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United States v. Six Hundred Forty-Four Thousand Eight Hundred Sixty Dollars in U.S. Currency

July 29, 2008

UNITED STATES OF AMERICA, PLAINTIFF,
v.
SIX HUNDRED FORTY-FOUR THOUSAND EIGHT HUNDRED SIXTY ($644,860) DOLLARS IN U.S. CURRENCY, DEFENDANT.



The opinion of the court was delivered by: Joe Billy McDADE United States District Judge

ORDER

Before the Court is the joint Motion for Summary Judgment filed by Claimants ZigZagOrb.com International Ltd. and Jimmy Huynh [Doc. 44]. For the reasons that follow, the Motion is GRANTED.

BACKGROUND

Claimant Jimmy Huynh and a passenger, Kiet Nhon Ta, were traveling through Illinois on Interstate 80 in a Volvo when they were stopped by Illinois State Police Officer C. Thulen for tailgating and for having an obstructed driver's view. The events that occurred during the stop are in dispute. These disputes have no bearing on the Motion before the Court and will not be explored in detail. It is sufficient to note that the vehicle was subjected to a canine sniff test and was searched. The officer found a black bag with a large amount of U.S. currency separated in bundles and wrapped with rubber bands. Both Huynh and Ta were arrested. After the arrest, Huynh indicated that the money was being transferred for "Mike" to "Xuan." The money was seized and this action, in rem, was filed on June 28, 2005. The Complaint alleges that the funds are proceeds of illegal narcotics transactions and are subject to forfeiture pursuant to Title 21 U.S.C. § 881.

Both Huynh and ZigzagOrb.com International Ltd. ("ZIL") filed verified claims, asserting an ownership interest in the money, on July 27, 2005. ZIL asserts that the funds comprise various transfers made from September 2004 to December 2004 pursuant to loan agreements and Share Purchase Agreements. Claimants further assert that the funds were transported by Huynh through the United States (ZIL is a Canadian Corporation) pursuant to an agreement between Michel Jolicoeur and ZIL.

In support of these claims, Claimants provided various incorporation documents verified by Linda Dang, Director and Secretary/Treasurer of ZIL. (Claimants Ex. F). The documents indicate that ZIL was incorporated in British Columbia, Canada, on May 20, 2004 with up to 49 shareholders. (Ex. F, p. 7). The documents also include agreements between ZIL and dozens of individuals residing in Canada. (Ex. F pp. 22-32). Some of these agreements evidence loans made by individuals to ZIL at an interest rate of 12%. The remaining documents evidence share purchases for $9,000.00 in cash in 2004.

Claimants also include a confidentiality agreement between ZIL and Huynh and what appears to be a partnership agreement between the two. (Ex. F. pp. 17-20). This agreement appears to indicate that ZIL is in the business of "buying, selling, trading, and or licensing of new corporations and or enterprises" throughout North America in order to operate consignment depots for various items like cars and jewelry. Finally, the documents include an agreement between ZIL and Michel Jolicoeur wherein Jolicoeur would transport $675,000.00 to various locations in the United States at the direction of Huynh or ZIL. For this service, Jolicoeur would be paid $13,500.

In response to the Claimants' assertions regarding the legitimacy of the currency, the government highlights the suspect circumstances surrounding the transfer of money and casts doubt on the veracity of the documents used to support ZIL's claims that the funds were derived from investors in the corporation. The government first notes that it is undisputed that the drug detection dog, Rocco, made a positive alert to the money thus indicating that it was tainted with illegal drugs. The government notes that there are other indicators that the money is drug money -- for example, Huynh traveled from California, a drug source state, to the Midwest, a drug destination area, and was attempting to return to California with cash. The government further points out that there are inconsistencies between statements made by Huynh to Officer Thulen and Claimant's current arguments regarding the source and purpose of the money. Finally, the government contends that the cash was bundled in a way to prevent detection of drugs by a dog.

The government also counters the innocent ownership arguments made by Claimants. The government argues that the documents showing the legitimate source of the money are suspect as, based on its investigation, a number of the supposed investors have no knowledge of investing in ZIL. ZIL also failed to file income tax returns in accordance with Canadian law and further failed to comply with United State's law regarding the registration and transportation of money from a foreign source. Thus, the government argues that the subject funds can be linked to narcotics and that there is no legitimate source of the money.

STANDARD

Summary judgment should be granted where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). The moving party has the responsibility of informing the Court as to portions of the record that demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The movant may meet this burden by demonstrating "that there is an absence of evidence to support the nonmoving party's case." Id. at 325.

Once the movant has met its burden, to survive summary judgment the "non-movant must show through specific evidence that a triable issue of fact remains on issues on which [s]he bears the burden of proof at trial." Warsco v. Preferred Tech. Group, 258 F.3d 557, 563 (7th Cir. 2001); See also Celotex Corp. 477 U.S. at 322-24. "The non-movant may not rest upon mere allegations in the pleadings or upon conclusory statements in affidavits; it must go beyond the pleadings and support its contentions with proper documentary evidence." Chemsource, Inc. v. Hub Group, Inc., 106 F.3d 1358, 1361 (7th Cir. 1997).

This Court must nonetheless "view the record and all inferences drawn from it in the light most favorable to the [non-moving party]." Holland v. Jefferson Nat. Life Ins. Co., 883 F.2d 1307, 1312 (7th Cir. 1989). In doing so, this Court is not "required to draw every conceivable inference from the record -- only those inferences that are reasonable." Bank Leumi Le-Isreal, B.M. v. Lee, 928 F.2d 232, 236 (7th Cir. 1991). Therefore, if the record before the court "could not lead a rational trier of fact to find for the non-moving party," then no genuine issue of material fact exists and, the moving party is entitled to judgment as a matter of law. McClendon v. Indiana Sugars, Inc., 108 F.3d 789, 796 (7th Cir. 1997) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)). However, in ruling on ...


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