Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

United States v. $23

November 17, 2008

UNITED STATES OF AMERICA, PLAINTIFF,
v.
$23,500 IN UNITED STATES CURRENCY, DEFENDANT,
HARRY WESLEY SWIFT, CLAIMANT.



The opinion of the court was delivered by: Blanche M. Manning United States District Judge

MEMORANDUM AND ORDER

On March 1, 2007, the government seized $23,500 from the claimant, Harry Wesley Swift, at Union Station. The government subsequently filed a forfeiture complaint against the money pursuant to 21 U.S.C. § 881(a)(6), alleging that it was furnished or intended to be furnished for a controlled substance. The government's motion for summary judgment is before the court. For the following reasons, the motion is granted.

I. Background

A. Local Rule 56.1

Local Rule 56.1(b) requires a party opposing a motion for summary judgment to file "a concise response to the movant's statement that shall contain: . . . (B) a response to each numbered paragraph in the moving party's statement, including, in the case of any disagreement, specific references to the affidavits, parts of the record, and other supporting materials relied upon, and (C) a statement, consisting of short numbered paragraphs, of any additional facts that require the denial of summary judgment, including references to the affidavits, parts of the record, and other supporting materials relied upon . . . . All material facts set forth in the statement required of the moving party will be deemed to be admitted unless controverted by the statement of the opposing party." Local Rule 56.1(b)(3)(B) & (C).

Swift's Local Rule 56.1(b) statement contains two kinds of responses. First, Swift restates portions of the government's facts but does not agree or disagree with the entire statement, and does not point to any evidence regarding the portion he has ignored (e.g., "Swift agreed to accompany the agents to the DEA office located at Union Station in order to determine the origin of the money" turns into "Agrees that he voluntarily accompanied the agents to the DEA office in Union Station"). See Government's Rule 56.1(a) Statement and Swift's Rule 56.1(b) statement at ¶ 12. Second, Swift states that he lacks sufficient information to respond and demands an opportunity to cross-examine witnesses regarding the evidence specified by the government. See, e.g., id. at 19 (Swift "cannot agree or disagree with the allegations contained in this paragraph, but demands an opportunity to cross-examine any witness testifying to these points").

Both of these types of responses are at odds with clear and extensive Seventh Circuit precedent. It is well-established that a party opposing summary judgment must admit or deny each fact in the movant's statement of facts and cite to supporting evidence, Local Rule 56.1(b)(3)(A), so the failure to include "specific references to the affidavits, parts of the record, and other supporting materials relied upon" in support of a denial may cause the movant's facts to be deemed admitted to the extent that they are supported by the record. Brasic v. Heinemann's Inc., 121 F.3d 281, 284 (7th Cir. 1997); Raymond v. Ameritech Corp., 442 F.3d 600, 608 (7th Cir. 2006) (unsupported denials will be deemed to be admissions). Because Swift's denials do not direct the court to any evidence in support and the government's statement of facts is supported by corresponding evidence, all of the facts in the government's Local Rule 56.1 statement are deemed admitted. With that in mind, the court will summarize the relevant facts.

B. Facts

On March 1, 2007, DEA agents assigned to the DEA Transportation Interdiction Group at Amtrak Union Station in Chicago, Illinois, screened the passenger manifest for that date and observed that Swift had purchased a first class ticket with cash the day before his departure from Pittsburgh, Pennsylvania to Tucson, Arizona via Chicago, Illinois. At approximately 1:45 p.m. on March 1, 2007, DEA law enforcement officers located Swift on board Train Number 21 in his sleeping car room.

The DEA agents identified themselves by displaying their credentials, explained that Swift was not under arrest, and asked to see his identification and train ticket. When the agents asked Swift why he was traveling, Swift told them that he was traveling to Arizona to visit family. In response to the agents' questions, Swift indicated that he only had carry-on luggage and that he was carrying $20,000 in cash. In addition, Swift told the agents that he was employed as a steam cleaner and intended to use the money to invest in real estate in Arizona, but said he could not provide documentation for the money from banks or any other financial institutions to show ownership because he did not like banks.

After Swift consented to a search of his luggage, the agents found five bundles of United States currency totaling $23,500 stuffed in socks and the pockets of pants that were packed in his luggage. Swift agreed to accompany the agents to the DEA office located at Union Station in order to determine the origin of the currency. While at the DEA Office, Swift read and signed a statement of rights form. He then told the agents that all of the currency was not his, and explained that his business partner, who was a tree trimmer, had loaned him about $12,000 to buy property in Arizona. Swift could not provide any further information about his partner. However, he advised the agents that he earned about $18,000 a year as a self-employed steam cleaner, had not filed for taxes in over three years, and had a girlfriend who earned approximately $8/hour.

Special Agent Robert Glynn then arrived on the scene with Rudy, a DEA detector dog, who conducted a narcotic odor investigation on the currency. The DEA certifies narcotic detector dogs annually, and Rudy's last certification prior to March 1, 2007, was in February of 2007. Glynn advised the agents that Rudy had given a positive alert on the seized currency. As of September of 2007, Rudy had made over 50 narcotic finds on currency. Rudy has had no false positives and has had several instances of no detection.

Pursuant to 21 U.S.C. ยง 881(a)(6), the government filed a forfeiture action against the $23,500 seized from Swift, alleging that the defendant currency was furnished or intended to be furnished for a controlled substance. The government submitted written discovery to Swift, who responded by invoking his Fifth Amendment privilege. The ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.