Vong Voraveth, Respondent, vs. $68,514 in U.S. Currency, Appellant (A04-1818), and Anh Phuc Nguyen, Respondent, vs. $87,654 in U.S. Currency, Appellant (A04-1820).

Vong Voraveth, Respondent, vs. $68,514 in U.S. Currency, Appellant (A04-1818), and Anh Phuc Nguyen, Respondent, vs. $87,654 in U.S. Currency, Appellant (A04-1820). A04-1818; A04-1820, Court of Appeals Unpublished, May 3, 2005.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-1818

A04-1820

 

Vong Voraveth,

Respondent,

 

vs.

 

$68,514 in U.S. Currency,

Appellant (A04-1818),

 

and

 

Anh Phuc Nguyen,

Respondent,

 

vs.

 

$87,654 in U.S. Currency,

Appellant (A04-1820).

 

Filed ­­­May 3, 2005

Reversed and remanded; motion denied

Dietzen, Judge

 

Anoka County District Court

File Nos. CX-03-537; C6-03-552

 

Morgan Greenwood Smith, 701 Fourth Avenue South, Suite 500, Minneapolis, MN 55415 (for respondents)

 

Robert M.A. Johnson, Anoka County Attorney, Thomas G. Haluska, Assistant County Attorney, Anoka County Government Center, 2100 Third Avenue, Anoka, MN 55303 (for appellants)

 

Considered and decided by Shumaker, Presiding Judge; Dietzen, Judge; and Poritsky, Judge.*

 

U N P U B L I S H E D   O P I N I O N

 

DIETZEN, Judge

 

            This consolidated administrative forfeiture proceeding involves an appeal by appellants $68,514 and $87,654 (rem), represented by the Anoka County Attorney's Office, from a grant of summary judgment in favor of respondents Vong Voraveth and Anh Phuc Nguyen.  Because we conclude that there are genuine issues of material fact making summary judgment inappropriate, we reverse and remand.

FACTS

On November 7, 2002, members of the Anoka-Hennepin Drug Task Force (AHDTF), through an informant, arranged a controlled buy of marijuana with Alex Chayananh, a suspected drug dealer.  The informant was given $300 of "buy money," which was previously marked by the AHDTF.  After the buy was completed, Chayananh drove back to his house in Brooklyn Park.  A short time later, Chayananh drove to a house in Fridley.  The AHDTF subsequently obtained search warrants for the houses in Brooklyn Park and Fridley. 

            On November 13, 2002, the AHDTF seized approximately two grams of marijuana and appellants rem at the Fridley house.  The $300 "buy money" was found to be commingled with the seized currency.  A drug canine was present during the search and sensed trace amounts of narcotics on the seized currency.  The canine's handler submitted an affidavit stating that the dog is trained to detect the odor of controlled substances on currency and can distinguish between money contaminated with drug odors and money that is not contaminated.  Additionally, a police officer counting the currency at the scene observed that the money carried the smell of marijuana. 

            The residents of the Fridley house, respondents Vong Voraveth and Anh Phuc Nguyen, filed complaints seeking return of $68,514 and $87,654 of the seized currency, respectively.  The county argued that the seizure was lawful because (1) marijuana was found in proximity to the currency; (2) the drug canine indicated that all of the currency had been associated with controlled substances; (3) the police officer noticed the smell of marijuana on the currency; and (4) the $300 "buy money" from the earlier drug transaction was commingled with the seized currency. 

The county introduced a written receipt prepared by the AHDTF agents that listed the items seized from the house to prove that the marijuana was in proximity to the seized currency.  The receipt indicated that currency was taken from respondents' pants pockets, a living room couch, a bedroom safe, the floor in an upstairs bedroom, the top shelf of a closet, and a bedroom air duct.  It listed marijuana as the fifth item found at the house and cataloged it adjacent to the various amounts of currency on the list.

Respondents claimed they were the innocent owners of the seized currency, which had been accumulated through years of saving, family loans, and gambling winnings. Voraveth submitted interrogatory answers stating that he received loans from his parents and a friend for $30,000 and $12,000, respectively, and that he won $7,000 at a casino.  Similarly, Nguyen testified that he accumulated the money through employment with American Express, where he earned an annual income of $54,000 for two-and-one-half years.  Both respondents testified that they do not trust banks with their money.  Finally, respondents explained that the "buy money" was commingled with the seized currency because Voraveth had received $300 from Chayananh arising out of Voraveth's sale of a car stereo to Chayananh.

            The district court granted summary judgment for respondents, concluding that the county did not prove that the seized currency was in proximity to the marijuana, which, according to the court, "is an essential element of justifiable seizure."  The district court also concluded that respondents had lawfully accumulated the large amount of cash that they kept in the house.  On September 21, 2004, the district court entered an amended summary judgment ordering the county to return the seized cash to respondents along with interest and filing fees.  After the county appealed, we consolidated the cases.   

D E C I S I O N

            Summary judgment shall be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that either party is entitled to a judgment as a matter of law."  Minn. R. Civ. P. 56.03.  No genuine issue of material fact exists "[w]here the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party."  DLH, Inc. v. Russ, 566 N.W.2d 60, 69 (Minn. 1997) (alteration in original) (quotation omitted).  "On appeal, the reviewing court must view the evidence in the light most favorable to the party against whom judgment was granted."  Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993).  Finally, "[a]ppellate courts do not resolve or decide issues of fact but only determine whether there are issues of fact to be tried."  Jonathan v. Kvaal, 403 N.W.2d 256, 259 (Minn. App. 1987), review denied (Minn. May 20, 1987). 

            In administrative forfeiture proceedings, all money found "in proximity to" controlled substances is presumed to be subject to forfeiture.  Minn. Stat. § 609.5314, subd. 1(a)(1)(i) (2004).  One who contests the forfeiture bears the burden to rebut the presumption.  Id., subd. 1(b).  A forfeiture proceeding is an in rem action, and "[t]he appropriate agency handling the forfeiture has the benefit of the evidentiary presumption of section 609.5314, subdivision 1, but otherwise bears the burden of proving the act or omission giving rise to the forfeiture by clear and convincing evidence[.]"  Minn. Stat. § 609.531, subd. 6a(a) (2004).  Finally, property is subject to forfeiture "only if its owner was privy to the [unlawful] use or intended use . . . or the unlawful use or intended use of the property otherwise occurred with the owner's knowledge or consent."  Minn. Stat. § 609.5311, subd. 3(d) (2004).  Therefore, if a claimant was unaware of or did not consent to the unlawful use of the property, the claimant may take advantage of an "innocent owner defense."  Blanche v. 1995 Pontiac Grand Prix, 599 N.W.2d 161, 166 (Minn. 1999).   

I.

            Proximity

             The county contends that the evidence presented establishes a genuine issue of material fact as to whether the seized currency was found "in proximity to" the marijuana and therefore is presumed to be subject to forfeiture.  The county relies on the receipt categorizing the marijuana with the seized currency, the canine evidence, and the police officer's observations of the smell of the marijuana on the seized currency.  Respondents argued, and the district court agreed, that a showing of proximity required more than the bare allegation that marijuana was located in the same house with the seized currency.  In that regard, the district court faulted the county for not providing additional information as to where the marijuana was located in the house.

The statutory phrase "in proximity to" is not defined by statute.  Proximity is colloquially defined as "the state, quality, sense, or fact of being near or next; closeness."  American Heritage Dictionary, 1412 (4th ed. 2000).  By its very nature, then, proximity is a question of fact.  Viewing the evidence in the light most favorable to the county, we conclude that a genuine issue of material fact exists because proximity may include money located within a few feet, in the same room, or in the same house in which the marijuana was found.  The district court's conclusion is erroneous because it determined as a matter of law that the marijuana was not found in proximity to the currency.

The district court also found that the canine evidence was entitled to marginal consideration because the "buy money" was tainted with drugs after passing through the hands of Chayananh.  But the canine evidence indicated the marijuana scent was present on all the seized currency, not just the "buy money."  Additionally, the police report stated that a police officer at the scene detected the odor of marijuana while counting the seized currency.  In summary, the remainder of the county's evidence raises questions of fact as to whether any of the seized currency was in proximity to the drugs, which could trigger the statutory presumption that the currency is forfeitable. 

II.

Innocent Owner Defense

            Respondents argue that they presented sufficient evidence to establish the "innocent owner" defense.  See Minn. Stat. § 609.5311, subd. 3(d) (stating that property is subject to forfeiture only if owner "was privy to" or consented to unlawful activities).  The "innocent owner" defense essentially rebuts the presumption that money found in proximity to drugs is forfeitable as a matter of law, because respondents were unaware of or did not consent to the unlawful use of the property.  The district court concluded that respondents were entitled to the "innocent owner" defense primarily on the basis that the seized money was commingled with $300 that Voraveth received from Chayananh for the purchase of a car stereo and that respondents lawfully accumulated the rest of the currency.

            Based on our review of the record, we conclude that the district court erred when it determined that respondents were entitled to the "innocent owner" defense as a matter of law.  For example, Chayananh's testimony is conflicting as to when the alleged car stereo with Voraveth occurred.  In his deposition Chayananh stated twice that the transaction occurred well before the seizure, but later in the deposition he stated that the transaction occurred in November, which may have been before or after the seizure.  The date of the alleged lawful stereo transaction and, therefore, the availability of the "innocent owner" defense, is a fact issue for a jury.

Additionally, while Voraveth claimed $68,514 of the seized currency, the record reveals that the most annual income he has ever received ($13,192.89) was from working for a vending service in 2000.   Similarly, Nguyen claimed $87,654 of the seized currency but only earned a maximum annual salary of $54,000.  Based on this record, fact issues exist regarding how respondents acquired the seized money.  Therefore, we conclude the district court's holding that respondents are entitled to the defense as a matter of law is erroneous. 

            Because the county has presented evidence that raises genuine issues of material fact and because the district court did not view the evidence in the light most favorable to the county, we reverse the district court's grant of summary judgment in favor of respondents and remand for proceedings not inconsistent with this opinion.  We also deny respondents' renewed motions for attorney fees. 

            Reversed and remanded; motion denied.

* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.