Unpublished Disposition, 869 F.2d 1499 (9th Cir. 1989)

No. 87-2932.

United States Court of Appeals, Ninth Circuit.

Before CANBY and WILLIAM A. NORRIS, Circuit Judges, and JUDITH N. KEEP^* , District Judge.

MEMORANDUM^** 

The United States appeals the grant of summary judgment in favor of the claimant, Darrell Lancaster, in a forfeiture action involving $79,200 in United States currency. The judgment was stayed pending appeal. We reverse and remand for trial.

The district court granted summary judgment on two alternative grounds: 1) the United States failed to make the required showing of probable cause; and 2) the delay in instituting forfeiture proceedings denied Lancaster due process.¹  This court reviews a grant of summary judgment de novo. United States v. One 56-Foot Yacht Named Tahuna, 702 F.2d 1276, 1281 (9th Cir. 1983). Summary judgment is proper only when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Id. at 1280-81. The summary judgment in favor of Lancaster must be evaluated by viewing the evidence and the inferences therefrom in the light most favorable to the United States. See id.

PROBABLE CAUSE

This forfeiture action was brought pursuant to 21 U.S.C. § 881(a) (6). To avoid summary judgment, the United States has to make a preliminary showing that it had probable cause to believe the currency was related to an illegal drug transaction. 21 U.S.C. § 881(d); 19 U.S.C. § 1615; United States v. United States Currency, $83,310.78, 851 F.2d 1231, 1235 (9th Cir. 1988); Tahuna, 702 F.2d at 1281. Probable cause is shown if the aggregate of facts gives rise to more than mere suspicion that the money was exchanged for or intended to be exchanged for drugs. United States v. $83,310.78, 851 F.2d at 1235; United States v. $5,644,540.00 in United States Currency, 799 F.2d 1357, 1362 (9th Cir. 1986). Prima facie proof is not required, and probable cause may be shown by circumstantial evidence. United States v. $5,644.540.00, 799 F.2d at 1362-63; United States v. $93,685.61 in United States Currency, 730 F.2d 571, 572 (9th Cir.), cert. denied, 469 U.S. 831 (1984).

Although the issue is a close one, we cannot say as a matter of law that a reasonable trier of fact could not find that the aggregate of circumstances indicates that the United States had probable cause. The evidence presented by the United States includes: 1) the discovery of a large sum of money in an unusual place ($79,200 in Lancaster's boot); 2) Lancaster's denial that it belonged to him, or that he knew where it came from; 3) a narcotic-sniffing dog alerted to an envelope containing the currency, 4) Lancaster and those accompanying him made an inordinate number of phone calls during a hotel stay, where several calls were made to Miami, a known drug center, and others to numbers listed on the DEA's Narcotics and Dangerous Drugs Information System; 5) false names were used during the trip; 6) Lancaster formerly used drugs, had several friends who were users, including Neal, and knew that Mangano had been convicted of cocaine trafficking conspiracy charges; 7) Lancaster was from Miami, a known drug center; and 8) other suspicious behavior that, while not indicating a direct connection to a drug transaction, may support a finding of probable cause.² 

It does not appear that the district court considered all these factors, especially the narcotics dog sniff, or viewed the disputed facts in the light most favorable to the United States. We share the district court's concern that some of the evidence is not drug-related. But it is the aggregate of all the evidence that must be considered. The fact that a controlled substance or related paraphernalia was not found in Lancaster's possession is not dispositive. In United States v. $83,310.78, we recently found probable cause existed where no drugs or drug paraphernalia were found with the money. We gave significant weight to the fact that a large sum of money was found in a strange place ($125,000 in a paper bag behind a bathroom door) We noted that the residents of the apartment denied that the money belonged to any of them, or that they knew anything about it. Id. at 1235. In light of this recent case, not available to the district court when it made its decision, we conclude that summary judgment in favor of Lancaster was inappropriate.

Lancaster's concern with the procedural safeguards utilized in the narcotics dog sniff is the type of issue that must be determined at trial. Because the dog sniff is the most direct evidence indicating a recent drug transaction, this unresolved issue is material, and summary judgment is inappropriate. Because there are disputed facts, the United States' arguments regarding Lancaster's credibility are more appropriate for determination at trial. See State Farm Fire & Cas. Ins. Co. v. Estate of Jenner, 856 F.2d 1359, 1365 (9th Cir. 1988). Lancaster's credibility will be particularly important if, at trial, the government makes a sufficient showing of probable cause, and the burden switches to Lancaster to show that the money was not involved in drug transactions. See United States v. $5,644,540, 799 F.2d at 1362.

DELAY

The Barker v. Wingo³  analysis is used to determine whether a delay has denied the claimant due process. United States v. $8,850.00 in United States Currency, 461 U.S. 555 (1983). The four factors considered in this analysis are: 1) the length of the delay, 2) the reason for the delay, 3) the defendant's assertion of his rights, and 4) prejudice to the defendant. Id. at 564.

Two of these factors involve disputed issues of material fact, making summary judgment inappropriate in this case. The reason for the delay is only partly accounted for. The United States admits that the office of the United States Attorney took six months to review and investigate the case before filing the forfeiture action. Apparently the DEA took 2 months to notify Lancaster and publish the statutory notice, and then took approximately one month to transfer it to the United States Attorney's office after receiving Lancaster's certified check for the required cost bond. As a six month delay for investigation, preparation and backlog in the United States Attorneys' office is not presumptively intolerable, the reasons for the additional three month delay attributable to the United States become more important. The cause of this delay is not clear from the record, so summary judgment is inappropriate. Once all the facts are presented, the trier of fact can determine whether this factor, the reason for the delay, weighs in favor of a due process violation.

In addition, there is a dispute as to the prejudice to Lancaster caused by the delay. Neal, one of the men who accompanied Lancaster on part of the trip, cannot be located. There is evidence indicating that Neal left the area in July, 1986, and also evidence that he did not leave the area until the first part of 1987. Lancaster knew as of January, 1986, that the United States would be filing a forfeiture action. In addition, the formal action was filed in October, 1986. If Neal did not disappear until early 1987, he still would have been available for several months after commencement of the action. Neal's credibility would certainly have been at issue. Viewing the facts in the light most favorable to the United States, we find it difficult to conclude that Lancaster suffered significant prejudice from the delay in commencement of forfeiture proceedings. If, however, Neal disappeared in early 1986, this factor probably would weigh more heavily towards Lancaster's alleged due process violation.⁴ 

REVERSED AND REMANDED FOR TRIAL.