United States District Court, E.D. California
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
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.
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). The Defendant Currency was seized on July
23, 2015, at State Route 99 and Le Grande Road, in Merced
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.
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.
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.
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.
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.
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.
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.
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. 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.
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. 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."
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.
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.
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.