Unpublished Disposition, 936 F.2d 581 (9th Cir. 1991)

MEMORANDUM^** 

Jeremiah Jobe White, Jr. appeals the district court's judgment, after a bench trial, in favor of the Government in this civil forfeiture proceeding. The district court conducted a suppression hearing and determined that the seizure of the $35,550.00 in currency was unlawful and thus that the currency itself and the evidence derived from the narcotics detector dog were not admissible at the forfeiture trial. The district court did not rely upon this evidence at the forfeiture trial. The fact that the court stated that "all the testimony given at the suppression hearing would be incorporated into the record of the trial" did not mean that inadmissible evidence would be considered by the judge. It merely incorporated the testimony but left the earlier evidentiary ruling intact. The judge had earlier made it clear that he would not consider the evidence derived from the unlawful seizure.

In order to establish entitlement to forfeiture, the Government must establish probable cause that the property was exchanged for, or intended to be exchanged for, a controlled substance, was a proceed of such an exchange, or was used to facilitate such an exchange. Cf. United States v. One 56-Foot Yacht Named Tahuna, 702 F.2d 1276, 1281-82 & n. 3 (9th Cir. 1983).

Claimant contests the forfeiture of the currency on the ground that property may not be the subject of forfeiture if it was unlawfully seized. The fact that property was unlawfully seized did not immunize such property from forfeiture. United States v. One 1977 Mercedes Benz, 708 F.2d 444, 450 (9th Cir. 1983), cert. denied, 464 U.S. 1071 (1984). Forfeiture proceedings may proceed if the Government can satisfy the requirements of forfeiture with untainted evidence. See id.

The district court relied on the untainted evidence in arriving at its determination that probable cause existed for the belief that the defendant currency, watch and cellular telephone constituted the proceeds of drug transactions or were used in connection with a drug transaction. The court pointed out that the possession of a large amount of cash is, in itself, strong evidence that the money was furnished or intended to be furnished in return for drugs. The agents had received information that the claimant was carrying a large sum of currency and, before the unlawful seizure of that currency, the claimant had admitted that he had the currency and consented to the examination of the brief case containing the currency. There was evidence of White's drug-related background. The fact that his alleged business of M & J Sportiff was a front and was associated with the sale of cocaine in Shreveport was also in evidence. The claimant had given conflicting statements concerning the source of the currency, none of which proved out. There was also evidence that claimant had shown his ex-girlfriend the watch which he stated he had purchased for $10,000 and that he was doing very well in his "business." There is strong evidence that the business was in fact a front and that claimant was unemployed and for several years had no visible means of support. There was also evidence that claimant's ex-girlfriend stated that White would communicate with his customers through the cellular telephone to conduct drug-related transactions.

The cumulation of this evidence was adequate to support the finding that the Government had established probable cause sufficient to justify the forfeiture.

AFFIRMED.