United States v. $493,850.00 in U.S. Currency

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v. No. 06-15225

$493,850.00 IN U.S. CURRENCY;

ONE 1993 FORD F-350 TRUCK,

 D.C. No.

CV-03-02345-VAM

Defendants. OPINION

ROY F. BRUNO; MIGUEL CAMACHO,

Claimants-Appellants.



Appeal from the United States District Court

for the District of Arizona

Virginia A. Mathis, Magistrate Judge, Presiding

Argued and Submitted

December 5, 2007—San Francisco, California

Filed March 13, 2008

Before: Jerome Farris, Robert R. Beezer, and

Sidney R. Thomas, Circuit Judges.

Opinion by Judge Beezer

2393

2398 UNITED STATES v. BRUNO

COUNSEL

Richard B. Jones, Tucson, Arizona, for the claimants-

appellants.

Paul K. Charlton, United States Attorney, District of Arizona

and Joan G. Ruffennach and John Joseph Tuchi, Assistant

United States Attorneys for the District of Arizona, Phoenix,

Arizona, for the plaintiff-appellee.

OPINION

BEEZER, Circuit Judge:

Roy Bruno (“Bruno”) and Miguel Camacho (“Camacho”)

(collectively, “Claimants”) appeal the magistrate judge’s

order granting summary judgment in favor of the government

in its civil forfeiture action against $493,850 in U.S. currency

and one 1993 Ford F-350 truck. We affirm.

I

On June 3, 2003, Officer John McFarland (“McFarland”) of

the Arizona Highway Patrol observed a Ford truck with Flor-

ida license plates swerve over the center line on an Arizona

UNITED STATES v. BRUNO 2399

highway. McFarland pulled the truck over and approached the

driver. As he approached, McFarland could smell the strong

odor of air freshener, which, in his experience, suspects often

used to cover the odor of narcotics. He questioned the driver,

Camacho, and the passenger, Bruno. McFarland noted some

minor inconsistencies between their statements, but issued

Camacho a warning and told him that he was free to leave.

As Camacho walked back towards the truck, McFarland

called Camacho back and began talking to him about drug

trafficking. McFarland asked for, but did not receive, consent

to search the truck. McFarland also asked for, and eventually

received, consent to run a drug-sniffing dog around the truck.

The dog alerted. McFarland searched the truck and found

$493,850 concealed throughout the truck. He seized the truck

and the currency.

On November 26, 2003, the government brought a civil

complaint for forfeiture, separately naming $493,850 in U.S.

currency and one 1993 Ford F-350 truck as in rem defendants.

The government alleged that the currency was subject to for-

feiture because it was furnished or intended to be furnished in

exchange for a controlled substance. Alternatively, it alleged

that the currency was subject to forfeiture because it was

engaged in a transaction or attempted transaction involving

property derived from a specified unlawful activity. The gov-

ernment alleged that the truck was subject to forfeiture

because it was used and intended to be used to transport and

facilitate the transportation, sale, receipt, possession and con-

cealment of a controlled substance.

Bruno timely filed a claim to the currency. Camacho timely

filed a claim to the truck. All parties consented to proceed

before a U.S. magistrate judge.

After an evidentiary hearing, the magistrate judge held that

McFarland had made a lawful investigatory stop of the truck,

but that he unlawfully exceeded the scope of the investigatory

2400 UNITED STATES v. BRUNO

stop by calling Camacho back, questioning him and searching

and seizing the truck and currency. The magistrate judge sup-

pressed all evidence gathered after McFarland issued Cama-

cho the warning.

The government subsequently presented the following facts

in a motion for summary judgment, which the government

had not previously disclosed to Claimants because of an

ongoing and sealed criminal investigation: (1) a special agent

with the Drug Enforcement Administration (“DEA”) learned

of the June 3, 2003 seizure on the day it occurred; (2) on that

same day, that same agent also learned that Camacho was the

subject of an ongoing DEA investigation in Miami, Florida;

(3) DEA agents had observed Camacho’s 1993 Ford F-350

truck during that investigation; and (4) Camacho was the sub-

ject of a separate narcotics investigation being conducted by

the South Florida Money Laundering Strike Force.

The government also submitted affidavits by two witnesses

cooperating in the Miami investigations, which were both

signed after the complaint was filed. The witnesses testified

that long before the illegal search and seizure, Camacho met

separately with each of them to discuss the importation and

sale of cocaine. Camacho indicated to these witnesses that he

employs his family members in his cocaine operations, and

that he personally transports cocaine and currency to Mexico

using different types of vehicles. One of the witnesses met

Bruno, a relative by marriage, during one of these meetings.

Based upon this information, the magistrate judge granted

summary judgment in favor of the government. The magis-

trate judge found that the affidavits of the cooperating wit-

nesses, as well as portions of the DEA agent’s affidavit, were

not tainted by the illegal search and seizure. The magistrate

judge held that the government carried its burden in proving,

by a preponderance of the evidence, a substantial connection

between the in rem defendants and cocaine transactions. The

magistrate judge further held that the Claimants had failed to

UNITED STATES v. BRUNO 2401

prove, by a preponderance of the evidence, that they were

innocent owners because they presented nothing to rebut the

government’s evidence. The magistrate judge also drew a

negative inference from Claimants’ refusal to answer requests

for admission based on the Fifth Amendment.

Claimants timely appealed. They initially moved to stay

execution of the entire judgment pending appeal, but later

withdrew their request as to the truck. The magistrate judge

granted the motion to stay. The judgment as to the truck has

been executed.

II

We review, de novo, the denial of a motion to suppress,

United States v. Jensen, 425 F.3d 698, 704 (9th Cir. 2005), a

determination of probable cause, United States v. $30,060 in

U.S. Currency, 39 F.3d 1039, 1041 (9th Cir. 1994), an inter-

pretation of federal forfeiture law, United States v. 25445 Via

Dona Christa, 138 F.3d 403, 407 (9th Cir. 1998), amended

by, 170 F.3d 1161 (9th Cir. 1999), and an order granting sum-

mary judgment, United States v. 5208 Los Franciscos Way,

385 F.3d 1187, 1190 (9th Cir. 2004).

III

The government argues that we lack jurisdiction over the

truck. We agree.

In Republic National Bank of Miami v. United States, 506

U.S. 80 (1992), the Supreme Court held that once a court val-

idly asserts jurisdiction in an in rem civil forfeiture proceed-

ing, courts of appeals may continue to exercise jurisdiction

even after the res is removed from the court. 506 U.S. at 88-

89. There is one exception to this rule, “where the release of

the property would render the judgment ‘useless’ because ‘the

thing could neither be delivered to the libellants, nor restored

to the claimants.’ ” Id. at 85.

2402 UNITED STATES v. BRUNO

[1] In this case, the judgment as to the truck has been exe-

cuted, so the res can neither be delivered nor restored to

Claimants. Id. Claimants never entered into an agreement

with the government to substitute proceeds from the sale of

the truck in place of the truck for purposes of appeal. Cf. Ven-

tura Packers, Inc. v. F/V Jeanine Kathleen, 424 F.3d 852,

861-62 (9th Cir. 2005) (allowing substitution of property to

abide the fate of the suit). A judgment as to the truck in this

case would be useless. We lack jurisdiction over the truck.

IV

Claimants argue that the magistrate judge should have

excluded all information from the Miami investigations as

fruit of the poisonous tree, because Arizona investigators

would not have learned of the information but for the illegal

seizure. We disagree.

[2] The exclusionary rule applies in civil forfeiture cases.

United States v. $191,910 in U.S. Currency, 16 F.3d 1051,

1063 (9th Cir. 1994), superseded on other grounds as stated

in United States v. $80,180 in U.S. Currency, 303 F.3d 1182,

1184 (9th Cir. 2002). It bars the admission of evidence

obtained in violation of the U.S. Constitution, as well as

“fruits of the poisonous tree.” United States v. Ramirez-

Sandoval, 872 F.2d 1392, 1395 (9th Cir. 1989). “[U]nder the

‘fruits of the poisonous tree’ doctrine, evidence obtained sub-

sequent to a violation of the Fourth Amendment is tainted by

the illegality and is inadmissible. . . .’ ” United States v.

Washington, 490 F.3d 765, 774 (9th Cir. 2007). There are

three exceptions to the fruits of the poisonous tree doctrine.

Ramirez-Sandoval, 872 F.2d at 1396.

[3] The independent source exception is at issue in this

case. It allows admission of “evidence that is actually found

by legal means through sources unrelated to the search.” Id.

“Independent source evidence is not ‘fruit of the poisonous

UNITED STATES v. BRUNO 2403

tree’ because its discovery through independent legal means

does not result from the official’s illegal conduct.” Id.

[4] The information at issue here is not a fruit of the poi-

sonous tree because it was not discovered subsequent to the

illegal seizure, see Washington, 490 F.3d at 774, nor was it

derived in any way from the illegal seizure, see Ramirez-

Sandoval, 872 F.2d at 1396. The information was learned

from preexisting, unrelated investigations. See id. It could

have been, and likely was, discovered with the simple use of

Camacho’s name and vehicle registration, which McFarland

legally obtained before the illegal search and seizure. The

Miami information is admissible.

V

Claimants argue that the magistrate judge erred in consider-

ing the fact that the illegally seized res consisted of $493,850

of U.S. currency. It is unclear whether the magistrate judge

considered the amount of currency in her analysis. To the

extent she considered the amount of currency, we agree that

such consideration was improper. To the extent she merely

recognized the nature of the illegally seized property as cur-

rency, we hold that such consideration was proper.

Illegally seized property may not be “introduced as evi-

dence in a forfeiture proceeding.” $191,910, 16 F.3d at 1063

(emphasis in original). For example, in United States v.

$191,910 in U.S. Currency, police became suspicious of the

claimant after he put his bags through an airport security x-ray

that revealed he was carrying a large amount of cash. Id. at

1054. The claimant initially told police that he was a

gemologist carrying $20,000, but later told police that he was

carrying $15,000. Id. at 1054-55. Police, believing that they

had reasonable suspicion to search the claimant’s bags, dis-

covered $191,910 in the bags. Id. at 1055-56. The government

filed a forfeiture complaint against the $191,910. Id. The dis-

trict court held that the search was illegal, suppressed all fruits

2404 UNITED STATES v. BRUNO

of the search and granted the claimant’s motion for summary

judgment. Id. at 1056-57.

We affirmed. Id. at 1054. We held that the district court

properly suppressed the amount of money as fruit of the

unlawful search. Id. at 1059, 1065. We rejected the govern-

ment’s arguments that (1) the money could not be suppressed

because it was the nominal defendant, id. at 1062-63, and (2)

the exclusionary rule bars only the introduction of illegally

seized materials that are not the res, id. at 1063 n.24. To have

held otherwise would merely reward the government for car-

rying out an illegal search or seizure. Id. at 1065. Left only

with evidence that (1) the claimant admitted to carrying either

$15,000 or $20,000, (2) the claimant provided slightly incon-

sistent stories and (3) x-ray screening of the claimant’s bags

revealed that the claimant was carrying a large amount of

cash, we held that the government had failed to establish, at

the time it filed the complaint, probable cause to believe the

money was intended for use in a drug transaction. Id. at 1071.

[5] $191,910 makes clear that we cannot consider the

amount of currency that the government illegally seized. Id.

at 1059, 1065. The issue presented here is whether it necessar-

ily follows that we are prohibited from considering the fact

that the illegally seized property is, in fact, currency.1 This is

an issue of first impression in this Circuit.2

1

We note that circuit courts are split on the issue whether and to what

extent illegally seized property must be suppressed when it is the object

of a forfeiture action. David B. Smith, Prosecution and Def. of Forfeiture

Cases § 10.05[8] (2007) (noting that this issue may be dispositive when

illegally seized res is currency); see also United States v. $557,933.89 in

U.S. Currency, 287 F.3d 66, 80 (2d Cir. 2002) (undecided); United States

v. $36,634 in U.S. Currency, 103 F.3d 1048, 1052 n.3 (1st Cir. 1997),

superseded on other grounds as stated in United States v. Lopez-Burgos,

435 F.3d 1, 2 (1st Cir. 2006) (limited admissibility); United States v.

$12,390 in U.S. Currency, 956 F.2d 801, 806 (8th Cir. 1992) (admissible);

United States v. $639,585 in U.S. Currency, 955 F.2d 712, 715 n.5 (D.C.

Cir. 1992) (limited admissibility).

2

But see $36,634, 103 F.3d at 1052 n.3 (recognizing illegally seized res

as currency but excluding its amount in the First Circuit).

UNITED STATES v. BRUNO 2405

Claimants argue that we cannot consider the fact that the

illegally seized res consists of currency, and must instead treat

the illegally seized res as a “featureless widget.” Claimants

attempt to distinguish $191,910, because in that case we

referred to the illegally seized property as “money,” but we

had the benefit of an admission by the claimant that he was

carrying “money.” See $191,910, 16 F.3d at 1071-72.

Claimants read $191,910 too broadly to exclude more than

it does. We have consistently held that “ ‘[t]he mere fact of

the illegal seizure, standing alone, does not immunize the

goods from forfeiture.’ ” United States v. One 1977 Mercedes

Benz, 708 F.2d 444, 450 (9th Cir. 1983). An interpretation of

$191,910 requiring us to ignore the character of the illegally

seized property as currency, or requiring us to consider the

illegally seized property a “featureless widget,” would contra-

dict this longstanding principle by immunizing illegally

seized currency from forfeiture. As noted by the magistrate

judge, there would be “no way for the government to show

that a ‘widget’ is the product of a drug transaction.” The gov-

ernment could never place a “widget” in context or connect

it with anything, let alone a drug transaction.

[6] We hold that when the illegally seized res in a civil for-

feiture proceeding consists of currency, courts may consider

the fact that the illegally seized res is currency. This holding

is consistent with our holding in $191,910 that illegally seized

property may not be “introduced as evidence in a forfeiture

proceeding.” See id. at 1063. While courts may not introduce

illegally seized currency into evidence or consider its amount,

courts may recognize that illegally seized property consists of

currency, if that is the case. Our view is consistent with the

views of the First and D.C. Circuits. See $36,634, 103 F.3d

at 1052 n.3; $639,585, 955 F.2d at 715 n.5.

VI

Claimants argue that the admissible evidence is insufficient

to establish that the government had probable cause to insti-

2406 UNITED STATES v. BRUNO

tute the forfeiture action as required by 19 U.S.C. section

1615. The government responds by arguing that the Civil

Asset Forfeiture Reform Act of 2000 (“CAFRA”) eliminated

section 1615’s requirement that the government show proba-

ble cause to institute the forfeiture action. We agree with

Claimants that section 1615’s probable cause requirement sur-

vives CAFRA, but hold that the admissible evidence is suffi-

cient to establish that the government had probable cause to

institute the forfeiture action in this case.

A

[7] It is an open question whether section 1615 continues

to require that the government show that it had probable cause

to institute a forfeiture suit. See Smith, supra, § 11.03[6].

Before CAFRA, section 1615 required that: (1) the govern-

ment show that probable cause existed to institute a forfeiture

action and (2) the claimant prove, by a preponderance of the

evidence, that the property was not subject to forfeiture. 5208

Los Franciscos Way, 385 F.3d at 1193. By placing the burden

of proof on the claimant, section 1615 allowed the govern-

ment to seize property based on nothing more than its initial

showing of probable cause in many cases. 146 Cong. Rec.

H2040-01, 2051 (daily ed. Apr. 11, 2000) (statement of Rep.

Jackson-Lee). Motivated by a concern that this denied citizens

due process, Congress passed CAFRA in 2000. Id. CAFRA

sets forth the burden shifting analysis for civil forfeiture

actions commenced on or after August 23, 2000. 18 U.S.C.

§ 983.

[8] Although Congress never mentioned the effect of

CAFRA on section 1615, see H.R. Rep. No. 105-358, pt. 1,

at 41-42 (1997) (noting only that CAFRA codifies some exist-

ing procedures but replaces others to the extent they are

inconsistent); 146 Cong. Rec. H2040-01, CAFRA supersedes

certain portions of section 1615 with respect to forfeiture

actions brought under 18 U.S.C. section 983: (1) it removes

the burden of proof at trial from the claimant and places it on

UNITED STATES v. BRUNO 2407

the government and (2) it raises the government’s burden of

proof at trial from probable cause to institute the action to

proof, by a preponderance of the evidence, that the property

is subject to forfeiture. 5208 Los Franciscos Way, 385 F.3d

at 1193. The issue here is whether CAFRA also replaced sec-

tion 1615’s probable cause requirement, or merely added to

it.

When we interpret a statute, our purpose is to discern the

intent of Congress. Amalgamated Transit Union Local 1309

v. Laidlaw Transit Servs., 448 F.3d 1092, 1093 (9th Cir.

2006). To discern the intent of Congress, “ ‘[w]e look first to

the plain language of the statute, construing the provisions of

the entire law, including its object and policy.’ ” Carson Har-

bor Vill., Ltd. v. Unocal Corp., 270 F.3d 863, 877 (9th Cir.

2001) (internal citations omitted). We will resort to legislative

history when that history “ ‘clearly indicates that Congress

meant something other than what it said.’ ” Id. (internal cita-

tions omitted). It is “ ‘a cardinal principle of statutory con-

struction that repeals by implication are not favored.’ ” City

& County of S.F. v. Assessment App. Bd., 122 F.3d 1274,

1276 (9th Cir. 1997) (internal citation omitted). “ ‘An implied

repeal may only be found if there is an irreconcilable conflict

between the two federal statutes at issue.’ ” Id. (internal cita-

tion omitted).

The government argues that CAFRA’s plain language elim-

inates the probable cause requirement by providing that “[n]o

civil forfeiture complaint may be dismissed because the gov-

ernment lacked sufficient evidence at the time of filing.” The

government’s citation to CAFRA is incomplete and mislead-

ing. CAFRA provides that “[n]o complaint may be dismissed

on the ground that the Government did not have adequate evi-

dence at the time the complaint was filed to establish the for-

feitability of the property.” 18 U.S.C. § 983(a)(3)(D)

(emphasis added). Post-CAFRA, establishing the forfeitability

of property is distinct from having probable cause to institute

the forfeiture action. See Smith, supra, § 11.03[6] (arguing

2408 UNITED STATES v. BRUNO

that if Congress meant to eliminate the probable cause

requirement, it would have stated, “[n]o complaint may be

dismissed on the ground that the government did not have

probable cause at the time the complaint was filed”). The for-

mer requirement describes the government’s burden at trial to

prove entitlement to the property by presenting proof, by a

preponderance of the evidence, of a substantial connection

between the property and the offense. 18 U.S.C. § 983(c). The

latter requirement describes the government’s burden to get in

the courthouse door by presenting evidence that, at the time

it filed the complaint, it had “ ‘reasonable grounds to believe

that the property was related to an illegal drug transaction,

supported by less than prima facie proof but more than mere

suspicion.’ ” United States v. One Parcel of Real Prop., 904

F.2d 487, 490-91 (9th Cir. 1990).

CAFRA’s provision allowing the government to use evi-

dence gathered after the filing of a complaint to establish the

forfeitability of the property, 18 U.S.C. § 983(c)(2), similarly

does not conflict with our holding in $191,910 that the gov-

ernment may not use after-acquired evidence to establish

probable cause to institute a forfeiture action, see $191,910,

16 F.3d at 1071. The CAFRA requirement refers to the use of

after-acquired evidence in satisfying the government’s burden

of proof at trial to prove entitlement to the property. 18 U.S.C.

§ 983(c)(2). Such evidence will include evidence gathered at

all stages of litigation. The requirement in $191,910 refers to

the use of after-acquired evidence in satisfying the govern-

ment’s lesser burden needed to get in the courthouse door.

$191,910, 16 F.3d at 1071. Such evidence will include only

evidence gathered up until the complaint was filed.

The government cites the First Circuit’s opinion in United

States v. Lopez-Burgos, 435 F.3d 1 (1st Cir. 2006), for the

proposition that CAFRA eliminated section 1615’s probable

cause requirement. In Lopez-Burgos, the First Circuit held

that CAFRA eliminated the government’s need to plead facts

UNITED STATES v. BRUNO 2409

sufficient to establish probable cause to forfeit.3 435 F.3d at

2. At no point in its brief opinion did the First Circuit analyze

whether CAFRA eliminated section 1615’s requirement that

the government show probable cause to institute a forfeiture

action.4 Id. In fact, the First Circuit was specific in noting that

CAFRA increased the government’s “burden of proof at

trial,” id., rather than replaced its initial burden in filing the

complaint. Although Lopez-Burgos described section 1615 as

“statutorily superseded,” “legally irrelevant” and “since

repealed,” id., this description is inaccurate because section

1615 remains applicable to forfeiture actions brought under

Titles 19 and 26, see 18 U.S.C. § 983(i), if not to all forfeiture

actions because of the probable cause requirement.

Claimants argue that CAFRA’s legislative history clearly

indicates that the government is still required to show proba-

ble cause to institute a forfeiture action. CAFRA’s legislative

history indicates that CAFRA was intended to modify or cod-

ify certain practices, but it is devoid of any reference as to

whether CAFRA eliminated the probable cause requirement.

See, e.g., H.R. Rep. No. 105-358, pt. 1. U.S. Representative

Henry Hyde stated that “current law would be retained allow-

ing the government to forfeit property on a showing of proba-

ble cause if the property owner elects not to challenge the

forfeiture by filing a claim.” Id. at 28. He also stated that:

[W]hile the government may use evidence obtained

after the forfeiture complaint is filed to establish the

forfeitability of the property by a preponderance of

the evidence, the government must still have had

3

The Fourth Circuit issued a similar opinion and also limited its discus-

sion of CAFRA to pleading requirements and the government’s burden of

proof at trial. See United States v. Mondragon, 313 F.3d 862, 865 (4th Cir.

2002).

4

But see Smith, supra, §11.03[6] n.56.4 (faulting First Circuit because

it “appears to have accepted the government’s bogus argument” that

CAFRA abolishes the probable cause requirement).

2410 UNITED STATES v. BRUNO

enough evidence to establish probable cause at the

time of filing (or seizure, if earlier).

146 Cong. Rec. H2040-01, 2050 (statement of Rep. Hyde).

These statements are not the clear support Claimants argue

them to be because they could refer to either (1) the govern-

ment’s burden to show probable cause to seize the property

under 18 U.S.C. section 981 or (2) the government’s burden

to show probable cause to file its forfeiture action under 19

U.S.C. section 1615.

[9] Nevertheless, the coexistence of section 1615’s proba-

ble cause requirement and CAFRA is consistent with the leg-

islative intent of CAFRA. In enacting CAFRA, Congress

intended to institute stronger procedural safeguards before the

government could forfeit property. See, e.g., 146 Cong. Rec.

H2040-01, 2051 (statement of Rep. Jackson-Lee); id. at 2052

(statement of Rep. Barr). Requiring the government to show

probable cause before instituting a forfeiture action is consis-

tent with this intent because it provides an additional proce-

dural protection. See $191,910, 16 F.3d at 1069.

[10] Nothing in CAFRA’s plain language indicates that

Congress intended to eliminate section 1615’s probable cause

requirement, there is no irreconcilable conflict between sec-

tion 1615 and CAFRA, CAFRA’s legislative history is devoid

of any relevant discussion on the issue and repeals by implica-

tion are disfavored. It is also well-established that “forfeiture

statutes are strictly construed against the government.”

$191,910, 16 F.3d at 1068. We hold that section 1615 contin-

ues to require that the government show probable cause to

institute a forfeiture action.

B

[11] The government has probable cause to institute a for-

feiture action when it has “ ‘reasonable grounds to believe

UNITED STATES v. BRUNO 2411

that the property was related to an illegal drug transaction,

supported by less than prima facie proof but more than mere

suspicion.’ ” One Parcel of Real Prop., 904 F.2d at 490-91.

“Probable cause to believe that the property is involved in

some illegal activity is not enough—the government must

have probable cause to believe that the property is involved

in the activity subject to the specific forfeiture statute it

invokes.” $191,910, 16 F.3d at 1071. Probable cause may

only be based upon information gathered before the complaint

was filed. Id.

Prior to November 26, 2003, when the government filed the

civil forfeiture complaint, McFarland legally gathered evi-

dence that: (1) Camacho was driving a 1993 Ford F-350 truck

with Florida license plates in Arizona; (2) Camacho and

Bruno provided slightly inconsistent stories; (3) the truck

smelled strongly of air freshener; and (4) in McFarland’s

experience, suspects often used strong air freshener to cover

the smell of narcotics. Prior to November 26, 2003, the gov-

ernment also legally gathered evidence that: (1) Camacho was

the subject of an ongoing DEA investigation in Miami and (2)

DEA agents had observed the truck at issue during that inves-

tigation.

[12] McFarland’s evidence, standing alone, may only raise

a mere suspicion that Claimants are involved in narcotics

activity. When that evidence is combined with the Miami evi-

dence linking Camacho and his truck with cocaine traffickers,

however, it is sufficient to satisfy probable cause. The evi-

dence provides reasonable grounds to believe that Camacho,

his truck and anything that could be used in furtherance of

cocaine transactions—including cocaine, currency, transporta-

tion for both and persons assisting in the transportation of

both—are related to or involved in illegal cocaine transac-

tions. The government satisfied its burden under section 1615

with respect to the currency.

2412 UNITED STATES v. BRUNO

VII

Claimants argue that the magistrate judge erred granting

summary judgment in favor of the government. We disagree.

In a civil forfeiture proceeding, CAFRA requires the gov-

ernment to prove, by a preponderance of the evidence, that

property is subject to forfeiture. 18 U.S.C. § 983(c); 5208 Los

Franciscos Way, 385 F.3d at 1193. “[T]he government may

use evidence gathered after the filing of a complaint for for-

feiture to establish, by a preponderance of the evidence, that

property is subject to forfeiture.” 18 U.S.C. § 983(c)(2). Once

the government provides such proof, the burden shifts to the

claimant to prove that he or she is an innocent owner of the

property. 18 U.S.C. § 983(d).

In this case, to meet its burden, the government may rely

upon the evidence supporting probable cause, as well as the

following evidence: (1) the fact that Camacho was observed

during a second narcotics investigation and (2) affidavits from

cooperating witnesses revealing that (a) Camacho had met

with them several times to discuss the importation and sale of

cocaine; (b) Camacho employed his family in his cocaine

business; (c) Bruno was part of Camacho’s family and had

met one of the cocaine dealers; and (d) Camacho would per-

sonally transport cocaine and currency to Mexico.

[13] This evidence is sufficient to prove, more likely than

not, that Camacho, Bruno and anything that could be used in

furtherance of cocaine transactions—including cocaine, cur-

rency, transportation for both and persons assisting in the

transportation of both—are involved in cocaine transactions.

This is true regardless of the amount of currency at issue,

because the evidence connecting Camacho and Bruno with

cocaine trafficking is overwhelming.

[14] Because the government met its burden under section

983, the burden shifted to Claimants to prove innocent owner-

UNITED STATES v. BRUNO 2413

ship. In other words, it became Claimants’ burden to prove,

by a preponderance of the evidence, that Claimants: (1) did

not know of the conduct giving rise to forfeiture; or (2) upon

learning of the conduct giving rise to the forfeiture, did all

that reasonably could be expected under the circumstances to

terminate such use of the property. 18 U.S.C. § 983(d)(2)(A).

Claimants provided no evidence or argument regarding inno-

cent ownership.5 Claimants provided no evidence regarding

an alternate theory of origin for the currency. Summary judg-

ment was proper.

VIII

[15] In granting summary judgment, the magistrate judge

properly considered information from the Miami investiga-

tions and the nature of the res as currency. To the extent the

magistrate judge relied upon the amount of currency, such

reliance was error but only harmless error. The admissible

evidence is sufficient to establish probable cause and proof,

by a preponderance of the evidence, that the currency is sub-

ject to forfeiture without regard to the amount of currency.

Claimants presented no evidence of innocent ownership. The

magistrate judge properly granted summary judgment in favor

of the government.

AFFIRMED.

5

The Court does not reach the issue whether the magistrate judge erred

in drawing a negative inference from Claimants’ refusal to answer the

requests for admission based on Fifth Amendment privilege.