United States v. Mondragon ( 2002 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.
LOLITA MONDRAGON,
Claimant-Appellant,  No. 01-2434
and
$500,684 IN U.S. CURRENCY,
Defendant.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Marvin J. Garbis, District Judge.
(CA-00-3531-MJG)
Argued: September 24, 2002
Decided: December 13, 2002
Before MICHAEL, Circuit Judge, HAMILTON,
Senior Circuit Judge, and Claude M. HILTON,
Chief United States District Judge for the
Eastern District of Virginia,
sitting by designation.
Affirmed by published opinion. Judge Michael wrote the opinion, in
which Senior Judge Hamilton and Chief Judge Hilton joined.
COUNSEL
ARGUED: Bruce Wallace Simon, Kansas City, Missouri, for Appel-
lant. Richard Charles Kay, Assistant United States Attorney, Balti-
2 UNITED STATES v. MONDRAGON
more, Maryland, for Appellee. ON BRIEF: Joseph S. Lyons,
Towson, Maryland, for Appellant. Thomas M. DiBiagio, United
States Attorney, Baltimore, Maryland, for Appellee.
OPINION
MICHAEL, Circuit Judge:
The claimant in this civil forfeiture case appeals an order denying
her motion to strike the government’s complaint for failing to meet
the particularity in pleading requirement of Rule E(2)(a) of the Sup-
plemental Rules for Certain Admiralty and Maritime Claims (the Sup-
plemental Rules). We affirm.
I.
On February 19, 2000, Sergeant Paul Quill of the Maryland State
Police stopped a Lincoln Town Car with Kansas tags as it was travel-
ing west on Interstate 70 near Frederick. Sergeant Quill made the stop
after he saw the Lincoln dart across two lanes of traffic without a sig-
nal. The driver identified herself as Lolita Mondragon and handed
over a Kansas driver’s license. Sergeant Quill ran a check and discov-
ered that Mondragon’s license had been revoked. Mondragon then
gave verbal and written consent to allow the sergeant to search the
car. In the course of the search Sergeant Quill discovered, behind the
back seat, a hidden compartment with electronic spring locks.
According to the sergeant, the installation job was of professional
quality. He had seen many such secret compartments and knew they
were routinely used by drug traffickers to transport large quantities of
drugs as well as the cash proceeds from drug transactions. Inside this
compartment Sergeant Quill found nearly $500,000 in cash, sealed in
fifteen plastic bags. A drug detection dog from the Frederick police
department gave a positive alert to the back seat area of the car. Mon-
dragon was arrested for driving on a revoked license. Her purse was
then searched, and an additional $5,900 in cash was found. Sergeant
Quill issued a traffic citation to Mondragon, and she was released.
The currency, which had been seized, was turned over to the U.S.
Customs Service. Mondragon filed an administrative claim to the
money.
UNITED STATES v. MONDRAGON 3
On November 30, 2000, the government filed a verified complaint
in the District of Maryland, seeking forfeiture of the currency on the
ground that it was the proceeds of drug trafficking, see 21 U.S.C.
§ 841(a)(1), and was involved in a money laundering transaction, see
18 U.S.C. § 1956(a)(1)(A)(i). (The government did not pursue the
money laundering allegation.) The complaint incorporated a joint affi-
davit, executed by Sergeant Quill and a U.S. Customs Agent, setting
forth the facts recounted above. Mondragon, as claimant, filed a
motion to strike the complaint, arguing that it failed to state the
grounds for forfeiture with the particularity required by Rule E(2)(a)
of the Supplemental Rules. The district court denied the motion. Mon-
dragon then filed an answer to the complaint, stating that she was
without knowledge or information sufficient to form a belief as to the
truth of the charging allegations. After deposing Mondragon, the gov-
ernment made a motion for summary judgment that was not opposed.
The district court granted this motion and entered a final order of for-
feiture. Mondragon appeals, contesting only the district court’s order
denying her motion to strike the complaint. Whether the complaint,
including the incorporated affidavit, satisfies the particularity require-
ment of Rule E(2)(a) is a legal question that we review de novo.
United States v. United States Currency, in the Amount of $150,660,
980 F.2d 1200, 1204 (8th Cir. 1992).
II.
A.
A civil forfeiture complaint against property allegedly connected to
drug trafficking must meet the particularity in pleading requirement
of Supplemental Rule E(2)(a). See 21 U.S.C. § 881(b), (d); United
States v. One Parcel of Real Property, 921 F.2d 370, 373-74 (1st Cir.
1990). Rule E(2)(a) requires the complaint to "state the circumstances
from which the claim arises with such particularity that the defendant
or claimant will be able, without moving for a more definite state-
ment, to commence an investigation of the facts and to frame a
responsive pleading." Mondragon argues that the government’s com-
plaint lacks the factual detail necessary to satisfy Rule E(2)(a).
Our court has not discussed the particularity requirement of Rule
E(2)(a). The leading case on the subject is Riverway Co. v. Spivey
4 UNITED STATES v. MONDRAGON
Marine and Harbor Service Co., 598 F. Supp. 909 (S.D. Ill. 1984), an
in rem proceeding against a tugboat. The court in Riverway said that
vessel owners "are entitled to freedom from the threat of seizure of
their livelihood upon conclusory allegations and dubious circum-
stances." Id. at 913. Rule E(2)(a)’s requirement for "[p]leading spe-
cific circumstances is one part of the process which guards against the
improper use of admiralty seizure proceedings." Id. Thus, the rule’s
"heightened particularity in pleading requirement[ ]" is "always sub-
ject to the general standard that the complaint sufficiently notify the
defendant of the incident in dispute and afford a reasonable belief that
the claim has merit." Id.Several circuit courts have interpreted Rule E(2)(a) in evaluating
government complaints for the civil forfeiture of property allegedly
connected to illegal activity. Almost all of these courts adopt a form
of Riverway’s "reasonable belief that the claim has merit" standard.
They begin their analysis by saying that Rule E(2)(a) requires a com-
plaint to allege sufficient facts to support a reasonable belief that the
property is subject to forfeiture. See United States v. $38,000 in
United States Currency, 816 F.2d 1538, 1548 (11th Cir. 1987); United
States v. Pole No. 3172, 852 F.2d 636, 638 (1st Cir. 1988); United
States v. 2323 Charms Rd., 946 F.2d 437, 441 (6th Cir. 1991); United
States Currency, in the Amount of $150,660, 980 F.2d at 1204-05.
These courts go on to hold more specifically that the complaint must
allege sufficient facts to support a reasonable belief that the govern-
ment can demonstrate probable cause for forfeiture at trial. $38,000
in United States Currency, 816 F.2d at 1548; Pole No. 3172, 852 F.2d
at 640; 2323 Charms Rd., 946 F.2d at 441; United States Currency,
in the Amount of $150,600, 980 F.2d at 1205; see also United States
v. Daccarett, 6 F.3d 37, 47 (2d Cir. 1993).
The pleading requirement of a "reasonable belief that probable
cause can be shown at trial" was apparently keyed to the govern-
ment’s burden of proof at the time (prior to 2000) these cases were
decided. See Daccarett, 6 F.3d at 47. Before Congress enacted the
Civil Asset Forfeiture Reform Act of 2000 (CAFRA), Pub. L. No.
106-185, 114 Stat. 202, 205, the government’s trial burden was to
show probable cause for forfeiture; the burden of proof then shifted
to the claimant. See United States v. Leak, 123 F.3d 787, 792 (4th Cir.
1997); 19 U.S.C. § 1615 (superceded by 18 U.S.C. § 938(c)(1)). Now,
UNITED STATES v. MONDRAGON 5
after CAFRA’s enactment, the government must prove by a prepon-
derance of the evidence that the property is subject to forfeiture. 18
U.S.C. § 983(c)(1).
In light of CAFRA’s change in the burden of proof, it is a bit awk-
ward to say now that Rule E(2)(a) requires the complaint to allege
facts sufficient to support a reasonable belief that the government can
establish probable cause for forfeiture at trial. We therefore decline to
adopt this interpretation of Rule E(2)(a). A useful point survives the
pre-CAFRA opinions, however. As we have said, most of these opin-
ions begin by recognizing the general standard that a complaint under
Rule E(2)(a) must allege sufficient facts to support a reasonable belief
that the property is subject to forfeiture. We, too, adopt this general
standard.
There is a more basic point, however. Rule E(2)(a) needs little
interpretation. It is plainly written and "means precisely what it says."
$38,000 in United States Currency, 816 F.2d at 1548. Again, the rule
says, "the complaint shall state the circumstances from which the
claim arises with such particularity that the defendant or claimant will
be able, without moving for a more definite statement, to commence
an investigation of the facts and to frame a responsive pleading." Sup-
plemental Rule E(2)(a). We will evaluate the government’s complaint
in light of the language of the rule, keeping in mind that the complaint
must at bottom allege facts sufficient to support a reasonable belief
that the property is subject to forfeiture.
B.
Because Rule E(2)(a) requires the complaint to "state the circum-
stances from which the claim arises," we begin with the bare bones
of the government’s claim. The government alleged that the currency
seized from the car driven by Mondragon was the proceeds of drug
trafficking and should be forfeited under 18 U.S.C. § 981. The basic
question raised by Mondragon is whether the complaint stated the cir-
cumstances giving rise to this claim with "such particularity" that she
could, without more information, "commence an investigation of the
facts" and "frame a responsive pleading."
Mondragon cannot deny that the complaint provides a number of
the elemental circumstances underlying the government’s claim.
6 UNITED STATES v. MONDRAGON
Mondragon was present when the currency was seized. Thus, from
the facts alleged in the complaint, which Mondragon also witnessed,
she was informed of (1) what currency was seized, (2) how it was
packaged, (3) when it was seized, (4) where it was seized, and (5) by
whom it was seized. While these facts would be important to any
investigation Mondragon might have begun, they do not, by them-
selves, show a sufficient connection between the currency and drug
trafficking to satisfy the pleading requirement of Rule E(2)(a). The
government argues that certain additional facts are sufficiently partic-
ular to satisfy the rule. These are (1) the large sum of currency in
unusual packaging, (2) the hidden compartment where it was stored,
and (3) the drug dog alert in the area of the car near the hidden com-
partment. With these facts added, we agree that the complaint satisfies
the particularity requirement.
The complaint alleges that Sergeant Quill, in his search of the car
driven by Mondragon, found nearly one-half million dollars sealed in
fifteen plastic bags. The presence of that much cash, oddly packaged,
could raise a suspicion that someone was up to no good, but without
more it does not suggest a connection to drug trafficking. There is
more, of course. The complaint alleges that Sergeant Quill found the
money hidden in a professionally constructed secret compartment
behind the back seat of the car. The sergeant, according to the com-
plaint, was experienced in drug investigations and knew that these
hidden compartments were routinely used by drug traffickers to trans-
port both drugs and cash proceeds. Finally, the complaint alleges that
the drug dog alerted to the back seat area of the car, signaling the
scent of illegal drug residue. Mondragon argues that the dog sniff had
no value because a high percentage of U.S. paper currency is contam-
inated with drug residue. See, e.g., United States v. $10,700 in United
States Currency, 158 F.3d 215, 229-30 (3d Cir. 2001). According to
Mondragon, the dog could have been alerting to contaminated cur-
rency, but the alert did not mean that the currency in the secret com-
partment came straight from a drug deal. As an attack on the
complaint in this case, the argument falls short. The dog did not alert
directly on the sealed plastic bags of currency, but rather on the back
seat area of the car. Thus, when the complaint was drafted, the nature
of the dog’s alert, coupled with the rest of the circumstances, sup-
ported a reasonable belief that drugs had been transported in the car,
UNITED STATES v. MONDRAGON 7
probably in the secret compartment, and that the currency found in the
compartment was linked to drug trafficking.
In sum, the complaint’s factual allegations, which we have just dis-
cussed, permit a reasonable belief for pleading purposes that the cur-
rency was the proceeds of drug trafficking and was therefore subject
to forfeiture. The complaint states the circumstances giving rise to the
forfeiture claim with sufficient particularity that Mondragon could
have commenced a meaningful investigation of the facts and drafted
a responsive pleading. Rule E(2)(a)’s particularity requirement was
therefore satisfied.*
The district court properly denied Mondragon’s motion to strike
the complaint. The order is affirmed.
AFFIRMED
*The government also argues that Rule E(2)(a)’s particularity require-
ment is satisfied because a magistrate judge, relying on the affidavit that
was later incorporated into the complaint, found probable cause to issue
a warrant for the seizure of the currency. Although the magistrate judge’s
probable cause determination has not been challenged, we do not rely on
it. Whether there is probable cause for a seizure warrant and whether a
complaint meets the particularity requirement of Rule E(2)(a) are sepa-
rate issues. The determination of one issue is not a substitute for the
determination of the other.