United States v. 2008-03-12 | 06-15225 | USA V. BRUNO | precedential | opinion |

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 UNITED STATES OF AMERICA,
Plaintiff-Appellee,
No. 06-15225 v.
D.C. No. $493,850.00 IN U.S. CURRENCY;  CV-03-02345-VAM ONE 1993 FORD F-350 TRUCK,
Defendants. OPINION
ROY F. BRUNO; MIGUEL CAMACHO,
Claimants-Appellants. 
Appeal from the United States District Court
for the District of Arizona
Virginia A. Mathis, Magistrate Judge, Presiding
Argued and Submitted
December 5, 2007—San Francisco, California
Filed March 13, 2008
Before: Jerome Farris, Robert R. Beezer, and
Sidney R. Thomas, Circuit Judges.
Opinion by Judge Beezer
2393

-- 1 of 17 --

COUNSEL
Richard B. Jones, Tucson, Arizona, for the claimants-
appellants.
Paul K. Charlton, United States Attorney, District of Arizona
and Joan G. Ruffennach and John Joseph Tuchi, Assistant
United States Attorneys for the District of Arizona, Phoenix,
Arizona, for the plaintiff-appellee.
OPINION
BEEZER, Circuit Judge:
Roy Bruno (“Bruno”) and Miguel Camacho (“Camacho”)
(collectively, “Claimants”) appeal the magistrate judge’s
order granting summary judgment in favor of the government
in its civil forfeiture action against $493,850 in U.S. currency
and one 1993 Ford F-350 truck. We affirm.
I
On June 3, 2003, Officer John McFarland (“McFarland”) of
the Arizona Highway Patrol observed a Ford truck with Flor-
ida license plates swerve over the center line on an Arizona
2398 UNITED STATES v. BRUNO

-- 2 of 17 --

highway. McFarland pulled the truck over and approached the
driver. As he approached, McFarland could smell the strong
odor of air freshener, which, in his experience, suspects often
used to cover the odor of narcotics. He questioned the driver,
Camacho, and the passenger, Bruno. McFarland noted some
minor inconsistencies between their statements, but issued
Camacho a warning and told him that he was free to leave.
As Camacho walked back towards the truck, McFarland
called Camacho back and began talking to him about drug
trafficking. McFarland asked for, but did not receive, consent
to search the truck. McFarland also asked for, and eventually
received, consent to run a drug-sniffing dog around the truck.
The dog alerted. McFarland searched the truck and found
$493,850 concealed throughout the truck. He seized the truck
and the currency.
On November 26, 2003, the government brought a civil
complaint for forfeiture, separately naming $493,850 in U.S.
currency and one 1993 Ford F-350 truck as in rem defendants.
The government alleged that the currency was subject to for-
feiture because it was furnished or intended to be furnished in
exchange for a controlled substance. Alternatively, it alleged
that the currency was subject to forfeiture because it was
engaged in a transaction or attempted transaction involving
property derived from a specified unlawful activity. The gov-
ernment alleged that the truck was subject to forfeiture
because it was used and intended to be used to transport and
facilitate the transportation, sale, receipt, possession and con-
cealment of a controlled substance.
Bruno timely filed a claim to the currency. Camacho timely
filed a claim to the truck. All parties consented to proceed
before a U.S. magistrate judge.
After an evidentiary hearing, the magistrate judge held that
McFarland had made a lawful investigatory stop of the truck,
but that he unlawfully exceeded the scope of the investigatory
2399 UNITED STATES v. BRUNO

-- 3 of 17 --

stop by calling Camacho back, questioning him and searching
and seizing the truck and currency. The magistrate judge sup-
pressed all evidence gathered after McFarland issued Cama-
cho the warning.
The government subsequently presented the following facts
in a motion for summary judgment, which the government
had not previously disclosed to Claimants because of an
ongoing and sealed criminal investigation: (1) a special agent
with the Drug Enforcement Administration (“DEA”) learned
of the June 3, 2003 seizure on the day it occurred; (2) on that
same day, that same agent also learned that Camacho was the
subject of an ongoing DEA investigation in Miami, Florida;
(3) DEA agents had observed Camacho’s 1993 Ford F-350
truck during that investigation; and (4) Camacho was the sub-
ject of a separate narcotics investigation being conducted by
the South Florida Money Laundering Strike Force.
The government also submitted affidavits by two witnesses
cooperating in the Miami investigations, which were both
signed after the complaint was filed. The witnesses testified
that long before the illegal search and seizure, Camacho met
separately with each of them to discuss the importation and
sale of cocaine. Camacho indicated to these witnesses that he
employs his family members in his cocaine operations, and
that he personally transports cocaine and currency to Mexico
using different types of vehicles. One of the witnesses met
Bruno, a relative by marriage, during one of these meetings.
Based upon this information, the magistrate judge granted
summary judgment in favor of the government. The magis-
trate judge found that the affidavits of the cooperating wit-
nesses, as well as portions of the DEA agent’s affidavit, were
not tainted by the illegal search and seizure. The magistrate
judge held that the government carried its burden in proving,
by a preponderance of the evidence, a substantial connection
between the in rem defendants and cocaine transactions. The
magistrate judge further held that the Claimants had failed to
2400 UNITED STATES v. BRUNO

-- 4 of 17 --

prove, by a preponderance of the evidence, that they were
innocent owners because they presented nothing to rebut the
government’s evidence. The magistrate judge also drew a
negative inference from Claimants’ refusal to answer requests
for admission based on the Fifth Amendment.
Claimants timely appealed. They initially moved to stay
execution of the entire judgment pending appeal, but later
withdrew their request as to the truck. The magistrate judge
granted the motion to stay. The judgment as to the truck has
been executed.
II
We review, de novo, the denial of a motion to suppress,
United States v. Jensen, 425 F.3d 698, 704 (9th Cir. 2005), a
determination of probable cause, United States v. $30,060 in
U.S. Currency, 39 F.3d 1039, 1041 (9th Cir. 1994), an inter-
pretation of federal forfeiture law, United States v. 25445 Via
Dona Christa, 138 F.3d 403, 407 (9th Cir. 1998), amended
by, 170 F.3d 1161 (9th Cir. 1999), and an order granting sum-
mary judgment, United States v. 5208 Los Franciscos Way,
385 F.3d 1187, 1190 (9th Cir. 2004).
III
The government argues that we lack jurisdiction over the
truck. We agree.
In Republic National Bank of Miami v. United States, 506
U.S. 80 (1992), the Supreme Court held that once a court val-
idly asserts jurisdiction in an in rem civil forfeiture proceed-
ing, courts of appeals may continue to exercise jurisdiction
even after the res is removed from the court. 506 U.S. at 88-
89. There is one exception to this rule, “where the release of
the property would render the judgment ‘useless’ because ‘the
thing could neither be delivered to the libellants, nor restored
to the claimants.’ ” Id. at 85.
2401 UNITED STATES v. BRUNO

-- 5 of 17 --

[1] In this case, the judgment as to the truck has been exe-
cuted, so the res can neither be delivered nor restored to
Claimants. Id. Claimants never entered into an agreement
with the government to substitute proceeds from the sale of
the truck in place of the truck for purposes of appeal. Cf. Ven-
tura Packers, Inc. v. F/V Jeanine Kathleen, 424 F.3d 852,
861-62 (9th Cir. 2005) (allowing substitution of property to
abide the fate of the suit). A judgment as to the truck in this
case would be useless. We lack jurisdiction over the truck.
IV
Claimants argue that the magistrate judge should have
excluded all information from the Miami investigations as
fruit of the poisonous tree, because Arizona investigators
would not have learned of the information but for the illegal
seizure. We disagree.
[2] The exclusionary rule applies in civil forfeiture cases.
United States v. $191,910 in U.S. Currency, 16 F.3d 1051,
1063 (9th Cir. 1994), superseded on other grounds as stated
in United States v. $80,180 in U.S. Currency, 303 F.3d 1182,
1184 (9th Cir. 2002). It bars the admission of evidence
obtained in violation of the U.S. Constitution, as well as
“fruits of the poisonous tree.” United States v. Ramirez-
Sandoval, 872 F.2d 1392, 1395 (9th Cir. 1989). “[U]nder the
‘fruits of the poisonous tree’ doctrine, evidence obtained sub-
sequent to a violation of the Fourth Amendment is tainted by
the illegality and is inadmissible. . . .’ ” United States v.
Washington, 490 F.3d 765, 774 (9th Cir. 2007). There are
three exceptions to the fruits of the poisonous tree doctrine.
Ramirez-Sandoval, 872 F.2d at 1396.
[3] The independent source exception is at issue in this
case. It allows admission of “evidence that is actually found
by legal means through sources unrelated to the search.” Id.
“Independent source evidence is not ‘fruit of the poisonous
2402 UNITED STATES v. BRUNO

-- 6 of 17 --

tree’ because its discovery through independent legal means
does not result from the official’s illegal conduct.” Id.
[4] The information at issue here is not a fruit of the poi-
sonous tree because it was not discovered subsequent to the
illegal seizure, see Washington, 490 F.3d at 774, nor was it
derived in any way from the illegal seizure, see Ramirez-
Sandoval, 872 F.2d at 1396. The information was learned
from preexisting, unrelated investigations. See id. It could
have been, and likely was, discovered with the simple use of
Camacho’s name and vehicle registration, which McFarland
legally obtained before the illegal search and seizure. The
Miami information is admissible.
V
Claimants argue that the magistrate judge erred in consider-
ing the fact that the illegally seized res consisted of $493,850
of U.S. currency. It is unclear whether the magistrate judge
considered the amount of currency in her analysis. To the
extent she considered the amount of currency, we agree that
such consideration was improper. To the extent she merely
recognized the nature of the illegally seized property as cur-
rency, we hold that such consideration was proper.
Illegally seized property may not be “introduced as evi-
dence in a forfeiture proceeding.” $191,910, 16 F.3d at 1063
(emphasis in original). For example, in United States v.
$191,910 in U.S. Currency, police became suspicious of the
claimant after he put his bags through an airport security x-ray
that revealed he was carrying a large amount of cash. Id. at
1054. The claimant initially told police that he was a
gemologist carrying $20,000, but later told police that he was
carrying $15,000. Id. at 1054-55. Police, believing that they
had reasonable suspicion to search the claimant’s bags, dis-
covered $191,910 in the bags. Id. at 1055-56. The government
filed a forfeiture complaint against the $191,910. Id. The dis-
trict court held that the search was illegal, suppressed all fruits
2403 UNITED STATES v. BRUNO

-- 7 of 17 --

of the search and granted the claimant’s motion for summary
judgment. Id. at 1056-57.
We affirmed. Id. at 1054. We held that the district court
properly suppressed the amount of money as fruit of the
unlawful search. Id. at 1059, 1065. We rejected the govern-
ment’s arguments that (1) the money could not be suppressed
because it was the nominal defendant, id. at 1062-63, and (2)
the exclusionary rule bars only the introduction of illegally
seized materials that are not the res, id. at 1063 n.24. To have
held otherwise would merely reward the government for car-
rying out an illegal search or seizure. Id. at 1065. Left only
with evidence that (1) the claimant admitted to carrying either
$15,000 or $20,000, (2) the claimant provided slightly incon-
sistent stories and (3) x-ray screening of the claimant’s bags
revealed that the claimant was carrying a large amount of
cash, we held that the government had failed to establish, at
the time it filed the complaint, probable cause to believe the
money was intended for use in a drug transaction. Id. at 1071.
[5] $191,910 makes clear that we cannot consider the
amount of currency that the government illegally seized. Id.
at 1059, 1065. The issue presented here is whether it necessar-
ily follows that we are prohibited from considering the fact
that the illegally seized property is, in fact, currency.1 This is
an issue of first impression in this Circuit.2
1We note that circuit courts are split on the issue whether and to what
extent illegally seized property must be suppressed when it is the object
of a forfeiture action. David B. Smith, Prosecution and Def. of Forfeiture
Cases § 10.05[8] (2007) (noting that this issue may be dispositive when
illegally seized res is currency); see also United States v. $557,933.89 in
U.S. Currency, 287 F.3d 66, 80 (2d Cir. 2002) (undecided); United States
v. $36,634 in U.S. Currency, 103 F.3d 1048, 1052 n.3 (1st Cir. 1997),
superseded on other grounds as stated in United States v. Lopez-Burgos,
435 F.3d 1, 2 (1st Cir. 2006) (limited admissibility); United States v.
$12,390 in U.S. Currency, 956 F.2d 801, 806 (8th Cir. 1992) (admissible);
United States v. $639,585 in U.S. Currency, 955 F.2d 712, 715 n.5 (D.C.
Cir. 1992) (limited admissibility).
2But see $36,634, 103 F.3d at 1052 n.3 (recognizing illegally seized res
as currency but excluding its amount in the First Circuit).
2404 UNITED STATES v. BRUNO

-- 8 of 17 --

Claimants argue that we cannot consider the fact that the
illegally seized res consists of currency, and must instead treat
the illegally seized res as a “featureless widget.” Claimants
attempt to distinguish $191,910, because in that case we
referred to the illegally seized property as “money,” but we
had the benefit of an admission by the claimant that he was
carrying “money.” See $191,910, 16 F.3d at 1071-72.
Claimants read $191,910 too broadly to exclude more than
it does. We have consistently held that “ ‘[t]he mere fact of
the illegal seizure, standing alone, does not immunize the
goods from forfeiture.’ ” United States v. One 1977 Mercedes
Benz, 708 F.2d 444, 450 (9th Cir. 1983). An interpretation of
$191,910 requiring us to ignore the character of the illegally
seized property as currency, or requiring us to consider the
illegally seized property a “featureless widget,” would contra-
dict this longstanding principle by immunizing illegally
seized currency from forfeiture. As noted by the magistrate
judge, there would be “no way for the government to show
that a ‘widget’ is the product of a drug transaction.” The gov-
ernment could never place a “widget” in context or connect
it with anything, let alone a drug transaction.
[6] We hold that when the illegally seized res in a civil for-
feiture proceeding consists of currency, courts may consider
the fact that the illegally seized res is currency. This holding
is consistent with our holding in $191,910 that illegally seized
property may not be “introduced as evidence in a forfeiture
proceeding.” See id. at 1063. While courts may not introduce
illegally seized currency into evidence or consider its amount,
courts may recognize that illegally seized property consists of
currency, if that is the case. Our view is consistent with the
views of the First and D.C. Circuits. See $36,634, 103 F.3d
at 1052 n.3; $639,585, 955 F.2d at 715 n.5.
VI
Claimants argue that the admissible evidence is insufficient
to establish that the government had probable cause to insti-
2405 UNITED STATES v. BRUNO

-- 9 of 17 --

tute the forfeiture action as required by 19 U.S.C. section
1615. The government responds by arguing that the Civil
Asset Forfeiture Reform Act of 2000 (“CAFRA”) eliminated
section 1615’s requirement that the government show proba-
ble cause to institute the forfeiture action. We agree with
Claimants that section 1615’s probable cause requirement sur-
vives CAFRA, but hold that the admissible evidence is suffi-
cient to establish that the government had probable cause to
institute the forfeiture action in this case.
A
[7] It is an open question whether section 1615 continues
to require that the government show that it had probable cause
to institute a forfeiture suit. See Smith, supra, § 11.03[6].
Before CAFRA, section 1615 required that: (1) the govern-
ment show that probable cause existed to institute a forfeiture
action and (2) the claimant prove, by a preponderance of the
evidence, that the property was not subject to forfeiture. 5208
Los Franciscos Way, 385 F.3d at 1193. By placing the burden
of proof on the claimant, section 1615 allowed the govern-
ment to seize property based on nothing more than its initial
showing of probable cause in many cases. 146 Cong. Rec.
H2040-01, 2051 (daily ed. Apr. 11, 2000) (statement of Rep.
Jackson-Lee). Motivated by a concern that this denied citizens
due process, Congress passed CAFRA in 2000. Id. CAFRA
sets forth the burden shifting analysis for civil forfeiture
actions commenced on or after August 23, 2000. 18 U.S.C.
§ 983.
[8] Although Congress never mentioned the effect of
CAFRA on section 1615, see H.R. Rep. No. 105-358, pt. 1,
at 41-42 (1997) (noting only that CAFRA codifies some exist-
ing procedures but replaces others to the extent they are
inconsistent); 146 Cong. Rec. H2040-01, CAFRA supersedes
certain portions of section 1615 with respect to forfeiture
actions brought under 18 U.S.C. section 983: (1) it removes
the burden of proof at trial from the claimant and places it on
2406 UNITED STATES v. BRUNO

-- 10 of 17 --

the government and (2) it raises the government’s burden of
proof at trial from probable cause to institute the action to
proof, by a preponderance of the evidence, that the property
is subject to forfeiture. 5208 Los Franciscos Way, 385 F.3d
at 1193. The issue here is whether CAFRA also replaced sec-
tion 1615’s probable cause requirement, or merely added to
it.
When we interpret a statute, our purpose is to discern the
intent of Congress. Amalgamated Transit Union Local 1309
v. Laidlaw Transit Servs., 448 F.3d 1092, 1093 (9th Cir.
2006). To discern the intent of Congress, “ ‘[w]e look first to
the plain language of the statute, construing the provisions of
the entire law, including its object and policy.’ ” Carson Har-
bor Vill., Ltd. v. Unocal Corp., 270 F.3d 863, 877 (9th Cir.
2001) (internal citations omitted). We will resort to legislative
history when that history “ ‘clearly indicates that Congress
meant something other than what it said.’ ” Id. (internal cita-
tions omitted). It is “ ‘a cardinal principle of statutory con-
struction that repeals by implication are not favored.’ ” City
& County of S.F. v. Assessment App. Bd., 122 F.3d 1274,
1276 (9th Cir. 1997) (internal citation omitted). “ ‘An implied
repeal may only be found if there is an irreconcilable conflict
between the two federal statutes at issue.’ ” Id. (internal cita-
tion omitted).
The government argues that CAFRA’s plain language elim-
inates the probable cause requirement by providing that “[n]o
civil forfeiture complaint may be dismissed because the gov-
ernment lacked sufficient evidence at the time of filing.” The
government’s citation to CAFRA is incomplete and mislead-
ing. CAFRA provides that “[n]o complaint may be dismissed
on the ground that the Government did not have adequate evi-
dence at the time the complaint was filed to establish the for-
feitability of the property.” 18 U.S.C. § 983(a)(3)(D)
(emphasis added). Post-CAFRA, establishing the forfeitability
of property is distinct from having probable cause to institute
the forfeiture action. See Smith, supra, § 11.03[6] (arguing
2407 UNITED STATES v. BRUNO

-- 11 of 17 --

that if Congress meant to eliminate the probable cause
requirement, it would have stated, “[n]o complaint may be
dismissed on the ground that the government did not have
probable cause at the time the complaint was filed”). The for-
mer requirement describes the government’s burden at trial to
prove entitlement to the property by presenting proof, by a
preponderance of the evidence, of a substantial connection
between the property and the offense. 18 U.S.C. § 983(c). The
latter requirement describes the government’s burden to get in
the courthouse door by presenting evidence that, at the time
it filed the complaint, it had “ ‘reasonable grounds to believe
that the property was related to an illegal drug transaction,
supported by less than prima facie proof but more than mere
suspicion.’ ” United States v. One Parcel of Real Prop., 904
F.2d 487, 490-91 (9th Cir. 1990).
CAFRA’s provision allowing the government to use evi-
dence gathered after the filing of a complaint to establish the
forfeitability of the property, 18 U.S.C. § 983(c)(2), similarly
does not conflict with our holding in $191,910 that the gov-
ernment may not use after-acquired evidence to establish
probable cause to institute a forfeiture action, see $191,910,
16 F.3d at 1071. The CAFRA requirement refers to the use of
after-acquired evidence in satisfying the government’s burden
of proof at trial to prove entitlement to the property. 18 U.S.C.
§ 983(c)(2). Such evidence will include evidence gathered at
all stages of litigation. The requirement in $191,910 refers to
the use of after-acquired evidence in satisfying the govern-
ment’s lesser burden needed to get in the courthouse door.
$191,910, 16 F.3d at 1071. Such evidence will include only
evidence gathered up until the complaint was filed.
The government cites the First Circuit’s opinion in United
States v. Lopez-Burgos, 435 F.3d 1 (1st Cir. 2006), for the
proposition that CAFRA eliminated section 1615’s probable
cause requirement. In Lopez-Burgos, the First Circuit held
that CAFRA eliminated the government’s need to plead facts
2408 UNITED STATES v. BRUNO

-- 12 of 17 --

sufficient to establish probable cause to forfeit.3 435 F.3d at
2. At no point in its brief opinion did the First Circuit analyze
whether CAFRA eliminated section 1615’s requirement that
the government show probable cause to institute a forfeiture
action.4 Id. In fact, the First Circuit was specific in noting that
CAFRA increased the government’s “burden of proof at
trial,” id., rather than replaced its initial burden in filing the
complaint. Although Lopez-Burgos described section 1615 as
“statutorily superseded,” “legally irrelevant” and “since
repealed,” id., this description is inaccurate because section
1615 remains applicable to forfeiture actions brought under
Titles 19 and 26, see 18 U.S.C. § 983(i), if not to all forfeiture
actions because of the probable cause requirement.
Claimants argue that CAFRA’s legislative history clearly
indicates that the government is still required to show proba-
ble cause to institute a forfeiture action. CAFRA’s legislative
history indicates that CAFRA was intended to modify or cod-
ify certain practices, but it is devoid of any reference as to
whether CAFRA eliminated the probable cause requirement.
See, e.g., H.R. Rep. No. 105-358, pt. 1. U.S. Representative
Henry Hyde stated that “current law would be retained allow-
ing the government to forfeit property on a showing of proba-
ble cause if the property owner elects not to challenge the
forfeiture by filing a claim.” Id. at 28. He also stated that:
[W]hile the government may use evidence obtained
after the forfeiture complaint is filed to establish the
forfeitability of the property by a preponderance of
the evidence, the government must still have had
3The Fourth Circuit issued a similar opinion and also limited its discus-
sion of CAFRA to pleading requirements and the government’s burden of
proof at trial. See United States v. Mondragon, 313 F.3d 862, 865 (4th Cir.
2002).
4But see Smith, supra, §11.03[6] n.56.4 (faulting First Circuit because
it “appears to have accepted the government’s bogus argument” that
CAFRA abolishes the probable cause requirement).
2409 UNITED STATES v. BRUNO

-- 13 of 17 --

enough evidence to establish probable cause at the
time of filing (or seizure, if earlier).
146 Cong. Rec. H2040-01, 2050 (statement of Rep. Hyde).
These statements are not the clear support Claimants argue
them to be because they could refer to either (1) the govern-
ment’s burden to show probable cause to seize the property
under 18 U.S.C. section 981 or (2) the government’s burden
to show probable cause to file its forfeiture action under 19
U.S.C. section 1615.
[9] Nevertheless, the coexistence of section 1615’s proba-
ble cause requirement and CAFRA is consistent with the leg-
islative intent of CAFRA. In enacting CAFRA, Congress
intended to institute stronger procedural safeguards before the
government could forfeit property. See, e.g., 146 Cong. Rec.
H2040-01, 2051 (statement of Rep. Jackson-Lee); id. at 2052
(statement of Rep. Barr). Requiring the government to show
probable cause before instituting a forfeiture action is consis-
tent with this intent because it provides an additional proce-
dural protection. See $191,910, 16 F.3d at 1069.
[10] Nothing in CAFRA’s plain language indicates that
Congress intended to eliminate section 1615’s probable cause
requirement, there is no irreconcilable conflict between sec-
tion 1615 and CAFRA, CAFRA’s legislative history is devoid
of any relevant discussion on the issue and repeals by implica-
tion are disfavored. It is also well-established that “forfeiture
statutes are strictly construed against the government.”
$191,910, 16 F.3d at 1068. We hold that section 1615 contin-
ues to require that the government show probable cause to
institute a forfeiture action.
B
[11] The government has probable cause to institute a for-
feiture action when it has “ ‘reasonable grounds to believe
2410 UNITED STATES v. BRUNO

-- 14 of 17 --

that the property was related to an illegal drug transaction,
supported by less than prima facie proof but more than mere
suspicion.’ ” One Parcel of Real Prop., 904 F.2d at 490-91.
“Probable cause to believe that the property is involved in
some illegal activity is not enough—the government must
have probable cause to believe that the property is involved
in the activity subject to the specific forfeiture statute it
invokes.” $191,910, 16 F.3d at 1071. Probable cause may
only be based upon information gathered before the complaint
was filed. Id.
Prior to November 26, 2003, when the government filed the
civil forfeiture complaint, McFarland legally gathered evi-
dence that: (1) Camacho was driving a 1993 Ford F-350 truck
with Florida license plates in Arizona; (2) Camacho and
Bruno provided slightly inconsistent stories; (3) the truck
smelled strongly of air freshener; and (4) in McFarland’s
experience, suspects often used strong air freshener to cover
the smell of narcotics. Prior to November 26, 2003, the gov-
ernment also legally gathered evidence that: (1) Camacho was
the subject of an ongoing DEA investigation in Miami and (2)
DEA agents had observed the truck at issue during that inves-
tigation.
[12] McFarland’s evidence, standing alone, may only raise
a mere suspicion that Claimants are involved in narcotics
activity. When that evidence is combined with the Miami evi-
dence linking Camacho and his truck with cocaine traffickers,
however, it is sufficient to satisfy probable cause. The evi-
dence provides reasonable grounds to believe that Camacho,
his truck and anything that could be used in furtherance of
cocaine transactions—including cocaine, currency, transporta-
tion for both and persons assisting in the transportation of
both—are related to or involved in illegal cocaine transac-
tions. The government satisfied its burden under section 1615
with respect to the currency.
2411 UNITED STATES v. BRUNO

-- 15 of 17 --

VII
Claimants argue that the magistrate judge erred granting
summary judgment in favor of the government. We disagree.
In a civil forfeiture proceeding, CAFRA requires the gov-
ernment to prove, by a preponderance of the evidence, that
property is subject to forfeiture. 18 U.S.C. § 983(c); 5208 Los
Franciscos Way, 385 F.3d at 1193. “[T]he government may
use evidence gathered after the filing of a complaint for for-
feiture to establish, by a preponderance of the evidence, that
property is subject to forfeiture.” 18 U.S.C. § 983(c)(2). Once
the government provides such proof, the burden shifts to the
claimant to prove that he or she is an innocent owner of the
property. 18 U.S.C. § 983(d).
In this case, to meet its burden, the government may rely
upon the evidence supporting probable cause, as well as the
following evidence: (1) the fact that Camacho was observed
during a second narcotics investigation and (2) affidavits from
cooperating witnesses revealing that (a) Camacho had met
with them several times to discuss the importation and sale of
cocaine; (b) Camacho employed his family in his cocaine
business; (c) Bruno was part of Camacho’s family and had
met one of the cocaine dealers; and (d) Camacho would per-
sonally transport cocaine and currency to Mexico.
[13] This evidence is sufficient to prove, more likely than
not, that Camacho, Bruno and anything that could be used in
furtherance of cocaine transactions—including cocaine, cur-
rency, transportation for both and persons assisting in the
transportation of both—are involved in cocaine transactions.
This is true regardless of the amount of currency at issue,
because the evidence connecting Camacho and Bruno with
cocaine trafficking is overwhelming.
[14] Because the government met its burden under section
983, the burden shifted to Claimants to prove innocent owner-
2412 UNITED STATES v. BRUNO

-- 16 of 17 --

ship. In other words, it became Claimants’ burden to prove,
by a preponderance of the evidence, that Claimants: (1) did
not know of the conduct giving rise to forfeiture; or (2) upon
learning of the conduct giving rise to the forfeiture, did all
that reasonably could be expected under the circumstances to
terminate such use of the property. 18 U.S.C. § 983(d)(2)(A).
Claimants provided no evidence or argument regarding inno-
cent ownership.5 Claimants provided no evidence regarding
an alternate theory of origin for the currency. Summary judg-
ment was proper.
VIII
[15] In granting summary judgment, the magistrate judge
properly considered information from the Miami investiga-
tions and the nature of the res as currency. To the extent the
magistrate judge relied upon the amount of currency, such
reliance was error but only harmless error. The admissible
evidence is sufficient to establish probable cause and proof,
by a preponderance of the evidence, that the currency is sub-
ject to forfeiture without regard to the amount of currency.
Claimants presented no evidence of innocent ownership. The
magistrate judge properly granted summary judgment in favor
of the government.
AFFIRMED.
5The Court does not reach the issue whether the magistrate judge erred
in drawing a negative inference from Claimants’ refusal to answer the
requests for admission based on Fifth Amendment privilege.
2413 UNITED STATES v. BRUNO

-- 17 of 17 --