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United States v. Funds In the Amount of One Hundred Thousand and One Hundred Twenty Dollars ($100

United States District Court, N.D. Illinois, Eastern Division

February 11, 2015

UNITED STATES OF AMERICA, Plaintiff,
v.
FUNDS IN THE AMOUNT OF ONE HUNDRED THOUSAND AND ONE HUNDRED TWENTY DOLLARS ($100,120.00), Defendant, NICHOLAS MARROCCO and VINCENT FALLON, Claimants

         Order Filed: July 27, 2015

          For United States of America, Plaintiff: Daniel Edward May, LEAD ATTORNEY, Craig Arthur Oswald, United States Attorney's Office (NDIL), Chicago, IL; James Michael Kuhn, United States Attorney's Office (NDIL - Chicago), Chicago, IL.

         For Nicholas P Marrocco, Vincent J Fallon, Claimants: Stephen M. Komie, LEAD ATTORNEY, Brian Elliott King, Komie & Associates, Chicago, IL; Terry O'Donnell, Law Offices of Terry O'Donnell, Addison, IL.

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         ORDER

         John J. Tharp, Jr., United States District Judge.

         For the reasons set forth in the Statement below, Claimants' Motion for a Daubert Hearing [240] is denied as moot; Claimants' Motion in Limine to Exclude Evidence Pursuant to Rule 403 or Due to Spoliation [242] is denied; Claimants' Motion to Suppress Statements [244] is granted; the United States' Motion to Strike Expert Witnesses [246] is granted in part and denied in part; and the United States' Motion for Production of Tax Returns [248] is denied. A status hearing in this matter is set for February 25, 2015, at 9:30 a.m.

         STATEMENT

         On October 4, 2011, Judge Bucklo (who was then presiding in this case) granted summary judgment to the United States on its claim for forfeiture of $100,120 in currency seized from Vincent Fallon (one of the claimants in this case) on December 6, 2002, at Union Station in Chicago. See Summary Judgment Opinion, Dkt. 219. The currency was seized after, among other events, a drug-detection dog (named " Deny" ) alerted to a briefcase containing the currency. The details of the alert, and other facts relating to the seizure and the forfeiture claim, will be discussed below only to the extent necessary to resolve the present disputes.

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          In an opinion issued on September 19, 2013, the Seventh Circuit reversed the grant of summary judgment. United States v. Funds in the Amount of One Hundred Thousand One Hundred & Twenty Dollars ( Funds II ), 730 F.3d 711 (7th Cir. 2013).[1] The Seventh Circuit reversed on two grounds. For the first, which is relevant here only to the government's motion for production of tax returns, the Seventh Circuit held that there is a dispute of material fact as to whether the seized funds had a legitimate source; Nicholas Marrocco (the other claimant in this case) had stated, in his deposition testimony and in an affidavit supporting his opposition to summary judgment, that the funds came from savings he had accumulated over the course of the 10-12 years before the seizure. The second ground for reversal was the Seventh Circuit's holding that expert evidence submitted by the claimants, if admissible, creates material issues of fact as to whether the seized funds had recently been in contact with illegal drugs at the time of the seizure.[2] More specifically, the Funds II panel held that the proffered expert evidence raises material fact issues as to (1) " [whether] drug-dog alerts to currency are in general (and, a fortiori, Deny's alert in particular) reliable evidence that the currency recently has been in contact with illegal drugs," 730 F.3d at 721, and (2) " whether Deny's training was adequate," id. at 725.

         The Seventh Circuit issued its remand mandate on November 12, 2013. Mandate Notice, Dkt. 234. Seven months later, a period during which there was no discernable activity, this case was reassigned to this Court's docket on June 13, 2014. At a status hearing on August 5, 2014, the Court set a deadline of November 5, 2014, for the filing of pretrial motions, including Daubert motions and any other substantive motions. The parties filed a series of motions by that deadline. First, the claimants challenge the admissibility of evidence they expect the government to introduce relating to the dog alert on the seized currency (Dkt. 240). The claimants have also moved to bar that evidence as unduly prejudicial under Rule 403 or as a spoliation sanction based on the government's failure to preserve the seized currency, or in the alternative for a spoliation instruction (Dkt. 242). In addition, the claimants seek to suppress statements Fallon made to law enforcement agents after they had seized the briefcase containing the funds and taken it to an office in the Amtrak station (Dkt. 244). For its part, the United States has moved to strike two experts on issues relating to drug-dog alerts who have only recently been disclosed by the claimants (Dkt. 246) and for the production of Marrocco's federal income tax information for the years 1991 through 1998 (Dkt. 248).

         1. Claimants' Challenges to the Dog-Alert Evidence (Dkts. 240 and 242)

         The claimants' motions relating to drug-dog alerts arise from the fact that the government intends to " present evidence, through the testimony of the dog handler,

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and documents, about the dog's training, certification, history, past performance, reliability, and the alert to the money in this case." Govt. Resp., Dkt. 251, at 3. The government's position, in short, is that Deny was adequately trained to alert to the presence of various illegal drugs and that his alert on the briefcase is therefore reliable evidence that the currency was connected to drug trafficking activity.

         As discussed in the Seventh Circuit's Funds II opinion, the claimants challenge the probative value of the dog-alert evidence by invoking the " currency contamination theory." Funds II, 730 F.3d at 719-22. That theory posits that most paper currency in circulation in the United States is contaminated with trace quantities of illegal drugs, most often, cocaine.[3] If drug-contaminated currency is ubiquitous, as the theory posits, then an alert on the currency offers no probative value to establish that the currency was recently connected to drug trafficking. The claimants have offered expert evidence to support the currency contamination theory, evidence which the Seventh Circuit held in its opinion is sufficient to create a fact issue--if the evidence is admissible. Id. at 721 n.13.

         In their current Daubert motion (Dkt. 240) and motion in limine (Dkt. 242), the claimants continue their attack on the evidence of the drug-dog alert.

         A. Claimants' Daubert Motion

         The claimants seek to bar evidence of the so-called " Furton theory" to rebut the currency contamination theory. Dkt. 240, ¶ ¶ 11, 25, 27-28. In their Daubert motion, they assert that Deny's handler, Officer Richard King, is not competent to offer opinion testimony as to what the dog was alerting to ( i.e., the presence of illegal drugs or something else), both because the dog's training does not provide an adequate basis to support that inference and because King is not " an expert in canine olfaction, scientific statistical analysis, or the chemical composition of any illegal narcotics allegedly contaminating the briefcase." Id. ¶ 23. The claimants assert, therefore, that no evidence of the dog's alert should be admitted at all.

         In response, the government first asserts that the claimants' motion for a Daubert hearing is barred by the " law of the case" doctrine because Judge Bucklo previously denied a substantially similar motion. See Govt. Resp., Dkt. 251, at 3-4. That much is true: on May 27, 2010, Judge Bucklo, relying on the Seventh Circuit's opinion in United States v. $30,670, 403 F.3d 448 (7th Cir. 2005), held that " the government is not obligated to reinvent the wheel by proving . . . that the practice of using dogs to ferret out currency recently in contact with drugs is generally accepted." May 27 Order, Dkt. 166, at 1. Although this language harkens back to the long-discarded Frye test of whether an expert theory is " generally accepted," see Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), the Court interprets the ruling to mean that Judge Bucklo concluded that the scientific reliability of drug-dog alerts to currency had been conclusively accepted in $30,670 and other cases in which such evidence had been found to have probative value.

         Nevertheless, the government's " law of the case" argument is wrong--profoundly and disturbingly so. In Funds II the Seventh

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Circuit expressly rejected Judge Bucklo's (and the government's) reading of $30,670. The Funds II panel explained that the holding in $30,670 was based solely on " the empirical information presented in that case" and expressly rejected Judge Bucklo's conclusion that " $30,670 precluded Marrocco from offering expert evidence attacking the reliability of drug-dog alerts to currency in general." Funds II, 730 F.3d at 720, 721 n.13. The government's argument that there can be no generalized challenge to the probative value of a dog's alert is squarely foreclosed by the Seventh Circuit's opinion remanding the case to this Court.

         In reversing the grant of summary judgment for the government, moreover, the Seventh Circuit also made clear that the proper procedure for mounting such a challenge to the reliability of drug-dog alerts to currency is by means of a Daubert hearing, noting that " [n]othing in $30,670 precludes [a claimant] from offering expert evidence . . . challenging the conclusion that drug-dog alerts to currency are probative of whether 'the most recent holder of the currency was involved with illegal narcotics activity.'" Funds II, 730 F.3d at 720 (quoting $30,670, 403 F.3d at 456). The Seventh Circuit further stated that " on remand the district court can resolve whether Marrocco's expert evidence and the government's expert evidence . . . are admissible under Daubert and Rule 702." Id. at 721 n.13. Notwithstanding this clear instruction that the competing expert evidence offered by the parties as to the probative value of a drug dog's alert should be resolved by means of Daubert challenges, the government nevertheless maintains that a Daubert hearing is the " wrong procedural vehicle" to challenge a canine's reliability.[4] Govt. Resp., Dkt. 251, at 4.

         The government invokes the Supreme Court's opinion in Florida v. Harris, 133 S.Ct. 1050, 185 L.Ed.2d 61 (2013), to support its argument that " the science behind the admissibility of dog sniff evidence has been found reliable," Govt. Resp., Dkt. 251, at 6, but its reliance on Harris --which did not involve a dog alert to currency--is misplaced. In Harris, the Court found that an alert by an adequately trained dog, unrebutted by opposing evidence, can support a finding of probable cause. But the Court expressly held that those opposing introduction of evidence of a drug-dog alert " must have an opportunity to challenge . . . evidence of a dog's reliability, whether by cross-examining the testifying officer or by introducing [their] own fact or expert witnesses." 133 S.Ct. at 1057. The Court therefore plainly contemplated expert challenges to the reliability of dog alerts and, moreover, said nothing that can be read to preclude any sort of challenge to the scientific reliability of dog-alert evidence generally, or to dog alerts to currency specifically. The Court was not presented with, and did not consider, any scientific evidence relating to a dog's ability to detect cocaine and did not limit its confirmation of the right to challenge the reliability of a dog's alert in any way. The government's contention that Harris precludes such challenges is particularly untenable given the fact that Funds II --which plainly permits such challenges--came out after, thoroughly discussed,

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and relied on Harris in reversing the grant of summary judgment in the government's favor. See Funds II, 730 F.3d at 724.

         This Court is at a loss to understand how, in light of the Seventh Circuit's opinion and remand, the United States could maintain that " law of the case" bars the claimants' objections and request for a Daubert hearing. Its insistence on spitting into the wind, moreover, has substantially damaged its case. Because the government has continued to maintain that the general reliability of dog-sniff evidence cannot be challenged, it has not bothered to challenge the admissibility of the expert evidence that the claimants offered in opposition to the summary judgment motion--even though the Seventh Circuit expressly conditioned its ruling that the evidence created a material dispute of fact on whether that evidence is admissible under Daubert and Rule 702. That determination had not been made in this case--until now. Having failed to contest the expert evidence previously offered by the claimants--specifically, the opinion testimony of Sanford Angelos, Dr. Lawrence Myers, and David Kroyer--the United States has forfeited any objection to the admissibility of that evidence under Rule 702.

         The government has similarly forfeited the opportunity to offer evidence to establish that " the science behind the admissibility of dog sniff evidence" is sound. The claimants seek to bar introduction by the government of any evidence of the so-called " Furton theory" to rebut the claimants' " currency contamination theory." As the Funds II panel explained, in $30,670 :

the government cited research by Dr. [Kenneth] Furton and others that concluded that drug dogs do not sniff cocaine per se, but rather methyl benzoate (a byproduct of cocaine undergoing hydrolysis due to the presence of moisture in the air). Dr. Furton stated that methyl benzoate evaporates quickly from the surface of currency, and consequently that currency exposed to cocaine could only be detected by a drug dog shortly after exposure. Thus, Dr. Furton concluded that drug-dog alerts to currency are generally probative evidence that the currency recently was in contact with cocaine.

730 F.3d at 719 (citations omitted). The Seventh Circuit has expressly confirmed that a Daubert challenge to " the government's evidence (that is, Dr. Furton's research)" is permissible. Id. at 721 n.13 But so far as the Court can see, the government has never actually offered any expert evidence concerning Dr. Furton's theory in this case. Rather, as the Seventh Circuit's opinion reflects, it is only " [ t ] hrough its reliance upon $30,670 " that the government has advanced Dr. Furton's research, id. at 721 (emphasis added), and even in $30,670, Dr. Furton's research was at issue not because the government presented it in the trial court but because on appeal the Seventh Circuit invited the parties to submit additional briefs on the question of " the probity of dog alerts to currency," 403 F.3d at 453-54. Based solely on the " publicly available empirical information" about dog alerts to currency that the parties subsequently presented, the appellate panel in $30,670 found that " dog alerts to currency should be entitled to probative weight." Id. at 454, 460. In this case, however, the Seventh Circuit has expressly held that the claimants' evidence " raises questions about the scientific validity of [a] finding that drug dogs only alert to methyl benzoate" and is sufficient, if admissible, to create a fact issue as to the reliability of the dogalert evidence in this case (and more generally). Funds II, 730 F.3d at 721.

         Thus, although the Seventh Circuit's opinion in this case plainly anticipated

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evaluation of the Furton theory on remand, the government has never offered any evidence in support of that theory. There is, therefore, nothing to evaluate. The government's failure to offer any expert testimony in support of the theory before remand might be explained, in part, by the Seventh Circuit's use of publicly available information (rather than expert opinion evidence developed in the trial court) to support its appellate findings in $30,670 concerning the reliability of dog-alert evidence. Based on those findings, Judge Bucklo concluded that there was no need for the government to introduce expert evidence to establish the scientific reliability of a drug-dog alert. See May 27 Order, Dkt. 166, at 1 (citing $30,670 and concluding that " the government is not obligated to reinvent the wheel by proving, in each case in which it seeks to introduce the results of a dog sniff, that the practice of using dogs to ferret out currency recently in contact with drugs is generally accepted" ). Accordingly, the government introduced none.

         Whatever the propriety of the appellate fact finding conducted in $30,670, nothing in that opinion (or any other, to this Court's knowledge) authorizes a party to present expert opinion testimony by reference to publicly available materials in lieu of the testimony of an expert qualified to offer opinion testimony under the requirements of Rule 702 and Daubert. And in any event, none of this explains the government's failure to offer any further expert evidence of its own after the remand in this case, or even to request an opportunity to do so, when the Seventh Circuit explicitly rejected Judge Bucklo's reasoning and held that this Court can consider and resolve challenges to expert testimony from both parties as to the general probative value of drug-dog alerts to currency. Rather than fight the battle that is required by the Seventh Circuit's rationale in Funds II, the government has steadfastly insisted that it need only rely on evidence of the drug dog's performance in training. Having neither disclosed expert evidence following remand, nor requested an opportunity to do so, the government has forfeited that opportunity. There is, accordingly, no need for a Daubert hearing as to " the government's expert evidence" on the Furton theory: there is no such evidence.

         Taking the proposition that dog-alert evidence is reliable as a given (based on its obstinately erroneous reading of $30,670 and misplaced reliance on Harris ), the government intends to rely solely on the testimony of Officer King and documentation of Deny's training to establish the probative value of Deny's alert to the currency seized in this case. King will describe " the dog's training, certification, history, past performance, reliability, and the alert to the money in this case." Govt. Resp., Dkt. 251, at 3. Thus, the government responds to the claimants' objections to the admissibility of testimony from King by contending that he has not offered any opinion testimony. Govt. Resp., Dkt. 251, at 6-7 (explaining that King will not offer " scientific" knowledge and that his testimony will be based on his personal observation of Deny's training performance).[5]

         That assertion is largely, but not entirely, correct. The mistake the government makes is assuming that all of King's testimony about Deny's performance qualifies as non-expert testimony. While much of the testimony in the affidavits King has

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offered relates to the dog's past performance on tests and in the field and is therefore fact rather opinion testimony,[6] some of it--principally his statements to the effect that " Deny was trained to alert to the presence of the odor of illegal drugs" and " Deny's actions indicated a positive alert for the presence of the odor of illegal drugs," June 24 King Affidavit, Dkt. 240-1, ¶ ¶ 7, 21--plainly constitutes opinion evidence about the identity of the chemical substance to which the dog was alerting; this type of testimony rests on conclusions about how and what dogs smell, and how they react to known odors, that are beyond the ken of lay witnesses. That opinion testimony is, as Funds II confirms, properly the subject of a Daubert challenge. The claimants' lead motion (Dkt. 240), timely filed in accordance with the schedule entered by this Court, makes that challenge, and the government has done nothing in response to establish that King is competent to offer those opinions, relying instead on its utterly untenable view, rejected by the Seventh Circuit in Funds II, that $30,670 forecloses any challenge to the probative value of a drug dog's alert to currency. Officer King will therefore be precluded from offering any opinion as to what substance Deny was alerting to, whether in training exercises or in the field. Accordingly, no Daubert hearing is required with respect to his testimony, and the claimants' motion for a Daubert hearing is denied as moot.

         B. Claimants' Motion in Limine

         The claimants' motion in limine seeks to bar the admission of any evidence concerning Deny's alert on the funds. Although King will be precluded from offering opinion testimony about the alert because he has not been established as an expert witness, the Court will permit the introduction of King's non-expert testimony on this subject (and other relevant subjects). Non-expert testimony, by definition, is not subject to Rule 702; its admissibility is determined by its relevance and potential for unfair prejudice under Rules 401 and 403, respectively.

         The claimants' primary argument in their motion in limine is that Deny's alert was " so unreliable, that even if relevant, its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury." Dkt. 242, ¶ 39. Evidence that Deny located the seized currency is plainly relevant to the question of whether the currency (or briefcase) had recently been in close connection with illegal drugs. The claimants do not seriously argue otherwise and it would be difficult to do so in view of the Supreme Court's holding in Harris that a dog alert has some probative value " even in the absence of formal certification, if the dog has recently and successfully completed a training program that evaluated his proficiency in locating drugs." 133 S.Ct. at 1057.[7] That is also why, in

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reversing the grant of summary judgment for the government in this case, the Seventh Circuit cited both the claimants' evidence of inadequate training, and King's testimony about Deny's training, as evidence relevant to the disputed fact question of the dog's reliability. See, e.g., Funds II, 730 F.3d at 724 (citing King's testimony that Deny was proofed off of untainted currency).

         Instead, the claimants purport to challenge the admissibility of evidence concerning Deny's training and performance under Rule 403. The gist of their Rule 403 challenge appears to be that there are so many deficiencies with Deny's training that the probative value of the alert is minimal and is therefore " substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury." Dkt. 242, ¶ 39. The claimants do not, however, explain how or why evidence of the dog's alert would mislead jurors, particularly in light of the unrebutted expert testimony that the claimants will be able to marshal to highlight deficiencies in Deny's training. In essence, the claimants' Rule 403 argument is really an argument for judgment as a matter of law, asserting that the government's evidence is so wanting that no reasonable juror could conclude that the dog's alert was reliable. In Funds II, however, the Seventh Circuit has already held that the adequacy of Deny's training presents a material fact dispute that must be resolved by the jury. Accordingly, the motion to exclude evidence of Deny's alert on this basis is denied.

         The claimants' alternative argument in their motion in limine is that evidence of Deny's alert should be barred as a sanction for the government's failure to preserve the seized currency. Rather than preserve those notes, the government deposited the funds with a bank. The claimants contend that by depositing the funds, the government intentionally destroyed critical evidence in the case and prevented the claimants from conducting their own testing of the currency. As a result, they contend, the Court should bar " the introduction of the dog sniff and currency evidence" as a spoliation sanction. Dkt. 242, ¶ 56. Alternatively, the claimants seek a jury instruction regarding spoliation (though they did not actually propose one). Id. ¶ 57.

         The government responds to the spoliation claim by relying again on " law of the case." Here, at least, the argument has a basis in fact. The claimants previously presented a spoliation motion to Judge Bucklo, who denied it in a ruling that is not directly implicated by the Seventh Circuit's opinion in Funds II. See May 27 Order, Dkt. 166, at 1-2. Judge Bucklo concluded that the spoliation argument was " without merit" because the government had not acted in " bad faith" by depositing the currency into a bank account " pursuant to Department of Justice policy" and the currency itself had no evidentiary value. Id. Nevertheless, this Court has substantial questions about both grounds of the prior ruling.

         As to the first, the government's response to the motion states that it is " department policy that cash is generally not to be retained by an agency." Govt. Resp., Dkt. 252, at 12-13. The response does not identify any such " general" policy, however, nor does it describe the exceptions to that " general" policy. Further, if the policy requires the deposit into a bank account of physical currency that has evidentiary value apart from its amount,

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the government has not provided any rationale that would justify such a policy. It makes sense, of course, for money to earn interest rather than sitting in the form of bundles of cash in an evidence vault, but the government's interest in earning interest on cash, before its lawful ownership of that cash has even been established, does not justify the destruction of evidence that has, or may have, significant probative value.[8] The existence of a statutorily-established seized assets fund does not mandate, or even support, the government's action in failing to preserve the currency; the statute in no way suggests that currency with evidentiary value should be deposited into the Treasury. See 28 U.S.C. § 524(c). To the contrary, Department of Justice policy has recognized that the fund is " 'a holding account for non-evidentiary cash.'" United States v. $277,000, 69 F.3d 1491, 1494 (9th Cir. 1995) (emphasis added). In short, the government has produced no evidence of any policy of the Department of Justice that requires, or advises, that currency with evidentiary value should be deposited in banks rather than be preserved as evidence, and it is difficult to imagine that the department in fact has a policy of destroying probative evidence.

         And to the extent that Judge Bucklo accepted the government's argument that the currency seized in this case had no independent evidentiary value, this Court respectfully, but adamantly, disagrees. The forfeiture claim in this case largely turns on whether the currency was contaminated with illegal drugs; absent such contamination, there is not an adequate evidentiary basis to link the currency to drug trafficking. The government seeks to rely exclusively on the drug-dog alert to establish that connection, but the best evidence as to whether the currency was contaminated with illegal drugs would be derived from testing the currency itself--testing that was never done and now cannot be done because the government intentionally failed to preserve the currency. As the Seventh Circuit observed in Funds II, " [b]y failing to perform such testing (and failing to preserve the Funds until the conclusion of this proceeding), the government eliminated laboratory testing as a source of evidence." 730 F.3d at 720 n.9. And in eliminating the possibility of laboratory testing, the government deprived the claimants of the ability to discover whether the currency was actually contaminated by any drugs.[9]

         The government apparently maintains that Deny alerted to methyl benzoate evaporating from the currency (though, as discussed above, it has not produced any evidence in support of that theory) and that because that evaporation proceeds quickly, preserving the currency was unnecessary because the evaporation process ended before any testing could be done. But that only means that testing could not have proved the government's theory. It says nothing about whether testing could have supported the claimants' theory (either affirmatively or by undermining the government's theory). Had the currency been tested and found to contain drug contaminants at levels typically found on

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circulated U.S. currency, the claimants would have had support for their " contaminated currency" argument; if the currency proved to be contaminated by a drug other than cocaine, the irrelevance of the Furton theory would have been confirmed; [10] if it revealed that there was no drug contamination on the notes, the claimants' contention that the dog alerted to something else entirely ( e.g., the ink on the notes, other contaminants on the notes or on the briefcase, or cueing by one or more officers) would have been strengthened. Other forms of testing might have been pursued as well. The claimants, for example, could have sought to conduct another controlled test of Deny's ability to detect the seized currency; if the dog detected the currency some months after it was seized, their argument that the dog originally alerted to something other than methyl benzoate would have been strengthened. Any of these results could have damaged the government's forfeiture claim.[11]

         The government opposes the imposition of a spoliation sanction by arguing that under Seventh Circuit law, spoliation cannot be inferred absent a finding of bad faith--meaning that the evidence was intentionally destroyed to prevent its discovery by the opposing party. That point is debatable,[12] but in any event the premise that the government did not act in bad faith here is not self-evident. As noted above, there is no evidence whatsoever of a government policy that justifies the government's course of conduct. And as for the contention that the government did not intend to deprive the claimants of potentially probative evidence, the claimants point out that if the briefcase had contained actual drugs, rather than (allegedly) drug-tainted currency, the government would never have relied on Deny's alert to establish that the substance found in the

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briefcase was an illegal drug. Instead, the government would have preserved and tested the seized substance in order to identify it. The government's approach should have been no different here.[13] But it was, and one is left to wonder why the government proceeded differently here, if not to avoid the possibility that more probative examination of the currency in a laboratory might reveal evidence that would undermine the value of the dog's alert.

         Nevertheless, the Court is constrained to agree with the government's law-of-the-case response on this issue and, accordingly, must deny the motion to exclude evidence of Deny's alert as a spoliation sanction as well as the request for a spoliation instruction. Notwithstanding this Court's disagreement with Judge Bucklo's prior ruling denying the claimants' spoliation motion, that ruling remains the law of the case because the claimants did not appeal it. An appeal from a final judgment encompasses all rulings by the district court. See, e.g., Glass v. Dachel, 2 F.3d 733, 738 (7th Cir. 1993) (" [W]hen the appellant appeals the final judgment, that judgment necessarily incorporates all earlier interlocutory decisions." ); Chaka v. Lane, 894 F.2d 923, 925 (7th Cir. 1990) (" [T]he single final judgment incorporates earlier interlocutory decisions . . . ." ). In failing to raise on appeal the ruling on their spoliation motion, the claimants forfeited any right to subsequently challenge that ruling. See, e.g., Hojnacki v. Klein-Acosta, 285 F.3d 544, 549 (7th Cir. 2002) (" A party waives any argument that it does not raise before the district court or, if raised in the district court, it fails to develop on appeal." ); United States v. One 1987 Mercedes Benz Roadster, 2 F.3d 241, 243 (7th Cir. 1993) (" Because the [party that lost the motion] decided not to prosecute the appeal, it has accepted the district court's opinion as the law of the case." ). Were the Court writing on a clean slate, however, it would grant the claimants' motion and bar the admission of the dog-alert evidence in this case based on the government's failure to preserve the seized currency. In this Court's view, the failure to preserve the currency seized in this case evinces utter indifference to the rights of the claimants. The government had a duty to preserve evidence potentially relevant to its forfeiture claim and the currency unquestionably constitutes such evidence. It should have been preserved.

         2. Government's Motion to Strike Previously Undisclosed Experts (Dkt. 246)

         As noted above, the claimants presented reports from three experts in opposing summary judgment: Sanford Angelos, a forensic chemist, David Kroyer, a certified drug-dog training and behavior consultant, and Dr. Lawrence Myers, a veterinarian and neurophysiologist. Although the government has not lodged any Daubert challenges as to these experts, it objects to the claimants' post-remand disclosure of two additional experts: Andre Falco Jimenez, a " certified canine specific odor detection trainer," and Dr. Warren James Woodford, a forensic chemist and licensed researcher " working in the field of odor science." Govt. Mem., Dkt. 247, at 4 (internal quotation marks omitted). The government maintains that the disclosure of these witnesses at this stage of ...


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