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United States of America v. Thirty Nine Thousand Seven

April 26, 2011

UNITED STATES OF AMERICA,
PLAINTIFF
v.
THIRTY NINE THOUSAND SEVEN
HUNDRED EIGHTY FIVE DOLLARS ($39,785.00) IN UNITED STATES
CURRENCY, ET AL., DEFENDANTS



The opinion of the court was delivered by: Timothy R. Rice U.S. Magistrate Judge

MEMORANDUM OPINION

Plaintiff United States of America seeks to admit evidence pursuant to Federal Rule of Evidence 404(b) of a subsequent bad act committed by one of the claimants. Plaintiff contends the evidence is relevant to establish the defendant currency is subject to forfeiture as drug proceeds because the subsequent bad act helps prove the claimant's knowledge of the nature of the currency and his modus operandi in concealing it.

I will grant Plaintiff's motion. The evidence is relevant and is offered for a proper purpose, see Fed. R. Evid. 404(b), and the probative value of the evidence is not substantially outweighed by the risk of unfair prejudice or confusion, see Fed. R. Evid. 403. I also will give the jury a limiting instruction to eliminate any unfair prejudice, including any prejudicial spillover to the other claimant. See Fed. R. Evid. 105.

I. Factual History*fn1

On November 1, 2009, claimants Gabriel Crespo and Samuel Morales were at the Philadelphia International Airport boarding a flight to San Juan, Puerto Rico. The Transportation Security Administration alerted Drug Enforcement Administration officers that Crespo was carrying a large sum of money. Crespo voluntarily produced his wallet containing $6,700 to an officer. Officers then conducted a consensual pat-down and discovered Crespo had additional currency in his pants. Crespo claimed he forgot about the money and said it was not supposed to be there. The officers seized a total of $39,785 from Crespo. Following the seizure, a certified police drug dog positively indicated the odor of narcotics on the currency. Officers conducted a similar search of Morales and recovered $40,126 bundled together and secured by rubber bands.

Approximately ten months after the Philadelphia seizure, government agents at the JFK Airport in New York seized a total of $100,000 from Crespo and two female companions before they departed on a flight to San Juan on August 31, 2010. Morales was already in San Juan when this incident occurred. Crespo admitted carrying $4,000 in his rear pocket, which was bundled in wrappers. Crespo denied having money in his backpack, but a consensual search revealed several bundles of currency secured with rubber bands and bank wrappers and hidden in a T-shirt, totaling $40,000. Following the seizure, a certified police drug dog positively indicated the odor of narcotics on the currency. Crespo did not admit to knowing the nature of the proceeds.

Plaintiff seeks to forfeit to the United States $39,785 and $40,126 seized during the Philadelphia incident pursuant to 21 U.S.C. § 881(a)(6), alleging the currency represents illegal drug proceeds or property used to facilitate illegal drug activities. See Plaintiff's Motion. Crespo will testify at trial the currency seized in Philadelphia represented legitimate proceeds from Morales' mother's estate, not drug proceeds.

II. Discussion

A. Legal Standard

Evidence is admissible if it is relevant, i.e., if it tends to make the existence or nonexistence of a disputed material fact more probable than it would be without that evidence. See Fed. R. Evid. 401, 402. Evidence of "other crimes, wrongs, or acts" is admissible only for certain purposes unrelated to showing that the individual is a person of a certain character. Fed. R. Evid. 404(b). This includes evidence of both prior and subsequent bad acts. See Ansel v. Green Acres Contracting Co., 647 F.3d 515, 520 (3d Cir. 2003) (admitting evidence of subsequent bad act in a civil case). Proper purposes include motive, opportunity, intent, preparation, plan, knowledge, identity, and absence of mistake or accident. Fed. R. Evid. 404(b). The moving party, however, "must clearly articulate how the evidence fits into a chain of logical inferences, no link of which can be the inference that because the [claimant engaged in certain improper activity] before, he is more likely to have [done so again]." United States v. Sampson, 980 F.2d 883, 887 (3d Cir. 1992); see also United States v. Rubino-Estrada, 857 F.2d 845, 846-49 (1st Cir. 1988) (Breyer, J.) (evidence of prior drug conviction admissible for the limited purpose of showing knowledge and intent). The evidence must be relevant to an issue other than a person's character to "show action in conformity therewith." Fed. R. Evid. 404(b); see Sampson, 980 F.2d at 886.

Rule 404(b) is a rule of inclusion, not exclusion. United States v. Givan, 320 F.3d 452, 460 (3d Cir. 2003) ("We favor the admission of evidence of other criminal conduct if such evidence is 'relevant for any other purpose than to show a mere propensity or disposition on the part of the defendant to commit the crime.'") (quoting United States v. Long, 574 F.2d 761, 765 (3d Cir. 1978)); United States v. Scarfo, 850 F.2d 1015, 1019 (3d Cir. 1988). I may nonetheless exclude relevant 404(b) evidence if the probative value of the evidence is "substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by consideration of undue delay, waste of time, or needless presentation of cumulative evidence." Fed. R. Evid. 403. "Evidence is unfairly prejudicial only if it has 'an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one.'" United States v. Bradley, 173 F.3d 225, 230 (3d Cir. 1999) (quoting the advisory committee's note to Rule 403).

To be admissible under Rule 404(b), "(1) the evidence must have a proper purpose under Rule 404(b); (2) it must be relevant under Rule 402; (3) its probative value must outweigh its prejudicial effect under Rule 403; and (4) the court must charge the jury to consider the evidence only for the purpose for which it was admitted." Sampson, 980 F.2d at 886 (citing Huddleston v. United States, 485 U.S. 681, 691-92 (1988)).

Huddleston illustrates the proper use of 404(b) evidence. In Huddleston, the defendant was charged with both possessing and selling stolen videocassette tapes in interstate commerce. 485 U.S. at 682. The material issue at trial was whether the defendant knew the videocassette tapes were stolen. Id. The trial court permitted the government to offer proof the defendant had engaged in a series of sales of stolen merchandise from the same suspicious source for the limited purpose of showing he knew the tapes were stolen. Id. at 686. The trial court instructed the jury to consider the evidence for the limited purpose of proving the defendant knew the goods were stolen, and not to prove his bad character. Id. at 684.

Similarly, in Rubino-Estrada, the defendant was charged with possessing cocaine with intent to distribute it. 857 F.2d at 846. The material issue at trial was whether the defendant knew of, and intended to distribute, cocaine found hidden in his basement closet along with electronic scales, a ledger book, and money. Id. at 846-48. The trial court permitted the government to offer proof the defendant had been convicted previously of cocaine distribution for the limited purposes of showing he knew the substance found hidden in his closet was cocaine, and he intended to distribute the cocaine. Id. In affirming the trial court's admission of such evidence, the First Circuit ...


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