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  • WisBar News
    September 23, 2013

    Funds in Briefcase Could Be Legitimate, Federal Appeals Court Decides

    Sept. 23, 2013 – Vincent Fallon bought a one-way train ticket from Chicago to Seattle for himself and his briefcase, which contained $100,120 in cash. When agents for the Drug Enforcement Administration (DEA) started asking questions, Fallon got nervous.

    Fallon said the agents could search his duffel bag, but he declined the agent’s offer to search the locked briefcase. They did anyway, using a pocket knife to pry it open.

    Suspecting the funds were tied to drugs, the agents used a drug-sniffing dog named “Deny” to determine the money was recently tainted with cocaine. The money actually belonged to Nicholas Marrocco, who joined Fallon’s appeal to get it back. Marrocco was never charged with a crime.

    But the government instituted a civil forfeiture proceeding against the funds as profits of illegal drug transactions. The money was evidence, the government said.

    In federal district court, Marrocco and Fallon initially quashed the seizure, arguing the money (evidence) was the fruit of an illegal search. An appeals court reversed under the inevitable discovery doctrine. That rule says evidence illegally obtained is still admissible if its discovery was inevitable through normal police investigation.

    Then, Fallon and Marrocco challenged the government’s evidence – the experts used to prove the money inside the briefcase was drug money.

    The experts had said that Fallon fit the drug courier profile, and Deny (the dog) was qualified to determine the money was tainted with cocaine. The experts also pointed to Marrocco’s tax returns and sources of income to show his likely involvement in drugs.

    The district court ruled that the government’s evidence was undisputed, granting summary judgment to the government. Marrocco and Fallon appealed. They said there are genuine fact issues as to whether the money was legitimately earned by Marrocco.

    In U.S. v. Funds in the Amount of One Hundred Thousand One Hundred and Twenty Dollars, No. 11-3706 (Sep. 19, 2013), a three-judge panel for the U.S. Court of Appeals for the Seventh Circuit agreed with Marrocco and Fallon, reversing the lower court.

    “If believed, Marrocco’s affidavit testimony provides the trier of fact with a basis for finding that Marrocco legally accrued (or at least, could have legally accrued) the Funds,” wrote Judge Daniel Manion.

    The panel also said Marrocco’s expert, a forensic chemist, created a dispute of material fact about whether “drug-dog alerts to currency are in general … reliable evidence that the currency recently has been in contact with illegal drugs.”

    Marrocco’s expert undermined the government’s evidence that drug dogs only alert to methyl benzoate generated by cocaine if the currency is recently exposed. That is, the government’s expert said detectable benzoate levels drop quickly after exposure.

    The panel also recognized Marrocco’s attack on Deny, the dog. A certified dog trainer said Deny was not trained to distinguish between odors of illicit cocaine and odors of other agents, such as baking soda, which can be used to create cocaine.

    “The district court erred in holding that, where the government offers evidence of a drug dog’s performance in the field to establish that drug dog’s reliability, a party cannot create a dispute of fact regarding the drug dog’s reliability by offering evidence that the drug dog was inadequately trained,” Judge Manion wrote.

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