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United States v. $2

United States District Court, Ninth Circuit

June 6, 2013

United States of America Plaintiff,
v.
$2, 164, 341 in U.S. Currency, Defendant.

ORDER

DAVID G. CAMPBELL, District Judge.

The government has filed a motion for summary judgment on its forfeiture claim regarding $2, 164, 341 seized from Claimant Leonardo Cornejo-Reynoso ("Claimant"). Doc. 42. The motion is fully briefed. Docs. 45, 46, 47, 48. For the reasons set forth below, the Court will grant the government's motion.[1]

I. Evidentiary Rulings.

The parties have raised various evidentiary objections. The Court will address these issues before considering the merits of the parties' arguments.

A. The Government's Evidence.

In support of its motions, the government cites the verified complaint (Doc. 1) and the following exhibits: (1) the affidavit of Drug Enforcement Administration ("DEA") Special Agent Christopher Salyer ("Agent Salyer") (Doc. 42-2); (2) the affidavit of Javier Granda (Doc. 42-3); (3) Claimant's 2010 bankruptcy schedules (Doc. 42-3); (4) the affidavit of Arizona Department of Public Safety ("DPS") Canine Officer Anthony Gerard ("Officer Gerard") (Doc. 42-5); and (5) a memorandum written by Claimant, on Super Discount Bodega letterhead, to the U.S. Department of Homeland Security, U.S. Citizenship and Immigration Services ("USCIS"), Director David L. Roark, Texas Service Center, (Doc. 50).[2] Claimant makes numerous objections to the government's evidence.

"A trial court can only consider admissible evidence in ruling on a motion for summary judgment." Orr v. Bank of Am., NT & SA, 285 F.3d 764, 773 (9th Cir. 2002). The evidence may be submitted in an affidavit, which would not itself be admissible at trial, but the affidavit or the party presenting it must demonstrate that the affiant could present the evidence in admissible form at trial. See Fraser v. Goodale, 342 F.3d 1032, 1036 (9th Cir. 2003) ("At the summary judgment stage, we do not focus on the admissibility of the evidence's form. We instead focus on the admissibility of its contents."). Thus, "[a]n affidavit or declaration used to support or oppose a motion [for summary judgment] must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant is competent to testify on the matters stated." Fed.R.Civ.P. 56(c)(4). Federal Rule of Evidence 602 prohibits a witness from testifying on a matter "unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter." Thus, an affidavit can support summary judgment only if it sets forth facts personally known to the witness.

Claimant argues that the Court cannot rely on the verified complaint because Agent Salyer's verification does not satisfy Rule 56(c)(4). "A verified complaint may be treated as an affidavit to the extent that the complaint is based on personal knowledge and sets forth facts admissible in evidence and to which the affiant is competent to testify." Lew v. Kona Hosp., 754 F.2d 1420, 1423 (9th Cir. 1985); see also Johnson v. Meltzer, 134 F.3d 1393, 1400 (9th Cir. 1998). Agent Salyer's verification states "that the matters contained in the Complaint are true to my own knowledge, except that those matters herein stated to be alleged on information and belief as to those matters, I believe them to be true. The sources of my knowledge and information and the grounds of my belief are the official files and records of the United States, information supplied to me by other law enforcement officers, as well as our investigation of this case, together with others, as a Special Agent with the [DEA]." Doc. 1-1 at 1. The complaint, however, never identifies which allegations are based on Agent Salyer's personal knowledge and which he simply believes to be true. As a result, the government cannot rely on the verified complaint to support its motion. Affidavits based merely on information and belief do not satisfy the requirements of Rule 56. See Harris v. Gonzales, 488 F.3d 442, 446 (D.C. Cir. 2007). The Court accordingly has relied only on those assertions in the complaint that are admitted by Claimant.

Claimant argues that the Court should disregard the affidavits of Agent Salyer, Javier Granda, and Officer Gerard because the government failed to satisfy its disclosure obligations with respect to these affiants, and because the affidavits fail to show personal knowledge and contain inadmissible hearsay. Claimant's disclosure objection is not well taken. Forfeiture actions are exempt from Rule 26(a)(1)(A)'s initial disclosure requirements. See Fed.R.Civ.P. 26(a)(1)(B)(ii). In response to Claimant's personal knowledge and hearsay objections, the government argues that "[e]vidence required to prove their individual personal knowledge can be provided by the witness's own testimony." Doc. 48 at 8. This argument misunderstands the requirements of Rule 56. The affidavit itself must "show that the affiant is competent to testify on the matters stated." Fed.R.Civ.P. 56(c)(4). The affidavit of Agent Salyer does not state that it is made in its entirety on the basis of personal knowledge, but it does identify some facts that are within his personal knowledge. Doc. 42-2. The Court will consider only those portions of the Salyer affidavit that clearly reflect his personal knowledge. The affidavit of Javier Granda does not show that statements connecting Claimant to a drug cartel are based on personal knowledge. With the exception of Officer Gerard's description of DPS Sergeant Livingston's interview of Claimant (Doc. 42-5, ¶¶ 62-66) - facts admitted in Claimant's answer (Doc. 7, ¶¶ 94-98) - Officer Gerard's affidavit sets forth facts arising from his personal involvement and therefore satisfies the personal knowledge requirement. The Court accordingly will consider the Gerard affidavit, the portions of the Salyer affidavit that reflect personal knowledge, and no portion of the Granda affidavit.

Attached to Agent Salyer's affidavit is a copy of a traffic citation showing that Claimant committed a traffic violation while operating a BMW X5 in Atlanta, Georgia, on March 8, 2011 (Doc. 42-2 at 27), which was found in Claimant's wallet at the time of the seizure ( id., ¶ 50). Claimant does not object to this document. See Doc. 45-1, ¶ 106.

Also attached to Agent Salyer's affidavit is a money ledger. Doc. 42-2 at 29-30. Claimant objects to this document because "there is no indication that [it] is a true and correct copy of the file purportedly obtained from the laptop and no certified translation of that purported file." Doc. 45-1, ¶¶ 79-90. The Court does not agree. Officer Gerard confirms that a Dell laptop computer was found in the passenger compartment of the rental truck when Claimant was stopped. Doc. 42-5, ¶ 61. Agent Salyer states that he and other investigators obtained a search warrant for the laptop, and that the ledger was found on the laptop. Doc. 42-2, ¶¶ 40-49. Claimant does not dispute that a search warrant for the laptop was obtained, but argues without explanation that the issuing court lacked jurisdiction. Doc. 45-1, ¶ 78. The government attached a certified translation of the money ledger to its reply brief. Doc. 48-1 at 6-7. This certification confirms that the translation is accurate. Accordingly, the Court will deny Claimant's lack of foundation objection and will consider the ledger.[3]

Claimant objects to certain bankruptcy records (Doc. 42-4) for lack of certification ( see, e.g., Doc. 45-1, ¶ 57), but does not explain the objection. To the extent Claimant is objecting that the records have not been shown to be records of the Georgia bankruptcy court, this Court can take judicial notice of the fact that the records are found in the docket of the federal bankruptcy court in Georgia. Fed.R.Evid. 201; see also Lee v. City of Los Angeles, 250 F.3d 668, 688-89 (9th Cir. 2001) (court may take judicial notice of matters of public record) (citing Mack v. S. Bay Beer Distrib., 798 F.2d 1279, 1282 (9th Cir. 1986)); but see Madeja v. Olympic Packers, LLC, 310 F.3d 628, 639 (9th Cir. 2002) (district court did not abuse its discretion in refusing to take judicial notice of bankruptcy proceedings given that the submitted documents were not authenticated). To the extent Claimant is objecting that the records have not been shown to be his, Claimant's signature on the bankruptcy records (Doc. 42-4 at 12) matches his signature verifying the answer in this case (Doc. 7 at 16), a fact sufficient to satisfy the authentication requirements of Rule 901(b)(3).

B. Claimant's Evidence.

During the course of this litigation, the government repeatedly arranged for Claimant to enter the United States from Mexico in order to be deposed. The Court also extended the discovery schedule to afford Claimant an opportunity to appear. Claimant repeatedly refused to appear, asserting that he was not willing to enter the United States and risk of being arrested and prosecuted for charges pending against him in an Arizona state court. As a result, the Court entered an order preventing Claimant from testifying or submitting an affidavit in this case. See Doc. 41. As a result, Claimant is required to rely on other sources of evidence to oppose the government's motion for summary judgment.

Claimant has produced (1) an affidavit of Antonio Briseño Herrera (Doc. 45-2), (2) real estate and tax records relating to a 2004 transaction (Docs. 45-3, 45-4, 45-5), (3) documents relating to Claimant's USCIS investor visa application (Docs. 45-6, 45-7, 45-8), and (4) documents relating to an Arizona State criminal matter which was dismissed without prejudice against Javier Granda (Docs. 45-9, 45-10, 45-11). The government objects to the Herrera affidavit and urges the Court to strike it because Claimant did not produce the affidavit in response to the government's Rule 33, 34, and 36 discovery requests. Doc. 48 at 1-2. The affidavit is dated March 25, 2013, only two days before it was filed in this case. The government has not shown that the affidavit existed earlier and therefore should have been disclosed pursuant to a document production request. To the extent the government is complaining that Herrera was not disclosed as a witness, the Court has already noted that this case is exempt from the Rule 26(a)(1) disclosure requirements. Moreover, the government itself relies on Herrera's email and phone conversations (Doc. 42-2, ¶¶ 54, 57-60) and thus was aware of Herrera's identity prior to Claimant's submission of the affidavit. The government has not shown that it was prejudiced by Claimant's failure to disclose. The Court overrules this objection.

The government objects to the documents relating to the real estate transaction because they are "remote in time, contain nothing of significance regarding the source of the specific funds seized, are irrelevant, and fail to raise a material issue of fact." Doc. 48 at 2. Additionally, the government contends that Claimant "can never lay the proper foundation for the introduction of this evidence." Id. The real estate transaction documents include (1) a 2004 California Real Estate Withholding Tax Statement, Form 593-B (Doc. 45-3); (2) a settlement document reflecting closing costs for a 2004 real estate transaction (Doc. 45-4); and (3) a 2004 interest income statement, Form 1099-INT, reflecting proceeds from a real estate transaction (Doc. 45-5). Claimant has not provided an affidavit or other evidence establishing how the real estate documents would be admissible at trial in light of the authentication rules. See Fed.R.Evid. 901, 902. "[U]nauthenticated documents cannot be considered in a motion for summary judgment[, ]" Orr, 285 F.3d at 773, and Claimant has not submitted "evidence sufficient to support a finding that [the real estate transaction documents are] what [Claimant] claims[, ]" Fed.R.Evid. 901(a). Without a certification satisfying Rule 902(4), the unsigned and unsealed public documents are not self-authenticating under Rule 902. The Court notes that Claimant's memorandum to USCIS (Doc. 50), a document filed by the government, supports the fact that Claimant sold an apartment complex in Chula Vista, California in 2004 for approximately $2.8 million - the fact Claimant attempts to support with the real estate documents. The Court will consider the two tax documents submitted by Claimant, because they provide support for the same real estate transaction and presumably could be authenticated without testimony from Claimant. The Court will not consider the settlement statement because Claimant has provided no evidence to show that it was in fact generated as part of the real estate closing or that it exists in a form that could be authenticated by someone other than Claimant (who cannot testify in this case).

As to the USCIS documents (Docs. 45-6, 45-7, 45-8), the government objects to them on relevance grounds and for lack of foundation. Doc. 48 at 2-3. The Court denies the objection because the government relies on a similar USCIS document. Doc. 49 at 2. The Court ...


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