Anderson, 477 U.S. at 249-50; 10 Charles A. Wright, Arthur R. Miller & Mary K. Kane, Federal
Practice and Procedure: Civil § 2712, at 574-78 (2d ed. 1983)). Not all factual disputes warrant the
denial of summary judgment; only disputes as to facts material to the substantive claim require
resolution by trial. Smith v. City of Chicago, 242 F.3d 737, 744 (7" Cir. 2001) (citing Anderson,
477 US. at 247-248).
B. Forfeiture

The United States may seek the forfeiture of seized funds under CAFRA. See 18 U.S.C. §
983(c). As the Government correctly points out, forfeiture of property is appropriate if the
government demonstrates, by a preponderance of the evidence, that the property is subject to
forfeiture. See 18 U.S.C. § 983(c)(1). Specifically, CAFRA provides: “In a suit or action brought
under any civil forfeiture statute for the civil forfeiture of any property . . . the burden of proof is on
the Government to establish by a preponderance of the evidence, that the property is subject to
forfeiture[.]” 18 U.S.C. § 983(c). United States currency can be subject to forfeiture if the currency
were the proceeds, or intended to facilitate, an illegal drug transaction. See 21 U.S.C. § 881(a)(6);

see also United States v. $506,231 in United States Currency, 125 F.3d 442, 451 (7" Cir. 1997). In

order to establish that the seized funds were the proceeds of, or intended to facilitate, an illegal drug
transaction, the United States must demonstrate a nexus between the seized property and illegal drug
activity. See $506,231, 125 F.3d at 451. The Government may rely on direct evidence as well as

on circumstantial and hearsay evidence. Id. (citing United States vy. All Assets and Equipment of

West Side Building Corp., 58 F.3d 1181, 1187 (7" Cir. 1995)). Evidence gathered after the filing
of the complaint may be used to meet the United States’ burden. See 18 US.C. § 983(c)(2). “Once

the government meets its burden . . . ‘the ultimate burden shifts to the claimant to prove by a


peered

imares, 269 F.3d at 798 (discussing establishment of reliability at 62%). Thus, the fact that an alert
was registered by a reliable drug detection dog demonstrates that the money was linked to illegal

narcotics transactions. See Limares, 269 F.3d at 798.

Considering the totality of the evidence, the Government has shown by a preponderance of
the evidence that the $30,670 is subject to forfeiture and that Antonio Calhoun’s claim should be

rejected.
Ill. CONCLUSION
For the foregoing reasons, Plaintiff's motion for summary judgment is granted.

IT IS SO ORDERED

ENTER:

Bint bony

CHARLES RONALD NORGLE, wih,

United States District Court

DATED: 7-5 FP 2


span of two months. (See id.) This includes Calhoun’s travel on one day, July 9, 2000, from Phoenix
to Chicago, and back to Phoenix. (See id.) This frequent pattern of travel and use of cash for one-
way ticket purchases is indicative of drug transactions.

The second and third factors involve the large amount of cash found in Calhoun’s possession,
as well as the lack of legitimate sources ‘for such an amount. As the Seventh Circuit has stated, “the
existence of any sum of money, standing along, is not enough to establish [by a preponderance of
evidence] that money is forfeitable.” $506,231, 125 F.3d at 452 (other citations omitted). “No court
in the nation has yet held that, standing alone, the mere existence of currency, even a lot of it, is
illegal.” $506,231, 125 F.3d at 452. Calhoun told the DEA agents that the seized funds were the
accumulation of savings and gambling earnings. However, the Government submits evidence of
Calhoun’s finances, specifically tax returns and reported expenditures for the years 1998, 1999, and
2000, which contradict Calhoun’s story. (See PI.’s Local Rule 56.1 Statement of Facts, ex. I, J, K,
and L; Pl.’s Mot. for Summ. J., pp. 4-7.)

Calhoun’s federal income tax returns for 1998, 1999, and 2000 list an adjusted gross income
of $27,120.00, $14,086.00, and $19,109.00 respectively. (See id.) Additionally, Calhoun was
awarded an earned income credit and tax refund in 1998 of $4,473 and 1999 of $4,910. (See id.)
Calhoun’s finances also contain a benchmark of November of 1998 when he filed for bankruptcy.
(See PI.’s Local Rule 56.1 Statement of Facts, Ex. I.) Calhoun’s bankruptcy statement under oath
showed that he had no cash or savings at the time of filing. (See id.) Thus, Calhoun’s financial

picture can be accurately developed from November of 1998 to September 5, 2000.


preponderance of the evidence that the property is not subject to forfeiture by demonstrating that
[the] property was not used in connection with drug activities.” Id.

The government argues that five factors provide a nexus between the seized currency and
illegal drug transactions: (1) Calhoun’s purchase of a one-way ticket on September 5, 2000; (2) the
large amount of cash hidden within a girdle on Calhoun’s person; (3) Calhoun’s lack of legitimate
sources of income to accumulate the seized funds; (4) Calhoun’s implausible and inconsistent
statements to DEA agents and in deposition testimony; and (5) the alert by the Cook County
Sheriff's Police Narcotics Detection dog to the seized funds. Calhoun argues that the Government’s
assertions are “nothing more than extrapolated speculations stemming from innocuous facts,” but
offers no evidence of his own to support that counterclaim. (Claimant’s Mem. of Law in Resp. to
Pl.’s Mot. For Summ. J., pg. 4.) The court finds the Government’s argument persuasive, especially
when the totality of the evidence presented is examined. The court will address each of the
Government’s five factors in turn.

First, Calhoun’s purchase of a one-way ticket. A purchase of one-way ticket does not itself
indicate the connection to illegal narcotics transactions; Nor would the fact that Calhoun did not
check any luggage necessarily indicate such a connection, even though the Government submits case

law on this point. See Florida v. Royer, 460 U.S. 491, 502 (1983); United States v. McCarthur, 6

F.3d 1270, 1278 (7" Cir. 1993). However, when the evidence submitted by the Government related
to Calhoun’s travel is examined, it shows a pattern that is consistent with illegal narcotics
transactions. (See Pl.’s Local Rule 56.1 Statement of Facts, Ex. D.) From July 1, 2000 up until
Calhoun was interdicted on September 5, 2000, he traveled from Chicago’s Midway Airport to

Phoenix and back seven times. (See id.) Calhoun purchased 14 individual one-way tickets in the


coi SSRN a

that he was returning. (See id.) Additionally, Calhoun had not brought any luggage, much less any
of his personal possessions, another indication that he had no intention of moving. (See id.) In fact,
when questioned Calhoun could not remember the last name of his girlftiend in Phoenix, with whom
he stated he wished to start his life over. (See id.) Finally, and most significantly, Calhoun made
no arrangements for his two children he claimed were living with him to travel to Phoenix. (See id.)
All of these acts and omissions contribute to the implausibility that Calhoun was moving to Phoenix
to start over.

Calhoun also made several inconsistent statements. Calhoun stated he had traveled to
Phoenix only three times, when the airline records show that he had been to Phoenix and back to
Chicago seven times between July 1, 2000 and August 27, 2000. (See Pl.’s Local Rule 56.1
Statement of Facts, Ex. C, and D.) Additionally, Calhoun gave inconsistent statements about his
accommodations in Phoenix. Calhoun stated he stayed at a hotel on 55" and the expressway in
Phoenix, either a Holiday Inn or Hamptons Inn. (See Pl. Local Rule 56.1 Statement of Facts, Ex.
C.) In fact, Calhoun stayed at the Travelers Inn. (See Pl. Local Rule 56.1 Statement of Facts, Ex.
H.) And, as previously discussed, Calhoun gave inconsistent statements about the source of the
seized funds.

Fifth and last, the Government cites to the alert by the Cook County Sheriff’s Police Drug
Detection dog in response to the seized funds. As the Government correctly states, a reliable drug
detection dog can establish by a preponderance of evidence that money was linked to illegal drug

transactions. (See Pl.’s Local Rule 56.1 Statement of Facts, Ex. O.); United States v. Limares, 269

F.3d 794, 798 (7" Cir. 2001). The evidence submitted by the Government clearly establishes the

drug detection dog, in this case Cook County Sheriff's Drug Detection Dog Bax, is reliable. See


e

* inate Order Form (06/97)

United States District Court, Northern District of Illinois

Name of Assigned Judge Sitting Judge if Other
or Magistrate Judge Charles R. Norgle, Sr. than Assigned Judge
CASE NUMBER 01 C 1340 DATE 7/9/2002
CASE United States of America vs. $30,670 in United States Funds
TITLE
[In the following box (a) indicate the party filing the motion, ¢.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
MOTION: of the motion being presented.)
DOCKET ENTRY:
qd) Oo Filed motion of [ use listing in “Motion” box above.]
(2) QO Brief in support of motion due
(3) dq Answer brief to motion due. . Reply to answer brief due
(4) oO Ruling/Hearing on set for at
(5) Oo Status hearingfheld/continued to] [set for/re-set for] on set for at
(6) Qo Pretrial conference[held/continued to] [set for/re-set for] on _ set for at :
(oO) Oo Trial[set for/re-set for] on at
(8) o [Bench/Jury trial] [Hearing] held/continued to at
(9) o This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
OFRCP4(m) (General Rule21 OFRCP41(a)(1) 0 FRCP41(a)(2).
qo) «=f [Other docket entry] Before the court is Plaintiff’s motion for summary judgment. Plaintiff's
motion is granted. See attached.
(11) @f [For further detail see order attached to the original minute order.]
No notices required, advised in open court.
No notices required,
Notices mailed by judge’s staff.
Notified counsel by telephone.
X_ | Docketing to mail notices. .
} Mail AO 450 form. .
Copy to judge/magistrate judge.
courtroom *
deputy’ fn:S Nd G- Tne 20
initials
me received I
ORE Ee ting dep wi



Using Calhoun’s bankruptcy as a starting point, Calhoun earned only $4,520 for the rest of
the 1998.2 (See Pl.’s Local Rule 56.1 Statement of Facts, ex. I, J, K, and L; Pl.’s Mot. for Summ.
J., pp. 4-7.) Adding this to the adjusted gross income from 1999 and 2000, as well as the earned
income credits and tax refunds, Calhoun’s total income from November of 1998 to September 5,
2000 equals $47,098.00. (See id.)

The Government also submits evidence of Calhoun’s expenses over the same period of time,
November of 1998 until September 5, 2000. Based on Calhoun’s deposition testimony and financial
documents, the Government estimated his total expenditures for the period at $73, 492.94. (See PL.’s
Local Rule 56.1 Statement of Facts, ex. C, I, J, K, and L; Pl.’s Mot. for Summ. J., pp. 4-7.)
Calhoun’s expenses were based on his daily costs, such as rent and utilities, as well as his air fares
to Phoenix, and the seized money itself. These expenditures clearly exceed the $47,098.00 that
Calhoun claims to have earned during this same period. (See Pl.’s Mot for Summ. J., pp. 4-7.)
There is a difference of $26,394.00 in expenses exceeding Calhoun’s stated earned income. Thus,
Calhoun cannot have saved the $30,670.00 that was seized.

Fourth, Calhoun’s inconsistent and implausible testimony. On September 5, 2000, when
Calhoun was stopped, he voluntarily answered several questions posed by the DEA agents. Calhoun
told the agents he was moving to Phoenix to start over with his girlfriend. (See Pl.’s Local Rule 56.1
Statement of Facts, Ex. C) This answer was implausible considering several of Calhoun’s actions

and omissions. Calhoun drove his vehicle to Midway on September 5, 2000, which would indicate

? Calhoun’s earnings after bankruptcy in November of 1998 is based on the adjusted gross
income that he listed on his 1998 federal income tax return. As stated previously, Calhoun listed
an adjusted gross income of $27,120.00 for 1998. When this is broken down into a monthly basis
it equals $2,260 per month. Thus, after the November bankruptcy, Calhoun earned $4,520 the
rest of the fiscal year 1998.


vy. Consolidated High School District No. 230, 991 F.2d 1316, 1320 (7 Cir. 1993), that raise more
thana mere scintilla of evidence to show a genuine triable issue of material fact. See Murphy v. ITT

Technical Services. Inc., 176 F.3d 934, 936 (7" Cir. 1999); see also Shank v. William R. Hague, Inc.,

192 F.3d 675, 682 (7" Cir. 1999) (stating that a party opposing summary judgment must present
“what evidence it has that would convince a trier of fact to accept its version of events”). A
defendant is entitled to put the plaintiff to his proofs and demand a showing of the evidence. See
e.g. Navarro v. Fuji Heavy Industries. Ltd., 117 F.3d 1027, 1030 (7" Cir. 1997). If the plaintiff fails
to come up with the required proof, the defendant is entitled to summary judgment. See id. It bears
repeating that the plaintiff must present evidence, rather than speculation and conclusions without

factual support. See Rand v, CF Industries, Inc., 42 F.3d 1139, 1146-47 (7" Cir. 1994).

Indeciding a motion for summary judgment, the court can only consider evidence that would

be admissible at trial under the Federal Rules of Evidence. See Bombard v. Fort Wayne

Newspapers, Inc., 92 F.3d 560, 562 (7 Cir. 1996). The court views the record and all reasonable
inferences drawn therefrom in the light most favorable to the party opposing summary judgment.
See Fed. R. Civ. P. 56(c); Perdomo v. Browner, 67 F.3d 140, 144 (7 Cir.1995). “In the light most
favorable” simply means that summary judgment is not appropriate if the court must make “a choice

of inferences.” See United States v. Diebold Inc., 369 U.S. 654, 655 (1962); First Nat’l. Bank of

Arizona v. Cities Service Co., 391 U.S. 253, 280 (1968); Wolf v. Buss (America) Inc., 77 F.3d 914,
922 (7"" Cir. 1996). The choice between reasonable inferences from facts is a jury function. See

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). The court has one task and one task

only: to decide, based on the evidence of record, whether there is any material dispute of fact that

requires a trial. Waldridge v. Amercian Hoechst Corp., 24 F.3d 918, 920 (7" Cir. 1994) (citing


individual, fitting Calhoun’s description, would be traveling through the airport with a large amount
of United States currency.

The DEA agents began to question Calhoun and discovered he had $1,700 contained in a
duffle bag that he carried. After the discovery of the $1,700, the DEA agents asked Calhoun, “are
you sure there’s no more money on you?” To which Calhoun replied “No.” At this point, one of
the DEA agents made contact with Calhoun and felt one or more bundles under Calhoun’s clothes.
Calhoun agreed to accompany the DEA agents to an office, where the agents found twenty-nine
bundles of United States Currency contained within a women’s girdle on Calhoun’s person. The
DEA agents then took these bundles of money and placed them in one of several suitcases in the
office. At the request of the DEA agents, a Cook County Sheriff's Police Narcotic Detector dog was
brought into the office to conduct a narcotics sweep. The dog alerted to the suitcase which contained
the bundles of money.

Calhoun claimed at the time that he was taking the money to Phoenix to make a new start
with a girlfriend, and that the money was what he had saved over a three year period, from 1998 to
2000. Calhoun was released and the DEA agents confiscated the money. The United States filed
a forfeiture action based on the seizure of $30,670 in United States currency from Calhoun’s person.
The Government now moves for summary judgment.

II. DISCUSSION
A. Standards for Summary Judgment

Summary judgment is permissible when “there is no genuine issue as to any material fact and

. .. the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). The

nonmoving party cannot rest on the pleadings alone, but must identify specific facts, see Cornfield


IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
UNITED STATES OF AMERICA,
Plaintiff,

HONORABLE CHARLES R. NORGLE
$30,670 in UNITED STATES FUNDS,

)
)
)
)
v. ) Case No. 01 C 1340
)
)
)
Defendant. )
ORDER AND OPINION

CHARLES R. NORGLE, District Judge:

Before the court is Plaintiff's motion for summary judgment pursuant to Federal Rule of
Civil Procedure 56. For the following reasons, the motion is granted.

I. BACKGROUND'

This case involves an action under the Civil Asset Forfeiture Reform Act (“CAFRA”), 18
U.S.C. § 983(c)(1). The facts of this case are not in dispute. (See Claimant’s Mem. of Law in Resp.
to Pl.’s Mot. for Summ. J., pg. 1.) On September 5, 2000, claimant, Antonio Calhoun (“Calhoun”),
presented himself at the America Trans Air (“ATA”) Airlines ticket counter at Midway Airport i
Chicago. Calhoun purchased a one-way ticket to Phoenix, Arizona on ATA for $305.00. Calhoun
paid cash for the ticket, which was for a flight the same day. As Calhoun proceeded through security

and to the boarding area for the flight, he was stopped by two Drug Enforcement Administration

(“DEA”) agents. The DEA agents informed Calhoun that they received an anonymous tip that an

' The court takes the facts from the parties Local Rule 56.1 statements and accompanying
briefs. Disputed facts are noted in the text.

WD