UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

United States of America

v. Civil No. 05-cv-085-JM

Thirty-Eight Thousand Dollars

($38,000.00) in United States Currency

O R D E R

 Plaintiff has filed two motions in limine and a Rule

26(a)(3) and LR 16.2 objection. 

1. Rule 26(a)(3)/LR 16.2 Objection. 

a. Claimant did not comply with these rules in

setting forth the phone numbers of his witnesses. However, in a

ten person sampling the court readily found the phone numbers of

9 of the 10 persons sampled. The trial list complied with the

rules. The objection is overruled. 

b. Documents requested in discovery but not produced

(document no. 56, pp. 203) may not be introduced. 

c. Depositions/state court testimony of witnesses

alive and within subpoena range may not be admitted into evidence

except they may be used to impeach or refresh recollection. 

d. Objections to the revised exhibit list are

reserved to trial to be ruled upon in context. 

Case 1:05-cv-00085-JM Document 67 Filed 08/04/06 Page 1 of 9
2

e. Attorneys fees, if any, will be considered posttrial. 

Document no. 56 is granted in part, moot in part and denied

in part. 

2. Motion in limine to exclude expert testimony for

claimant. 

Claimant disclosed no expert and has not objected to the

motion. 

Document no. 48 is granted. 

3. Motion to use prior drug history of claimant and “his

associates and witnesses”. 

a. Rule 609

Impeachment by evidence of a felony less than 10

years old or on dishonesty or false statement will generally be

permitted but no juvenile convictions may be used. Fed. R. Evid.

609(a) and (d). Whether any such conviction is unduly

prejudicial cannot be determined on the memorandum submitted. 

Counsel is to seek a bench determination prior to each such

attempted impeachment. 

b. Rule 404(b) and Relevant.

The government apparently contends that all

Case 1:05-cv-00085-JM Document 67 Filed 08/04/06 Page 2 of 9
3

arrests or convictions for drug offenses of the claimant or “his

associates” is admissible. 

I. Evidence of Prior Drug History

The government argues that “courts have long accepted

evidence of prior drug histories of both claimants and their

associates, whether resulting in arrests and convictions or not,

as probative of a connection between seized currency and drug

trafficking.” The authorities cited by the government do not

stand for this sweeping proposition.

In United States v. One Lot of U.S. Currency ($36,634), 103

F.3d 1048, 1054-55 (1st Cir. 1997), the court stated that

“[a]ssociation with known criminals, without more, is, of course,

not enough to establish probable cause.” The court found,

however, that additional facts in that case deepened the

probative value of the claimant’s association with accused drug

traffickers, including the following: (1) the claimant took a

circuitous route to the airport; (2) the claimant had a nearly

identical itinerary to one of the associates; (3) an associate’s

appearance with the claimant at a DEA office; and (4) the

claimant’s bailing out of an associate with a large sum of cash

when banks were closed. Id. at 1055. Thus, One Lot of U.S.

Case 1:05-cv-00085-JM Document 67 Filed 08/04/06 Page 3 of 9
4

Currency ($36,634), does not stand for the broad proposition set

forth by the government that any associate’s drug history is

probative of a connection between seized currency and drug

trafficking. The government’s other authorities are similarly

unpersuasive on this point. 

In United States v. $20,330.00 in U.S. Currency, No. 04-cv02143, (D. Colo. May 1, 2006), the Court noted that the

claimant’s close associate was a suspected methamphetamine dealer

who had distribution quantities of methamphetamine recovered from

the associate’s home pursuant to a search warranted, but that was

not the most salient fact supporting the decision. The court

noted that officers had received anonymous tips that: (1) the

claimant was selling drugs in the area; (2) the claimant had

delivered drugs to his close associate; (3) the claimant had

traveled out of state with over $10,000 and returned with “a load

of drugs”; and (4) the claimant was the supplier for two other

persons who were selling methamphetamine in the area. Id. at *2. 

Those facts were in addition to a positive drug dog alert to the

seized currency. Id. at *5.

In United States v. $22,991.00, More or Less, In United

States Currency, 227 F. Supp. 2d 1220 (S.D. Ala. 2002), the

Case 1:05-cv-00085-JM Document 67 Filed 08/04/06 Page 4 of 9
5

claimant’s “associate” was a convicted crack cocaine dealer who

had dealt crack cocaine out of the claimant’s house, and whom the

claimant referred to as her common law husband. Id. at 1223. 

Moreover, the claimant conceded to an agent that a significant

portion of the defendant currency represented proceeds from one

or more of her common law husband’s drug transactions. Id. at

1234.

In United States v. U.S. Currency ($83,310.78), 851 F.2d

1231 (9th Cir. 1988), a case decided under the pre-CAFRA

standard, the claimant’s “associate” was her son who had twice

been convicted of possession for sale of controlled substances,

and had also been arrested for possession thereafter. The court

found that those facts demonstrated that more than “mere

suspicion” existed of the son’s involvement in illegal drug

transactions where officers seized the defendant currency from a

bathroom in the claimant’s house immediately after the son exited

the bathroom, and neither the claimant, her son, or her son’s

wife claimed ownership of the seized money immediately after the

officers discovered it in the bathroom. Id. at 1235-36.

In sum, a fair reading of the cases appears to be that a

claimant’s close association with known or accused drug

Case 1:05-cv-00085-JM Document 67 Filed 08/04/06 Page 5 of 9
6

traffickers is one factor that may be considered in determining

whether there is a connection between seized currency and drug

trafficking. The cases do not support the government’s apparent

argument that any associate’s prior drug history is probative

evidence. 

II. Propensity Evidence

The government argues that Fed. R. Evid 404(b) permits the

use of other crimes evidence such as the prior drug history of

Drake’s associates and witnesses for the purpose of showing a

nexus between the seized currency and controlled substance

offenses. The cases that the government cites in support of this

proposition are inapposite. Furthermore, this appears to be an

attempt to get around the bar to character or propensity evidence

because the only way that you can draw a connection between the

currency and controlled substance offenses is by inferring that

the persons with prior drug histories who used the truck,

probably committed substances offenses again, or intended to do

so in the future. The currency itself does not have an intent,

motive or plan.

III. Non-Propensity Evidence

The government argues that evidence that a distribution

Case 1:05-cv-00085-JM Document 67 Filed 08/04/06 Page 6 of 9
7

quantity of marijuana was stolen from Alvin Drake’s barn is

admissible under Fed. R. Evid. 404(b) for the purposes of

showing: (1) that Drake possessed the defendant currency in order

to pay a debt to the suppliers of the stolen marijuana; (2) that

Drake and his associates had motive to possess currency that was

intended to be used to facilitate additional drug transactions;

or (3) that Drake and his associates had the opportunity to

generate the amount of money by the drugs that the government

infers was must have at one time been in the bag along with the

marijuana that was stolen.

These theories are problematic in that (1) the government

does not have the bag to show to the jury; (2) it seems highly

unlikely that a drug dealer would mark the quantity of drugs on a

bag containing drugs; (3) there is an insufficient basis upon

which to infer that the bag from which the marijuana was stolen

was ever full; and (4) it seems highly unlikely that Drake would

have told high school kids about marijuana stored in his barn; it

seems highly unlikely that the high school kids would know

exactly where to look to find marijuana in Drake’s barn.

Despite the foregoing problems with the government’s

theories pertaining to the marijuana in the barn, however, there

Case 1:05-cv-00085-JM Document 67 Filed 08/04/06 Page 7 of 9
8

does not appear to be basis for categorically denying the

government the opportunity to put on evidence pertaining to a

distribution quantity of marijuana that was stolen from a barn

within Drake’s possession custody or control for the purpose of

showing a motive, opportunity or intent to use the defendant

currency to facilitate drug transactions.

In short, unless the government can establish that the mere

arrest or conviction of an associate is accompanied by more such

evidence is not relevant and is not admissible under Fed. R.

Evid. 404 (b). 

The marijuana theft from the Drake barn, the alleged odor of

marijuana on the money, the “roaches” and the “dog alert” are

relevant. Whether more referenced in the motion is admissible

cannot be determined without a more substantial proffer as to

each witness. 

The motion (document no. 49) is denied without prejudice to

further proffer in context at trial. 

SO ORDERED.

____________________________________

James R. Muirhead

United States Magistrate Judge

Date: August 4, 2006

Case 1:05-cv-00085-JM Document 67 Filed 08/04/06 Page 8 of 9
9

cc: David H. Bownes, Esq.

 Robert J. Rabuck, Esq.

 Jean B. Weld, Esq.

Case 1:05-cv-00085-JM Document 67 Filed 08/04/06 Page 9 of 9