustworthy story create a genuine issue of material fact.”).
Here, the government argues that the “nexus between the defendant currency and drug trafficking . . . cannot be reasonably disputed, while Gomez-Munoz's explanation for the intended use of the defendant currency is unsupported by factual data and belied by his multiple admissions in the intercepted conversations.” Mot. at 8.
First, the government argues that the intercepted conversations capture evidence of illicit conduct. Rather than corroborating claimant's contentions that he acquired the defendant currency lawfully and intended to use them to purchase property in Mexico, the government argues that the intercepted conversations reflect claimant's efforts sending “windows” (drug-jargon for certain quantities of methamphetamine) to Minnesota and collecting proceeds from the delivery of those “windows.” Id. at 8-9. Similarly, the government contends that a “further indicator of narcotics trafficking is Gomez-Munoz's repeated assurance to UM22 that Gomez-Munoz was going to pay UM22 because he did not want to get “work” (narcotics) on credit and that the only thing Gomez-Munoz could do was to help UM22 bring “work” (narcotics) up (to the U.S.) and take “paper” (narcotics proceeds) down (to Mexico).” Id. at 9. Additionally, the government emphasizes Gomez-Munoz's statements to UM22 about how he cannot kill the family of the client who had stolen from him because they had threatened to call the police. According to the government, such casually delivered comments are “certainly indicative of an individual involved in illicit conduct, rather than someone innocently working towards collecting funds to purchase real property.” Id. at 10-11.
Second, the government contends that claimant's discovery responses contradict his August 2022 declaration filed in this case. As set forth above, in that declaration, Gomez-Munoz stated that he had had multiple telephone conversations about the purchase of real estate in Mexico with a man known as Gilberto Figueroa (or “Tito”), who spoke in a “cryptic manner” that claimant only “now with the benefit of hindsight [knows] why.” See id. at 11. However, in his subsequent responses to the government's discovery requests, claimant stated he had no contact information for Figueroa, and instead identified the phone number of his intercepted conversations with UM22 as the number “[he] used to communicate with Nando in order to arrange the purchase of a parcel of property in Mexico.” Id. at 11-12.
Third, the government argues that claimant's discovery responses show that he has no evidence to oppose its claims. Instead, the government emphasizes that claimant “admitted he possessed no documents to support his claim that the defendant currency was intended for the purchase of real property” and could not identify the address of the property or the contact information for “Figueroa.” Id. at 12. Finally, the government
Gomez-Munoz also admitted in discovery that he did not do any work regarding “windows” in Minnesota, despite the fact that he told UM22, in multiple conversations, that Gomez-Munoz was sending “windows” to Minnesota and collecting proceeds from the delivery of the “windows.” As discussed previously, the term “windows” is coded language for poundquantity methamphetamine. The fact that Gomez-Munoz denied that he did any work in Minnesota relating to “windows”, leaves him with no legitimate explanation (and certainly no admissible evidence) why he was discussing with UM22 delivering “windows”.Id. at 13.
In opposition, claimant argues that there are “multiple disputed facts” relating to the source of the defendant currency and whether it is traceable to drug trafficking. Opp. at 10. Claimant argues that that the reason there was “no discussion of the purchase of the land on the intercepted conversations” between UM22 and claimant is because “the actual target of the intercepted telephone conversations was acting simply in the capacity of an escrow of sorts.” Id. at 7. Claimant additionally argues that the alleged coded drug phrases like “work,” “windows,” and “paper” were used by claimant in the intercepted conversations to refer to his line of work in the construction industry and that “[s]imply using such phrases does not signify membership and participation within a criminal organization.” Id. at 8. Moreover, claimant argues that references in the intercepted conversations to claimant “bringing work up” or delivering “windows” to Minnesota “speaks [to] the target of the intercepted phone call's ignorance of [claimant's] occupation. IT at 9. Finally, as to the threatening comments made by claimant in the intercepted conversations, claimant argues this “phrase should be understood within the context of someone who is unhappy with an unpaid debt that was owed when the person really needs the money” and should not be considered “evidence of [claimant's] involvement in the drug trafficking.” Id. at 9.
In reply, the government emphasizes that claimant has failed to produce any evidence in opposition to the instant motion, which was the basis for claimant's request to the Court at the July 3 hearing. Reply at I. Additionally, the government reiterates that claimant's opposition offers no credible or coherent alternative explanation for the circumstantial evidence tracing the defendant currency to drug trafficking. Crucially, according to the government, while claimant acknowledges that he never delivered actual windows to Minnesota or did any construction work there, claimant gives no explanation for why he told UM22 that he was delivering “windows” to Minnesota and offering to help UM22 and his “buddy” “bring work up and take paper down.” Id. at 3. Ultimately, the government underscores that “a party cannot create a ‘genuine' issue of ‘material' fact simply by making assertions in its legal memoranda.” Id. at 1 (citation omitted).
Moreover, the government notes that even if claimant had produced any evidence in his opposition, he would have had to justify, pursuant to Federal Rule of Civil Procedure 37, why he failed to produce in accordance with his discovery obligations under Rule 26.
The Court concludes that the government has made an unrebutted showing that the defendant currency is properly subject to civil forfeiture. The government's proffered evidence, primarily in the form of transcriptions of the telephone conversations intercepted by a DEA narcotics investigation, traces the defendant currency to controlled substances as follows: UM22 and claimant engaged in phone conversations on March 20 and March 21, 2021. UM22 and his narcotics supplier expected claimant to deliver to them an “invoice” (i.e., proceeds). Claimant responded that he was currently in the process of collecting “paper” up in Minnesota after delivering “windows” (methamphetamine) there. The following day, claimant told UM22 that a client had just stolen “three cars” (kilograms of cocaine) from him and that he was in the process of getting “about seventy [thousand dollars] put together” out of “his own pocket.” Claimant told UM22 that he expected to return home to Utah on March 21, 2021, and available starting March 22, 2021. Then, on March 23, 2021, the DEA and FPD investigators tracked claimant's drive from Utah to Los Angeles County, at which time they stopped him in his vehicle and found the defendant currency stashed behind the vehicle's dashboard. See generally supra. Part II.A-C.
As stated above, “the determination [of] whether the government has met its burden of proof is based on the aggregate of the facts, including circumstantial evidence.” $49,790 in U.S. Currency, 763 F.Supp.2d at 1166 (citing $42,500 in U.S. Currency, 283 F.3d at 980). Here, the admissible evidence tends to show that the defendant currency found stashed in claimant's vehicle on March 23, 2021, is traceable to the “about seventy” thousand dollars claimant intended to “put together” to deliver to UM22 and his narcotics supplier as the proceeds of drug trafficking activity.
Furthermore, the Court finds that claimant has simply failed to set out any specific facts showing a genuine issue as to whether the defendant currency is traceable to drug trafficking. First, the evidence proffered by claimant previously in this litigation, in the form of the August 2022 declaration and his discovery responses, consists of “conclusory allegationfs] unsupported by factual data and does not create a triable issue of fact.” $80,180.00 in U.S. Currency, 46 Fed.Appx. 564, 566 (citing United States v. Lot 4. Block 5 of Eaton Acres. 904 F.2d 487, 492 & n. 3 (9th Cir. 1990)); see also Lujan v. Nat'l Wildlife Fed'n, 497 U.S. at 888 (nonmoving party must do more than make “conclusory allegations [in] an affidavit”). Claimant offers no evidence other than his own inconsistent and incoherent sworn statements that he intended to lawfully purchase real estate property in Mexico. Notably, he identifies no address for the property. Additionally, he seemingly identifies two different individuals as the person with whom he discussed the potential property purchase: (1) Giberto Figueroa; and (2) “Nando.” As to Figueroa, claimant contends that he has spoken to him over phone calls and on WhatsApp, yet cannot identify Figueroa's contact information. Finally, the only information he provides as to “Nando” is that “Nando” used the same phone number that UM22 used when speaking with claimant in the intercepted phone calls. Claimant's opposition brief does not attempt to address these contradictions or inconsistences, as it instead merely refers to UM22 as an “unknown individual.”
Under the Ninth Circuit's “sham” affidavit rule, “a party cannot create an issue of fact by an affidavit contradicting his prior deposition testimony.” Hambleton Bros. Lumber Co. v. Balkin Enterprises, Inc., 397 F.3d 1217, 1225 (9th Cir. 2005) (citation omitted). Claimant's statements relating to the purchase of property are entirely contradictory to each other, and neither version of these statements is supported by any other evidence.
Second, claimant's opposition brief fails to raise any meaningful argument to dispute the government's proffered evidence tracing the defendant currency to drug trafficking. Rather than clarifying his prior inconsistent and incoherent statements made throughout litigation, claimant's opposition brief ultimately confirms the government's position. Claimant argues that UM22 was “acting simply in the capacity of an escrow of sorts.” Opp. at 7. (“Claimant Munoz-Gomez was only in communication with the target of the investigation in order to purchase a plot of land and nothing else.”). However, nothing in the intercepted conversations conceivably demonstrates UM22 acting as an “escrow of sorts,” and there is no reference to a real estate purchase. Instead, the intercepted calls center upon claimant's own statements about delivering “windows” to Minnesota. Notably, claimant in the phone call also told UM22, “[t]he only thing I can do right now is help you guys bring work up and take paper down.” As repeatedly stated, claimant acknowledges that in his discovery responses he has “denied doing any work in Minnesota whether it be the windows that are used in construction or otherwise.” Id. at 9-10. However, claimant has offered no alternative explanation as to why he made these comments about windows and how he would “bring work up” on behalf of UM22 and UM22's “buddy.” Claimant's speculation that UM22 was ignorant of claimant's occupation in the construction industry is entirely unconvincing in light of all the evidence and analysis set forth above. In the absence of a non-frivolous, alternative explanation, the evidence in this case only reasonably serves as circumstantial evidence that claimant and UM22 were jointly and separately engaged in drug trafficking.
Claimant also repeatedly argues that his comment to UM22 over the phone, “it's not like I can go kill his family,” was just a hyperbolic expression of frustration. However, this comment precedes further statements by claimant describing how “[the client's] mom already told me that, that if anything . . . she's going to tell the police in case of anything happening. ... In the end the family was mad and were going to send the police after me.” As with many other material statements made by claimant in the intercepted phone conversations, claimant's opposition brief entirely ignores these comments.
Finally, claimant has not proffered any additional evidence for the purpose of opposing the instant motion for summary judgment. In light of the fact that claimant admitted in his discovery responses that he possessed “no documents” to support the claim that he intended to purchase property in Mexico with the defendant currency, claimant cannot raise any triable issue of fact in this case.
Put simply, on the basis of the parties' evidence before the Court, no reasonable jury could find that the defendant currency was intended for the purchase of real estate property in Mexico and not traceable to drug trafficking. Summary judgment is therefore appropriate.
In his opposition brief, claimant states without any supporting authority that the “Mexican real estate market and industry is extremely different than what is found in the United States.” Opp. at 9. However, other than this conclusory assertion, claimant offers no explanation as to why he lacks the most basic details concerning the real property, such as its address. Ultimately, even if claimant could show that the defendant currency was intended for the purchase of real property, claimant must nonetheless show that the defendant currency is not traceable to drug trafficking, which he has not done.
B. Claimant's Affirmative Defenses
As stated above, claimant has asserted numerous affirmative defenses. At the July 3 hearing, the Court directed the parties to address what impact the grant of the instant motion for summary judgment would have on those affirmative defenses. Claimant's subsequent filing fails to brief this issue. The government contends that most of the affirmative defenses are moot in light of the finding that the defendant currency is traceable to drug trafficking under 21 U.S.C. § 881(a)(6). The government argues that the remaining affirmative defenses fail as a matter of law, for the reasons set forth below.
1. Affirmative defenses that are moot
“The government argues that five of claimant's affirmative defenses fail because they simply attempt to negate elements of the government's burden of proof and are accordingly moot upon the Court's grant of summary judgment in favor of the government on its prima facie case.
Claimant's first affirmative defense is for failure to state a claim. See Dkt. 11 at 2. Claimant's second affirmative defense is that “claimant was at all times an innocent owner.” Claimant's third affirmative defense is that “[t]here was no substantial connection between the Defendant property and an offense as required by 18 U.S.C. § 983(c)(3).” Claimant's fifth affirmative defense is that “there is no probable cause to believe that the Defendant Property was used or maintained, or intended to be used or maintained, to commit or to facilitate the commission of any criminal offense or violation.” Claimant's eighth affirmative defense is that the “property is not subject to seizure and forfeiture.”
The Court agrees with the government that these affirmative defenses are moot in light of the analysis set for above. As previously stated, pursuant to 21 U.S.C. § 881(a)(6) andl8 U.S.C. § 983(c)(3), the government must prove by a preponderance of the evidence that the defendant currency in this case was (1) furnished or intended to be furnished in exchange for a controlled substance; (2) traceable to such an exchange; or (3) used or intended to be used to facilitate a violation of federal drug laws. As described above, the admissible evidence tends to show that the defendant currency found stashed in claimant's vehicle on March 23, 2021, is traceable to the money claimant intended to “put together” to deliver that same week to UM22 and his narcotics supplier as the proceeds of drug trafficking activity.
Because the Court concludes in this order that the government is entitled to summary judgment on its prima facie case, claimant's first, third, and eighth affirmative defenses, which simply negate the government's required elements for the prima facie case, are moot and not properly affirmative defenses. See, e.g.. Zivkovic v. S. California Edison Co., 302 F.3d 1080, 1088 (9th Cir. 2002) (“A defense which demonstrates that plaintiff has not met its burden of proof is not an affirmative defense.”). Claimant's fifth affirmative defense that there is “no probable cause” necessarily fails because the government's prima facie case requires a higher standard of proof-preponderance of the evidence-than probable cause. Similarly, claimant's second affirmative defense for being an “innocent owner” fails in light of the Court's findings above. Because claimant was the one committing the act giving rise to forfeiture, he is not an innocent owner of the defendant currency. See, e.g.. United States v. $223,178.00 in Bank Acct. Funds. No. SACV06-444 DOC, 2008 WL 4735884, at *5 (C.D. Cal. Apr. 30, 2008) (innocent owner affirmative defense fails when evidence shows that the claimant was involved in the conduct giving rise the forfeiture).
Accordingly, summary judgment in the government's favor is appropriate as to claimant's first, second, third, fifth, and eighth affirmative defenses.
2. Affirmative defenses that fail as a matter of law
The government contends that the remaining defenses fail as a matter of law. The Court addresses each in turn below.
Claimant's fourth affirmative defense asserts the “doctrine of estoppel.” See Dkt. 11. The Supreme Court has repeatedly held, “it is well settled that the Government may not be estopped on the same terms as any other litigant.” Heckler v. Cmtv. Health Servs. of Crawford Cntv.. Inc., 467 U.S. 51, 60 (1984) (citation omitted). “Beyond the four traditional elements of estoppel. . . estoppel against the government must rest upon affirmative misconduct going beyond mere negligence, [and] estoppel will apply only where the government's wrongful act will cause a serious injustice, and the public's interest will not suffer undue damage by imposition of the liability.” Morgan v. Heckler, 779 F.2d 544, 545 (9th Cir. 1985) (citations omitted). Here, claimant has not asserted any facts or produced any evidence supporting the traditional elements of estoppel, let alone the much higher standard required to estop the government. See Heckler v. Cmty. Health Servs., 467 U.S. at 61 (“But however heavy the burden might be when an estoppel is asserted against the Government, the private party surely cannot prevail without at least demonstrating that the traditional elements of an estoppel are present.”).
The “four traditional elements of estoppel” are “(1) The party to be estopped must know the facts; (2) he must intend that his conduct shall be acted on or must so act that the party asserting the estoppel has a right to believe it is so intended: (3) the latter must be ignorant of the true facts; and (4) he must rely on the former's conduct to his injury.” United States v. Georgia-Pac. Co., 421 F.2d 92, 96 (9th Cir. 1970).
Claimant's seventh and ninth affirmative defenses assert that this forfeiture and the entirety of 21 U.S.C. § 881 are unconstitutional and in violation of the Due Process Clause of the United States Constitution, because the forfeiture is an attempt to punish claimant for a crime without a grand jury indictment and other criminal procedural safeguards. See Dkt. 11. However, the Supreme Court and Ninth Circuit have repeatedly upheld the constitutionality of federal civil forfeiture. More specifically, the Ninth Circuit has previously rejected similar assertions that civil forfeiture cases inherently violate the Due Process Clause, holding instead that “[c]ivil due process in forfeiture cases requires little more than forfeiture proceedings be commenced without unreasonable delay. United States v. One 1985 Mercedes, 917 F.2d 415, 420 (9th Cir. 1990); see also United States v. One Assortment of 89 Firearms, 465 U.S. 354, 366 (1984) (delineating the different purposes between civil and criminal forfeiture proceedings and holding that property may still be subject to civil forfeiture even after a claimant had already been acquitted of overlapping criminal charges).
Finally, claimant's sixth affirmative defense asserts that forfeiture of the defendant currency is “barred by the prohibition against excessive fines provided for in the Eighth Amendment.” See Dkt. 11. However, the Ninth Circuit has explicitly held that the “excessive fines clause of the Eighth Amendment does not apply to a forfeiture action brought under 21 U.S.C. § 881(a)(6).” United States v. Real Prop. Located at 22 Santa Barbara Drive. 264 F.3d 860, 875 (9th Cir. 2001).
Accordingly, the Court concludes that claimant's fourth, sixth, seventh, and ninth affirmative defenses fail as a matter of law.
V. CONCLUSION
In accordance with the foregoing, the Court GRANTS the government's motion for summary judgment.
IT IS SO ORDERED.