Antonio Crawford v. Spokane Regional Safe Streets Task Force (Majority)

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FILED SEPTEMBER 26, 2017 In the Office of the Clerk of Court WA State Court of Appeals, Division Ill IN THE COURT OF APPEALS OF T~E STATE OF WASHINGTON DIVISION TijIREE ANTONIO CRAWFORD, ) ) Appellant, ) ) v. ) ) SPOKANE REGIONAL SAFE STREETS ) TASK FORCE, ) ) Respondent. ) No. 34755-9-111 UNPUBLISHED OPINION SIDDOWAY, J. -Antonio Crawford appe,ls the superior court's refusal to reverse a hearing examiner's decision ordering forfeitur~ under the Uniform Controlled Substances Act, chapter 69.50 RCW, of over $8Q,OOO in United States currency from Mr. No. 34755-9-111 Crawford v. Spokane Reg'! Safe Streets Task Fore! I Crawford's bank accounts and safe deposit boxes. !The Spokane Regional Safe Streets I Task Force, which seized the currency, presented eridence that Mr. Crawford was involved in extensive drug trafficking before the mrney was seized. Its forensic accounting demonstrated that little of the seized m4ney could be explained by the ! legitimate sources of income and assets Mr. Crawffrd disclosed in discovery. Because ! this is substantial circumstantial evidence supporti1g the hearing examiner's findings, we affirm. , FACTSANDPROCEDURA~BACKGROUND I I After four days of hearings, Spokane Countt Hearing Examiner Michael C. Dempsey, ordered forfeiture to the Spokane Regio1al Safe Streets Task Force of United States currency seized in seven installments from tte person, bank accounts, or safe deposit boxes of Antonio Crawford. 1 Administratiye Record (AR) at 59. The hearing I examiner made extensive factual findings in his 42fpage,.single spaced findings, conclusions and order. Rather than obtain a transcfipt of the proceedings, Mr. Crawford represents in his opening brief that the parties stipu~ated that the hearing examiner's I recitation of the testimony was substantially accurte and they agreed to rely on his I findings of fact as a complete and accurate summazy of the evidence. Br. of Appellant I I 1 It was the Spokane Regional Drug Task F~rce that actually seized Mr. Crawford's property; it was consolidated into the Spokane Regional Safe Streets Task Force during the course of the proceedings. 2 No. 34755-9-III Crawford v. Spokane Reg'/ Safe Streets Task Fore~ I at 6. Those findings are the basis of the following ~istory of the Task Force I investigation, the seizures, and the forfeiture procetding. In May 2014, Lewis Pardun was arrested fo, shoplifting and possessing controlled substances. In exchange for law enforcement's pr~mise to not pursue the charges against ! Mr. Pardun, he agreed to become a confidential in rmant for the Task Force. Mr. Pardun informed Task Force members that he coul purchase controlled substances from Mitch Lawler, whose source of supply for oxycod In June 2014, Task Force members asked e was Mr. Crawford. 1· Pardun to set up a controlled buy from Mr. Lawler. The buy was arranged to take pl ce at a Walmart store in Spokane Valley. At around 2:35 p.m., while under surveill ce, Mr. Pardun drove to the store with $870 of prerecorded buy money to purchase 3 oxycodone pills from Mr. Lawler. A 2011 Chevrolet Impala owned by Mr. Crawford rulled into the parking lot and Mr. Lawler got out on the front passenger side wearingla backpack. Mr. Lawler walked to ! Mr. Pardun's car, got in on the passenger side, got fut a few minutes later, and walked into the Walmart store. Mr. Crawford then left his !Impala and walked into the Walmart store. Surveillance video showed the two men ent1r the men's restroom. Both then left the Walmart store separately, and Mr. Crawford dr~ve off in his Impala, alone. The pills I Mr. Pardun purchased from Mr. Lawler were turne~ over to the Task Force and confirmed to be oxycodone. 3 No. 34755-9-III Crawford v. Spokane Reg'! Safe Streets Task Fore~ ! I Following the controlled buy, Task Force mfmbers interviewed Mr. Lawler, who i admitted to being addicted to heroin and to illegalli selling drugs to support his habit. He said his exclusive supplier of oxycodone was Mr. qrawford. Investigation by the Task Force of Mr. Crawford's criminal history revealed trior felony convictions, including a conviction for the sale of cocaine; a conviction for the manufacture, delivery, or ! I possession with intent to sell controlled substances~ and a California conviction for I transporting or selling narcotics or controlled subst~nces. I In August 2014, the Task Force began surve~llance of Mr. Crawford's activities. One incident at a Zip Trip store involved Mr. Crawjrord in his Impala along with two i other vehicles and their occupants entering and exi,ing vehicles and making hand exchanges, consistent with the illegal sale of contr lled substances. Mr. Crawford was arrested on November 1 , 2014, for delivery of a controlled substance based on his participation in Mr. Pardun1s controlled buy at the Walmart store I in June. He had $1,000 cash in his front pants poc1et at the time of his arrest. The Task Force at the same time obtained an order freezing ~fr. Crawford's 15 local bank and credit union accounts. Also in November 2014, th~ Federal Bureau of Investigation I subpoenaed records for the 15 accounts held by M~. Crawford at Spokane banking I institutions. Two months after Mr. Crawford's arrest, th4 Task Force seized $25,000.00 in cash ! i from a safe deposit box rented by Mr. Crawford anr $54,948.17 in currency from several 4 No. 34755-9-III Crawford v. Spokane Reg'/ Safe Streets Task Fore~ bank and credit union accounts controlled by Mr. ~rawford. Mr. Crawford timely notified the Task Force of his claim of ownership or right to possession to all property seized in November 2014 and thereafter. The Spo~ane County sheriff appointed Mr. Dempsey to act as a hearing examiner in the proce~ding for forfeiture of the currency. 1· !i In March 2015, the criminal case against Crawford went to trial. Mr. Lawler testified that Mr. Crawford supplied him with the orycodone pills he sold to Mr. Pardun in June 2014, and instructed Mr. Lawler to meet hit in the restroom after the deal to avoid detection because there was no camera in the restroom. Mr. Pardun also testified at Mr. Crawford's trial, consistent with what Task Fofce members had seen and been told I by him in June. Despite this evid~nce, a jury acquired Mr. Crawford. The forfeiture proceeding moved forward, +th the parties engaging in discovery. Among the subject matters inquired into by interrotatories served on Mr. Crawford and to which he responded was his employment histoj and all sources of income or assets. The Task Force also requested and obtained copiesl of his tax returns. i Shakayla Delcambre testified at Mr. Crawf~d's forfeiture hearing. She testified I that she had known Mr. Crawford for approximate~y two years and between May 2013 and August 2014 had made between 20 and 30 trip~ to California for him. On those trips, I a man would pick her up from the airport, take her ~o a hotel, and give her blue i oxycodone pills to conceal in a condom inside her pody. She testified that the amount I I i 5 No. 34755-9-III Crawford v. Spokane Reg'/ Safe Streets Task Force, I ! ' ' she carried would vary, but one time she carried 5, 00 pills. 2 Most of the time Mr. Crawford would pick her up at the airport on her re um and take her to her house where she would go inside, extract the pills from her bod , and give them to Mr. Crawford. A GPS 3 tracker placed on Mr. Crawford's car confi ed that on at least one occasion his car was at the Spokane International Airport 6 min tes before Ms. Delcambre's flight arrived and then, 20 minutes later, was near Ms. D lcambre's home. Ms. Delcambre also testified that in 2014 shf served as a middlewoman in her boyfriend's purchase of a substantial amount of oxtcodone (although less than 100 pills) from Mr. Crawford. i I Mr. Crawford had previously been arrested ~n 2002 in Spokane for delivery of I crack cocaine. In an interview after that arrest, Mr j Crawford a~mitted to a detective that he had sold crack cocaine since 1989 and had sold ~eroin over the preceding six months. He admitted he made an average of $2,000 per mo1th selling the controlled substances. I Also in that interview, Mr. Crawford told the detective he was purchasing a home in i ' Spokane and some of the money used for the down! payment was comingled with money he earned from selling the controlled substances. 2 Testimony from Messrs. Pardun and Lawltr supported a street value for 30 mg i oxycodone pills in 2014 of $29-$30 a pill. 3 Global Positioning System. 1 6 I No. 34755-9-111 Crawford v. Spokane Reg'/ Safe Streets Task Fore~ I The hearing examiner found that although r. Crawford had obtained a business license for a sole proprietorship called "Crawford ntertainment" that he claimed provided entertainment and event and concert pro otion services, he never listed any business activity on its annual return in 2013 and htd paid no excise tax for the business in 2014. In response to an interrogatory, Mr. Crawford admitted Crawford Entertainment had not conducted any business or generated any itome. The hearing examiner found the business to be fictitious. I Mr. Crawford's girlfriend and part-time em~loyer in and after December 2013 at her coffee shop also testified in the forfeiture hearifg. Payroll stubs indicated that Mr. Crawford earned $675.54 in 2013 and $7,219.64 in 2014 from his coffee shop employment. I Mr. Crawford stated in interrogatory answet that none of the currency seized by the Task Force was associated with the exchange of a controlled substance. He claimed he acquired the money through school loans, empl yment, the sale of real property, gifts or loans from family members, and tax refunds. H stated that he earned $9.32 an hour working as a research assistant between September 2012 and August 2014 and $9.47 an ! hour working as a custodian between September 2q 14 and the time of the hearing. He i stated he had earned $10.00 per hour working at hi} girlfriend's coffee shop between I December 2013 and the time of the hearing. 7 I No. 34755-9-111 Crawford v. Spokane Reg 'I Safe Streets Task Forc1 I Regarding funds that Mr. Crawford claimed were proceeds from the sale of a house, the hearing examiner found that the proceed likely came from the sale of the house he purchased in 2002. While those proceeds were from the sale of an asset other I ! than drugs, the hearing examiner found that Mr. Crrwford's a~mission that he purchased the house with comingled money from employmen and illegal drug dealing subjected the home proceeds to forfeiture. The hearing examiner found that Mr. Crawfi rd changed the way he hid or disguised illegal drug proceeds after he was arrester and convicted in 2002. At the time of his 2002 arrest, the United States Drug Enforce~ent Administration seized $8,000 in illegal drug proceeds from his home. The hearing lxaminer found that after his release from prison in 2012, Mr. Crawford opened multipl bank accounts and spread the proceeds from his illegal drug trafficking business nd legitimate income and receipts among them, to help disguise the illegal funds. The hearing examiner found that between S ptember 1, 2012 and November 12, 2014, Mr. Crawford had approximately $82,000.0 in unexplained income. He found that all of the $80,948.17 seized by the Task Force met the criteria for forfeiture under I RCW 69.50.505(1)(g). He ordered the monies for1eited in an order entered on December I 9, 2015, and that was corrected in minor respects a few days later. A motion for 1 reconsideration filed by Mr. Crawford was denied. 8 No. 34755-9-III / Crawford v. Spokane Reg'/ Safe Streets Task Force! I ! Mr. Crawford petitioned the superior court ffr review, contending that "[t]he Findings of Fact ... are not supported by substantial evidence and the Conclusions of I ! Law ... are contrary to the provisions ofRCW 69.$0.050." AR at 7. The court affirmed the hearing examiner. Mr. Crawford appeals. I ANALYSISj I I Judicial review of agency decisions in forfeiture proceedings is governed by the ! Administrative Procedure Act (APA), Title 34 RCW. RCW 69.50.505(5). We review I I I the hearing examiner's order, not the decision of th~ superior court. City ofSunnyside v. I Gonzalez, 188 Wn.2d 600, 607-08, 398 P.3d 1078 ~2017). Mr. Crawford bears the burden of showing the forfeiture order was erroneo~s. Id. at 608. ! I The AP A authorizes courts to grant relief frtm an agency order in an adjudicative proceeding in only nine enumerated instances. RC~ 34.05.570(3). Mr. Crawford's I I petition for judicial review relies two: that the ordet is not supported by substantial evidence and that the agency has erroneously inte1reted or applied the law. RCW 34.05.570(3)(d), (e). Where the sufficiency of the evidence is ch+enged, we must be satisfied that the I seizing law enforcement agency presented a sufficif nt quantity of evidence to persuade a fair-minded person of the truth or correctness of th~ hearing examiner's order. Gonzalez, I 188 Wn.2d at 612. The claimant must carry the butden of showing otherwise. Id. 9 No. 34755-9-III Crawford v. Spokane Reg'/ Safe Streets Task Fore~ We review de novo whether an agency errodeously interpreted and applied the ! law. City ofRedmond v. Cent. Puget Sound Growtb Mgmt. Hr 'gs Bd., 136 Wn.2d 38, 46, ! 959 P.2d 1091 (1998). Mr. Crawford's challenge tt the hearing examiner's application of the law is that he allegedly shifted the burden of~roof to Mr. Crawford to prove that ' the seized property was obtained from legitimate sdurces. See Reply Br. at 10. We ! address the challenges in turn. Sufficiency of evi{ence ! "RCW 69.50.SOS(l)(g) has three distinct cl~ses, that allow forfeiture of the following": I [(1)] [a]ll moneys, negotiable instruments, sf.curities, or other tangible or intangible property of value furnished or int nded to be furnished by any person in exchange for a controlled substan e in violation of this chapter ... , 1 I [(2)] all tangible or intangible personal propfrtY, proceeds, or assets acquired in whole or in part with proceeds t~aceable to an exchange or series of exchanges in violation of this chapter . . . , and 1 1 I I [(3)] all moneys, negotiable instruments, an~ securities used or intended to be used to facilitate any violation of this ch~ter. I Gonzalez, 188 Wn.2d at 609-10 (alterations in origlnal). As in Gonzalez, it is not entirely I clear in this case which of the clauses is at issue. If his ultimate findings of fact, 4 the 4 Mr. Crawford devotes part of his briefing ~o arguing that the hearing examiner erred by labeling these as findings of fact rather thdn as conclusions of law. Where findings are mislabeled, the error is inconsequenti~; we simply treat them on appeal as I 10 No. 34755-9-111 . Crawford v. Spokane Reg 'l Safe Streets Task Force/ I hearing examiner states that the Task Force establited by a preponderance of the evidence that the currency seized met one or more ~f the criteria described in the three I clauses. i Mr. Crawford assigns error to these ultimate findings of fact, numbered 206 I I I through 210. 5 They state: I 206. The [Task Force] established by a pre~onderance of the evidence that the $25,000 seized from Antonio Crawford'i safety deposit box was money furnished or intended to be furnished in violttion ofRCW Chapter 69.50; money intended to be used to facilitate a vio ation of RCW Chapter 69.50; and/or proceeds acquired in whole or in part with proceeds traceable to an exchange or series of exchanges by Crawfor in violation of RCW Chapter 69.50, i.e. proceeds from the sale of his hou e that are traceable to moneys furnished to Crawford in exchange for a con rolled substance commingled with money that Crawford derived from leg· imate income. I what they are. E.g., Willener v. Sweeting, 107 Wnid 388, 394, 730 P.2d 45 (1986). In this case, findings 206 through 210 are fi dings of fact: they state the hearing examiner's determination that evidence showed th seized currency fit one or more of the factual criteria that would make it forfeitable. See fnland Foundry Co. v. Dep 't ofLabor & Indus., 106 Wn. App. 333,340, 24 P.3d 424 (20 1) ("'Ifa determination concerns whether evidence shows that something occurred o existed, it is properly labeled a finding of fact."' (quoting State v. Niedergang, 43 1Wn. App. 656,658, 719 P.2d 576 ( 1986))). Because the findings directly address thel statutory criteria for forfeiture, they are "ultimate" findings of fact, as the Supreme Cotjrt observed in Gonzalez. See 188 Wn.2d at 613. , 5 The Task Force argues that Mr. Crawford ~id not properly assign error to the findings under RAP I0.3(a)(4) and we should ther~fore treat them as verities on appeal. But we generally excuse a party's failure to assign Frror where the briefing makes the nature of the challenge clear. Noble v. Lubrin, 1141 Wn. App. 812, 817, 60 P.3d 1224 (2003); State v. Olson, 126 Wn.2d 315, 323, 893 Pj2d 629 (1995). Mr. Crawford's briefing does so here. I I 11 No. 34755-9-III Crawford v. Spokane Reg 'I Safe Streets Task Forcei I I 207. The [Task Force] established by a pre nderance of evidence that Antonio Crawford, between September 1, 2 12 and December 1, 2014, deposited approximately $57,000 (i.e. exclu ing the $25,000 seized from his safety deposit box) that was not derived rom legitimate income or other funding sources into his 15 local bank/credit union accounts; and that such moneys were furnished or intended to be fu ished in exchange for a controlled substance in violation of RCW C apter 69 .50, proceeds acquired in whole or in part with proceeds traceable t an exchange or series of exchanges in violation of RCW Chapter 69. 0, or moneys used or intended to be used to facilitate a violation of RCW hapter 69.50. I 208. The [Task Force] established by a pre onderance of evidence that Antonio Crawford used or intended to use t e monies that he obtained from legitimate sources, such as employment or s hool loans, and deposited into his 15 local accounts, to facilitate a violatio ofRCW Chapter 69.50; by intentionally co-mingling such monies with he $57,000 in illegal moneys or proceeds that he deposited into his accou ts, in order to disguise and "launder" such illegal monies or proceeds, a d to avoid detection by law enforcement. I 209. The $8,802.66, $16,120.71, $1.24, $1{365.47 and $14,658.09 in [United States] currency, totaling $54,948.1 , seized from Antonio Crawford's bank accounts in January 2015 re moneys furnished or intended to be furnished by or to Crawford, r others, in exchange for a controlled substance in violation ofRCW C apter 69.50, and/or moneys used or intended to be used to facilitate a vi lation ofRCW Chapter 69.50. 210. The [Task Force] established by a pre~onderance of evidence that the $1,000 in [United States] currency seized frlm Antonio Crawford on November 12, 2014, incident to his arrest, was money furnished or intended to be furnished in exchange for a controlledlsubstance in violation of RCW Chapter 69.50, or a combination of legitima e money that Crawford intentionally commingled with illegal drug ,roceeds in order to facilitate a violation of RCW Chapter 69.50. Clerk's Papers (CP) at 47-48. 12 No. 34755-9-111 Crawford v. Spokane Reg'! Safe Streets Task Force. ' The burden of proof is on a seizing agency t~ establish by a preponderance of the ! evidence that property is subject to forfeiture. RC\f/ 69.50.505(5). The agency "may I meet its burden through direct or circumstantial evi6ence." Sam v. Okanogan County I Sheriff's Office, 136 Wn. App. 220,229, 148 P.3d {086 (2006). Because buyers and sellers will often avoid creating and retaining direcJI evidence of illegal drug dealing, ! proof is likely to be by circumstantial evidence. "qircumstantial evidence is evidence of facts or circumstance from which the existence or tjonexistence of other facts may be I i reasonably inferred from common experience." St4te v. Jackson, 145 Wn. App. 814, 818, 187 P.3d 321 (2008). i Mr. Crawford stated in response to preheari~g discovery that the money in his I I accounts came from the sale of real estate, employ~ent, tax refunds, school loans, and i I gifts or loans from family. While the Task Force'slforensic accountant found this to be I i true as to a relatively small amount in the accountsj the evidence supports the conclusion that Mr. Crawford comingled the legitimate monie~ with a larger amount of money i forfeitable under the criteria provided by RCW 69.~0.505(l)(g). A preponderance of ! evidence established that Mr. Crawford was an acdve drug dealer. The forensic i i accountant demonstrated that monies in the accouis were not explained by the only I I gainful employment and other legitimate sources h~ identified. i For example, the hearing examiner found th~t between September 10, 2012 and I December 10, 2012-a three month period-Mr. Qrawford deposited checks from 13 No. 34755-9-111 Crawford v. Spokane Reg 'I Safe Streets Task Force, ' employment into his accounts. But he also deposit~d approximately $4,500 in cash or I money orders from unexplained sources into the safe accounts. During this period of time, Mr. Crawford was living in a halfway house 1nd, according to Mr. Lawler, was dealing large quantities of oxycodone. I In 2013, Mr. Crawford deposited checks an4 cash in the amounts of $280.75, I $1,826.87, and $730.00 from legitimate sources. ~owever, that still left a sum of i $22,441.67 in deposits into those same accounts th4t was unexplained. During this I I period of time, Mr. Lawler testified that Mr. Crawffrd supplied him with large quantities of oxycodone pills to deal, and Ms. Delcambre testified that she acted as Mr. Crawford's I drug mule, smuggling oxycodone from California tp Spokane. In 2014, Mr. Crawford's net income should have been reported as $12,075.35 for I his work as a research assistant, custodial services, land coffee shop employee. But he I had $58,000.00 in unexplained income or funds in ¥014. Again, according to Mr. I Lawler, Mr. Crawford was supplying him with lar~e quantities of oxycodone pills during I I this time frame. And according to Ms. Delcambre,! she continued to make frequent trips to California to smuggle large quantities of oxycodpne pills back to Spokane for Mr. ! Crawford. This circumstantial evidence supports the h~aring examiner's inference that the ' monies seized from Mr. Crawford met the criteria ~upporting forfeiture under RCW ! 69.50.505(l)(g), either as "furnished ... by [a] per~on in exchange for a controlled 14 No. 34755-9-III Crawford v. Spokane Reg'! Safe Streets Task Force substance" in violation of chapter 69.50 RCW, or a~ the proceeds of the home Mr. Crawford "acquired in whole or in part with proceeps traceable to an exchange or series of exchanges in violation of this chapter," or as mohey "used or intended to be used to facilitate any violation of this chapter." Allocating the burde~ ofproof Mr. Crawford contends that by finding only ~hat some monies seized from Mr. I Crawford's accounts and safe deposit boxes came from unexplained sources, the hearing I examiner impermissibly shifted the burden to Mr. <trawford to prove that the funds came from a source that did not make them forfeitable. ~ut it is more accurate to say that the hearing examiner found that the funds did not com¢ from any legitimate source identified by Mr. Crawford in discovery, Mr. Crawford was eixtensively engaged in drug trafficking I during the relevant period of time, and it was reasopable to infer from this circumstantial evidence that the currency was more likely than not "furnished ... by [a] person in exchange for a controlled substance," or the procee~s of the home Mr. Crawford "acquired in whole or in part with proceeds traceab~e to" drug transactions, or was money "used or intended to be used to facilitate any violatf on of this chapter"-all forfeitable circumstances under RCW 69.50.505(l)(g). The Supreme Court's decision in Gonzalez rieversed an unpublished decision of I this court and is a good illustration of when a seizi~g agency's case falls short of its burden of proof. In that case, as the Supreme Cou11t explained, the hearing examiner 15 No. 34755-9-III Crawford v. Spokane Reg'/ Safe Streets Task Forcei determined that Mr. Gonzalez's testimony was not credible (a determination entitled to ' deference) and that "Gonzalez had multiple cell phtnes, thousands of dollars in cash I I without a substantial source of income, and a car w~th out-of-state plates that was not I registered in his name," all of which "could suppo1 a reasonable inference that he had obtained the car and the money through some unlawful means, or at least in some way that he would not admit to publicly." 188 Wn.2d at 615. The problem, according to the Court, was that "there [was] no evidence that he obiained it as payment for participating I in drug transactions." Id. at 616. The only controlled substance-related evidence was I that a user's amount of cocaine was discovered in Mr. Gonzalez's car. A user's amount I ! of cocaine does not prove any of the criteria for forfeiture provided by RCW 69.50.505(l)(g) or support a reasonable inference that a person's currency or other assets ! meet that criteria. Here, by contrast, there is substantial eviden;ce that Mr. Crawford was involved in extensive drug trafficking during the relevant perio~ of time. It is easily and reasonably I inferred that drug trafficking was the most likely dfect or indirect source of Mr. Crawford's currency as well as a resource he couldl use to facilitate his drug trafficking. Moreover, through its prehearing discovery, the T$k Force was able to show that Mr. Crawford had been required to disclose any legitiniate source of the funds and had been unable to do so. That is proof, not shifting the burden of proof. 16 No. 34755-9-111 Crawford v. Spokane Reg'! Safe Streets Task Force The forfeiture order is affirmed. 6 A majority of the panel has determined this <:>pinion will not be printed in the Washington Appellate Reports, but it will be filed tbr public record pursuant to RCW 2.06.040. ??~CJ)4z:) ',&=' doway, J. WE CONCUR: Mr. Crawford requested an award of attorney fees under RCW 69.50.505(6) ifhe substantially prevailed in the appeal, but he does n<l>t. 6 17

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