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United States v. $59

United States District Court, D. Nebraska

September 17, 2015

UNITED STATES OF AMERICA, Plaintiff,
v.
$59, 800.00 IN UNITED STATES CURRENCY, Defendant.

MEMORANDUM AND ORDER

CHERYL R. ZWART, UNITED STATES MAGISTRATE JUDGE.

A bench trial was held before the undersigned magistrate judge on August 17, 2015. The government’s complaint seeks civil forfeiture of $59, 800.00 in United States currency seized during a traffic stop that occurred on April 4, 2012, on westbound Interstate 80 in Douglas County, Nebraska. Claimant Fathi Ali Moharam, the driver and sole occupant of the vehicle, asserts he is the owner of $1200 of the money seized; Claimant Vincent J. Holmes claims ownership of the remainder.[1]

For the reasons stated below, Moharam’s and Holmes’ claims will be denied, and the money seized will be ordered forfeited to the government.

STATEMENT OF FACTS

Having observed and heard the witnesses as they testified, and listened to the audio testimony and video exhibits, the court finds the credible evidence is as follows.

Claimant Vincent Holmes is 61-years-old and lives in Troy, New York. He completed eighth grade at the age of 16 and dropped out of school. He later earned his GED in only four months.

Shortly after leaving school, Holmes began collecting antiques and scavenging for potentially valuable items (including precious metals) others had discarded. He then resold these items for a profit. Over the years, he has sold many items to both individuals and businesses. Although he refers to himself as a “hoarder, ” he is willing to part with his collected items if he can make a profit. He conducts yard sales, participates in auctions, (see, e.g., Exs. 101 & 105), [2] and sells scrap metal. (See, e.g., Ex. 102). In addition to gathering antiques and collectables for resale, along with Co-claimant Moharam, Holmes purchased approximately seven or eight abandoned storage units. The claimants then distributed or sold the items in the storage shed, nearly always for a profit.

For a few years, Holmes worked for a paper product manufacturing business, earning annual wages totaling approximately $28, 000. But the job ended when Holmes was injured at work in 2001. (Ex. 104, p. 2). Thereafter, he received worker’s compensation payments periodically until December of 2010, when he received a lump sum settlement totaling approximately $60, 000. (Exs. 104, p. 1 & 108). At the time of the seizure at issue in this case, Holmes was receiving $923 per month in social security disability payments. He lived with his aging mother, providing in-home care for her multiple medical needs.

Holmes’ workers compensation and social security payments were direct-deposited into his checking account at a local bank.[3] (See Exs. 107 & 108). Holmes then withdrew part of the deposited cash and placed it in a shoe box in the basement of his mother’s home. He also placed his profits from buying and selling items into the shoe box. As to the lump sum settlement deposited into his account, Holmes made store purchases and withdrawals, placing a portion of the money in his shoe box, until the account balance dwindled to a zero. Holmes presented a bank account statement, Exhibit 108, into evidence. But that account statement covers only one month, pages 2 and 3 are missing, and of the 51 withdrawals and debits Holmes made from the account between December 16, 2010 and January 17, 2011, only 14 are shown on the exhibit. (See Ex. 108). There are no bank statements of record confirming Holmes’ testimony that any substantial portion of the worker’s compensation lump sum settlement was withdrawn and placed in a shoe box. (Ex. 108).

Holmes withdrew cash from the shoe box to pay his day-to-day living expenses and to facilitate his nearly cash-only business[4] of buying and selling antiques and collectables. As smaller denomination bills accumulated in the shoe box, Holmes exchanged them for $100 bills and rubber-banded the bills into stacks. Holmes has never completed or filed any tax returns reporting his income from buying and selling the items he finds and collects, has limited receipts documenting these sales, and has never reported or paid any income tax on the money made from that activity.

Holmes and Moharam met in the mid-1990s and became friends. Moharam received a high school education in Yemen and came the United States in 1991. He initially lived in New York City, but moved to Troy, New York near the end of 1993. Moharam became a U.S. citizen in 2000. He can speak English, although some questions and comments must be repeated or re-phrased so he can fully understand them. Moharam can read and write English to some degree, but he is not fully proficient.

Moharam worked in the grocery store business until 2006. He then opened an automobile mechanic garage in Albany, NY. When that closed in 2010, he became a taxi driver.

In October of 2011, Moharam went to Yemen. He returned to New York in late March of 2012. After returning from Yemen, Moharam met with Holmes and stated he was going to California. On April 3, 2012, Moharam began driving from New York to Fresno, California. He drove his own vehicle, and the vehicle was loaded with Moharam’s personal possessions, including his clothing and a small mattress. Holmes did not accompany Moharam on the trip, was not a co-owner of the vehicle, and other than his claim to $58, 600 of cash seized from the vehicle, Holmes does not assert any ownership interest in the property within Moharam’s vehicle at the time of the seizure.

Moharam entered Nebraska during the early afternoon of April 4, 2012, having slept at a rest stop for only two hours the night before. He was admittedly very tired while driving and was using GPS for navigation.

As Moharam drove westbound on Interstate 80 near 24th Street in Omaha, Nebraska, he passed the parked law enforcement vehicle driven by Douglas County Deputy Sheriff Dave Wintle. Deputy Wintle is a veteran law enforcement officer and a canine officer who focuses on performing criminal interdiction work, primarily on Interstate 80. On the date of the seizure at issue, Wintle’s assigned canine partner was Kubo.

Deputy Wintle and Kubo had worked together since 2006. Kubo, a Belgian Malinois, was certified to perform narcotics detention work in October of 2006 and was periodically tested and recertified annually thereafter. Kubo always passed his certification testing, and always completed the narcotics detection work he was commanded to perform. Once or twice a year, between Kubo’s annual recertification dates, Kubo was tested using $25, 000 of circulated currency obtained by the sheriff’s office from a local Omaha bank. Kubo consistently indicated to the odor of drugs on currency, but not to currency (circulated or uncirculated) alone.

Deputy Wintle was watching for cross-country moving vehicles and noticed Moharam’s vehicle as it passed. Deputy Wintle entered the interstate traffic, followed Moharam’s vehicle, and monitored its movements. At approximately the 50th to 60th street area, Deputy Wintle noticed Moharam’s vehicle was less than a car length from the vehicle it was following. Deputy Wintle followed Moharam for approximately three miles while looking for a convenient and safe place to conduct a traffic stop for following too closely – a violation of Nebraska state law. At approximately 90th street, the deputy activated his overhead lights which, in turn, activated his in-car camera. (See Ex. 1). Moharam pulled over immediately.

Deputy Wintle approached the passenger side of Moharam’s vehicle and asked for Moharam’s driver’s license and vehicle registration. Moharam complied. The officer then asked Moharam to sit in the front passenger seat of the officer’s patrol vehicle. Moharam again complied.

While completing a warning ticket in the patrol vehicle, Deputy Wintle requested a criminal records and vehicle check from dispatch and asked Moharam about the purpose, origin, and destination of his trip. Moharam stated he was traveling to California. When asked about the specific California destination, Moharam hesitated and then said he was heading to Fresno, California. Moharam provided a variety of reasons for going to California, including to vacation, visit with a friend, find work, or move there. Moharam stated he would be in California for a couple weeks, or he may stay there for an indefinite period. Based on the lack of any definite travel plans, Deputy Wintle became suspicious.

After the record check was completed (with no wants, warrants, or criminal record reported), Deputy Wintle advised Moharam that he would be receiving a warning ticket for following too closely. In response to the officer’s questions, Moharam denied having any drugs or guns in the vehicle. The officer also asked:

Officer: Any large amounts of cash ...

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