United States v. $7,877.61 U.S. Currency

UNITED STATES OF AMERICA, Plaintiff, v. $7,877.61 UNITED STATES CURRENCY, Defendant.

09-CV-6306P

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK

September 30, 2015

DECISION & ORDER

PRELIMINARY STATEMENT

The United States of America has filed this civil in rem forfeiture action pursuant to 21 U.S.C. § 881(a)(6) seeking forfeiture of $7,877.61 in United States currency. (Docket # 1). Claimant Harvey A. Bailey ("Bailey") has responded to the complaint, claiming an interest in the seized currency. (Docket # 4). Pursuant to 28 U.S.C. § 636(c), the parties have consented to the disposition of this case by a United States magistrate judge. (Docket # 21).

Currently pending before the Court is the government's motion for summary judgment. (Docket ## 67, 84). For the reasons discussed below, the motion is denied.

THE GOVERNMENT'S MOTION FOR SUMMARY JUDGMENT

The government seeks summary judgment on the grounds that the materially undisputed evidence demonstrates that the seized currency is substantially connected to narcotics trafficking. (Docket # 68 at 2). According to the government, the undisputed facts demonstrate that Bailey was engaged in the sale of narcotics, and the currency, along with other drug-relatedparaphernalia, was seized from his residence. (Id. at 8). The government further relies on the fact that, as a result of the evidence seized from Bailey's residence, he was convicted for possession of narcotics with intent to sell. (Id.). Finally, the government maintains that the undisputed evidence demonstrates the absence of any legitimate source for the currency. (Id. at 9). Bailey opposes the motion, contending that material issues of fact preclude a finding that the seized currency was substantially connected to narcotics trafficking.¹ (Docket # 78 at 15-16).

A. Factual Background

In opposition to the pending motion, Bailey purports to dispute virtually every statement of fact and evidentiary submission made by the government. (Docket ## 78, 89). Bailey's opposition to the government's submission, however, primarily consists of conclusions of law and conclusory denials not based upon personal knowledge and lacking citation to admissible evidence. Thus, although Bailey has attempted to dispute every aspect of the government's motion, the record reveals that many material facts are indeed undisputed. SeeAcme Am. Repairs, Inc. v. Katzenburg, 2011 WL 3876971, *2 (E.D.N.Y. 2011) ("[p]laintiffs' flat denial, unsupported by any evidence . . . , is insufficient to create a genuine issue of material fact as to that issue"), motion to certify appeal denied, 2012 WL 3307426 (E.D.N.Y. 2012); Field v. Tonawanda City Sch. Dist., 604 F. Supp. 2d 544, 556 (W.D.N.Y. 2009) ("[i]t is fundamental that to avoid summary judgment a plaintiff . . . must point to admissible evidence demonstrating a material issue of fact . . . and may not rely on their pleadings or mere denials of a defendant's statement of undisputed facts"); Standard Ceramics, Inc. v. Carborundum Corp., 2000 WL 743954, *1 (W.D.N.Y. 2000) ("where the moving party has carried its burden, mere denials, conclusory statements or a demonstration that there is 'some metaphysical doubt as to the material facts' will be insufficient to create a genuine issue of fact") (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)).

That said, Bailey has asserted some factual information based upon his own personal knowledge and has attached documentary evidence in support of some of his factual assertions. In other words, some of the facts asserted by the government are genuinely disputed by Bailey, and the question becomes whether those disputes are material to the outcome of the pending motion.

The following recitation of facts is undisputed unless otherwise noted. On June 30, 2008, at approximately 2:00 a.m., William R. Solt, III ("Solt") and Matthew D. Saunders ("Saunders"), two police officers employed by the Elmira Police Department, were approached by a confidential informant ("CI"). (Docket # 67-1 at ¶ 1 and Exhibits ("Exs.") A and B). According to the officers, the CI informed them that on several occasions she had purchased crack cocaine from Bailey, who resided at 323 West Church Street, Elmira, New York. (Id.). The CI advised the officers that she could order from Bailey up to $100 quantities of crackcocaine and that Bailey typically made deliveries by bicycle. (Id.). Bailey questions the plausibility of the officers' account and challenges the CI's veracity, but does not submit admissible evidence to dispute the officers' sworn account of what the CI told them. (Docket # 78 at 28, 43).

Officer Saunders accompanied the CI to her residence and, in Saunders's presence, called the number she identified as Bailey's cell phone. (Docket # 67-1 at ¶ 2 and Ex. B at ¶ 5). The CI was unable to reach Bailey. (Id.). The CI then called Bailey's home phone number and spoke to Stephanie Rounsville ("Rounsville"), who lived at the residence. (Id.). The CI told Rounsville that she needed a "yard" of crack cocaine. (Id.). The CI indicated that Rounsville had informed her that Bailey was not home, but would be home shortly and would call the CI. (Id.). Saunders then left the CI's residence and shortly thereafter observed Bailey riding his bike on West Church Street. (Docket # 67-1 at Ex. B at ¶ 6).

The CI was subsequently interviewed by Saunders and gave a sworn statement under penalty of perjury. (Docket # 67-1 at Exs. B at ¶ 9; 5). During the interview, the CI informed Saunders that at approximately 2:45 a.m. Bailey called her after the officer had left her residence and she ordered crack cocaine from Bailey. (Docket # 67-1 at ¶ 3; Exs. B at ¶ 9; 5). She told Bailey that she had the money, and Bailey replied that he was on the way to her house. (Id.). The CI then notified the police that Bailey was on his way. (Id.). The CI also stated that she had previously purchased crack cocaine from Bailey more than twenty-five times. (Docket # 67-1 at Ex. 5). The purchases occurred at her residence and at Bailey's residence. (Id.). According to the CI, she typically contacted Bailey by calling his cellular phone or his home phone and speaking to either Bailey or Rounsville. (Id.). Bailey usually rode to the CI's residence on his bicycle to deliver the narcotics to her. (Id.). According to the CI, Bailey storednarcotics in his bedroom and in the kitchen. (Id.). The CI also advised the officers that she was a recovering drug addict and wanted to help the police put a stop to drug dealing in her neighborhood. (Id.).

Bailey disputes that he spoke to the CI that morning or at any other time. (Docket # 78 at 22). He further maintains that the CI never ordered drugs from him. (Id.). He also challenges the CI's veracity, noting that she is an admitted narcotics user. (Id.). Finally, Bailey asserts that the CI has never been to his residence, to his knowledge. (Id. at 28).

While Saunders was with the CI, Officer Solt approached Bailey's residence in order to conduct surveillance. (Docket # 67-1 at ¶ 4 and Ex. A at ¶ 4). Saunders contacted Solt and informed him that the CI had made the call and that Bailey should be arriving at his residence shortly. (Docket # 67-1 at Ex. A at ¶ 4). Approximately two minutes later, Solt observed a male riding a bicycle approach and enter 323 West Church Street. (Id. at ¶ 5). After approximately two minutes, the same male exited the residence and began to ride his bicycle west on West Church Street. (Id.). This individual was subsequently identified as Bailey and was detained by law enforcement officers. (Id. at ¶¶ 6-7). After Bailey refused to consent to a search of his person, law enforcement obtained search warrants for Bailey and his residence. (Id.).

Bailey does not dispute that he rode his bicycle to his residence early that morning. (Docket # 84-1 at 20). According to Bailey, he stopped by his apartment on his way to his girlfriend's residence in order to obtain approximately fifteen dollars. (Id.). Bailey also does not dispute that the police detained him, although he challenges the legal justification for his detention. (Docket # 78 at 11). Bailey contends that he was searched on the street despite his refusal to provide consent. (Id.). According to Bailey, the officers did not find any illegal drugson him during the initial search on the street, nor did they find any during a subsequent search at the police station. (Id. at 5-6). The government does not dispute that law enforcement did not find any narcotics on Bailey's person. (Docket # 67-1 at ¶ 8).

Later that morning, Elmira City Court Judge Steven Forrest issued warrants authorizing searches of Bailey and his residence. (Docket # 67-1 at ¶ 6 and Exs. 1 and 2). Saunders participated in the execution of the search warrant at the residence and was accompanied by at least four other members of the Elmira Police Department, Carl U. Mustico ("Mustico"), Richard E. Weed ("Weed"), Sergeant Bresser ("Bresser"), and Alfred Chandanais ("Chandanais"). (Docket # 67-1 at Exs. B, C, D and 7).

During the search, Saunders located a "small plastic baggie containing a white chunky substance." (Docket # 67-1 at Exs. B at ¶ 11; 8a-8b). According to Saunders, based upon his training and experience, he recognized the substance to be crack cocaine. (Id.). Bresser alerted Saunders to a quantity of currency located in a drawer of a built-in dresser in the living room/bedroom area of the apartment. (Docket # 67-1 at Ex. B at ¶ 12). The currency was hidden beneath the bottom of the drawer underneath tinfoil. (Docket # 67-1 at Exs. B at ¶ 12; 8g-8j). In total, the dresser drawer contained $6,809. (Docket # 67-1 at Exs. B at ¶ 16; 11). The currency consisted of the following denominations: 29 $100 bills; 19 $50 bills; 141 $20 bills; 13 $10 bills; 1 $5 bill and 2 $2 bills. (Docket # 67-1 at Ex. 11). In the same room, Saunders also discovered and seized $232.61 in loose coins in a dresser drawer,...