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United States of America v. Approximately $77

April 10, 2012

UNITED STATES OF AMERICA,
PLAINTIFF,
v.
APPROXIMATELY $77,000.00 IN U.S.
CURRENCY, DEFENDANT.



The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge

ORDER REGARDING CLAIMANT FELIX VELASCO'S MOTION FOR SUMMARY JUDGMENT (Document 18)

INTRODUCTION

Claimant FELIX VELASCO ("Claimant") seeks summary judgment on Plaintiff UNITED STATES OF AMERICA's ("Plaintiff" or "Government") complaint for forfeiture in rem. More particularly, Claimant asserts the Government did not have probable cause to institute this forfeiture action. The Government contends that factual issues surrounding the forfeiture of the defendant currency do not support summary judgment.*fn1

RELEVANT PROCEDURAL BACKGROUND

On July 28, 2011, the Government filed its Verified Complaint for Forfeiture In Rem against approximately $77,000.00 in United States Currency. (Doc. 1.) In response, on August 15, 2011, Claimant filed both a verified claim opposing the forfeiture and an answer to the complaint, asserting, among others, an affirmative defense of innocent possessor or owner. (Docs. 7-8.)

On October 3, 2011, Claimant filed his Motion for Summary Judgment. On November 11, 2011, the Government filed its opposition. (Docs. 28-34.) On November 28, 2011, Claimant filed his reply thereto. (Doc. 35.)

Following the completion of briefing, the Court vacated the December 2, 2011, hearing on the motion and the matter was taken under submission pursuant to Local Rule 230(g). For the reasons discussed below, this Court DENIES Claimant's motion for summary judgment.

STATEMENT OF UNDISPUTED FACTS*fn2 *fn3

1. On January 25, 2011, Fresno County Sheriff's Office (FCSO) detectives initiated a traffic stop of a silver Chrysler 300 bearing California license plate number 5WGH562 on Interstate 5 near Highway 198 in the County of Fresno for a violation of California Vehicle Code § 22349 -- Speeding, because the vehicle was traveling at 80 miles per hour in less than 1,000 feet of visibility.

2. Mr. Velasco is the registered owner of the above referenced Chrysler 300. 3. Upon stopping the Chrysler 300, a FCSO detective contacted the driver and sole occupant, Jorge Luis Delgado ("Delgado"), who identified himself with a Mexican driver's license.

4. A FCSO detective who is fluent in Spanish spoke to Delgado, who spoke only Spanish, and advised Delgado that he was stopped because he was driving approximately 80 miles per hour in the fog. Delgado stated that he was going about 78 miles per hour. The detective advised Delgado that visibility was less than 1,000 feet as a result of the fog and that the speed limit on Interstate 5 is 70 miles per hour.

5. A FCSO detective asked Delgado from where he was coming and to where he was going. Delgado stated that he was going from Pittsburg to Bakersfield and when asked why he was taking the long way, Delgado stated that Highway 198 was less traffic.

6. Delgado appeared nervous to the FCSO detectives and was allegedly shaking uncontrollably when he was handed back his license.

7. A FCSO detective observed a single ignition key, air fresheners in a vent, and that the vehicle belonged to a third party (Mr. Velasco).

8. When asked if there were any weapons, drugs, or large sums of currency in the vehicle, Delgado gave his consent for the detectives to search the vehicle. 9. During a search of the vehicle, a FCSO detective located an air freshener in the trunk of the vehicle.

10. Within the trunk, a detective removed the carpeting that covered the spare tire and observed a small piece of green plastic wrap, believed by the detective to be of the type commonly used to wrap narcotics and currency. The plastic fasteners located on the sides of the trunk interior that hold down the carpeting were then removed and it appeared that the fasteners had been removed before. 11. When the carpet panel was removed, green plastic wrap was observed through a hole above the wheel well, and the plastic wrap contained defendant U.S. currency and was hidden in a natural void above the wheel well.

12. The detectives removed the seven packages which constitute the now defendant currency from the void and observed that six of the packages were marked with "9.5" in black marker and one was marked with "21" also in black marker, and the currency located in the packages totaled approximately $77,000.00 in U.S. currency.

13. The denominations in which the defendant currency was located are as follows: fifty-two $5 bills, one hundred ninety $10 bills, two thousand seven hundred thirty two $20 bills, seventy $50 bills, and one hundred sixty-seven $100 bills. 14. When asked if the currency belonged to him, Delgado stated that the money was not his and he didn't know that it was in the vehicle. A detective showed Delgado a disclaimer and asset forfeiture form written in Spanish and explained the documents to Delgado. Delgado stated that he understood both forms, signed them indicating on the disclaimer of ownership form "No - se el dinero no es mio," (No, the money is not mine) and was provided with a copy of each form.

15. A detective photographed the Chrysler 300, the currency, and Delgado. Delgado and the vehicle were released after Delgado was given a written citation.

16. Narcotic detecting canine "Cody" later gave a positive alert to the currency.

17. According to the Employment Development Department (EDD), neither Delgado nor Mr. Velasco have reported wages since 2008.

18. On or about April 29, 2011, Mr. Velasco filed an administrative forfeiture claim to the defendant currency stating, under penalty of perjury, that he is the owner of and has a possessory interest in, and the right to exercise dominion and control over the defendant currency, and that his claim is not frivolous.

19. On June 17, 2011, Mr. Velasco's attorney sent a letter to the government's attorney, asking that the government return Mr. Velasco's seized, now defendant currency and representing that "Mr. Velasco is an 83-old World War II veteran who has had a documented legitimate source of income for longer than I have been alive. He has no significant criminal history that I am aware of, and certainly no criminal drug history."

20. On July 12, 2011, Mr. Velasco's attorney sent another letter to the government's attorney, again asking that the government return Mr. Velasco's seized, now defendant, currency and represented that:

. any discovery in this case will disclose that Mr. Velasco has many legitimate and documented sources of income. He is 83 years old, has no criminal record, and had worked for over 40 years in a steel mill. In other words, Mr. Velasco is a bedrock solid all-American model citizen. I have determined that, for over 20 years, Mr. Velasco has also been receiving approximately $1,167 per month in social security retirement payments from the Federal Government and approximately $680 per month in pension/retirement payments from U.S. Steel/Carnegie Foundation as a result of his 40 years of employment. He also receives approximately $271 per month from Contra Costa County for Medi-Cal Payments. All of these income sources are easily proven with bank statements in my possession showing those direct deposits, which constitutes over $2,000 per month in income, more than enough to cover his modest expenses.

I have also confirmed with the Wartnick Law Firm here in San Francisco that Mr. Velasco received $12,004.48 from an asbestos related legal settlement in January of this year, and I have a letter from the firm which substantiates this. Also, as I mentioned, I have invoices from the Contra Costa Times showing that Mr. Velasco placed regular advertisements therein, and the handwritten notes of Mr. Velasco reflecting customers that called in response to those ads, which confirms or at least tends to confirm that Mr. Velasco has operated a tree trimming and garbage hauling business for at least the last 8-9 years which has significantly supplemented his income. Additionally, I have documentation showing that Mr. Velasco has a Department of Veterans Affairs Insurance policy, which paid him out over $10,000 last year. All of this is on short order and not exhaustive of his sources of income over his long life.

21. On July 13, 2011, the government's attorney e-mailed Mr. Velasco's attorney in response to the July 12 letter noting that no documents were provided with the letter and that "[i]f such documents exist, I am happy to consider and review whatever you provide to my office."

22. On July 21, 2011, Mr. Velasco's attorney again sent a letter the government's attorney, requesting that the government decline to proceed with a judicial forfeiture proceeding, and providing the following documents and representing that the "documents [we]re not exhaustive of Mr. Velasco's legitimate sources of income over the course of his long life":

1. Discharge forms from the U.S. Army -- showing that Mr. Velasco was born in 1928, served from 1946-1949 during which time he was educated and trained as a sheet metal worker, and that he was honorably discharged in August of 1949.

2. Bank statement -- showing that Mr. Velasco receives monthly pension payments from United States Steel and monthly social security retirement payments from the federal government as a result of his forty years of hard work as a sheet metal worker, and that his monthly expenses are modest.

3. Print out of Service Advertisement Orders and Payments from the Contra Costa Times, along with handwritten notes of callers responding to those ads - showing that Mr. Velasco has a further source of income from his garbage hauling and tree trimming business. Please note that, at different times, Mr. Velasco ran ads in the Penny Saver for this business.

4. Letter, Distribution Statement, and Check from Wartnick Law Firm - showing that Mr. Velasco received over $12,000 from an asbestos settlement in January of this year.

23. On July 28, 2011, the government filed its Verified Complaint for Forfeiture In Rem.

24. Mr. Velasco was 83 years old and had no criminal history ...


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