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United States v. Approximately $145

United States District Court, E.D. California

July 8, 2016

UNITED STATES OF AMERICA, Plaintiff,
v.
APPROXIMATELY $145, 000.00 IN U.S. CURRENCY, Defendant.

          FINDINGS AND RECOMMENDATIONS REGARDING PLAINTIFF'S EX PARTE APPLICATION FOR DEFAULT JUDGMENT AND FINAL JUDGMENT OF FORFEITURE (Doc. 14)

          BARBARA A. McAULIFFE UNITED STATES MAGISTRATE JUDGE

         In this civil forfeiture action, Plaintiff United States of America ("Government" or "Plaintiff") seeks (1) default judgment against the interests of Omar Lopez Hernandez and Irma Cardenas in approximately $145, 000.00 in U.S. Currency and (2) entry of a final forfeiture judgment to vest in the Government all right, title and interest in the defendant currency. No opposition to the Government's motion has been filed, and the time to file an opposition has expired. The matter was heard on July 8, 2016, before United States Magistrate Judge Barbara A. McAuliffe. Assistant United States Attorney Jeffrey Spivak appeared on behalf of the Government. No other parties or persons appeared. For the reasons set forth below, the Court RECOMMENDS that the Government's application for default judgment and for final judgment of forfeiture be GRANTED.

         FACTUAL BACKGROUND

         This is a civil action in rem to forfeit to the Government approximately $145, 000.00 in U.S. Currency ("the Defendant Currency") pursuant to 21 U.S.C. § 881(a)(6).[1] The Defendant Currency was seized on July 23, 2015, at State Route 99 and Le Grande Road, in Merced County, California.

         On July 23, 2015, at approximately 1:08 p.m., California Highway Patrol (CHP) was working on State Route 99 in Merced County, California, in a marked patrol vehicle and traveled northbound on State Route 99 when the CHP officer's attention was drawn to a silver Pontiac G6, bearing California license plate number 6UPK042.

         The Pontiac appeared to be traveling above the 65 miles per hour (mph) maximum speed limit. The CHP officer estimated the Pontiac's speed to be about 72 mph. The officer activated his radar antenna and received a reading of 70 mph. The officer initiated a vehicle stop on the Pontiac for a violation of California Vehicle Code § 22349(a) - Exceeding the Maximum Speed Limit of 65 mph.

         The driver and sole occupant of the vehicle was identified as Omar Lopez Hernandez. Hernandez was advised of the reason for the stop and was asked for his driver's license. Hernandez stated that he had forgotten it at home. Hernandez was asked if he could produce any identification. Hernandez related that he did not currently possess any identification.

         The officer conducted a license and registration check through CHP dispatch which revealed that Hernandez did not possess a valid California driver's license. A tow truck was requested by the officer to impound the vehicle because Hernandez was an unlicensed driver.

         When asked about his travels, Hernandez stated that he had come from Fresno, California, where he had been for two weeks. Hernandez then changed his story and said he had only been in Fresno for two days. Hernandez was asked why the back seat was missing from his vehicle. Hernandez advised that he had forgotten it at home.

         Hernandez was advised that he was only receiving a verbal warning for speeding, but was issued a citation for driving without a license. Hernandez was also advised that his vehicle was being impounded because he did not have a driver's license. The officer conducted an inventory of the Pontiac. During the inventory, the officer observed a plastic bag located in the rear passenger compartment. The bag contained a large amount of U.S. Currency. The plastic bag was the only item located in the rear passenger compartment. The officer asked Hernandez if the U.S. Currency was his. Hernandez initially stated that it was not his. Hernandez was asked to whom the U.S. Currency belonged. Hernandez then stated that it was his and should be $150, 000. Hernandez said that he got the U.S. Currency from a friend and then stated that he did not want to talk anymore.

         The officer then utilized his Patrol Narcotics Detection Canine ("PNDC") "Laika" to conduct an exterior and interior sniff search of the Pontiac for the odor of narcotics. Laika is a six-year-old Belgian Malinois and has been extensively trained as a PNDC. Laika has been employed by the California Highway Patrol since November 2011. Laika did not alert on the exterior of the Pontiac. When Laika was deployed on the interior of the Pontiac, Laika gave a positive alert to the odor of a controlled substance on the plastic bag and the U.S. Currency.

         The currency was located inside two plastic bags in the following denominations: 184 x $100 bills, 36 x $50 bills, 6011 x $20 bills, 451 x $5 bills, and 5 x $1 bills.[2] Some of the currency was banded together with rubber bands and some were loose bills. Based on training and experience, the officer knew that it was not common practice for a reasonable person to transport large amounts of currency in this manner. However, it is common practice for those involved in drug trafficking to transport currency in this manner.

         On July 28, 2015, an agent with the Merced Area Gang/Narcotics Enforcement Team ("MAGNET") listened to and translated Hernandez' recorded jail calls, which were in Spanish. Hernandez identified himself by his name at the start of every call.[3] On July 23, 2015, at approximately 6:51 p.m., Hernandez called an unidentified female who he referred to as his aunt. The aunt asked Hernandez what happened. Hernandez told the aunt that he was doing some work and something went wrong. The aunt told Hernandez to tell the truth as to what occurred. Hernandez replied that he was doing badly. Hernandez was asked if he was caught with anything. Hernandez told the aunt that it was money. The aunt asked Hernandez if it was a lot of money, and he replied that it was a lot of money he had when he was arrested. The aunt then asked Hernandez why he was being investigated or if he had been interrogated. Hernandez replied that he was "screwed" and that it was "his problem."

         On August 19, 2015, an agent with the Drug Enforcement Administration ("DEA") interviewed Irma Cardenas, the registered own of the Pontiac G6 driven by Hernandez at the time of the seizure. Hernandez was also interviewed. Cardenas was asked what her relationship was with Hernandez. Cardenas stated that she had been in a relationship with Hernandez for about 10 years and they resided together in Gold River, California. Cardenas advised that she and Hernandez have owned the vehicle for about three years. Cardenas added that they paid about $12, 000 for the vehicle and owed about $630 on the vehicle. Cardenas was asked where Hernandez was employed. Cardenas advised that Hernandez was working for Everman Drywall in Sacramento, California, but that he had quit working for them about two months ago. According to the Employment Development Department, as of August 17, 2015, Hernandez was employed by David Everman with no date of termination.

         Cardenas was asked how much money Hernandez earned from Everman Drywall. Cardenas stated that Hernandez earned about $2, 200 a month. When asked if Cardenas had ever seen Hernandez with a large amount of U.S. currency, Cardenas advised that she had never seen Hernandez with a large amount of currency and that there was no logical reason for him to have that much. Cardenas said that Hernandez told her that he had been arrested with a large amount of U.S. currency, but would not tell her how much or what he was doing with the currency. Cardenas was advised that Hernandez was stopped with about $145, 000 in U.S. currency. Cardenas stated that she was unaware where Hernandez would have gotten that much money and that there was no reason he would have that much. Cardenas was asked whether the money was hers and Cardenas stated that she had no ownership of the money. Cardenas added that she had no idea where it came from. Cardenas was read the DEA Disclaimer of Title and Interest form for the U.S. currency. Cardenas was asked if she understood the form and she stated that she did. Cardenas signed the Disclaimer of Interest form as witnessed by an agent with MAGNET.

         Hernandez has a criminal history which includes an arrest in September 2008, by the Sacramento County Sheriff's Office for Felony Burglary. In December 2008, Hernandez was arrested for Misdemeanor Theft by the Sacramento County Sheriff's Office. In August 2011, Hernandez was again arrested by the Sacramento County Sheriff's Office for falsely identifying himself to a police officer.

         PROCEDURAL ...


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