United States of America v. $1,026,781.61 In Funds From Florida Capital Bank, No. 2:2009cv04381 - Document 220 (C.D. Cal. 2012)
Court Description: MEMORANDUM OPINION and ORDER by Magistrate Judge Marc L. Goldman, GRANTING CLAIMANTS' MOTION for Summary Judgment 161 : (See document for details.) For the foregoing reasons, Claimants' motion for summary judgment is GRANTED. IT IS ORDERED that judgment be entered dismissing the action with prejudice. (rla)
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1 2 0 3 FILED -SOUTHERN DIVISION CLERK, U.S. DISTRICT COURT 4 NOV 2 0 2012 5 6 GT OF CALIFORNIA DEPUTY 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 SOUTHERN DIVISION 11 UNITED STATES OF AMERICA, 12 13 Case No. SACV 09-04381-MLG and related case, Case No. SACV 09-00716-MLG Plaintiff, v. 14 MEMORANDUM OPINION AND ORDER GRANTING CLAIMANTS' MOTION FOR SUMMARY JUDGMENT $1,026,781.61 IN FUNDS FROM FLORIDA CAPITAL BANK, 15 Defendant. 16 17 18 I. Background Procedural History 19 A. 20 On November 6, 2008, the United States of America ("Plaintiff" or 21 the "Government") seized $1,026,781.61 in funds from a Florida Capital 22 Bank Account belonging to Lonnie Kocontes ( "Kocontes") . The Government 23 instituted 24 pursuant 25 Katherine Kern (collectively "Claimants") seek return of the funds and 26 real property1 that were seized. to these 18 civil U.S.C. forfeiture § proceedings 981(a)(1)(A),(c). on June Claimants 18, 2009, Kocontes and 27 28 The real property was seized in related case United States v. Florida, Case No. SACV 09-0716-MLG (C.D. Cal. 2009), filed on June 17, 2009. These cases have been consolidated. 1 Real Property in Safety Harbor, 1 Claimants first filed a motion for summary judgment on August 8, 2 2011, based solely on the argument that the Government did not have 3 probable cause to institute civil forfeiture proceedings at the time 4 the action was initiated. On October 25, 2011, District Judge James V. 5 Selna denied the motion. 6 exercise of jurisdiction by this United States Magistrate Judge. 28 7 u.s.c. 8 9 § The parties subsequently consented to the 636(c). Currently before the Court is Claimants' second motion for summary judgment, which was filed on June 24, 2012, with supporting 10 declarations and exhibits. On September 25, 2012, the Government filed 11 an opposition to the motion with supporting documents, as well as a 12 statement of uncontroverted facts. Claimants filed a reply on October 13 4, 2012. Both parties also filed various motions addressing evidentiary 14 objections. The Court heard oral argument on October 18, 2012, and took 15 the matter under submission. 2 The matter is now ready for decision. 16 B. 17 These proceedings relate to the Government's claim that Lonnie 18 Kocontes murdered Micki Kanesaki during a Mediterranean cruise the 19 couple took in May 2006. Kocontes, an attorney, and Kanesaki, a legal 20 assistant, met while working at the same law firm in the early 1990s. 21 They married in 1995. In 2000, the couple filed for divorce, apparently 22 to protect assets from the reach of a potential judgment in a civil 23 lawsuit filed against Kocontes. The two continued to live together as 24 a couple. At the same time, Kocontes and Kanesaki's relationship began Factual Background3 25 26 27 28 2 Claimants have also moved for sanctions based on the Government's alleged discovery abuses. The Court heard oral argument on this issue on October 30, 2012. The question of sanctions is not addressed in the present Memorandum Opinion and Order. 3 Unless otherwise noted, the facts are undisputed. 2 1 to deteriorate. On several occasions, local law enforcement was called 2 to the residence after altercations in which Kanesaki became physically 3 abusive towards Kocontes. Following one of these incidents, Kanesaki 4 was arrested and charged with battery. She eventually attended a court- S ordered domestic violence program, and the charges were dropped. 6 Kocontes and Kanesaki separated in 2005. Shortly thereafter, 7 Kocontes married another woman, but filed for divorce after only two 8 months. In the fall of 2005, Kocontes and Kanesaki reconciled and began 9 to attend counseling together. In November 2005, Kanesaki and Kocontes 10 each executed a will naming the other as the sole beneficiary. Kanesaki 11 was again arrested for battery upon Kocontes in January 2006. After 12 this incident, 13 attended Alcoholics Anonymous sessions. she enrolled herself in anger management classes and 14 In early May 2006, Kocontes booked a Mediterranean cruise for the 15 couple. On May 23, 2006, they boarded the cruise ship in Spain. On the 16 evening of May 25, 2006, as the ship traveled towards Naples, Kocontes 17 and Kanesaki went to dinner and ordered a bottle of wine. They each 18 drank one glass of wine with dinner, and took the rest of the bottle 19 with them when they finished dinner. They stopped at the ship's casino 20 and then went to a theater show. They returned to their cabin shortly 21 before midnight, where they finished the bottle of w1ne, each having 22 about one glass each. Kocontes took Ambien, a sleeping pill. 23 In a declaration submitted with Claimants' motion for summary 24 judgment ("Kocontes Decl."), Kocontes states that he recalls Kanesaki 25 saying that she was stepping out to get a cup of tea sometime between 26 midnight and 1:00 a.m. He claims this was the last time he saw her 27 alive, 28 discover that Kanesaki's bed had not been slept in and she was not in and that at about 4:30 a.m. 3 on May 26, 2006, he awoke to 1 the cabin. Kocontes then notified ship officials that she was missing. 2 Kanesaki could not be found on the ship. 3 Kocontes was interviewed by ship personnel, and then in Naples by 4 Italian law enforcement officials. Kocontes left the ship the same day 5 and went to stay at a local hotel to wait for developments in the 6 search for Kanesaki. That evening, he received a telephone call from 7 an American consulate official, who advised him that the search for 8 Kanesaki had ended for the day and would resume the following day, but 9 that there was no chance she would be found alive after being in the 10 water for more than 24 hours. Kocontes took a flight back to California 11 on the morning of May 27, 12 Italian Coast Guard on May 28, 2006. 13 An autopsy was 2006. performed Kanesaki' s body was found by the in Italy on June 2006, by Dr. 14 Pietrantonio Ricci. 15 at 1-3; Declaration of Terri L. Haddix 16 Ricci came to the conclusion that Kanesaki died by strangulation in a 17 homicidal assault. 18 (Report of Dean A. Hawley, M.D. 7, ("Hawley Decl. 11 ) ("Haddix Decl. 11 ) at 2.) Dr. (Hawley Decl. at 3-4; Haddix Decl. at 2-3.) The FBI began an investigation into Kanesaki's death, and among 19 other things, 20 jury investigation was convened in this district court in December 2006 21 for the purpose of investigating Kanesaki's death. No indictment was 22 issued. 23 conducted two interviews of Kocontes. A federal grand As a direct result of Kanesaki's death, Kocontes received a total 24 of between $450,000 25 $318,707.93 from Kanesaki's half interest in their home, which was sold 26 in January of 2007, and was the only asset to pass through probate; (2) 27 approximately $60,000 from Kanesaki's Vanguard retirement account on 28 which Kocontes was and $500,000 named from the the following beneficiary 4 in the sources: 1990s; (1) (3) 1 approximately $40,000 from an account of Kanesaki's on which Kocontes 2 was listed as the "payable on death" recipient; ( 4) between $50, 000 and 3 $100, 000 in assets owned by Kane saki from joint brokerage accounts; and 4 (5) $10,000 in savings bonds purchased by Kanesaki on which Kocontes 5 was the beneficiary. 6 returns and paid additional taxes for the years 2002-2005 to correct 7 several 8 overpayment in the form of a check dated May 30, 2008, made out to both 9 Kanesaki and Kocontes. Kocontes endorsed the check for both of them in 10 errors. In 2008, The IRS Kocontes eventually filed amended federal refunded $14,091.54 as tax an order to deposit the refund. 11 By January 2008, Kocontes had remarried and had created a foreign 12 trust for his new wife, Claimant Katherine Kern. Kocontes consolidated 13 most of his liquid assets and wire-transferred them to Belize into the 14 foreign trust. 15 account and 16 account. On November 6, 2008, the Government seized all of the funds 17 ($1,276,781.61) 18 subsequently returned $250,000. Later that year deposited these Kocontes funds closed the into his Florida foreign Capital trust Bank in the Florida Capital Bank Account. The Government 19 20 II. Standard of Review 21 Summary judgment is appropriate when, after reviewing the record 22 in the 23 determines that "there is no genuine issue as to any material fact, and 24 that the movant is entitled to judgment as a matter of law." Fed. R. 25 Civ. P. 56(c); see also Anderson v. Liberty Lobby, Inc., 477 26 247-48 (1986); Olsen v. Idaho State Bd. of Med., 363 F.3d 916, 922 (9th 27 Cir. 2004). Material facts are those necessary to the proof or defense 28 of a light claim, most and favorable are to the nonmoving determined by reference 5 to party, the u.s. substantive Court 242, law. 1 Anderson, 477 U.S. at 248. A fact issue is genuine "if the evidence is 2 such that a reasonable jury could return a verdict for the nonmoving 3 party." Id. To demonstrate a genuine issue, the opposing party "must 4 do more than simply show that there is some metaphysical doubt as to 5 the material facts. 6 specific 7 Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 8 586-87 9 deciding facts (1986) a . . [T]he nonmoving party must come forward with showing that there is a genuine issue for trial." (internal quotation marks and citations omitted). motion for summary judgment, "[t] he evidence of In the 10 nonmovant is to be believed, and all justifiable inferences are to be 11 drawn in his favor." Anderson, 477 u.s. at 255. 12 The moving party bears the initial burden of demonstrating the 13 absence of a genuine issue of material fact by citing particular parts 14 of materials in the records or showing that an adverse party cannot 15 produce admissible evidence to support the fact. See Celotex Corp. v. 16 Catrett, 477 U.S. 317, 322 (1986); Fed. R. Civ. P. 56(c) (1) (B). If the 17 moving party meets its burden, then the nonmoving party must produce 18 enough evidence to rebut the moving party's claim and create a genuine 19 issue of material fact. See Celotex Corp., 477 20 nonmoving party produces such evidence, then the motion will be denied. 21 Nissan Fire & Marine Ins. Co. v. Fritz Co., 210 F.3d 1099, 1103 (9th 22 Cir.2000). u.s. at 322-23. If the 23 However, in order to demonstrate the existence of a material issue 24 of fact and defeat a motion for summary judgment, the non-moving party 25 must do more than simply present bald assertions or a "scintilla of 26 evidence." Int '1 Church of Foursquare Gospel v. City of San Leandro, 27 673 F.3d 1059, 1068 (9th Cir. 2011) (citing Anderson, 477 U.S. at 252); 28 FTC v. Stefanchik, 559 F.3d 924, 6 929 (9th Cir. 2009). "[M] ere 1 allegation and speculation do not create a factual dispute for purposes 2 of summary judgment." Nelson v. Pima Cmty. Coll., 83 F. 3d 1075, 1081-82 3 (9th Cir. 1996); see also Angle v. Miller, 673 F.3d 1122, 1134 n.6 (9th 4 Cir. 2012); Endsley v. Luna, 750 F.Supp.2d 1074, 1101 (C.D. Cal. 2010). 5 6 III. Discussion 7 A. The Civil Asset Forfeiture Reform Act 8 This case is governed by the Civil Asset Forfeiture Reform Act of 9 2000 ( "CAFRA") , Pub. L. No. 106-185, 114 Stat. 202 (2000) . Congress 10 passed CAFRA to transfer the burden of proof to the government in civil 11 forfeiture actions and to require the government to establish the 12 grounds for forfeiture by a preponderance of the evidence, rather than 13 by the lower probable cause standard that was in place prior to the 14 enactment of the statute. United States v. $80,180.00 in U.S. Currency, 15 303 F.3d 1182, 16 burden of proof is on the Goverrtment to establish, by a preponderance 17 of the evidence, that the property is subject to forfeiture"). 18 1184 (9th Cir. 2002); 18 U.S.C. § 983 (c) (1) (" [T]he The Government argues that the property seized from Claimants is 19 subject to forfeiture under 18 U.S.C. 20 derived from proceeds traceable to the murder of Kanesaki by Kocontes. 21 (Complaint at 6-7). 22 burden at trial to demonstrate by a preponderance of the evidence that 23 Kocontes 24 substantially connected to the murder. 25 26 murdered § In light of CAFRA, Kanesaki and that 981(a) (1) (c) because it was it would be the Government's the property seized was B. A Genuine Issue of Material Fact Exists as to Whether Kanesaki Was the Victim of a Homicide 27 In their Motion for Summary Judgment, Claimants contend that the 28 Government has not offered admissible evidence that Kanesaki was the 7 1 victim of a homicide. 2 argue 3 authorities 4 Government produced 5 Claimants, rather 6 Claimants argue that the autopsy findings cannot be considered because 7 they have not been properly authenticated. 8 further claim that even if the autopsy findings were admissible, the that 9 ·findings the findings after are from Kanesaki's only than flawed cause (Am. Mem. in Supp. of Summ. J. at 13.) Claimants of the death English detailed and should are performed inadmissible summaries of translations. not be at relied findings to 14.) upon to determine 12 reviewed the autopsy findings after Claimants obtained a copy of the 13 autopsy findings from Italy and had them translated ... (Id.) the opinions of support Claimants contention, on In the 11 (Id. 14-15.) because Additionally, (Id.) (Id. Italian Kanesaki's rely at the by 10 Claimants death. autopsy three of experts this who 14 At the summary judgment phase, a court may consider evidence that 15 is inadmissible in form, so long as its contents can be presented in 16 admissible form at trial. See Fraser v. Goodale, 342 F.3d 1032, 1036 17 (9th Cir. 2003); Fed. R. Civ. P. 56(c). While the autopsy findings in 18 their current form contain inadmissible hearsay, their contents could 19 be 20 the testimony of the Italian physician who performed the autopsy, and 21 the Government has indicated that it intends to properly authenticate 22 them at trial. Additionally, the failure of the Government to provide 23 detailed translations of the autopsy findings to Claimants does not 24 render them inadmissible at trial, 25 obligation to produce such translations. See, e.g, E&J Gallo Winery v. 26 Cantine Rallo, S.p.A., No. 1:04cv5153, 2006 WL 3251830, at *5 (E.D. Cal 27 Nov. 8, 2006) 28 documents, admissible at trial if properly authenticated, for example through as the Government was under no ("Normally, in responding to a request for production of the requesting party would bear the cost of translating 8 1 documents written in a foreign language."). Accordingly, the Court will 2 consider the autopsy findings for purposes of this summary judgment 3 motion. 4 As to the cause of Kanesaki's death, the Government has produced 5 a declaration from expert witness Dr. Dean Hawley, who reviewed both 6 the Italian autopsy findings and the reports of Claimants' experts. 7 (Opp. at 19; Hawley Decl.). In his declaration, Dr. Hawley states that 8 the likely cause of Kanesaki's death was strangulation, and that the 9 findings of Claimants' experts to the contrary were incorrect. (Hawley 10 Decl. at 16.) 11 create a genuine issue of material fact as to whether Kanesaki was the 12 victim of a homicide. C. 13 The autopsy report and the declaration of Dr. Hawley There is No Genuine Issue of Material Fact as to Whether Kocontes Murdered Kanesaki 14 15 Through Kocontes's declaration, Claimants offer direct evidence 16 that 17 declaration that the last time he saw Kanesaki alive was sometime 18 between midnight and 1:00 a.m the morning of May 26, 2006, and that he 19 subsequently fell asleep and awoke around 4:30 a.m. to discover that 20 she was missing. 21 Kocontes did not murder Kanesaki. Kocontes states in his (Kocontes Decl. at 8.) There is no direct evidence that Kocontes murdered Kanesaki. 22 However, in its opposition, 23 circumstantial 24 murdered Kanesaki: 25 discord; 2) statistical evidence that the most prevalent form of female 26 homicide is homicide committed by an intimate partner; 3) Kocontes's 27 presence "at the scene of the crime"; 4) statements made by Kocontes 28 to investigators that were inconsistent with the autopsy findings; and evidence 1) to the Government relies on the following support Kocontes and 9 its allegation Kanesaki' s that history of Kocontes marital 1 5) Kocontes's financial motive for murder. (Opp. 2 factual allegation will be addressed in turn to determine whether it 3 creates a genuine issue of material fact on the relevant issue. 4 1. Kocontes and Kanesaki's History of Marital Discord 5 As noted above, the following is undisputed: Kocontes and Kane saki in 1995 and then divorced in 2001. at 16-17.) Each 6 were married 7 allegedly obtained in order to protect certain assets from potential 8 civil litigation against Kocontes, and Kocontes and Kanesaki continued 9 to live together as a couple. Nevertheless, The divorce was (Pl.'s Statement of Genuine Issues, No. 10 17.) their relationship deteriorated and on several 11 occasions, local law enforcement officers were called to the couple's 12 residence due to altercations 13 abusive towards Kocontes. (Id., No. 18.) One of the incidents resulted 14 in Kanesaki being arrested and charged with corporal injury and battery 15 upon Kocontes. 16 domestic violence program, in which Kocontes participated. 17 20.) The couple then separated in 2005, and Kocontes married another 18 woman, but then filed for divorce two months later. 19 the fall of 2005, Kocontes and Kanesaki reconciled and renewed their 20 relationship. 21 arrested for battery upon Kocontes. (Id.) (Id., in which Kanesaki became physically Kanesaki No. 23.) eventually attended a In January 2006, court-ordered (Id., No. (Id., No 22.) Kanesaki was In agin (Id., No 25.) 22 In their Motion for Summary Judgment, Claimants argue that the 23 couple's marital discord does not in any way suggest that Kocontes 24 murdered Kanesaki. 25 Claimants' contend, and the record shows, that there is no evidence 26 that Kocontes was ever physically abusive towards Kanesaki. Nor is 27 there evidence that he ever threatened to harm her. Rather, 28 Government acknowledges, (Am. Mem. in Supp. of Summ. J. at 22.) Indeed, as the it is undisputed that it was Kanesaki who 10 1 became physically 2 infrequent altercations. Absent any evidence suggesting that Kocontes 3 had used or threatened to use violence against Kanesaki, the mere fact 4 that not provide 5 circumstantial evidence giving rise to an inference that Kocontes 6 murdered Kanesaki. the couple violent had a towards troubled Kocontes during relationship does the couple's 2. Statistical Evidence 7 8 The Government offers statistical evidence regarding intimate 9 partner homicides as circumstantial evidence supporting its allegation 10 that Kocontes murdered Kanesaki. 11 Donald G. Dutton ("Dutton Decl") . ) Specifically, the evidence includes: 12 1) remarks made by Attorney General Eric Holder at a domestic violence 13 awareness event; 2) homicide data collected by the FBI for the year 14 2009; and 3) the declaration of Donald G. Dutton, Ph.D., a psychologist 15 with a specialty in the psychological and social causes of violence and 16 domestic abuse. Dr. Dutton was asked to provide an opinion on the death 17 of Kane saki, and reviewed various documents relevant to this case. From 18 his 19 violence, 20 homicides are the most common type of murders of women; 2) typically, 21 a history of domestic violence precedes the intimate partner homicide; 22 3) intimate partner homicide is sometimes corrunitted for ;financial gain; 23 and 4) men who murder intimate partners for financial gain tend to have 24 antisocial personalities. 25 stated that Dr. Dutton would be available to testify concerning these 26 conclusions at trial in the present case. 4 review of the (Opp. at 15-16, Exs. H, I; Report of case material and general research on domestic he reached the following conclusions: 1) (Dutton Decl. at 6.) intimate partner The Government has 27 28 4 The Government has not explained how Attorney General Holder's remarks or the FBI homicide data would be admissible at trial. 11 1 Even assuming that this statistical information would be 2 admissible at trial, 5 it does not constitute circumstantial evidence 3 supporting 4 Kanesaki. 5 circumstances where an intimate partner homicide is preceded by a 6 history of domestic violence perpetrated by the killer against the 7 victim. 8 therapist 9 perpetrated by the partner who commits the homicide. the Government's Much of the allegations statistical that Kocontes information is murdered focused on For example, Dr. Dutton states that he has experience as a of contrast, it is and discusses undisputed domestic abuse (Dutton Decl. at 1-4.) 11 altercations requiring the presence of local law enforcement were the 12 result of Kanesaki assaulting Kocontes. 13 Issues, Nos. 18, 25.) As discussed previously, there is no evidence 14 that Kocontes ever threatened or 15 the statistical information about the relevance of past domestic abuse 16 in cases of intimate partner homicide has no bearing on the factual 17 circumstances present here, where it was the victim of the homicide who 18 had committed past acts of physical abuse. Moreover, in as saul ters," 10 19 Here, "wife that the domestic (Pl.'s Statement of Genuine physica~ly assaulted Kanesaki. Thus, some of the statistical information contained in Dr. 20 Dutton' s report appears to undermine the Government's argument in 21 opposition to summary judgment. Dr. Dutton identifies studies showing 22 that strangulation is not the most common method of intimate partner 23 killing. 24 not a frequent motive behind intimate partner killings, compared to (Dutton Decl. at 19.) He also implies that financial gain is 25 26 27 28 5 While unnecessary to decide here, it is questionable whether such statistical evidence would be deemed admissible in light of Fed. R. Evid. 702 and Fed. R. Evid. 403. Suffice it to say that all of the cases the Government cites in support of its assertion that such statistical evidence is admissible in this context are inapposite. 12 1 other motives 2 unfaithful. (Dutton Decl. at 19, 21.) This information is inconsistent 3 with the Government's allegations that Kocontes strangled Kanesaki in 4 order to obtain her assets. 5 Finally, such as several estrangement of Dr. or fear Dutton's the partner conclusions is being appear wholly 6 speculative. He opines that the likelihood of stranger homicide on the 7 cruise ship is particularly rare because "the cruise ship clientele 8 would be middle class." 9 evidence in the (Dutton Decl. record regarding if Even socioeconomic it passengers were primarily middle 12 members on board, whose socio-economic class is not apparent from the 13 record. 14 Kanesaki were sexually assaulted and killed by a crew member, then "it 15 would mostly like be a 16 deaths 17 (Dutton Decl. at 5.) Yet he does not explain his basis for concluding 18 that this hypothetical murderer would be a serial killer. Furthermore, 19 his implication that there should be obvious evidence of the work of 20 a serial killer defies common sense in this context, where there were 21 over 2000 people on the ship and no information is available regarding 22 their 23 conclusions simply do not provide relevant circumstantial evidence 24 supporting the claim that Kocontes murdered Kanesaki. class, can be status of the 11 26 ship. the there is no passengers (Mot. the However, 10 25 aboard at 5.) assumed there were that also 543 the crew For Summ. J., Ex. S.) Dr. Dutton also opines that if serial rapist/killer and evidence of other (either on other cruises or ashore) histories or whereabouts. should be forthcoming." Such unsupported speculation and 3. Presence "At the Scene of the Crime" The Government asserts that Kocontes was at the scene of the 27 crime-"the cruise ship where Kanesaki met her death." 28 While it is undisputed that Kocontes was on the cruise ship, Claimants 13 (Opp. at 16.) 1 offer evidence in the form of a declaration by Kocontes stating that 2 he was asleep in his cabin during the time that Kanesaki disappeared, 3 and awoke to find her missing. 4 direct evidence in the record supporting a finding that Kanesaki was 5 murdered in the cabin she was sharing with Kocontes. Indeed, the record 6 includes statements from persons in neighboring cabins who confirm they 7 did not hear or see anything unusual coming from the couple's cabin. 8 (Mot. for Summ. J. , Ex. T.) 9 regarding where on the ship Kanesaki was murdered or that she was 10 thrown overboard in one particular area of the ship as opposed to any 11 other, and the Government acknowledges as much. 12 entirely possible that the crime occurred anywhere else [besides the 13 couple's cabin] on the ship").) Thus, while Kocontes was at the scene 14 of the crime, defining the scene as the entire cruise ship, so were the 15 more than 2,000 passengers and crew who were also onboard. (Mot. for 16 Summ. or aural 17 evidence linking Kocontes to the murder. J., 18 Ex. S.) (Kocontes Decl. at 8.) There is no The record is devoid of any other evidence Thus, there (Opp. at 18 is no physical, visual, ("It is 4. Inconsistent Statements 19 The Government maintains that Kocontes' s statements to authorities 20 that Kanesaki had ingested both alcohol and Ambien just before her 21 disappearance were inconsistent with the autopsy findings, suggesting 22 that Kocontes attempted to mislead law enforcement. 23 Claimants offer compelling evidence that there was nothing inconsistent 24 between Kocontes's statements and the autopsy findings. 25 of Summ. J. at 15-18.) 26 The Italian police reports document that (Mem. in Supp. Kocontes 27 following statement to authorities about Kanesaki' s 28 night of her disappearance: 14 (Opp. at 16-17.) made the activities the 1 "Yesterday evening, while still on board, and having 2 prepared ourselves for the evening, we went to dinner and 3 purchased a bottle of wine of which we only drank one glass 4 each. We went back to our cabin where we left the bottle that 5 we ·had purchased. We first went to the casino of the ship and 6 later to the theater onboard to watch a comedic show. At 7 around midnight we returned to our cabin. Once in the cabin we 8 drank the wine we had purchased earlier, again a glass each. 9 Since we had planned an excursion here in Naples for this 10 morning we decided to take a pill that would help us to fall 11 asleep since we were both suffering from jet lag. We were both 12 having trouble falling asleep. I took my pill and went to bed 13 while my wife went to the bathroom in our cabin to wash off 14 the glasses. 15 - NOTE - I am unable to say whether or not my wife took her 16 pill to fall asleep because as mentioned, she went into the 17 bathroom, therefore I could not see her. When she came out of 18 the bathroom she told me she was going to the cafe to get an 19 herbal tea that would help her to rest. I then fell asleep." 20 (Mot. for Summ. J. 1 Ex. Rat 4 (emphasis added).) 21 A toxicology report prepared as part of the autopsy revealed that 22 Kanesaki had not ingested the sleeping pills found in the cabin. Report 23 of Dean A. Hawley, M.D. 24 Claimants, this was not inconsistent with Kocontes's statements that 25 he did not know whether Kanesaki had taken the pills before her 26 disappearance. ("Hawley Decl.") at 3.) However, as noted by 27 Regarding the issue of whether Kanesaki had consumed wine, the 28 autopsy does not indicate whether a test for the presence of alcohol 15 1 in Kanesaki's blood was performed. 2 there 3 Kanesaki drank wine prior to her disappearance and the autopsy report. 4 Furthermore, 5 waiter who served Kocontes and Kanesaki a bottle of wine at dinner on 6 the 7 Kocontes and Kanesaki each had a glass of wine at dinner, and took the 8 unfinished bottle with them when they left the dining room. 9 Summ. J. , Ex. R at 8 . ) 10 is also evening no (Hawley Decl. at 3.) Accordingly, inconsistency between Kocontes' s statement that the Italian police reports contain a statement from a of Kanesaki' s disappearance. The waiter stated that (Mot. for The Government has not offered any evidence to rebut Claimants' 11 evidence demonstrating 12 Kocontes's statements and the autopsy findings. See Celotex Corp., 477 13 U.S. at 322-23. Accordingly, there is no genuine issue of material fact 14 as to whether Kocontes made inconsistent statements to investigators. 15 that there were no inconsistencies between 5. Financial Motive 16 The Government argues that Kocontes wanted to obtain Kanesaki's 17 assets, and that this provided the motive for him to commit murder. The 18 Government maintains that Kanesaki was independently wealthy, but that 19 the exact amount of her wealth is ultimately irrelevant, 20 undisputed that Kocontes acquired at least $450,000 as the result of 21 her death. 22 independently wealthy, and that the fact that Kocontes inherited money 23 upon Kanesaki's death does not create a triable issue of fact as to 24 whether Kocontes 25 18-23.) 26 as it is (Opp. at 20-24.) Claimants maintain that Kanesaki was not murder~d Kanesaki. (Am. Mem. in Supp. of Summ. J. at a. Relevant Evidence 27 (1) Claimants' Financial Evidence 28 As evidence demonstrating the absence of a triable issue of fact 16 1 as to whether Kanesaki was independently wealthy, Claimants offer the 2 declaration of Kocontes, 3 assets and the basis for that knowledge. Kocontes states that up until 4 1997, when Kanesaki stopped working at the law firm where they met, 5 Kanesaki was making approximately $40,000 per year. 6 2.) Kocontes had reviewed and signed Kanesaki's tax returns for 1996 7 and 1997, which confirmed she was making that amount for those years. 8 Kanesaki stopped working at the law firm in 1997, and from 1998 until 9 her death, her primary which details his knowledge of Kanesaki' s source of regular (Kocontes Decl. at income was disability 10 insurance, from which she received approximately $2,745.42 per month. 11 (Id.) 12 Kocontes explains that at the time of his marriage to Kanesaki, 13 she had partial ownership in one parcel of real property, and that this 14 was the only substantial asset, real or personal, owned by Kanesaki. 15 (Id.) Kanesaki had purchased the property jointly with her brother and 16 his wife, 17 amount, making her equity interest approximately $10,000 at the time 18 of purchase in 1994. 19 added to the grant deed upon a payment of $12,500, at the same time the 20 home was refinanced. After refinancing, Kanesaki and Kocontes each had 21 a $12,500 interest out of the $50,000 total equity in the home. 22 Claimants have included the relevant deeds confirming this information. 23 (2011 24 acquired 25 Kocontes's separate property and earnings. 26 and contributed approximately $11,000 to the down payment Supp. Decl. of additional (Id. at 3.) After their marriage, Kocontes was Kocontes, property, Ex. but 0.) most Once married, of the funds the (Id.) couple came from (Kocontes Decl. at 3-5.) Kocontes states that at the time of his marriage to Kanesaki, his (Id. at 3.) 27 separate net worth was approximately $250,000. 28 earned more than $100,000 per year as an attorney between 1995 and 17 Kocontes 1 2006. During this same time period, Kanesaki contributed at most 20 2 percent of the funds deposited in their joint accounts and used to 3 acquire jointly held assets. In 2006, the couple's jointly held assets 4 had grown to over a million dollars total. (Id. at 5.) 5 Kocontes also stated that from the time of the couple's divorce 6 to the time of Kanesaki's death, the couple maintained joint financial 7 accounts with a right of survivorship. 8 funded these accounts was Kocontes's separate property funds. Kocontes 9 had full access to withdraw funds from these accounts at any time, and 10 his access did not depend on Kanesaki's death. (Supp. Decl. of Kocontes 11 at 2.) 12 that ever existed for Kanesaki's benefit, and did not take control of 13 any trust fund belonging to Kanesaki following her death. 14 Decl. at 12.) The bulk of the money that Kocontes also stated that he was not aware of any trust fund 15 (Kocontes (2) The Government's Financial Evidence 16 To rebut Claimants' evidence and demonstrate that Kanesaki was, 17 in fact, independently weal thy, the Government provides the declaration 18 of Frank Bernal, an FBI agent, along with exhibits ("Bernal Decl."). 19 Bernal states that his declaration is based on personal knowledge, as 20 well as based on a review of FBI records, translated Italian government 21 records, and bank records. 22 Kanesaki was a millionaire at the time she married Kocontes based on 23 financial investments and her ownership of several pieces of real 24 property. (Id. 25 full control over: 26 held jointly by Kanesaki and Kocontes ; 27 jointly by Kanesaki 28 Kanesaki. at 2.) (Bernal Decl. at 1.) According to Bernal, Following Kanesaki's death, (1) Kanesaki's trust fund; and Kocontes; (Id. at 2-3.) 18 and Kocontes obtained (2) a Citibank account (3) other bank accounts held (4) other assets owned by 1 Attached to the Bernal Declaration is five exhibits. The first is 2 an email dated March 2, 2005, from Kanesaki to Sue White, Kanesaki's 3 former co-worker at the law firm where she was working when she met 4 Kocontes. In the email, Kanesaki stated she was unhappy with Kocontes, 5 and then on the subject of finances, she wrote: 6 After the past few weeks of arguing with LK [Kocontes] , 7 I have decided to cut-off his access to my parents' money. He 8 even tries to control their money. You know they asked me to 9 hold on to it and I can use it for safer investments. They 10 know that the amount of money they have may not last for the 11 rest of their lives, so they moved into that retirement place 12 because 13 hold/utilized the money for their and my benefit. 14 dammed 15 invest/spend my parents' money. He tells me, we should invest 16 it so we can have more money when we retire. Yeah right, you 17 mean so he can have more money and access to my parents' 18 money???!!! they if I'm don't going want to to let burden LK me-and tell me asked how me to I'll be I should 19 I really understand why you and many others keep their 20 money separate from their spouses. Money and infidelity= No.1 21 reasons for marriage dissolution. 22 You know, I can't even buy any big ticket items because 23 LK doesn't want to spend the money-and we can afford it and we 24 would be paying cash. Spending the money doesn't affect our 25 financial ability to save for our future, or meet our expenses 26 in life. 27 decrease the balance. I have to put up a big fights/arguments 28 before I can buy anything for my house. The fighting takes all He just cant part with the $$ because it would 19 the fun out of my home projects. 1 2 II (Bernal Decl, Ex. Cat 3-4.) 3 The other four exhibits are FBI Form 302s, which contain interview 4 notes from FBI interviews conducted with four individuals. All four of 5 the 6 Kanesaki's death. The first was with Sue White. (Bernal Decl., Ex. D.) 7 The Form 302 indicates that White characterized Kanesaki as being 8 wealthy and that she stated that Kanesaki had done very well as a day 9 trader. White stated that she was aware that Kanesaki had separated her 10 assets from Kocontes and established a trust fund for her parents, and 11 that White had provided Kanesaki with a name of an attorney that might 12 be able to help her separate her assets. Interestingly, White believed 13 that Kanesaki and Kocontes were still married. 14 interviews The took place in May or June of 2006, second Form 302 contains shortly after (Id.) interview notes with Amporn 15 Amatayakul, who appears to be the current wife of Kanesaki's former 16 brother-in-law. According to the notes: 17 "Amatayakul was aware that Kanesaki had a lot of money. 18 Amatayakul believes that Kanesaki did well investing in oil 19 and stocks on the internet. Amatayakul also believed that 20 Kanesaki owned three homes. Amatayakul stated that Kocontes 21 was always after Kanesaki's money, and that Kocontes wanted 22 Kanesaki to live more frugally . . . . Amatayakul said that 23 during 24 attorney for approximately $16,000 to help her separate her 25 assets from Kocontes." 26 27 28 their last separation, Kanesaki had hired an (Bernal decl, Ex. E.) The third Form 302 contains notes from an interview with Apiruks Amatayakul, Kanesaki's former brother-in-law. 20 Kanesaki lived with 1 Apiruks and his wife Amporn while she was separated from Kocontes in 2 2005. Apiruks was aware that Kanesaki had hired an attorney to separate 3 her financial accounts from Kocontes. According to the interview notes: 4 "Amatayakul stated that the home that Kocontes and Kanesaki 5 had lived in in Ladera Ranch, California was completely in 6 Kanesaki's name, and that Kocontes wanted half of the money 7 for the home. Kanesaki told Amatayakul that well [sic] they 8 were 9 dollars. Amatayakul was also aware that Kanesaki had two or 10 separated she paid Kocontes a couple of million three rental properties that she derived income from." 11 (Bernal Decl, Ex. F.) Apiruks also stated that during one of the days 12 that Kanesaki was visiting their home in early May 2006, she checked 13 her investment accounts on his computer and Apiruks observed that she 14 had $2 to $3 million dollars in one of these accounts. (Id.) 15 The final Form 302 contains notes from an interview with Julie 16 Saranita, Kanesaki's niece and the daughter of Apirkus Amatayakul and 17 Kanesaki's sister. Saranita stated she believed Kanesaki's disability 18 insurance monthly payments were significant, and possibly as much as 19 $4,000 or $5,000. Additionally, Kanesaki "went to classes on the stock 20 market and was successful in compiling liquid assets of at least 2 21 million." In 2005, Kanesaki retained an attorney to ensure her assets 22 were separated from Kocontes's assets. Saranita stated their Ladera 23 Ranch home was listed in the names of both Kocontes and Kanesaki. 24 (Bernal Decl., Ex. G.) 25 b. Admissibility of the Government's Financial Status 26 Evidence 27 28 While Bernal's statements as to Kanesaki's wealth are not based on personal knowledge, the Government 21 contends that the Bernal 1 Declaration references exhibits that contain admissible evidence of 2 Kanesaki's wealth, 3 considered in 4 (Government's 5 ("Response") at 3 (citing Fraser, 342 F.3d at 1036) .) It argues that 6 the email from Kanesaki can be introduced under a hearsay exception, 7 and that the contents of the Form 302s will be admissible either 8 through a hearsay exception or through witnesses who can testify at 9 trial. 10 and that opposition Response to to therefore the this motion Claimant's evidence for summary Evidentiary should be judgment. Objections (Response at 3, 11.) The government's admissibility arguments are without merit. 11 (1) Kanesaki's Email 12 The Government argues that Kanesaki' s email can be introduced 13 under either: (1) the "forfeiture by wrongdoing" 14 hearsay rule, or (2) the "state of mind" exception. 15 Federal Rule of Evidence 804(b) (6) provides a hearsay exception for 16 " [a] 17 acquiesced in wrongfully causing--the declarant's unavailability as a 18 witness, and did so intending that result." In determining whether Rule 19 804(b) (6)'s exception is applicable, 20 preponderance of the evidence standard, though some have indicated that 21 the higher clear and convincing evidence standard may apply instead. 22 See~ 23 (11th Cir. 2007) (recognizing that preponderance of the evidence is the 24 appropriate 25 804 (b) ( 6) , 1997 Amendments ("The usual Rule 104 (a) preponderance of the 26 evidence standard has been adopted in light of the behavior the new 27 Rule 28 Baskerville, 448 Fed. Appx. 243, 250 n. 4, 2011 WL 4850257, at *6 n.4 statement offered against e.g.~ exception to the (Response at 4.) a party that wrongfully caused- -or courts have generally used the Hodges v. Attorney General, Florida, 506 F.3d 1337, 1345 n.1 standard); 804 (b) (6) seeks Advisory Committee Notes to discourage."); 22 but see to Fed. United R. Evid. States v. 1 (3d Cir. 2011) (declining 2 standard for admitting statements pursuant to Rule 804 (b) (6) and noting 3 that "[u] nder either a clear and convincing evidence standard or a 4 preponderance 5 sufficed.") . Accordingly, the question of whether Kanesaki' s email can 6 be admitted is the same as the ultimate issue of this forfeiture 7 action-whether the Government can establish, by a preponderance of the 8 evidence, that Kocontes murdered Kanesaki. The Government may not use 9 the circular argument that Kanesaki's email is evidence that Kocontes of the 10 murdered Kanesaki, 11 to evidence decide the standard, appropriate the evidentiary Government's showing same. 12 Under Fed. and that the email is admissible because of the R. Evid. 803 (3), a statement then-existing state of mind, of an out-of-court 13 declarant's including intent'·.· is not 14 excluded by the hearsay rules. Here, the Government argues that the 15 email, which expresses Kanesaki's intent to cut off Kocontes's access 16 to her parent's trust fund, 17 exception to show that Kanesaki did, 18 money. 19 cut him off from her parents' 20 Government's argument that "such a deprivation of access would have 21 given Kocontes a financial motive for murder" is wholly speculative. 22 There is no evidence that Kocontes either obtained or tried to obtain 23 access to this trust fund following Kanesaki's death. 24 statements by Kanesaki about the reasons for her decision to cut off 25 Kocontes are not admissible under the state of mind hearsay exception. 26 See Wagner v. Canty. 27 (finding 28 [individual] is admissible under the state of mind in fact, cut him off from the (Response at 4.) However, the question of whether Kanesaki did that trust fund is not relevant here. The of Maricopa, "statements was agitated Furthermore, 673 F.3d 977, 987 (9th Cir. 2012) offered only that but also why he was agitated" were 23 to show not 1 hearsay not permitted by Rule 803(3)); United States v. Emmert, 829 2 F.2d 805, 810 (9th Cir. 1987) 3 witness to relate statements as to why he had particular state of 4 mind). Thus, even if the single line in the email that Kanesaki had 5 "decided to cut-off his access to my parents' money" was admissible 6 under this exception, the remainder of the email is not. (2) Form 302s 7 8 9 (state of mind exception does not permit The Government argues that the contents of the Form 3 02s are admissible because either: guarantees (1) of the statements trustworthiness" to have fall sufficient 10 "circumstantial under the 11 residual hearsay exception of Fed. R. Evid. 807, or (2) the witnesses 12 identified in the Form 302s will be available to testify at trial. 13 (Response at 6, 11.) 14 The Government has failed to show that Rule 807' s residual hearsay 15 exception is applicable here. This exception is only applicable if the 16 statement sought to be admitted "is more probative on the point for 17 which it is offered than any other evidence that the proponent can 18 obtain through reasonable efforts." Fed. R. Evid. 807(a) (3). Here, the 19 Government has not argued, much less demonstrated, that more probative 20 evidence as to Kanesaki's financial status is not available through 21 reasonable efforts. It has not explained why six-year-old speculative 22 hearsay statements from several of Kanesaki's acquaintances and family 23 members should be relied upon instead of documents such as financial 24 records, property deeds, or tax returns that could reliably demonstrate 25 Kanesaki's assets. Furthermore, it has not convincingly shown that the 26 consistency between the statements of four individuals (three of whom 27 belong to the same family) 28 guarantee[] of trustworthiness" to other specifically covered hearsay constitutes an "equivalent circumstantial 24 1 exceptions. 6 See Fed. R. Evid. 807(a). 2 Moreover, the Government's contention that the individuals 3 identified in the Form 302s will be available to testify at trial is 4 not 5 admissible evidence. Fed. R. Civ. P. Rule 56, which governs motions for 6 summary judgment, 7 oppose a motion must be made on personal knowledge, set out facts that 8 would be admissible in evidence, and show that the affiant or declarant 9 is sufficient competent to to render the relevant requires that a contents of the Form 302s "declaration used to support or testify on the matters stated." Fed. R. Civ. P. 10 56(c) (4). For the statements to be admissible on summary judgment, the 11 declaration itself must make clear how the declarants know the facts 12 they assert and are competent to testify about them. 13 Schriro, 514 F.3d 878, 890 (9th Cir. 2008) 14 that do not affirmatively show personal knowledge of specific facts are 15 insufficient.'") 16 1993)). 17 See Shakur v. ("' [C]onclusory affidavits (quoting Casey v. Lewis, 4 F.3d 1516, 1527 (9th Cir. The Form 302s, for the most part, contain statements of opinion 18 regarding Kanesaki's wealth and her relationship with Kocontes. 19 Neither the forms themselves, nor any other evidence provided by the 20 Government, identifies admissible evidence supporting these opinions 21 that would render the opinions themselves admissible. 22 opinions are either conclusory or appear to be generally based on 23 inadmissible hearsay statements from Kanesaki herself. Rather, the 24 6 25 26 27 28 This is particularly true in light of inconsistencies and undisputed errors within the Form 302s. For example, Sue White states that she believed that Kanesaki and Kocontes were still married, when it is undisputed that Kocontes and Kanesaki's divorce was finalized. (Bernal Decl., Ex. C). Apiruks Amatayakul stated that the couple's Ladera Ranch property was completely in Kanesaki's name, while Julie Saranita stated that the Ladera Ranch home was listed under the names of both Kocontes and Kanesaki. (Exs. F, G.) 25 1 Here, Claimants have offered a detailed declaration from Kocontes 2 regarding Kanesaki's assets. The declaration is based on Kocontes's 3 personal 4 reliable documents such as tax returns and property deeds. Having met 5 their initial burden of demonstrating the absence of a genuine issue 6 of material fact on this issue, 7 produce enough evidence to show that a triable issue of fact remains. 8 See 9 Kocontes' s knowledge Celotex Corp, as Kanesaki' s 477 U.S. spouse as well as it was the Government's burden to at 322-23. alleged financial and partner, motive Yet despite its reliance on for murder as one of the key 10 elements of its case, the Government offers only six-year-old interview 11 notes on Form 302s to rebut Claimants' 12 evidence as to Kanesaki's assets. The Government has not explained its 13 failure to submit declarations from the individuals identified in the 14 Form 302s, nor indicated that they have even been contacted since the 15 original 16 importantly, the Government has produced no documentary evidence, such 17 as 18 Kanesaki was independently wealthy. Accordingly, the Government has not 19 produced sufficient evidence to create a triable issue of fact as to 20 whether 21 obtained, or even stood to obtain, more than $500,000 as the result of 22 her death. 23 interviews deeds, tax took returns, Kanesaki was or place more financial independently testimonial and documentary than records, wealthy six years ago. to demonstrate and whether More that Kocontes 6. Analysis of the Government's Circumstantial Evidence 24 The admissible evidence supporting the Government's argument that 25 a genuine issue of material fact exists as to whether Kocontes murdered 26 Kanesaki consists of: 1) the undisputed fact that Kocontes was present 27 on the cruise ship, along with the more than 2,000 passengers and crew 28 members also on board, and 2) the fact that Kocontes acquired between 26 1 $450,000 and $500,000 as the result of Kanesaki's death, and 3) the 2 fact that Kocontes and Kanesaki had a troubled relationship. The Court 3 must determine if, based on these facts, a genuine issue of material 4 fact exists as to whether Kocontes murdered Kanesaki. 5 Kocontes's presence on the ship, his acquisition of Kanesaki's 6 share of their jointly held property, and the up-and-down nature of the 7 couple's relationship are simply insufficient to meet the Government's 8 burden. 9 disappearance made him as likely as any one of more than 2,000 other 10 individuals to have committed the murder. His presence does not provide 11 strong circumstantial evidence that he was the perpetrator. 12 Kocontes' s presence on the ship at the time of Kanesaki' s While the acquisition of nearly $500, 000 in assets may be 13 evidence of a motive to kill under some circumstances, here Kocontes' 14 accumulation of 15 relationship and marriage to Kanesaki. 7 Additionally, 16 access to a substantial portion of these assets while Kanesaki was 17 alive. (Supp. Decl of Kocontes, at 2.) In short, the fact that Kocontes 18 received assets, most of which were joint property, as the result of 19 the 20 circumstantial evidence that he committed murder. 21 death of Finally, the his while assets partner the occurred in the and former relationship context spouse was is troubled, of a 10-year Kocontes had not compelling with apparent 22 disputes over finances and an intervening divorce, there is nothing 23 arising from the relationship which would give rise to an inference 24 that Kocontes murdered Kanesaki. The violence in the relationship 25 26 27 28 7 While the Bernal Declaration states that Kocontes "obtained control over [] Kanesaki's trust fund," (Bernal Decl. at 2-3), the Government has provided no admissible evidence to rebut Kocontes' s statement that either no such fund existed, or if it did, Kocontes was not aware of it and never took control of it. (Kocontes Decl. at 12.) 27 1 appears to be minimal and all of it was attributable to Kanesaki. 2 While suspicion naturally would focus on the domestic partner in 3 a case such as 4 judgment. 5 nothing more than allegations and speculation to support its claim that 6 Kocontes murdered Kanesaki, which is insufficient to create a genuine 7 issue 8 circumstances, Claimants' motion for summary judgment must be granted. of this, When all material suspicion is not enough to survive summary is said and done, the government has presented fact. Nelson, 83 F.3d 1081-82. Under these 9 10 11 IV. Conclusion For the foregoing reasons, Claimants' motion for summary judgment 12 is GRANTED. IT IS ORDERED that judgment be entered dismissing the 13 action with prejudice. 14 15 Dated: November 20, 2012 16 17 MARC L. GOLDMAN 18 19 Marc L. Goldman United States Magistrate Judge 20 21 22 23 24 25 26 27 28 28
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