Unpublished Disposition, 899 F.2d 19 (9th Cir. 1989)

Annotate this Case
US Court of Appeals for the Ninth Circuit - 899 F.2d 19 (9th Cir. 1989)

UNITED STATES of America, Plaintiff-Appellee,Maria Del Pilar Jimenez, Claimant-Appellant,v.78 CASHIERS CHECKS FROM VARIOUS BANKS VALUED AT $395,100.00,Defendant.

No. 88-6591.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 6, 1990.Decided April 5, 1990.

Before HUG, SCHROEDER and CYNTHIA HOLCOMB HALL, Circuit Judges.


MEMORANDUM* 

Maria del Pilar Jimenez ("Jimenez") appeals the district court judgment ordering forfeiture of the defendant currency ("78 cashiers' checks") to the Government. We affirm.

From the evidence presented at the bench trial, the district court concluded the following:

Jimenez arrived at Los Angeles International Airport ("LAX") on January 27, 1984, at approximately 11:15 p.m., to board Eastern flight 504, for Miami. Flight 504 was being monitored by Drug Enforcement Agency ("DEA") Agents John Marcello and Joseph Leszczynski because of its frequent use by drug couriers. Jimenez arrived at LAX in a car with two men. The car did not have a rear license plate. When Agent Leszczynski tried to see if there was a front license plate, the driver, who appeared nervous to Leszczynski, sped off.

The combination of several factors aroused the agents' suspicion: Jimenez' late arrival; the actions of the car's driver; Jimenez' lack of checked luggage; and the appearance that a second man was "shot gunning" Jimenez through to her flight.1 

Agent Marcello approached Jimenez and identified himself as a federal narcotics agent. Agent Marcello requested that Jimenez speak with him and specifically told her she did not have to and was free to leave. When Agent Marcello made this request, he was not displaying any weapon or handcuffs and was not standing between Jimenez and her path of travel. Jimenez agreed to speak with Marcello. Next, Agent Marcello asked Jimenez if she would permit him to search her purse. Once again, he told her she did not have to give him permission. Jimenez consented to the search. During the search, Agent Marcello found 78 cashiers' checks, each in amounts less than $10,000.

Agent Leszczynski then joined the two; looked at the cashiers' checks; and requested Jimenez to accompany them to the DEA trailer for further investigation. Although Agent Leszczynski told Jimenez that she did not have to go to the trailer, she, nevertheless, went. Jimenez carried her own purse and carry-on bag as she walked to the trailer with the agents.

In the trailer, Jimenez told Agent Leszczynski that she had received the checks through a loan arranged by her brother-in-law. Agent Leszczynski immediately tried to confirm her story. Jimenez phoned her brother-in-law but he denied any knowledge of the loan and expressed surprise that Jimenez had so much money. After the false story was detected, Jimenez offered no alternative story as to the source of the cashiers' checks.

The Government brought this forfeiture action pursuant to 21 U.S.C. § 881 to obtain a judgment for the 78 cashiers' checks. Jimenez filed a motion to suppress evidence seized from her purse in violation of her constitutional rights. She also filed a motion for summary judgment, based upon the Government's lack of sufficient, untainted evidence to meet its burden of establishing probable cause. At oral argument, the district court denied both motions.

Further, after Jimenez refused to answer some questions during her deposition, the Government filed a motion to compel answers. The Government's motion was granted. Jimenez then consented to entry of a judgment of forfeiture as a sanction for her refusal to obey the court's order, subject to her right of appeal.

This court, in a December 30, 1987 memorandum disposition, reversed and remanded. We held that the district court abused its discretion in ordering forfeiture as a sanction for Jimenez' failure to answer questions. Further, we held that the district court did not err in denying Jimenez' motion for summary judgment, because an issue of fact--whether Jimenez consented to the search of her purse--still remained. Additionally, we held that the district court erred in denying Jimenez' motion to suppress without an evidentiary hearing on the validity of her consent.

We remanded to the district court with instructions that the district court determine whether Jimenez consented to the search of her purse and, if no consent was found, whether sufficient independent evidence existed to establish probable cause to believe that the checks were related to illegal drug transactions.

The district court held that the initial contact between DEA Agent Marcello and Jimenez did not invoke Jimenez' Fourth Amendment rights. The district court also held "that the subsequent consent by [Jimenez] to speak to the agents, to permit a search of her possessions and to go to the trailer were all fully and voluntarily given." The district court stressed that at the time consent was given, Jimenez was "fully informed that she had the right to refuse consent [and] under the totality of the circumstances she would have reasonably known she was not being detained."

"Whether consent to search was voluntarily made is a question of fact reviewed under the 'clearly erroneous' standard." United States v. Licata, 761 F.2d 537, 544 (9th Cir. 1985). Voluntariness is "based on the totality of circumstances surrounding the giving of consent." United States v. Alfonso, 759 F.2d 728, 740 (9th Cir. 1985). On appeal, the evidence must be viewed in the light most favorable to the fact-finder's decision. Id.

The parties dispute what happened at LAX. Jimenez describes a coercive encounter with Agents; while the Government describes a low-key consensual experience. The district court found the Government's witnesses' description to be more credible. Decisions regarding the credibility of witnesses are particularly within the province of the trier of fact and should not be disturbed unless clearly erroneous. S.E.C. v. Rogers, 790 F.2d 1450, 1455 (9th Cir. 1986); see Fed. R. Civ. P. 52(a).

It is not a violation of the Fourth Amendment to approach an individual in a public place and ask the individual if she is willing to answer some questions, willing to listen, and willing to be searched. Florida v. Royer, 460 U.S. 491, 497 (1983) The fact that the individuals making these requests were DEA agents does not convert such an encounter into a seizure, id., nor does asking Jimenez to show her airline ticket. United States v. $25,000 U.S. Currency, 853 F.2d 1501, 1505 (9th Cir. 1988).

No justification was needed for Agent Marcello to approach Jimenez in the airport and ask her to answer questions. Further, the search of Jimenez' purse was appropriate since she gave voluntary consent. Schneckloth v. Bustamont, 412 U.S. 218 (1973).

"Because [Jimenez] gave consent to search [her purse], [s]he had no reasonable expectation of privacy in any of its contents," United States v. Mines, No. 87-5339, slip op. at 10096 (Aug. 25, 1989), particularly the envelopes containing the cashiers' checks.

In addition, Agent Marcello did not block Jimenez' path; stated that Jimenez did not need to speak with him; returned Jimenez' airline ticket before asking for consent to see her purse; did not display a weapon or handcuffs; and did not touch Jimenez nor exercise physical control over her. All of these factors were important in deciding that consent was voluntary. Viewing the totality of circumstances in the light most favorable to the district court, we find no clear error was committed by the district court on the issue of consent.

The crux of Jimenez' argument is that although the agents may have said she was free to go, the agents' apparent authority, coupled with her poor understanding of English, made her consent involuntary. See, e.g., United States v. Patino, 649 F.2d 724, 727 (9th Cir. 1981).

a. Language Barrier

Whether a suspect is proficient in English is a question of fact. $25,000 United States Currency, 853 F.2d at 1506. Here, the district court concluded that Jimenez' understanding of English was adequate, and held, therefore, that language had no bearing on the issue of her consent. Jimenez answered the agents at LAX in English; spoke in English in the initial trial; and testified that when Agent Leszczynski, fluent in Spanish, offered her the opportunity to speak in Spanish, she chose to continue in English.

Based on these facts we hold that the district court was not clearly erroneous in finding that Jimenez' understanding of English did not undermine her voluntary consent to be searched.

b. Apparent Authority

As for Jimenez' argument that the agents' "apparent authority" made her consent involuntary:

[p]roper deference must be given to the district judge who heard the testimony of the officer, his tone of voice and inflection, and who observed the officer's conduct on the stand, his appearance and mannerisms. The district judge also observed the defendant in the courtroom. He is in the best position to evaluate the impression the defendant had when approached by the officers at the airport. We cannot say that the finding of the district judge that Patino reasonably believed she was not free to walk away was clearly erroneous.

Patino, 649 F.2d at 728.

The district court observed both the agents and Jimenez. Giving the district court its due deference, we cannot say its finding was clearly erroneous.

After finding that Jimenez consented to the search which uncovered the 78 cashiers' checks, the district court found that the Government had probable cause to believe the checks were related to drug transactions, thus, subject to forfeiture. We agree.

"The Government can show probable cause for belief that the currency is subject to forfeiture based on reasonable ground for belief that the currency was furnished, or intended to be furnished, in exchange for drugs." United States v. $93.685.61 in United States Currency, 730 F.2d 571, 572 (9th Cir.), cert. denied, Willis v. United States, 469 U.S. 831 (1984). "This belief must be more than mere suspicion, but can be created by less than prima facie proof." Id. (citing United States v. One 56-Foot Yacht Named Tahuna, 702 F.2d 1276, 1281-82 (9th Cir. 1983)). "We review the district court's probable cause determination and forfeiture proceeding as a question of law." Id. (citing United States v. One Twin Engine Beech Airplane, 533 F.2d 1106, 1109 (9th Cir. 1976)).

The Government contends that probable cause for forfeiture existed based on the following factors:

(a) Jimenez was carrying 78 cashiers' check, all in amount of less than $10,000;2 

(b) Jimenez arrived in a car with no rear license plate and the car's driver sped away after noticing Agent Leszczynski;

(c) a man appeared to be "shotgunning" Jimenez;

(d) Jimenez was boarding a high-risk drug trafficking flight from Los Angeles to Miami;

(e) Jimenez arrived moments before the flight's take-off, with only carry-on luggage;

(f) Jimenez lied to the agents as to the source of the cashiers' checks; and

(g) Jimenez offered no alternative stories as to the source of the checks.

Based on these factors, we affirm the district court's finding that probable cause existed to institute forfeiture. Once probable cause was shown, the burden shifted to Jimenez to prove by a preponderance of the evidence that the checks were not furnished or intended to be furnished in exchange for a controlled substance. One Twin Engine, 533 F.2d at 1109. The district court held that since Jimenez presented no evidence to rebut the showing of probable cause that the defendant currency should be forfeited.3  We agree. See, e.g., Tahuna, 702 F.2d at 1287 ("When an owner ... introduces no evidence to prove that the vessel was not used for an illegal purpose, the Government may obtain forfeiture solely upon the basis of its showing probable cause.")

We affirm the district court's judgment for forfeiture.

AFFIRMED.

 *

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3

 1

Sanchez-Rios left the car with Jimenez, approached the ticket counter with Jimenez, walked with Jimenez to the security check point and then, with "no exchange of formalities" (no kiss, handshake or nod) turned and left. According to the Government this is common behavior for an individual "shot gunning" a drug courier

Jimenez, in contrast to the Government's contention, contends that she kissed Sanchez-Rios good-bye.

 2

A large number of cashiers' checks, all for less than $10,000, led the agents to believe the checks were part of a money laundering operation known as "smurfing," where low-level couriers go to numerous banks in succession to obtain cashiers' checks for less than $10,000. If the checks are for less than $10,000, there is no requirement to fill out currency transaction reports

 3

Jimenez stipulated that she is not the owner of the checks. She refused to testify about either man in the car or anything about the checks prior to the LAX incident