162 Pa. Commw. 315 638 A.2d 480

638 A.2d 480

COMMONWEALTH of Pennsylvania v. NINE THOUSAND THREE HUNDRED TEN DOLLARS U.S.C. In re Anthony A. BENNETT, Appellant.

Commonwealth Court of Pennsylvania.

Argued Jan. 31, 1994.

Decided March 1, 1994.

*316Thomas A. Bergstrom, for appellant.

Michael W. Untermeyer, Deputy Atty. Gen., Drug Prosecution Section, for appellee.

Before DOYLE and PELLEGRINI, Judges, and NARICK, Senior Judge.

PELLEGRINI, Judge.

Anthony A. Bennett (Bennett), as claimant of Nine Thousand Three Hundred Ten Dollars, appeals the decision of the Court of Common Pleas of Philadelphia County granting the petition for forfeiture filed by the Commonwealth of Pennsylvania of Eight Thousand Dollars and ordering that One Thousand Three Hundred and Ten Dollars be returned to Bennett.

On November 22, 1991, Bennett arrived in Philadelphia on an Air Jamaica flight. The immigration officer questioned him about his temporary resident card and the amount of money he was carrying. Bennett showed the immigration officer that he had $9,310, which included several one hundred dollar bills. Bennett at first said the money was his, then when confronted with bank receipts from Jamaica, he stated that it belonged to his uncle.1 The immigration officer admitted Bennett but indicated to the State Police officers on drug enforcement duty at the airport that they might want to further question Bennett.

Trooper Wanda Gilbert of the State Police detained Bennett and questioned him with other officers present. Bennett initially told them he lived in New York, although he later stated he resided in North Carolina. He had a North Carolina temporary drivers license and gun permit. Bennett stated that $8,000 of the money he carried was his mother’s, and that he was supposed to buy a diesel engine for a 15 passenger bus owned by his mother. He had no further information about the engine he was supposed to purchase. *317Bennett told Trooper Gilbert that he did odd jobs for his father in New York and had saved $1,000. Part of that money was used to purchase the tickets to Jamaica and he had taken several hundred dollars with him on the trip. However, a foreign exchange receipt showed that he had exchanged $5,400 in U.S. currency for Jamaican money during his trip. He refused to explain the receipt or answer further questions about the money.

Bennett gave Trooper Gilbert his telephone number in North Carolina. Customs Agent Julio Valez called the number and spoke to the person who answered, who identified himself as Byron. Agent Valez pretended to be a drug courier who Bennett was supposed to meet and told Byron that he had arrived from Jamaica with “a load” and that “Tony” had not met him. He told Byron that he would sell it if he did not get the promised $1,000 payment. Byron told Agent Valez not to do that, to wait until “Tony” contacted him.2 The entire $9,310 was seized but Bennett was allowed to leave.3

On January 6, 1992, the Commonwealth filed a petition for the forfeiture of the $9,310 seized on November 22 pursuant to *318the Controlled Substance Forfeiture Act (Forfeiture Act), 42 Pa.C.S. §§ 6801-6802. The Commonwealth presented the testimony of Trooper Gilbert and Agent Valez concerning the events on November 22 and also as expert witnesses on the practices of drug couriers and dealers. The Commonwealth also presented the testimony of a North Carolina police officer who arrested Bennett for possession of narcotics on January 3, 1992, and conducted a search of his residence.4

The trial court concluded that Bennett was a drug dealer and was in possession of the seized money to pay couriers who had brought drugs into the United States on the Air Jamaica flight. The trial court held that the money was lawfully seized and that $8,000 was subject to forfeiture. The trial court ordered that $1,310 be returned to Bennett. Bennett then filed this appeal for the return of the $8,000.5

Bennett contends that the Commonwealth did not meet its burden to prove by a preponderance of the evidence a nexus between the seized cash and any drug activity. The Commonwealth contends the facts, as found by the trial court, sufficiently support the forfeiture.

The Forfeiture Act, at 42 Pa.C.S. § 6801(a)(6)(i)(B), permits the forfeiture of “money ... used, or intended to be used to facilitate any violation of The Controlled Substance, Drug, Device and Cosmetic Act”.6 In Commonwealth v. Nineteen *319 Hundred and Twenty Dollars, U.S.C., 149 Pa.Commonwealth Ct. 132, 612 A.2d 614 (1992), we set forth the burdens of proof in forfeiture cases:

In a forfeiture proceeding, the Commonwealth bears the initial burden of proof which it must satisfy by a preponderance of the evidence. 42 Pa.C.S. § 6802(j); Commonwealth v. One 1988 Suzuki Samurai, 139 Pa.Commonwealth Ct. 68, 589 A.2d 770 (1991). To sustain its burden of proof, the Commonwealth must establish a nexus between the unlawful activity and the property subject to forfeiture. 42 Pa.C.S. § 6802(j); In re King Properties, 145 Pa.Commonwealth Ct. 139, 602 A.2d 486 (1992). Where the Commonwealth sustains its burden, the burden of production shifts to the property owner to disprove the Commonwealth’s evidence or establish a statutory defense to avoid forfeiture. Commonwealth v. One 1974 Chevrolet Box-Type Truck, 126 Pa.Commonwealth Ct. 173, 559 A.2d 76 (1989).

In addition to the facts set forth above, the trial court made the following findings of fact based on Trooper Gilbert’s and Agent Valez’s expert testimony:

12. The money carried by Mr. Bennett was in nine folded packets of ten $100.00 bills. A tenth packet contained three $100.00 bills; a eleventh packet contained five $2.00 bills. (N.T. 34). The fashion in which Mr. Bennett carried the money was consistent with how narcotics dealers fold their money so it is easily exchangeable. (N.T. 35).
13. Typically, the persons previously arrested from the daily 7:30 p.m. to 9:30 p.m. evening Air Jamaica flight number 041 had been approached in the United States by an acquaintance who would provide round trip ticket airfare to Jamaica, food and lodging there for a week to ten days, and sometimes a supply of marijuana. They were then given quantities of marijuana to carry on their persons on [sic] in their luggage, which they were to bring back to the United States through the Philadelphia airport. The couriers were instructed to exit the terminal and wait to be approached for the drug pickup. (N.T. 20-21). When couriers carried narcotics into the United States by way of *320Philadelphia International Airport, someone from the drug organization was typically also on the plane to observe the couriers. (N.T. 79).
14. On the evening Air Jamaica flight number 041 from Jamaica to Philadelphia on November 22, 1991, three persons besides Mr. Bennett and his female companion had been detained for carrying narcotics. One man was found to be carrying four pounds of marijuana; a woman was in possession of 4.4 pounds of marijuana and % pound of cocaine; and another woman was in possession of 10.94 pounds of marijuana. (N.T. 22-23).
16. Anyone bringing $10,000 or more in currency into the United States must file a Currency Monetary Instruments Report. (C.M.I.R.). Drug traffickers are aware of this requirement and attempt to evade the law by bringing in and taking out amounts under the reporting requirement. Because Mr. Bennett had only $9,800, a C.M.I.R. was not required. (N.T. 75-76).7

The facts examined as a whole are that Bennett was travel-ling from Jamaica to Philadelphia with a large amount of cash; he made inconsistent statements about the origin of the cash, the purpose of carrying it, how much money he had taken with him to Jamaica, and where he lived. He had no support for his assertion that the money was his mother’s or'that he intended to purchase a bus engine with the cash. He had no legitimate source of income for such large amounts of money. The cash was carried in a fashion consistent with how narcotics dealers fold their money. Drug couriers were arrested *321with drugs on the same plane and drug traffickers typically send someone on the same plane with the couriers to collect the drugs and pay the couriers when they arrive at their destination. Drug traffickers also typically carry less than $10,000 in currency so that they do not have to file a Currency Monetary Instruments Report. The person at the telephone number Bennett gave to the officers as his residence responded to a statement that someone had brought in a “load” and for him to wait for “Tony” to contact him. Additionally, Bennett has at no time claimed possession of $8,000 of the cash and neither has his mother claimed the amount he alleged was hers.8

The trial court, as the finder of fact, is permitted to draw any reasonable inferences from the evidence. Commonwealth v. Fidelity Bank Accounts, 158 Pa.Commonwealth Ct. 109, 631 A.2d 710 (1993). Bennett argues that because he did not have drugs with him on November 22, 1991, and had no prior narcotic convictions, no reasonable inference could be made that he was involved in any drug activity that night. Although in most cases drugs are present at the time of seizure,9 there is no requirement that drugs be present. Circumstantial evidence can establish Bennett’s drug activity to support the forfeiture. See $91,960.00, 897 F.2d at 1462 (forfeiture of cash carried by a person in an airport who made inconsistent *322explanations about the presence of the money and had a piece of paper recording apparent drug transactions, but no drugs were present at the time of seizure); $1,920 U.S.C., 149 Pa.Commonwealth Ct. at 142, 612 A.2d at 620 (forfeiture based on conduct in alluding police, presence of drug paraphernalia, sniff search and inconsistent statements of the source of the money).

In examining the record as a whole, there was competent evidence from the testimony of the officers who had extensive experience in drug enforcement to support the findings of the trial court. The expert testimony established that Bennett’s travel plans, manner in carrying and amount of money, large amounts of cash, and the presence of couriers on the same flight were consistent with a person trafficking drugs. Moreover, the telephone conversation with “Byron” at Bennett’s residence supported the reasonable inference that Bennett was involved in drug trafficking on that trip. Therefore, there were sufficient facts to support the trial court’s finding of a nexus between the money seized and drug activity by Bennett and we affirm the decision of the trial court ordering forfeiture of $8,000 seized from Bennett.

ORDER

AND NOW, this 1st day of March, 1994, the order of the Court of Common Pleas of Philadelphia County, dated May 5, 1993, M.R. No. 92-990460, is affirmed.

Commonwealth v. Nine Thousand Three Hundred Ten Dollars U.S.C.
162 Pa. Commw. 315 638 A.2d 480

Case Details

Name
Commonwealth v. Nine Thousand Three Hundred Ten Dollars U.S.C.
Decision Date
Mar 1, 1994
Citations

162 Pa. Commw. 315

638 A.2d 480

Jurisdiction
Pennsylvania

References

Referencing

Nothing yet... Still searching!

Referenced By

Nothing yet... Still searching!