United States v. Funds Amount $30,670 ( 2005 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 02-2899
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
FUNDS IN THE AMOUNT OF THIRTY
THOUSAND SIX HUNDRED SEVENTY
DOLLARS ($30,670.00),
Defendant,
ANTONIO CALHOUN,
Claimant-Appellant.
____________
Appeal from the United States District Court for
the Northern District of Illinois, Eastern Division.
No. 01 C 1340—Charles R. Norgle, Sr., Judge.
____________
ARGUED OCTOBER 28, 2004—DECIDED MARCH 31, 2005
____________
Before POSNER, KANNE, and ROVNER, Circuit Judges.
KANNE, Circuit Judge. Two Drug Enforcement
Administration (“DEA”) agents encountered Antonio
Calhoun at Chicago’s Midway Airport as he attempted to
board a flight destined for Phoenix. The agents confiscated
2 No. 02-2899
$30,670 in cash that Calhoun was carrying, and a drug
detection dog later alerted to the currency, indicating the
presence of narcotics. The United States filed a civil
forfeiture action with regard to the cash, and the district
court granted summary judgment in the government’s
favor. Calhoun appeals the judgment and, moreover, asks
that we sua sponte grant summary judgment in his favor. We
decline Calhoun’s request and affirm the judgment of the
district court.
I. Background
A. Factual History
Around 9:00 A.M. on September 5, 2000, Antonio Calhoun
paid cash at Chicago’s Midway Airport for a one-way ticket
to Phoenix, Arizona. He checked no luggage, but carried with
him a gym bag. As Calhoun attempted to pass through se-
curity on the way to his departure gate, he was approached
by DEA agents. One agent informed Calhoun that they had
heard that a person matching Calhoun’s description would
be coming through the airport carrying a large amount of
cash. The agent also explained to Calhoun that he was not
under arrest and could leave at any time.
After identifying himself to the agents with an Illinois
state identification card, Calhoun explained that he had lost
his job and was traveling to Phoenix in order to find work.
He also indicated that he had no luggage other than his
carry-on gym bag. He confirmed that the bag belonged to
him and that he had packed the bag himself. The agents
asked Calhoun if he was carrying any narcotics or large
amounts of currency, and Calhoun responded that he was
carrying “about $1000.” Calhoun then consented to the
agents’ request to search his bag. The search revealed a few
changes of clothes, assorted toiletries, and two separate
bundles of cash wrapped with rubber bands. The agents
again asked Calhoun how much cash he was carrying, and
No. 02-2899 3
this time Calhoun answered that he was carrying $1700.
The agents also noticed that Calhoun was stuttering his an-
swers and appeared increasingly nervous.
The agents asked Calhoun if he was certain that he was
carrying no other money, and Calhoun replied, “No.” One of
the agents noticed that Calhoun had several bulges in the
front and sides of his clothing, and he asked Calhoun for
permission to search his person. Calhoun backed away,
asking, “What do you want to search me for?” The agent
brushed Calhoun’s body with the back of his hand and felt
an odd protrusion under Calhoun’s clothes. At that point,
both agents escorted Calhoun to a vacant DEA office at the
airport, where the agents made an interesting discovery re-
garding the mysterious bulges in Calhoun’s clothing—
under his clothes, Calhoun wore a woman’s girdle stuffed
with 27 additional bundles of cash totaling $28,970.
Calhoun denied that he was the owner of the money but
refused to say who the actual owner was. He also signed a
“Voluntary Disclaimer of Interest and Ownership” form.
The agents gave Calhoun a receipt for $30,670 (the sum of
the cash in Calhoun’s gym bag and girdle1) and sent him on
his way. Calhoun never traveled to Phoenix that day, nor
did he ever claim a credit for his unused ticket.
After Calhoun left the DEA office, the agents placed all of
Calhoun’s bundles of cash into a plastic bag and enclosed
the bag inside one of many empty suitcases in the room.
The agents then enlisted the services of “Bax,”2 a Cook
County Sheriff’s Police narcotic detector dog, to conduct a
sweep of the room containing the suitcase. The agents in-
1
The cash was in the following denominations: 10 fifty dollar
bills, 1327 twenty dollar bills, and 363 ten dollar bills.
2
Bax (pronounced “box”), a German Shepherd, is a certified drug
detection dog trained to detect several different types of drugs,
including cocaine. Bax signals (“alerts”) the presence of narcotics
by biting and scratching.
4 No. 02-2899
formed Officer Robert Arrigo, Bax’s handler, only that con-
fiscated currency had been hidden in the room, but not where
(the room contained the suitcases as well as two desks and
two filing cabinets). Officer Arrigo brought Bax into the
room and commanded him to search for drugs. Bax sniffed
around the room before fixing on the suitcase containing the
bundles of cash. At that point, Bax alerted by scratching at
the suitcase’s surface. When the agents removed from the
suitcase the plastic bag containing the cash, Bax continued
to scratch and bite at the plastic bag, indicating the pres-
ence of narcotics.
B. Calhoun’s Story
On February 27, 2001, the government filed a verified
complaint of forfeiture pursuant to 21 U.S.C. § 881(a)(6),
alleging that the seized cash “constitute[s] proceeds of nar-
cotics trafficking and [was] intended to facilitate a narcotics
transaction, or [was] to be furnished in exchange for nar-
cotics. . . .” Shortly thereafter, Calhoun, despite his earlier
disclaimer of ownership of the cash, filed an answer and a
verified claim for the $30,670.
Discovery ensued, and additional facts emerged regarding
Calhoun’s Phoenix trips and the sources of his cash hoard.
Regarding his aborted trip on September 5, 2000, Calhoun
testified in his deposition that he recently had lost his job
in Chicago, so he was traveling to Phoenix to “start
over”—in other words, to move there permanently. He
planned to find work there and to continue a budding
relationship with a young woman identified as “Rochelle,”
whom he had met at a Phoenix barber shop. Calhoun could
not, however, recall Rochelle’s last name, stating that it was
“either Brown or Burns.” Calhoun was similarly unable to
provide Rochelle’s address or phone number.
Calhoun further testified that he had made a total of
three previous trips to Phoenix in July and August 2000. He
No. 02-2899 5
always purchased one-way tickets under his own name and
flew American Trans Air (“ATA”). He claimed to have
stayed at the same hotel in Phoenix on each trip. He could
not, however, remember which hotel (“I stayed at a hotel on
55th and the [I-10] expressway. I think it’s called Holiday
Inn or the Hampton Inn or something.”).
Calhoun testified that he did not know anyone in Phoenix
and did not visit anyone while there. He also claimed that
he filled out “a couple of [job] applications” but could not
provide details of these prospective employers other than
his mention of one unnamed gas station, which never
responded to his application. He indicated that each of his
stays in Phoenix lasted less than a week. He also testified
that while in Phoenix on his first trip, he spent more than
$300, and he spent about $700 on each of his subsequent
trips.
As for the sizable hoard of cash stashed in his girdle and
gym bag, Calhoun indicated that he had accumulated the
cash from various sources, including savings and gambling
earnings that he started to accumulate in 1994 or 1995. He
provided no evidence, such as receipts or bank statements,
to substantiate these claims.
C. The Government’s Motion for Summary Judgment
Following discovery, the government moved for summary
judgment. The government pointed out a number of prob-
lems with Calhoun’s story, including various contradictions
in Calhoun’s explanations of his trips to Phoenix. For
example, the government presented records subpoenaed
from ATA. These records indicated that Calhoun did not, as
he testified in his deposition, make three prior trips to
Phoenix. Instead, from July 1 to August 27, 2000, he made
no fewer than seven round trips. For each of these flights
(both to and from Phoenix), Calhoun purchased a one-way
6 No. 02-2899
ticket and made his flight reservation either the day of, or
the day before, his departure.
The government also subpoenaed records showing that
Calhoun never stayed at the Holiday Inn, Hampton Inn, or
Super 8 hotel, all of which are located at 55th Street and
the expressway in Phoenix. Instead, records indicated that
Calhoun stayed at a Traveler’s Inn, located at least four
blocks from the location Calhoun indicated in his deposi-
tion. In sum, based on his flight schedule, Calhoun stayed
a total of 27 nights in Phoenix over the course of two
months.
The government contended that all the evidence regard-
ing Calhoun’s prior travels—along with evidence that
Calhoun left his car in the Midway Airport parking garage
on September 5, 2000, did not bring his driver’s license with
him, made no arrangements for his two daughters to join
him in Phoenix, and did not continue on to Phoenix (nor
exercise a credit on his unused flight) that day or later—
indicates that Calhoun had no plan to move permanently to
Phoenix as he had testified.
In addition, the government pointed out obvious con-
tradictions in Calhoun’s income (as indicated in various
financial records) and Calhoun’s stated sources for his cash
hoard. For example, in November 1998, Calhoun filed for
Chapter 7 bankruptcy. In his bankruptcy petition—signed
under penalty of perjury—Calhoun declared that he had no
cash on hand. On his 1998-2000 tax returns, Calhoun filed
as head of household, took the Earned Income Tax Credit,
and claimed no interest income from savings. Calhoun’s tax
returns indicated no gambling earnings. Moreover, Calhoun
supported both of his daughters, who lived with him in 1999
and 2000. Calhoun did not have any bank accounts, savings
or otherwise.
From November 1998, when Calhoun filed for bank-
ruptcy, until the day the cash was seized, Calhoun’s com-
No. 02-2899 7
bined reported income totaled $47,098. Calhoun’s reported
expenditures in the same period (including rent, food, car
payments, clothing, and recreation), plus the money Calhoun
spent in connection with his travels to and from Phoenix,
totaled at least $73,412. Thus, Calhoun’s expenditures ex-
ceeded his stated income in the relevant period by at least
$26,394. In any event, the government argued, Calhoun’s
financial papers did not support his assertions regarding
the alleged sources—gambling or savings—of the $30,670.
The government contended that all of these facts, coupled
with the circumstances leading to the seizure of Calhoun’s
cash hoard—in particular, Bax’s positive alert to the cash—
proved by a preponderance of the evidence that the cash
represented the proceeds of (or was intended to be furnished
in exchange for) an illegal drug transaction and thus subject
to forfeiture.
Calhoun, who was represented by counsel, did not deny
any of the material facts set forth in the government’s state-
ment of material facts, nor did he offer any evidence of his
own in opposition to the government’s motion. Instead,
Calhoun offered his unsupported and conclusory contention
that genuine issues of material fact precluded summary
judgment because the government’s evidence was “nothing
more than extrapolated speculations stemming from innoc-
uous facts.”
In considering the government’s motion, the district court
found that Calhoun’s actions “show[ed] a pattern that is
consistent with illegal narcotics transactions[.]” Specifically,
the court considered evidence of Calhoun’s earnings and
expenses and concluded that Calhoun could not possibly
have accumulated $30,670 in any above-board manner con-
sistent with his explanations. The court also found Calhoun’s
statements regarding his travels to Phoenix to be inconsis-
tent and implausible. Finally, the court determined Bax
to be a reliable drug detection dog based on evidence the
8 No. 02-2899
government offered to that effect, and thus Bax’s alert to
Calhoun’s cash, in addition to the aforementioned factors,
demonstrated a link between the cash and illegal drug ac-
tivity sufficient for the government to prevail in its forfeit-
ure action. The court therefore granted summary judgment
in the government’s favor, finding that an examination of
all the evidence indicated “a pattern that is consistent with
illegal narcotics transactions.”
Calhoun, acting pro se, appealed the judgment. After the
government filed its brief, we located appellate counsel to
act on Calhoun’s behalf and requested additional briefing
from both parties to illuminate several narrow questions
related to Calhoun’s case, specifically: (1) How frequently
do drug detection dogs falsely alert to currency that is not
demonstrably related to the drug trade, but has been
contaminated by prior owners?3 (2) What steps were taken to
ensure that the suitcase into which officers placed the
currency was not a possible source of drug odors (or to
determine, after the fact, whether the suitcase rather than
the currency may have been the source)? (3) What infer-
ence, if any, may be drawn with respect to the nature of
Calhoun’s activity from the fact that he falsely asserted
that the currency came from personal savings? and,
relatedly, (4) Under what circumstances, if any, does a false
explanation establish as a matter of law that the adver-
sary’s version of the facts is true, as opposed to establishing
a material issue for trial?
We requested additional briefing in part because Calhoun’s
pro se appellate brief was not a model of clarity. In addition,
as the government concedes, the propriety of this forfeiture
case turns on the dog alert evidence—if dog alerts to cur-
3
We also indicated in our order that “[i]f the record is silent on
this issue, counsel should refer to any publicly available empirical
information.”
No. 02-2899 9
rency have no probative value, then the government cannot
possibly link Calhoun’s cash to illegal narcotics activity.
Evidence regarding the probity of dog alerts to currency is
therefore crucial to resolving this appeal, and the record
unfortunately does nothing to illuminate the issue. There
appears to be some scientific and legal debate over this very
issue, which is why we invited the parties to supplement
their arguments with “publicly available empirical informa-
tion” addressing the probative value of dog alerts to cur-
rency. We address the parties’ answers to these questions
and their other arguments below.
II. Discussion
We review de novo the district court’s grant of summary
judgment. See Celotex Corp. v. Catrett, 477 U.S. 317 (1986).
A party is entitled to summary judgment when “there is
no genuine issue as to any material fact and . . . the moving
party is entitled to a judgment as a matter of law.”
Fed. R. Civ. P. 56(c); Celotex, 477 U.S. at 322. We must
construe all facts in the light most favorable to Calhoun,
but “we are not required to draw every conceivable infer-
ence from the record.” Bell v. Duperrault, 367 F.3d 703, 707
(7th Cir. 2004) (citation and internal quotation marks
omitted).
The government filed its action pursuant to the civil
forfeiture provision of the Controlled Substances Act, 21
U.S.C. § 881(a)(6). This statutory provision makes subject
to forfeiture “[a]ll moneys . . . furnished or intended to be
furnished by any person in exchange for a controlled sub-
stance . . . , all proceeds traceable to such an exchange, and
all moneys . . . used or intended to be used to facilitate
[such an exchange] . . . .” Id. Thus, Calhoun’s cash hoard
may be subject to forfeiture if the currency at issue rep-
resents the proceeds of an illegal drug transaction or was
intended to facilitate such a transaction.
10 No. 02-2899
Civil forfeiture standards are now subject to the Civil
Asset Forfeiture Reform Act of 2000 (“CAFRA”), 18 U.S.C.
§ 983(c)(1). CAFRA heightens the government’s evidentiary
burden in civil forfeitures—the government must demon-
strate by a preponderance of the evidence4 that the property
sought is subject to forfeiture. See id. (“In a suit or action
brought under any civil forfeiture statute for the civil
forfeiture of any property . . . the burden of proof is on the
Government to establish, by a preponderance of the evi-
dence, that property is subject to forfeiture[.]”). Further-
more, § 983(c)(3) provides that “if the Government’s theory
of forfeiture is that the property was used to commit or
facilitate the commission of a criminal offense, or was
involved in the commission of a criminal offense, the
Government shall establish that there was a substantial
connection between the property and the offense.” Id.
Turning to the matter at hand, we repeat that Calhoun
did not dispute any of the material facts asserted by the
government in support of summary judgment, so Calhoun
has adopted them as true. N.D. Ill. L.R. 56.1(b)(3)(B) (“All
material facts set forth in the statement required of the
moving party will be deemed to be admitted unless contro-
verted by the statement of the opposing party.”); see also
Smith v. Lamz, 321 F.3d 680, 683 (7th Cir. 2003). Thus, we
must decide what to make of the undisputed facts in the
record along with the additional briefing and information
we requested from the parties.
4
Forfeiture proceedings commenced prior to the effective date of
CAFRA (August 23, 2000) applied a lesser standard of proof—
probable cause. See United States v. 5 S 351 Tuthill Road,
Naperville, IL, 233 F.3d 1017, 1023 (7th Cir. 2000) (CAFRA
“requires the government to prove the connection between the
property to be forfeited and the drug activity by a preponderance
of the evidence, rather than to prove merely probable cause to
believe there is a connection.”).
No. 02-2899 11
Calhoun argues on appeal that the district court not only
should have denied the government’s motion for summary
judgment, it should have granted summary judgment in his
favor. Calhoun also argues that, in any event, no reasonable
juror could find a substantial money-drugs connection by a
preponderance of the evidence in the record, and thus the
district court erroneously granted the government’s motion.
Calhoun presents a “contaminated currency” argument—the
notion that most circulated currency in the U.S. is tainted
by cocaine, so any dog alert to currency (Bax’s included)
should not be entitled to probative weight. Calhoun also
claims that the conduct of the sniff search failed to safeguard
against possible cross-contamination from other sources of
drugs, thus undercutting any probative value that Bax’s
positive alert may otherwise have had. Finally, Calhoun
argues that the remaining factors in the case, such as his
inconsistent or implausible testimony, do not suffice to meet
the government’s preponderance of the evidence burden.
We disagree with Calhoun’s contentions. As detailed be-
low, the publicly available empirical information presented
in this case cuts against Calhoun’s currency contamination
argument. The totality of the circumstances, especially
Bax’s alert to Calhoun’s cash, leads us to conclude that
reasonable jurors would agree that it is more likely than
not that Calhoun’s cash is subject to forfeiture pursuant to
18 U.S.C. § 881(a)(6) and thus that the government is
entitled to summary judgment.
A. The Dog Alert
As mentioned earlier, the crucial threshold issue is
whether Bax’s alert, which linked Calhoun’s cash hoard to
illegal drug activity, is entitled to any probative weight.
Calhoun argues that it is not, citing what he describes as
“the consensus that most U.S. currency in circulation in the
United States (and specifically the Chicago area) is tainted
12 No. 02-2899
with cocaine” in levels detectable by drug dogs. Thus,
assuming a large proportion of the currency in general
circulation is tainted with enough cocaine to trigger a drug
dog alert, such an alert would be virtually useless in
establishing the necessary link to illegal drug activity justi-
fying forfeiture.
But it is a matter of some scientific debate whether dogs
alert only to cocaine itself or rather to the odor of a cocaine
byproduct, such as methyl benzoate. Thus the critical ques-
tion is not whether most currency in general circulation is
tainted with cocaine, but whether the cocaine itself is what
triggers dog alerts to currency. If properly trained dogs alert
to cocaine and not another substance or a byproduct of
cocaine, then Calhoun’s argument is stronger—dog alerts to
currency would have little or no probative weight if it can
be shown that most currency is “innocently” tainted with
detectable levels of cocaine. On the other hand, if dogs alert
to methyl benzoate as opposed to cocaine per se, and the
byproduct is volatile enough to evaporate from the currency
within a short period, then a dog alert likely would be more
probative because even assuming that most currency is
tainted with particles of cocaine, dogs will not alert to it
unless it contains the odor of methyl benzoate.
Calhoun argues that even if dogs alert to methyl benzoate
and not cocaine, the government must prove that the dog in
question has been properly trained to alert only to the
methyl benzoate, as opposed to something else, such as the
currency itself. Thus, Calhoun challenges the evidentiary
worth of any dog alert to currency and Bax’s reliability in
particular.
No. 02-2899 13
1. Calhoun’s Empirical Evidence
Calhoun relies principally on the work of Dr. Charles
Mesloh.5 See Charles Mesloh et al., Sniff Test: Utilization of
the Law Enforcement Canine in the Seizure of Paper
Currency, 52 J. FORENSIC IDENT. 704 (2002) (“Sniff Test”).
Dr. Mesloh’s article at first glance seems to support
Calhoun’s currency contamination argument because it cites
several studies indicating that 70-90% of circulated paper
currency in major U.S. cities is contaminated with trace
amounts of cocaine. See id. at 721-22; see also Adam Negrusz
et al., Detection of Cocaine on Various Denominations of
United States Currency, 43 J. FORENSIC SCI. 626, 626-29
(1998) (finding cocaine in amounts up to 10 micrograms per
bill on randomly selected general circulation currency).
Calhoun also cites caselaw, including from this circuit,
which seems to adopt the currency contamination theory and
concludes that dog sniffs are entitled to little or no probative
weight. See United States v. $506,231 in U.S. Currency, 125
F.3d 442, 453 (7th Cir. 1997) (“[W]e are unwilling to take
seriously the evidence of the post-seizure dog sniff. . . . Even
the government admits that no one can place much stock in
the results of dog sniffs because at least one-third of the
currency in the United States is contaminated with cocaine
in any event.”); Muhammed v. Drug Enforcement Agency, 92
F.3d 648, 653 (8th Cir. 1996) (holding that a dog alert is
“virtually meaningless” because an “extremely high percent-
age of all cash in circulation in America today is contami-
5
Dr. Mesloh holds a Ph.D. in Public Affairs and is an assistant
professor at Florida Gulf Coast University. Dr. Mesloh is a former
police officer with wide experience and scholarship in the practical
uses of canines in support of law enforcement, including dog sniff
searches. Dr. Mesloh appears to have coauthored the cited article
while he was a candidate for his Ph.D.
14 No. 02-2899
nated with drug residue”); United States v. $5000 in U.S.
Currency, 40 F.3d 846, 849 (6th Cir. 1994) (same); United
States v. U.S. Currency, $30,060.00, 39 F.3d 1039, 1042 (9th
Cir. 1994) (same).
A closer read of Dr. Mesloh’s article, however, reveals that
it does not support Calhoun’s contention that “widespread
contamination of currency at levels detectable by a drug-
detection dog renders insupportable any inference that the
most recent holder of the currency was involved with illegal
narcotics activity.” Rather, Dr. Mesloh’s article merely
provides practical and helpful recommendations to law
enforcement agencies in the wake of apparent judicial
adoption of the currency contamination theory. See, e.g.,
Mesloh et al., Sniff Test at 708 (questioning Ninth Circuit
conclusion that, given 75-90% contamination rate of cur-
rency, “it is extremely likely a narcotics detection dog will
positively alert when presented with a large sum of cur-
rency”) (citing $30,060, 39 F.3d at 1043). Indeed, Dr. Mesloh
himself suggests that dog sniffs are reliable even if a large
proportion of circulated currency is tainted by narcotics. See
Mesloh et al., Sniff Test at 708 (noting that “recent research
has shown that dogs will not alert on large amounts of
currency[,]” and that “the drug odor on which the dogs are
trained to alert dissipates over time, leaving only trace
amounts on currency[.]”).
Dr. Mesloh also cites scientific studies concluding that
dogs likely do not alert to cocaine itself but rather to methyl
benzoate. See id. at 708-09 (citing the research of Dr.
Kenneth Furton). Dr. Mesloh acknowledges scientific
findings that methyl benzoate “was found to evaporate rap-
idly from the surface of paper currency at a rate of ap-
proximately 90% in 120 minutes” and allows that “research
does suggest that methyl benzoate may be one of the com-
ponents of the odor that dogs are trained to detect.” Id. at
709. Thus, Dr. Mesloh concludes, these scientific findings
“restore the credibility of the canine sniff[,]” id., contrary to
No. 02-2899 15
the view expressed by the Ninth Circuit in $30,060 and by
other courts. See, e.g., $30,060, 39 F.3d at 1042-43.
Therefore, we do not read Calhoun’s own proffered empir-
ical evidence as bolstering his currency contamination
theory. The cited work of Dr. Mesloh6 proposes practical
solutions to reduce the likelihood that a court will overturn
dog alerts on the basis of the currency contamination
theory. See Mesloh et al., Sniff Test at 715 (“[A]ny agency
that is intent on conducting drug money forfeiture must be
aware of its obligations to scientific rigor. . . . If the [recom-
mended] policies are implemented and maintained, a
department will ultimately stand to benefit from the value
of the property that has been seized and from more effective
and cost efficient defenses of the seizures during judicial
review.”).
2. The Government’s Empirical Evidence
Assuming as true that most currency is contaminated by
trace amounts of cocaine, the studies cited by the govern-
ment (and in part by Dr. Mesloh) directly address whether
dogs alert to cocaine itself or to methyl benzoate. The au-
thors of these studies hold advanced scientific degrees and
have extensive experience in chemistry and forensic toxi-
cology—fields that seem especially relevant to our analysis.
Stefan Rose, for example, is an M.D. with years of research
and training in the field of forensic toxicology and is a
member of the faculty at Florida International University.
Kenneth Furton holds a Ph.D. in analytical chemistry, has
years of experience in the study of odor signatures, and is
6
Although his academic background is in public affairs,
Dr. Mesloh is an experienced former law enforcement professional
and former police dog handler, which lends some weight to his
practical recommendations regarding methodology as discussed
below.
16 No. 02-2899
a former chair of the chemistry department at Florida
International University. Since 1993, both men have con-
ducted extensive research on the scientific aspects of dog
sniffs and have been retained to offer expert opinions on the
subject in both state and federal courts. See, e.g., United
States v. $242,484.00, 389 F.3d 1149, 1165 n.9 (11th Cir.
2004) (en banc); United States v. $22,474.00 in U.S. Currency,
246 F.3d 1212 (9th Cir. 2001) (see Rose Aff., Gov’t App. at
21); United States v. One Lot of U.S. Currency Totalling
$14,665, 33 F. Supp. 2d 47, 58 n.9 (D. Mass. 1998); People
v. Puertas, No. 224173, 2002 WL 31160304, *8 (Mich. Ct.
App. Sept. 27, 2002) (unpublished) (per curiam). Both sci-
entists have criticized the currency contamination theory
and its uncritical adoption by courts. See, e.g., Kenneth G.
Furton et al., Odor Signature of Cocaine Analyzed by
GC/MS and Threshold Levels of Detection for Drug Detec-
tion Canines, 14 CURRENT TOPICS IN FORENSIC SCI. 329, 329
(1997) (“Odor Signature”) (“These conclusions are alarming
in light of the fact that there are no definitive peer-reviewed
studies determining the ‘range of a drug dog’s detection
capability’ to cocaine nor are there any statistically signifi-
cant determinations of the degree and extent of cocaine
contamination on U.S. currency.”) (critiquing the Ninth
Circuit’s analysis in $30,060 and the sources cited therein).
The research of Dr. Furton and Dr. Rose established “to
a reasonable scientific certainty that a narcotics detection
dog alerts to the odor of methyl benzoate as the dominant
odor of illicit cocaine, and not to cocaine itself.” (Aff. of
Dr. Rose, Gov’t App. at 21; see also Furton et al., Odor
Signature at 331.) In addition, the research indicates that
dogs do not alert to byproducts other than methyl benzoate
and would not alert to synthetic “pure” cocaine unless methyl
benzoate was added. See Kenneth G. Furton et al., Field and
Laboratory Comparison of the Sensitivity and Reliability of
Cocaine Detection on Currency Using Chemical Sensors,
Humans, K-9s and SPME/GC/MS/MS Analysis, in
No. 02-2899 17
INVESTIGATION AND FORENSIC SCIENCE TECHNOLOGIES 41, 42
(Kathleen Higgins ed., 1999) (“Field Comparison”). Indeed,
it seems that dogs cannot smell cocaine at all because the
narcotic acts as an anesthetic that deadens olfactory senses.
(Rose Aff. ¶ 2, Gov’t App. at 22) (“[C]ocaine is a local anes-
thetic and as such blocks the transmission of nerve im-
pulses. Therefore, cocaine should block the transmission of
olfactory . . . nerve fibers resulting in non-detection.”).
In addition, methyl benzoate is highly volatile and
evaporates at an exponential rate from tainted currency, so
currency recently exposed to cocaine and returned to
general circulation will quickly lose any detectable odor of
methyl benzoate, even if the particles of cocaine remain.
Furton et al., Field Comparison at 46; see also Kenneth G.
Furton et al., Novel Sample Preparation Methods and Field
Testing Procedures Used to Determine the Chemical Basis of
Cocaine Detection by Canines, in FORENSIC EVIDENCE
ANALYSIS AND CRIME SCENE INVESTIGATION 56, 58 (John
Hicks et al. eds., 1997) (“Novel Methods”) (“Whereas the
parent cocaine molecule is non-volatile and can remain [on]
currency for long periods of time, . . . methyl benzoate
dissipate[s] quickly . . . .”). A single cocaine-tainted bill will
lose 90% of the odor of highly volatile methyl benzoate
through evaporation within two hours of its removal from
the presence of cocaine, but will lose the odor more slowly
if stacked with other bills. Furton et al., Odor Signature at
332 (concluding that thirty stacked tainted bills lose less
than 10% of the methyl benzoate odor in the span of two
hours); (Rose Aff. ¶ 2, Gov’t App. at 22 (“The more closed
the environment, the slower the rate of evaporation and the
longer the smell remains. One would expect that currency
involved in the recent transaction of significant amounts of
illicit cocaine and bundled would retain the odor of methyl
benzoate for days and weeks after the exposure. . . .”).)
Dr. Furton and Dr. Rose undertook some 200 field and
laboratory trials and ultimately concluded that dogs do not
18 No. 02-2899
alert to innocently tainted currency in general circulation
because the amount of cocaine and methyl benzoate is too
small for detection. (Cf. Rose Aff. ¶ 1, Gov’t App. at 21 (“[A]
positive alert to U.S. currency by a properly trained . . .
canine indicates that the currency had recently . . . been
in close or actual proximity to a significant amount of nar-
cotics, and is not the result of any alleged innocent environ-
mental contamination of circulated U.S. currency by
microscopic traces of cocaine.”).) The research indicated
that, in contrast to the levels found on general circulation
currency, the “threshold level of cocaine and methyl benzoate
required for a canine to signal an alert was substantial and
reproducible7.” Furton et al., Odor Signature at 332. As Dr.
Furton and Dr. Rose conclude:
Calculation from the amount of methyl benzoate re-
quired for a reliable detector dog alert (>85% [detection
success] at 10 [micrograms]), the amount of methyl
benzoate observed in street cocaine sample[s,] . . . and
the diffusion rates of methyl benzoate from individual
bills (ca. 10% remaining after 2 hours) indicate a re-
quired amount of recently contaminated cocaine residue
of ca. 500 [milligrams] cocaine (initially).
Furton et al., Field Comparison at 46. This required amount
is “50,000 higher than the amount reported on circulated
currency (ca. 10 micrograms/bill).” Id. at 46. Therefore,
generously assuming that all bills in general circulation are
tainted by 10 micrograms of cocaine, it would take at least
fifty thousand bills to generate enough methyl benzoate to
7
The research of Dr. Furton and Dr. Rose also indicates that
methyl benzoate is always associated to some degree with cocaine.
See Furton et al., Odor Signature at 332. Pharmaceutical grade or
pure cocaine contains only trace amounts of methyl benzoate, but
illicit cocaine contains far more due to impurities. See Furton et
al., Novel Methods at 58, 62; Furton et al., Field Comparison at
46.
No. 02-2899 19
trigger a dog alert. And, as Dr. Furton and Dr. Rose point
out, “the odor produced by contaminated bills stacked
together does not increase proportionally to the number of
bills, but rather is a function of the available surface area”
of the bills. Id. This indicates that stacked or bundled bills,
which obviously have less contaminated surface area ex-
posed to the air, would exude a correspondingly smaller odor
signature and the 50,000 figure therefore may be too small
by orders of magnitude when tainted bills are bundled to-
gether (although stacked bills do retain the methyl benzoate
for longer periods). Cf. id. at 45.
In sum, the research led Dr. Furton and Dr. Rose to
conclude that “[o]verall, the scientific results indicate that
circulated currency, innocently contaminated with [micro-
gram] quantities of cocaine would not cause a properly
trained detection canine to signal an alert even if very large
numbers of bills are present.” Id. at 46. Given the apparently
rigorous empirical testing giving rise to this conclusion, it
is likely that trained cocaine detection dogs will alert to
currency only if it has been exposed to large amounts of
illicit cocaine within the very recent past. As a result (and
contrary to Calhoun’s assertions), it seems that a properly
trained dog’s alert to currency should be entitled to pro-
bative weight.
Likewise, we find the dog sniff caselaw cited by Calhoun
either distinguishable or simply unpersuasive with regard
to whether dog alerts to currency are entitled to probative
weight. The conclusions reached in these cases rest on un-
critical adoption of the currency contamination theory. In at
least some of these cases, even the government seemed to
assume the truth of the currency contamination theory. See,
e.g., $506,231, 125 F.3d at 453 (case in which the govern-
ment not only did not contest the currency contamination
theory, it allowed that “no one can place much stock in the
results of dog sniffs because at least one-third of the [U.S.]
currency . . . is contaminated with cocaine . . . .”).
20 No. 02-2899
More recently, however, courts have taken the approach
suggested by Dr. Furton and Dr. Rose and moved away
from unquestioning acceptance of the currency contamina-
tion theory. As Calhoun himself concedes, “the federal
courts have become more open-minded toward dog alert
evidence.” See, e.g., $242,484, 389 F.3d at 1165-66 & n.9
(declining to “write the [currency contamination] theory into
the law of [the Eleventh] [C]ircuit” and disagreeing with
district court conclusion that probative value of dog alert to
currency was weak, because “no one with any expertise
testified in support of [the claimant’s] ever-lasting scent,
global contamination theory”); United States v. $22,474.00
in U.S. Currency, 246 F.3d 1212, 1216 (9th Cir. 2001) (dis-
tinguishing earlier Ninth Circuit decisions that adopted the
currency contamination theory because, unlike in the
earlier cases, “the government presented evidence that the
dog would not alert to cocaine residue found on currency in
general circulation. Rather, the dog was trained to, and
would only, alert to the odor of . . . methyl benzoate[,
and] . . . unless the currency [the defendant] was carrying
had recently been in the proximity of cocaine, the detection
dog would not have alerted to it”).
We therefore conclude that the empirical information
provided in this case indicates that dog alerts to currency
should be entitled to probative weight. Cf. Furton et al.,
Odor Signatures at 332 (“[T]here is no valid scientific basis
for the theory that innocently contaminated currency
contains sufficient quantities of volatile chemicals to signal
an alert from a properly trained drug detector dog. There-
fore, an alert to a specimen (including money) . . . indicates
that the item contains a significant quantity of narcotic
odor.”).
3. Bax’s Reliability
Calhoun contends that there is no evidence that Bax is a
reliable drug detector dog, and thus Bax’s alert to his cash
No. 02-2899 21
is entitled to no probative weight. On this issue, however,
we are satisfied that the record amply demonstrates Bax’s
reliability.
Bax is a certified narcotic detector dog, having received
his certification in November 1997 upon completion of 400
hours of training with his handler, Officer Arrigo. Bax’s
diploma indicates that he was qualified to detect marijuana,
cocaine, and heroin; in 1999, Bax underwent recertification
at which time he was certified to detect methamphetamine.
During the performance of his duties in the years after
certification, Bax racked up an impressive record. Drugs or
currency were found after 97.6% of his alerts. Drugs were
found after 70.1% of his alerts. Only five of Bax’s alerts (the
remaining 2.4%) were unambiguous false positives, and
none of those took place in the two years prior to the seizure
of Calhoun’s cash hoard. These facts are reflected in the
record and set forth in the government’s statement of
material facts, and Calhoun disputed none of these facts in
his opposition to summary judgment.
But Calhoun now attacks Bax’s reliability by pointing to
evidence that Bax conducted certification training with both
actual cocaine and pseudococaine (which consists primarily
of methyl benzoate). Furton et al., Novel Methods at 61
(“The active ingredient in . . . pseudococaine is actually
methyl benzoate.”). According to Calhoun, “a dog’s training
regimen will assure probativeness of future alerts to
currency only if pseudococaine/methyl benzoate is the only
material used during training.” Calhoun cites to some
caselaw for this proposition and contends that Bax was not
properly proofed to alert only to methyl benzoate, or some-
how lacked adequate training generally. See, e.g., $22,474,
246 F.3d at 1216 (holding that a dog alert to currency was
probative because the government offered evidence that
“the dog was trained to, and would only, alert to the odor of
a chemical by-product of cocaine called methyl benzoate”)
(emphasis added); United States v. $10,700 in U.S. Cur-
22 No. 02-2899
rency, 258 F.3d 215, 230 (3d Cir. 2001) (declining to deter-
mine the evidentiary weight to be accorded dog alerts to
currency because the government had not presented
any evidence concerning the dog’s training or its degree of
accuracy in detecting narcotics on currency). Thus, Calhoun
argues that Bax’s record “does nothing to show that Bax has
been trained to distinguish (or has otherwise shown the
ability in practice to distinguish) recently tainted currency
from currency in general circulation.”
This is a distinction without meaning, however. For the
reasons exhaustively set forth above, dogs apparently do
not alert to cocaine at all, but rather to methyl benzoate. So
it does not matter whether Bax was trained with actual
cocaine and pseudococaine, because he was actually trained
to detect and alert to the odor of methyl benzoate emanating
from the cocaine and pseudococaine, not the odor of cocaine
per se—which is impossible to detect in any event, due to its
anesthetic qualities. Furton et al., Odor Signature at 331
(“When a dog is trained to alert to . . . drugs, . . . the canine
is actually being trained to alert to a scent associated with
the item rather than the item itself. . . . This is the basis of
commercial training aids developed, such as pseudo
cocaine, . . . which[ ] in fact[ ] contain no controlled sub-
stances but, rather, only the controlled substance odor.”);
(Rose Aff. ¶ 2, Gov’t App. at 22.) And, as discussed, currency
in general circulation, even if it is tainted, does not exude
enough methyl benzoate to trigger a dog alert (unless the
cash is very recently tainted and present in massive
quantities) due to the substance’s high rate of evaporation.
An alert to currency in most circumstances would indicate
that the currency is not innocently tainted, but instead
tainted through contact or close proximity to illegal narcot-
ics.
Equally unavailing is Calhoun’s suggestion that Bax
might alert to general circulation currency itself (the smell
of cash) even in the absence of the odor of methyl benzoate.
No. 02-2899 23
Bax was certified to detect certain narcotics, not currency—
and apparently there are dogs trained for that specific
purpose. See Normal Lorenzo et al., Laboratory and Field
Experiments Used to Identify Canis Lupus Var. Familiaris
Active Odor Signature Chemicals from Drugs, Explosives,
and Humans, 376 ANALYTICAL & BIOLANALYTICAL CHEMIS-
TRY 1212, 1213 (2003) (listing various detector dog types).
There is no indication in the record (nor does Calhoun offer
any meaningful argument) to suggest that Bax alerts to
general circulation currency itself or to some other substance
or byproduct that may be on currency by virtue of innocent
contamination—indeed, extensive research by Dr. Furton
and Dr. Rose indicates that trained dogs do not alert to any
byproduct of cocaine other than methyl benzoate. See
Furton et al., Odor Signature at 331 (“None of the dogs tested
alerted to by-products other than methyl benzoate. . . .”);
Kenneth G. Furton et al., Identification of Odor Signature
Chemicals in Cocaine Using Solid-Phase Microextraction-
Gas Chromatography and Detector-Dog Response to Isolated
Compounds Spiked on U.S. Paper Currency, 40 J. CHRO-
MATIC SCI. 147, 155 (2002) (“Identification”). In addition, as
we previously have recognized, there is no need to “proof”
a dog off currency when there is ample evidence to illus-
trate the dog’s reliability in the field. See, e.g., United States
v. Limares, 269 F.3d 794, 798 (7th Cir. 2001) (“Whether you
can confuse a drug-detection dog depends . . . on how dogs
perform in practice, not, as Limares believes, how they were
trained and ‘proofed off’ currency.”).
Thus, we do not accept Calhoun’s contention that Bax is
an “unsophisticated” narcotics detector dog, and Calhoun’s
cited caselaw does not convince us otherwise. Calhoun cites
$22,474 in support of his view that dogs must be shown to
alert only to methyl benzoate as opposed to cocaine itself—
a view resting on a faulty premise of which we have already
disposed (cocaine per se has no odor). In fact, we read the
Ninth Circuit’s reasoning in that case to be consistent with
24 No. 02-2899
the empirical information offered by the government— dogs
alert to the odor of methyl benzoate, not to the minute
particles of cocaine present on currency in general circula-
tion. Cf. $22,474, 246 F.3d at 1216 (finding dog alert pro-
bative because of government evidence that “the dog would
not alert to cocaine residue found on currency in general
circulation[,]” but rather to methyl benzoate). Likewise,
Calhoun’s citation to $10,700 does not carry the day. In that
case, the Third Circuit attached no significance to a positive
alert to currency because the government failed to present
any evidence concerning the dog’s past training or accuracy.
$10,700, 258 F.3d at 230. This is quite unlike the situation
presented here, in which the government presented
uncontroverted evidence demonstrating Bax’s qualifications
and reliability in the field.
Given these facts, we agree with the district court’s
conclusion that Bax was a reliable detector dog at the time
of his alert to Calhoun’s cash. Certainly we may assume
that Bax is wrong on rare occasion, as evidenced by his
handful of false positives over the years. But Bax’s high
rate of success (drugs or currency were found after 97.6% of
his alerts, and drugs were found after 70.1% of his alerts),
coupled with the additional empirical information before us
in this case, is more than adequate to indicate his reliability
in this case. See Limares, 269 F.3d at 798 (“[E]ven if all
alerts to currency are treated as false positives, [drug
detection dog] Wendy has been right 62% of the time [as to
the presence of drugs], enough to prevail on a preponder-
ance of the evidence. . . .”) (emphasis in original).
4. Dog Alert Evidence—Conclusion
In sum, on the evidence contained in the record as sup-
plemented by empirical evidence, we conclude that Bax’s
positive alert is entitled to probative weight in this case.
The publicly available empirical information offered in this
case supports the conclusion that no properly trained dog
No. 02-2899 25
could have alerted to Calhoun’s cash hoard, which comprised
1700 individual bills, if it had contained only innocently
tainted bills. As indicated earlier, at least 50,000 such bills
would be necessary to trigger a dog alert (likely many more,
given that Calhoun’s bills were stacked and bound in 29
separate bundles). In addition, the very ephemeral nature
of the methyl benzoate byproduct of illicit cocaine makes it
highly likely that Calhoun’s cash hoard was in very close
proximity to large amounts of the drug within hours or days
of Bax alerting to it.8
B. The Methodology of Bax’s Sniff Alert
Calhoun’s next contention is that the “imprecise testing
methodology” undertaken by the DEA agents and Bax’s
handler failed to prevent the possibility of cross-contami-
nation. Thus, even assuming that Bax is reliable, the pos-
sibility that a source independent of Calhoun’s cash triggered
Bax’s alert might deprive it of any probative weight.
Calhoun makes several related arguments in support of
this contention. First, Calhoun argues that the government
agents did not adhere to the methodologies recommended
by Dr. Mesloh, and thus the conduct of the dog sniff was
somehow defective. See, e.g., Mesloh et al., Sniff Test at 713.
Relatedly, Calhoun claims that the government failed to
provide a package of “control” currency in order to rule out
the possibility that Bax would alert to general circulation
currency. Calhoun also contends that the agents failed to
safeguard against possible cross-contamination of his cash
8
This also cuts against Calhoun’s assertion that he had been
accumulating his cash hoard since the mid-1990s, for any tainted
cash he may have been stuffing in his mattress or cookie jar over
the years would have long since lost any detectable odor of methyl
benzoate, even if bundled or kept in closed spaces. See Rose Aff.
¶ 2, Gov’t App. at 22.
26 No. 02-2899
hoard (perhaps the agents had handled other illicit sub-
stances recently but failed properly to sanitize themselves)
and that the agents failed to ensure that the suitcase in
which they placed his cash was free of narcotics residue or
odor. In support of these arguments, he offers his own con-
jecture and the methodologies recommended by Dr. Mesloh.
It is true that the record does not contain great detail
regarding the methodology of Bax’s sniff search. But at the
summary judgment stage, Calhoun failed to challenge the
methodology used by the DEA agents and Bax’s handler in
conducting the dog sniff, nor did he offer any contrary evi-
dence of his own. The government asserts that it would have
provided more detailed evidence addressing Calhoun’s con-
tentions had Calhoun properly raised these arguments in
opposition to summary judgment.
It is axiomatic, however, that Calhoun—the party oppos-
ing summary judgment—had the burden of coming forward
with properly supported arguments or specific evidence to
show a genuine issue of material fact. Celotex Corp., 477
U.S. at 324. Instead, Calhoun accepted the government’s
facts as true and only now offers arguments challenging the
agents’ methodology. For example, Calhoun posits the sniff
search methodology must be improper because the gov-
ernment failed to offer evidence that the agents employed
a new plastic bag, sealed the plastic bag, or cleaned the
suitcase before the sniff search.
This turns summary judgment on its head. The govern-
ment already came forward with evidence regarding the
methodology of the sniff search, and Calhoun never dis-
puted or challenged this evidence before the district court.
Calhoun’s speculative musings do not amount to a genuine
issue of material fact requiring a remand for trial. See, e.g.,
Liu v. T & H Mach., Inc., 191 F.3d 790, 796 (7th Cir. 1999)
(citation omitted). Our order requesting additional briefing
on the methodology the agents employed was intended to
No. 02-2899 27
focus the arguments of the parties (particularly Calhoun, as
he was acting pro se at the time) on issues potentially
dispositive in this case. We did not invite the parties to side-
step longstanding rules of summary judgment and waiver.
The time for Calhoun to challenge the methodology and
offer evidence was at the summary judgment stage, not for
the first time on appeal. Cf. United States v. $174,206.00 in
U.S. Currency, 320 F.3d 658, 662 (6th Cir. 2003) (“That the
burden [post-CAFRA] is on the government does not change
the fact that, if the government meets its burden, it will
prevail unless the claimant[ ] introduce[s] evidence to
support [his] case.”).
Even if Calhoun has not waived a challenge of the meth-
odology, we conclude that the evidence presented in the
record is enough to establish that there was nothing unto-
ward about the methodology employed by the DEA agents
and Officer Arrigo.
In the first place, we disagree that any failure to apply
Dr. Mesloh’s recommended methodology somehow invali-
dates Bax’s sniff search and alert. While we have no reason
to doubt that Dr. Mesloh’s recommended methods may be
sound, the failure to apply them does not indicate that the
methods undertaken by the agents were improper—espe-
cially since Dr. Mesloh’s recommendations were, in part,
designed to respond to judicial adoption of the currency con-
tamination theory. As set forth in detail above, we decline
to accept Calhoun’s currency contamination arguments in
light of the empirical information showing that trained dogs
alert to methyl benzoate, not cocaine. And, as we concluded
above, Bax is a trained and reliable narcotics (not currency)
detector dog, so we do not see how the use of a control pack-
age of “clean” currency would have made any difference. See
Limares, 269 F.3d at 798.
Calhoun’s remaining contentions also lack merit. In the
absence of any contrary evidence offered by Calhoun, we
conclude that the methodology used by the DEA agents and
Officer Arrigo was not defective. The record discloses that
28 No. 02-2899
the agents, outside the presence of Officer Arrigo and Bax,
put Calhoun’s money into a plastic bag and placed the bag
into one of many empty suitcases in the DEA office. Officer
Arrigo then commanded Bax to search, and the dog sniffed
around the room before alerting to the suitcase. The agents
removed the plastic bag from the suitcase and Bax contin-
ued to alert to the bag, not the suitcase.
Evidence in the record regarding other sniff searches in
the same office underscores the conclusion that the mere
possibility of cross-contamination does not deprive Bax’s
alert of probative weight. The government cites two incident
reports detailing sniff searches by Bax in the same office in
the two days immediately following the confiscation of
Calhoun’s cash. On September 6, 2000, Bax alerted to a
suitcase containing methamphetamine that had been placed
in the DEA office along with three other suitcases. Likewise,
on September 7, Bax alerted to a large sum of currency
($18,345) that had been hidden in the drawer of one of the
desks in the same office. (See Gov’t App. at 56-61.) The
government also introduced a voluminous account of Bax’s
other sniff searches over the years. (R. 15, Ex. O.) This rec-
ord indicates that Bax had undertaken more than 40 other
sniff searches in the same office, and each time Bax alerted
only to the location in which the suspect currency or nar-
cotics were hidden (whether a suitcase, file cabinet, or desk
drawer). Id.No evidence suggests that, in any of these instances,
Bax falsely alerted to other objects in the DEA office, which
presumably he would have if these objects had been
sufficiently contaminated or if agents had employed sloppy
methodology. The volatility of methyl benzoate and the
quantity needed to trigger an alert suggests that whatever
minute particles of cocaine that might remain in the office
would not lead to a false alert. Furthermore, no evidence
suggests that the DEA actually stores narcotics or contra-
band in the office that might conceivably lead to false alerts.
No. 02-2899 29
While not conclusive, these points reinforce our conclusion
that Bax is reliable9 and that the likelihood of cross-con-
tamination leading to a false alert was extremely low in
Calhoun’s search. Calhoun has offered nothing other than
conjecture to convince us otherwise. See Bell, 367 F.3d at
707 (“Inferences that are supported by only speculation or
conjecture will not defeat a summary judgment motion.”).
Contrary to Calhoun’s speculations, it is far more likely
that Bax alerted to the only thing in the room exuding
sufficient odor to trigger an alert—Calhoun’s cash hoard.
Given all of these facts and Calhoun’s failure to raise an
effective challenge on this basis before the district court, we
conclude that Calhoun’s attack on the methodology of the
sniff search fails.
C. Calhoun’s Testimony and Other Factors Supporting
Forfeiture
The final issue upon which we sought additional briefing
is the impact of Calhoun’s false explanations and the in-
ferences, if any, to be drawn therefrom.
The government argues that Calhoun’s income and stated
expenditures, as documented in his tax records, show that
Calhoun could not possibly have earned the cash that he
claims to have stockpiled over the years—his expenditures
(including his $30,670 cash hoard) exceeded his stated
income by at least $26,394 from 1998 to 2000. The govern-
ment’s evidence and argument are premised on Calhoun’s
filing of bankruptcy in 1998, in which he declared that he
9
Indeed, in the course of his duties at the airport, Bax conducted
sniff searches of some 80,000 suitcases (checked bags, not planted
in the DEA office), and only detected drugs two times. This
underscores the conclusion that Bax has a discriminating nose. (R.
15, Ex. O.)
30 No. 02-2899
had no cash on hand (so the government began counting
Calhoun’s earnings from 1998 to the date his cash was
seized). In his opposition to summary judgment, Calhoun
did not dispute any of the government’s detailed accounting
of his income and expenditures. The district court granted
summary judgment in part based on this obvious and sub-
stantial disparity between Calhoun’s expenditures and his
reported income.
Calhoun now claims on appeal that he did not give a false
explanation for the source of his cash hoard. Calhoun offers
three specific arguments in support of this claim. First,
Calhoun artfully parses his response to a government inter-
rogatory asking that Calhoun set forth the facts and docu-
ments supporting his position that the seized funds were
not linked to illegal drug activities. Calhoun’s response was:
See attached documents. In addition, the claimant’s tax
returns support the claimant’s position that the funds
were not monies furnished or intended to be furnished
in exchange for a controlled substance, or were not
monies used or intended to be used to facilitate a nar-
cotics transaction.
Calhoun claims that the highlighted “in addition” indicates
the existence of documentary proof other than his tax re-
turns, and therefore “the context of the answer makes clear
that they [the “attached documents”] are different documents
from Calhoun’s 1998-2000 tax returns. According to Calhoun,
these mystery documents show that his explanation for his
funds did not rest solely on his tax returns, so any disparity
between his earnings and expenditures do not necessarily
make his explanations false.
Second, Calhoun alleges that he had begun saving cash in
the mid-1990s, and thus the government should not have
treated 1998 as a zero baseline from which to measure his
expenditures against his reported income. He concedes that
No. 02-2899 31
he failed to report these savings in his 1998 bankruptcy
filing, in which he declared under penalty of perjury that he
had no cash on hand. Calhoun also concedes that he may
not have reported gambling winnings on his tax returns,
but alleges that any failure to report these earnings does not
lead to the conclusion that he falsely explained the source
of his funds.
We find none of these arguments convincing. As Calhoun
admits, the “attached documents” were not submitted to the
district court, nor are they part of the record on appeal. If
these documents had existed, and Calhoun had ensured that
they were part of the summary judgment record, matters
might be different. But these documents are not before us
in the record now, and their unexplained absence does not
raise a disputed issue of material fact, especially when
Calhoun failed to raise the issue before the district court.
Likewise, Calhoun’s belated admission that he failed to
account for his purported savings and gambling earnings in
his bankruptcy filing and tax returns does not create a
triable issue of fact that entitles him to a remand. It is true,
as Calhoun concedes, that the false statements on his
bankruptcy and tax filings may expose him to fines or sanc-
tions unrelated to civil forfeiture. But it is also true that the
court properly could draw inferences and grant summary
judgment on the basis of the substantial and documented
differences between the sources of income properly accounted
for in Calhoun’s filings and his claimed sources of income
(which he failed to substantiate). Cf. $174,206, 320 F.3d at
662 (“[E]vidence of legitimate income that is insufficient to
explain the large amount of property seized, unrebutted by
any evidence pointing to any other source of legitimate in-
come or any evidence indicating innocent ownership, satisfies
the burden imposed by [§ 881(a)(6)].”) (emphasis added). The
district court inferred that Calhoun’s explanations about the
sources of his cash hoard were demonstrably false. In the
absence of any meaningful argument or evidence to the
32 No. 02-2899
contrary, it is hard to see how the district court could have
come out any other way.
Even if Calhoun had admitted his falsehoods in an affi-
davit submitted in opposition to summary judgment,
Calhoun could not prevail on this basis. Summary judgment
would be meaningless if litigants could manufacture
genuine issues of material fact through self-serving and
unsupported “admissions” materially different from posi-
tions taken in the past. This is why courts do not counte-
nance the use of so-called “sham affidavits,” which contra-
dict prior sworn testimony, to defeat summary judgment.
See, e.g., Bank of Ill. v. Allied Signal Safety Restraint Sys.,
75 F.3d 1162, 1168-69 (7th Cir. 1996) (“We have long
followed the rule that parties cannot thwart the purposes of
Rule 56 by creating ‘sham’ issues of fact with affidavits that
contradict their prior depositions. . . . If such contradictions
were permitted, . . . ‘the very purpose of the summary
judgment motion—to weed out unfounded claims, specious
denials, and sham defenses—would be severely undercut.’ ”)
(internal citations omitted) (collecting authority).
Although Calhoun’s representations on his bankruptcy
and tax papers were not sworn testimony given in the
course of litigation, Calhoun signed the documents under
penalty of perjury. We do not see why the “sham affidavit”
principle would not apply here—at least to the extent that
Calhoun’s false statements and failure to account for his
cash hoard (plus his failure to challenge the government’s
version of the facts) easily support the inference that the
government’s version of the facts was true.10 Calhoun can
10
Calhoun is not helped by caselaw regarding false or pretextual
statements made in the employment discrimination context. See,
e.g., St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502 (1993); Anderson
v. Baxter Healthcare Corp., 13 F.3d 1120 (7th Cir. 1994). This line
of authority teaches that a finding of pretext does not automati-
(continued...)
No. 02-2899 33
not conjure a triable factual issue on the basis of his new-
found and convenient respect for the truth, particularly
when this “truth” is unsupported by any evidence other
than Calhoun’s say-so.
D. The Totality of Circumstances Supports Forfeiture
We conclude that the government has satisfied its burden
to prevail on summary judgment. The totality of the
circumstances in this case, including the issues discussed
above, lead to only one reasonable conclusion—Calhoun’s
cash hoard was substantially connected to illegal drug traf-
ficking and properly subject to forfeiture.
We have discussed at length the most important of these
factors: Bax’s positive alert to Calhoun’s cash and Calhoun’s
demonstratively false explanations regarding the source of
his funds. The remaining factors present in this case also
indicate that the government is entitled to summary
judgment.
For example, Calhoun’s explanations regarding his travel
to Phoenix are suspect. On the day his cash was seized,
Calhoun was traveling to Phoenix, a recognized source city
for illegal narcotics. See, e.g., $22,474, 246 F.3d at 1216(“Phoenix[ ] [is] a known source city for drugs.”); cf. United
States v. Currency, U.S. $42,500.00, 283 F.3d 977, 981 (9th
Cir. 2002) (giving weight to fact that claimant was “travel-
10
(...continued)
cally entitle the plaintiff to judgment as a matter of law. So it is
in this case—Calhoun’s false statements alone do not trigger
summary judgment, but they certainly raise the inference that the
government’s version of the facts is true (particularly when
Calhoun offered no evidence to dispute those facts) and may be
considered along with the other factors present in this case,
particularly Bax’s positive alert to his cash.
34 No. 02-2899
ing from New York to San Diego, well known source cities
for drugs”); United States v. $141,770.00 in U.S. Currency,
157 F.3d 600, 604 (8th Cir. 1998) (giving weight to fact that
claimant was traveling from California, “a drug source
state”). He had made frequent trips to Phoenix—seven trips
within two months, not three as he claimed. Calhoun
alleged that he stayed at the same hotel each trip (at “55th
and the expressway”) but could not recall the hotel’s name;
subpoenaed travel records indicate that Calhoun did not
stay at any hotel at “55th and the expressway.” Yet he
stayed in Phoenix at least 27 nights during the two months
he had been traveling there (making his forgetfulness all
the less credible). All of these inconsistencies are relevant
in weighing whether the government has established its
burden justifying forfeiture. See $242,484, 389 F.3d at 1164(finding it proper to consider claimant’s inconsistent state-
ments and changing stories in considering whether the gov-
ernment’s burden is met); $22,474, 246 F.3d at 1217(“[Claimant’s] inconsistent statements about the money and
his reasons for being in Phoenix tended to support an in-
ference that the money was drug-related.”); United States
v. $67,220.00 in U.S. Currency, 957 F.2d 280, 286 (6th Cir.
1992) (“[M]isstatements are probative of possible criminal
activity.”).
Calhoun’s travel schedule and arrangements were also
suspicious. He always paid cash for one-way airplane tickets,
which he usually purchased the same day of the flight (and
sometimes only minutes before). As any savvy air traveler
knows, this practice virtually guarantees higher fares, and
someone in Calhoun’s position—unemployed and with no
regular income for months—would seem especially unlikely
to be a spendthrift under such circumstances. In addition,
Calhoun’s travel schedule was haphazard—in some in-
stances, he remained in Phoenix for over a week, but other
times he stayed only overnight before returning to Chicago.
The gaps between trips varied as well, with at least one
No. 02-2899 35
instance in which Calhoun flew back to Phoenix the day
after returning to Chicago. These factors are consistent with
the travel habits of drug couriers, who apparently must be
very flexible in their travel plans. Cf. $242,484, 389 F.3d at
1163 (holding that it was appropriate for the district court
to consider the claimant’s travel arrangements in light of
evidence that “drug couriers often travel on tickets pur-
chased with cash, . . . and frequently change their return
date, as [claimant] did twice in two days.”).
Calhoun also suggested that he was moving to Phoenix
permanently because he had lost his job in Chicago. As
Calhoun points out, no evidence indicates that he was mak-
ing that permanent move on the very day that his cash was
seized (indeed, Calhoun left his car at the Midway Airport
parking garage and did not have his driver’s license with
him). But it is also true that Calhoun never explained why
he was carrying a substantially large sum of money if his
trip (like the others) was to be only temporary (and Calhoun
testified that he had only spent $300-$700 on each of his
prior trips). Cf. United States v. One Lot of U.S. Currency
($36,634), 103 F.3d 1048, 1055 (1st Cir. 1997) (“Carrying a
large sum of cash is ‘strong evidence’ of [a connection to
illegal drug activity] even without the presence of drugs or
drug paraphernalia.”) (internal quotation marks and cita-
tion omitted). Other aspects of his testimony were suspicious
as well. For example, one reason Calhoun gave for the move
was his desire to pursue a romance with “Rochelle,” whose
last name, phone number, and address he was unable to
provide. He also claimed to have been searching for work in
Phoenix but could provide no proof—not even the name of
any of the prospective employers. Cf. $22,474, 246 F.3d at
1217.
Moreover, Calhoun’s actions at the airport were suspicious.
When confronted by agents, Calhoun first claimed to be car-
rying about $1000, then he claimed that he was carrying
36 No. 02-2899
$1700 dollars. Cf. $67,220, 957 F.2d at 286 (finding pro-
bative the fact that claimant “twice understated the amount
of money he was carrying”). He appeared increasingly
nervous and evasive during his conversation with the DEA
agents. He finally admitted to be carrying an additional
$29,000, which the agents verified when they discovered the
bundles of cash stuffed into a girdle that Calhoun wore
underneath his clothes. Cf. $42,500, 283 F.3d at 981 (con-
cluding that, coupled with other factors, “[p]ossession of
a large amount of cash is strong evidence that the money
was furnished or intended to be furnished in return for
drugs”) (internal quotations and citation omitted). Calhoun
denied ownership of the cash, alleging that it belonged to a
friend (whom he refused to name), and he signed a form
disclaimer. Cf. $141,770, 157 F.3d at 604 (finding that
“initial denial of ownership over the money” cut against
innocent explanation). Calhoun provided no receipts or
other proof regarding the origins of the cash.
Finally, Calhoun’s explanations regarding the sources
of his cash did not add up. As explained at length above, an
exhaustive accounting of Calhoun’s income and expendi-
tures (reflected largely in Calhoun’s income tax filings and
admissions) revealed that Calhoun’s expenditures exceeded
his stated income by over $25,000. Calhoun offered no docu-
mentation or other proof to account for this wide discrep-
ancy; similar circumstances have supported forfeiture in
other cases. See, e.g., $174,206, 320 F.3d at 662 (fact that
claimants’ “legitimate income was insufficient to explain the
large amount of currency found in their possession” sup-
ported forfeiture); $141,770, 157 F.3d at 604 (“[The claim-
ant’s] statement that this money constituted legitimate
business proceeds is undercut . . . by his inability to produce
any tax records regarding the source of this income. . . .”).
Calhoun attempts to characterize this array of factors as
nothing more than a series of unrelated factoids adding up
to a “drug courier profile” that is not to be accorded evi-
No. 02-2899 37
dentiary weight. See United States v. $84,000 U.S. Currency,
717 F.2d 1090, 1099 n.10 (7th Cir. 1983). He further argues
that, to the extent any of these factors fall outside the drug
courier profile evidence, at most “it shows that Calhoun
may have engaged in some unlawful activity,” but not nec-
essarily activity involving illegal narcotics. Calhoun also
highlights certain facts in an effort to show that his cash was
not linked to illegal narcotics activity. For example, Calhoun
notes that he always traveled under his own name, whereas
drug couriers tend to travel incognito. See $67,200, 957 F.2d
at 285. Calhoun also makes much of the fact that he was
never charged or convicted of a drug offense following the
seizure of his cash. These facts, Calhoun claims, show that
his cash should not be subject to forfeiture.
Again we must disagree with Calhoun’s contentions. It is
true, as Calhoun argues, that many of these factors, taken
alone, would not be enough to carry the government’s
burden for forfeiture, particularly under CAFRA’s height-
ened standard. We decline, however, to implement Calhoun’s
divide-and-conquer approach with respect to the factors
present in this case. Instead, we consider the totality of the
evidence as a whole and in the appropriate context. See
$42,500, 283 F.3d at 981 (finding that although some fac-
tors taken alone may be innocent, “the aggregate of facts
raise more than a mere suspicion of a connection between
the seized money and drugs”); see also $242,484, 389 F.3d
at 1160 (“In evaluating the evidence of proceeds traceable
to drug transactions, we . . . eschew[ ] clinical detachment
and endorse[ ] a common sense view to the realities of normal
life applied to the totality of the circumstances.”) (internal
quotation marks, brackets, and citation omitted); $36,634,
103 F.3d at 1054 (“Even where no particular circumstance
is conclusive, it is the aggregate of the facts that is exam-
ined.”) (internal quotation marks and citations omitted).
Taken together with Bax’s positive alert, the multitude of
factors in the aggregate sufficiently establish a substantial
38 No. 02-2899
connection between the cash hoard and illegal narcotics
activity. Calhoun’s “exculpatory” facts do not convince us
otherwise. Bax’s alert outweighs any suggestion that the
cash may have been linked to non-drug-related illegal ac-
tivity. The fact that Calhoun traveled under his own name
and was not subsequently charged in a criminal indictment
is of little consequence, especially when stacked up against
all of the other factors in this case. See, e.g.,$10,700, 258
F.3d at 224 n.6 (“[F]orfeiture under § 881(a) is not con-
ditioned upon an arrest or conviction for a drug offense.”).
Furthermore, we are unswayed by Calhoun’s efforts to
distinguish or deem inapposite forfeiture caselaw decided
before the enactment of CAFRA. Those cases, of course, ap-
plied the less-rigorous probable cause standard—a lighter
burden for the government to carry in civil forfeiture cases.
See United States v. $87,118.00 in U.S. Currency, 95 F.3d
511, 518 (7th Cir. 1996) (describing pre-CAFRA forfeiture
standard); accord $174,206, 320 F.3d at 661-62 (comparing
pre- and post-CAFRA burdens). But the cases are not
inapposite merely because they were decided pre-CAFRA.
The government’s burden may have increased in the wake
of CAFRA, but it did not become insurmountable. Factors
that weighed in favor of forfeiture in the past continue to do
so now—with the obvious caveat that the government must
show more or stronger evidence establishing a link between
forfeited property and illegal activity. We have considered
all relevant caselaw while remaining cognizant of the
increased quantum of proof necessary to support forfeiture
in post-CAFRA cases like this one. Cf. $174,206, 320 F.3d at
662 (concluding that the government met its burden under
either pre- or post-CAFRA standards).
That quantum is present here. We conclude that the gov-
ernment has carried its burden of showing by a preponder-
ance of the evidence that Calhoun’s cash hoard is subject to
forfeiture. Bax’s positive alert to Calhoun’s cash is strong
probative evidence of illegal narcotics activity. That alert,
No. 02-2899 39
coupled with the totality of other circumstances present
in this case, indicates a substantial connection between
Calhoun’s cash and illegal narcotics activity. The govern-
ment therefore is entitled to summary judgment.
III. Conclusion
For the foregoing reasons, the judgment of the district
court is AFFIRMED.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—3-31-05