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United States of America v. Funds In the Amount of One Hundred Thousand and One Hundred Twenty

October 4, 2011

UNITED STATES OF AMERICA PLAINTIFF,
v.
FUNDS IN THE AMOUNT OF ONE HUNDRED THOUSAND AND ONE HUNDRED TWENTY DOLLARS ($100,120 U.S.C.),
DEFENDANT.



The opinion of the court was delivered by: Elaine E. Bucklo United States District Judge

MEMORANDUM OPINION AND ORDER

This civil forfeiture action pursuant to 21 U.S.C. § 881(a)(6), in which the government seeks the forfeiture of funds it claims were "furnished or intended to be furnished in exchange for a controlled substance, are proceeds from the sale of a controlled substance, or were monies used or intended to be used to facilitate narcotics trafficking," was filed in this court more than eight years ago. After a peripatetic journey in this court and one stop in the court of appeals, it is now ripe for decision on the government's pending motion for summary judgment. For the reasons that follow, I grant the motion.

I.

On the morning of December 6, 2002, DEA Task Force Agent Officer Romano searched the passenger manifest of an Amtrak train scheduled to depart Chicago's Union Station for Seattle later that day. He discovered that a passenger named Vincent Fallon had purchased a one-way, first class ticket with cash less than seventy-two hours before the train's scheduled departure, and he concluded that these details fit the drug-courier profile. Shortly before the train's departure, Officer Romano, accompanied by another DEA agent, Officer Terry, approached Mr. Fallon's compartment. The officers identified themselves, said they were conducting a routine check, and asked whether they could ask Mr. Fallon some questions. Mr. Fallon complied with their request, and further agreed to show the officers his identification and ticket. Mr. Fallon told the officers that he was traveling to Seattle to visit a female friend, and that he planned to stay for about a week.

The officers asked whether Mr. Fallon was carrying any drugs, weapons, or large sums of money, to which he replied that he was not. Officer Romano noticed that Mr. Fallon was sweating. The officers then asked about the backpack and briefcase in Mr. Fallon's compartment. Mr. Fallon said that the items belonged to him, that he had packed them, and that no one had given him anything to carry. Mr. Fallon consented to a search of the backpack, which produced nothing untoward, but he declined to allow the officers to search the briefcase. Officer Romano reached into Mr. Fallon's compartment and picked up the briefcase. Finding it locked, he asked Mr. Fallon about its contents. Mr. Fallon replied that it contained "personal effects," which he further stated were "the entirety of the purpose that [he] was taking the train." Mr. Fallon stated that he did not have a key to the briefcase, and that he used a knife to open it. Upon further questioning, Mr. Fallon admitted that the briefcase contained money, "about $50,000," which he said he planned to use to purchase a house in Seattle. At that point, Agent Romano told Mr. Fallon that the briefcase and its contents would be detained for further investigation and instructed Mr. Fallon to accompany the officers inside the station.

Officer Romano then contacted the Chicago Police Department to request that a drug detection dog be sent to Union Station. Inside the station, Officer Romano used a knife to open the briefcase and saw that it contained bundles of cash. Officer Romano quickly closed and latched the briefcase without removing its contents.

Shortly thereafter, Chicago Police Canine Officer Richard King arrived at Union Station. After a brief discussion with Officer Romano, during which Officer King observed the briefcase containing the money,*fn1 Officer King left to retrieve his dog, "Deny,"*fn2 while Officer Romano hid the briefcase in a room known as the "roll call" room. The roll call room contained a counter top extending along the length of one wall, upon which sat a fax machine and a computer, and beneath which were several storage cabinets with hinged doors. On the other side of the room was a table, a copy machine, and several filing cabinets. Officer Romano hid the briefcase behind the closed door of one of the cabinets.*fn3

After the briefcase had been hidden, Officer King entered the roll call room with Deny and commanded him to search for drugs. Whether Deny went straight to the cabinet containing the briefcase or, instead, sniffed about the roll call room before proceeding to the cabinet is in dispute. But the evidence is uncontroverted that Deny "alerted" to the cabinet door by scratching and pulling at it, then, after opening the cabinet door, alerted to the briefcase itself by scratching and biting it.*fn4 Deny did not alert to any other area or item in the roll call room.

The government subsequently learned that contrary to Mr. Fallon's initial statements to the officers, neither the briefcase nor its contents belonged to him. In fact, Mr. Fallon picked up the briefcase containing the money from claimant Nicolas Marrocco's house the day before Mr. Fallon was scheduled to travel to Seattle. Mr. Fallon had agreed to deposit the money, which belonged to Mr. Marrocco, in a safety-deposit box in Seattle.

Mr. Marrocco claims that he has never been in the business of selling drugs, and that the money in the briefcase represents a portion of his savings from lawful employment over the course of his life. Mr. Marrocco testified that he kept his savings at home, in a shoe box, because he had not had any bank accounts since at least 1992. The documentary evidence of Mr. Marrocco's income does not cover the entire period during which he claims to have amassed $100,120 in savings. But his 1999 federal income tax return states an adjusted gross income of $40,500; his 2000 federal income tax return states an adjusted gross income of $39,000; his 2001 W-2 form states that his gross pay for that year was $35,000; and records from Bloomingdale's Pizza (where Mr. Marrocco was employed from 1999 until April of 2002), show that his gross pay for 2002 was $9,643.57. Mr. Marrocco was unemployed between April of 2002 and December of 2002, when the funds were seized. Mr. Marrocco testified that his monthly living expenses for the 2000-2003 period were approximately $2,375 (although he later disavowed that estimate, claiming that his rent was sometimes lower than the $1,400 he estimated as part of the $2,375 total, and further asserting that his parents or his employer sometimes paid his rent and other expenses).

Based on the foregoing evidence, the government calculates what it calls Mr. Marrocco's "take-home" pay by subtracting federal, state, and FICA taxes from Mr. Marrocco's gross earnings, then adding back his tax refunds, and concludes that Mr. Marrocco's living expenses exceeded his lawful net income by over $20,000 for the 1999-2002 period. Claimants object to the government's use of its own calculations, and they further object that Mr. Marrocco's earnings and expense history over a longer period should be considered. But claimants do not offer any evidence of specific, additional income for Mr. Marrocco for any time period, other than Mr. Marrocco's testimony that his parents gave him approximately $40,000 ("a very general guesstimate") during the 1999-2003 time frame, and that he was working towards partnership in a pizza franchise that "did" $1.6 to $1.8 million a year. Claimants further state that Mr. Marrocco "moonlighted" at several jobs for an unspecified time period after leaving college, but they offer no evidence of what his income may have been during that time. Claimants also point to Mr. Marrocco's testimony that he lived "rent free and virtually expense free" at his parents' home from approximately 1992-1997.

II.

Summary judgment is appropriate when "there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). I must construe all facts in the light most favorable to the claimants, but I am "not required to draw every conceivable inference from the record." U.S. v. Funds in Amount of Thirty Thousand Six Hundred Seventy Dollars, 403 F.3d 448, 454 (7th Cir. 2005) ("$30,670") (quoting Bell v. Duperrault, 367 F.3d 703, 707 (7th Cir. 2004).

To prevail on its claim of forfeiture, the government must prove, by a preponderance of the evidence, that there was "a substantial connection between" the seized funds and the commission of a drug-related offense. 18 U.S.C. § 881(a)(6); $30,670, 403 F.3d at 454. The Seventh Circuit has already concluded that Mr. Fallon's suspicious travel arrangements were consistent with the drug courier profile, and that this profile, combined with Mr. Fallon's "conflicting responses when questioned about the briefcases's contents,"*fn5 warranted a reasonable suspicion that the briefcase contained contraband. U.S. v. Marrocco, 578 F.3d 627, 633 (7th Cir. 2009)("Marrocco"). In addition, the government argues 1) that Deny's alert is reliable and persuasive evidence that the money in the briefcase had recently been in contact with a controlled substance; and 2) that the evidence does not support claimants' assertion that the money came from a lawful source. Taken together, the government argues, these factors lead to only one reasonable conclusion: that the seized funds were substantially connected to a ...


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