State v. Rivera (In re Two Hundred Fifty Thousand One Hundred One Dollar & Sixty Cents ($250,101.60) in U.S. Currency)

In the Matter of: TWO HUNDRED FIFTY THOUSAND ONE

HUNDRED ONE DOLLAR AND SIXTY CENTS ($250,101.60)

IN UNITED STATES CURRENCY ET AL.,

AS DESCRIBED IN THE ATTACHED APPENDIX.

STATE OF ARIZONA, Plaintiff/Appellee, v. MELISSA RIVERA, Claimant/Appellant.

No. 1 CA-CV 15-0219

ARIZONA COURT OF APPEALS DIVISION ONE

May 3, 2016

NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

Appeal from the Superior Court in Maricopa County

No. CV2012-010729

The Honorable Katherine M. Cooper, Judge

AFFIRMED

COUNSEL

Maricopa County Attorney's Office, Phoenix

By Peter S. Spaw

Counsel for Plaintiff/Appellee

Law Office of Frank Adamo, Phoenix

By Frank Adamo

Counsel for Claimant/Appellee

MEMORANDUM DECISION

Judge Kenton D. Jones delivered the decision of the Court, in which Presiding Judge Diane M. Johnsen and Judge Patricia A. Orozco joined.

JONES, Judge:

¶1 Melissa Rivera appeals from the trial court's order directing forfeiture of $250,101.60 in U.S. currency (the Currency). For the following reasons, we affirm.

FACTS¹ AND PROCEDURAL HISTORY

¶2 In May 2012, while patrolling a highway commonly used for narcotics trafficking, an officer with the Buckeye Police Department observed a vehicle exceeding the posted speed limit and performed a traffic stop. The driver, Julio Rivera, stated he had traveled to Phoenix from California three days earlier to see his father, for whom he had no phone number, but visited his cousin instead. He could not provide an address for either family member. The officer later discovered Julio had received a traffic citation from the California Highway Patrol just one day prior to the stop, which was during the period he told the officer he had been in Arizona.

¶3 Julio consented to a search of the vehicle, and the officer discovered a number of bulk grocery items, including a box of kitty litter and a box of laundry detergent that appeared to have been opened and resealed and weighed less than indicated on the boxes. Julio claimed he had used his cousin's discount store membership to purchase the items before returning to California; yet, a membership card for the same discount store, issued in Julio's name, was found in his possession. After Julio was arrested for speeding, a canine trained to alert to the presence ofmarijuana, methamphetamine, cocaine, and heroin was brought to the scene and alerted on the kitty litter box.

¶4 The officer opened both suspicious boxes and discovered twenty-one vacuum-sealed bundles of U.S. currency, totaling $249,915. At trial, officers with extensive experience in drug interdiction testified re-sealing packages and using kitty litter and detergent are common for "persons involved in trafficking and narcotics . . . in the hopes that it seals or prevents a dog from getting to the scent of any odor that might be on the currency." Additionally, the nature of the Currency supported a link to illegal drug trafficking because it was comprised primarily of twenty-dollar bills and grouped into packets of approximately $5,000 each, making it easy to count during a "quick transaction." Moreover, Julio's direction of travel — south — was consistent with the movement of drug money into Mexico.

¶5 When the officer questioned Julio about the Currency, he stated his cousin had given it to him to transport to Mexico and estimated the total sum was $50,000. According to the officer, the discrepancy between the actual amount of the Currency, and the amount Julio said he thought he was transporting, was significant because people transporting money derived from illegal activities are often just couriers and are "not told exactly what they have."

¶6 Three months later, in response to the State's notice of pending forfeiture, Julio filed an affidavit averring the Currency belonged to his sister, Melissa. He explained he worked for Melissa in an "ATM business" and that the Currency was "obtained through the legal means of collection from the ATMs owned by his sister's business." The State then filed a complaint alleging the Currency "constituted proceeds of a transaction involving prohibited drugs" and was subject to forfeiture. Melissa answered the complaint, alleging she had an interest in the Currency and it was exempt from forfeiture.

¶7 At the hearing, Melissa testified she obtained the Currency by importing medical equipment from China and then exporting the equipment to Mexico. She testified she dealt primarily in cash because she did not trust banks and law enforcement. According to Melissa, although she made $300,000 between 2009 and 2012 performing these activities, "it [was] not an official business" but "something [she] would just do," and therefore, she did not keep any records, did not report her income to any state or federal revenue service, and did not declare to those regulating border activity that she was carrying large sums of cash across the United States-Mexico border.

¶8 Regarding the funds found in the kitty litter box, Melissa testified she had asked Julio, who was living with her in California at the time, to pick up that money from a customer at a house in Phoenix. She also testified the funds found in the detergent box were her savings, which she had previously kept under her bed, but had given to Julio to deposit at her bank, seven minutes away from their California home, so she could use it to purchase an expensive piece of equipment. She did not provide any receipts or other business records to support these statements and did not elaborate on why an import/export business might engage in transactions involving over eleven thousand twenty-dollar bills. Further, Melissa denied knowing that Julio had not done as she asked until he told her, several months later, that the Currency had been seized.

¶9 Melissa testified she was in Texas when she asked Julio to make the deposit at the California bank and then travel to Phoenix to pick up money from a customer. When advised this was inconsistent with her deposition testimony that she deposited $24,500 at an ATM in California the day before Julio was arrested because she did not feel comfortable carrying all that cash, she claimed those deposits were actually made by her mother, from her mother's personal funds, while Melissa was out of town.

¶10 In his testimony, Julio abandoned both of his prior accounts and corroborated Melissa's story. Julio explained that even though he drove by Melissa's California bank on his way to Phoenix, he put off the deposit of her savings because "it would be easier just to . . . just do one big deposit at once." Julio testified that before he left California, he spent several hours removing, counting, and binding the cash from under Melissa's mattress, vacuum-sealing the bundles, and concealing them in the kitty litter and detergent boxes so "it wouldn't be detectable to anybody, a thief or a police officer," acknowledging "that if [he] were pulled over, [he] could get the money forfeit[ed]." He then testified he purchased the other bulk grocery items in California to hide the boxes with the Currency.

¶11 Julio then stated he picked up additional funds from Melissa's client in Phoenix, but there were no banks open when he left a motel early the next morning, so he packaged that money the same way, thinking he would deposit nearly a quarter of a million dollars in one of the little cities in Arizona he would drive through on the way to California. He did not explain how he was able to vacuum-seal the money in his motel room before heading back toward California.

¶12 After taking the matter under advisement, the trial court ordered the Currency forfeited to the State, finding: (1) the State proved bya preponderance of the evidence that the Currency was subject to forfeiture pursuant to Arizona Revised Statutes (A.R.S.) sections 13-2301(D)(4)(b)(xi),² (xxvi), -2314(G)(3), and -4304; and (2) Melissa failed to prove by a preponderance of the evidence that any ownership interest she might have in the Currency was exempt from forfeiture pursuant to A.R.S. § 13-4304. Melissa timely appealed, and we have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1) and -2101(A)(1).

DISCUSSION

I. Motion in Limine

¶13 Melissa argues the trial court erred in denying her motion in limine to preclude evidence of the canine alert as a discovery sanction for the State's failure to timely disclose certain details regarding the training and certification of the canine.³ See Zimmerman v. Shakman, 204 Ariz. 231, 235, ¶ 13 (App. 2003) (noting that a motion in limine to enforce disclosure rules "is effectively a request for sanctions under Rule 37(c)"). The trial court has broad discretion over discovery matters, and we will not disturb its rulings on those matters absent an abuse of that discretion and resulting prejudice. Id. at ¶ 10 (quoting Brown v. U.S. Fid. & Guar. Co., 194 Ariz. 85, 88, ¶ 7 (App. 1998)); see also State v. Towery, 186 Ariz. 168, 186 (1996) ("Denial of a sanction is generally not an abuse of discretion if the trial court believes the defendant will not be prejudiced.") (citing State v. Fisher, 141 Ariz. 227, 246 (1984)). We find none.

¶14 Melissa asserts she was prejudiced because she was forced to "engage in discovery on the stand," and, had she received the information earlier, "an objective expert could have found significant flaws in the canine's pedigree, medical records, certifications, and overall performance." Melissa made these same assertions during oral argument; however, the record reflects the trial court deferred its ruling until the conclusion of the trial in order to carefully consider whether she hadsuffered any prejudice from the purported failure to disclose. Then, the court specifically found:

[The canine officer] was questioned about and testified extensively about the dog's training, habits, personality and performance and there was no showing of prejudice to the Defendant. In other words, an ability to

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