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HomeMy WebLinkAboutCP-21-MD-0401-2004 COMMONWEAL TH IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. $141,370.00 U.S. CURRENCY CP-21-MD-401-2004 COMMONWEALTH OF PENNSYLVANIA EX REL. HERMAN KEESE OWNER OF $141,370 RE: POLICE INCIDENT NO. T5-5014214 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. PENNSYLVANIA STATE POLICE CP-21-MD-401-2004 IN RE: PETITION OF THE COMMONWEALTH FOR FORFEITURE OF $141.370 AND PETITION OF HERMAN KEESE. JR. FOR RETURN OF $141.370 OPINION AND ORDER OF COURT Bayley, J., December 1, 2004:-- On May 22,2004, at approximately 5:56 p.m., Corporal Brian Merritt of the Pennsylvania State Police stopped a Ford Excursion on the Pennsylvania Turnpike in North Middletown Township, Cumberland County. The vehicle, which was westbound, was clocked by radar at 86 miles per hour in a 65 mile per hour zone. The driver was Lawrence Fair. He did not have a driver's license. A right front passenger was Brett Townsend. Shannon Bridges and Herman Keese, Jr. were passengers in the rear. Brett Townsend provided Trooper Merritt with a copy of a Budget rental agreement for the vehicle in the name of Angela Williams, who was not present. Townsend said he CP-21-MD-401-2004 was authorized by Williams to use the vehicle. He had a driver's license. Trooper Merritt conducted an NCIC check that showed that Lawrence Fair was wanted in South Carolina. Fair was placed under arrest. He told the trooper that he and the others were going to California to help Townsend move some furniture. While at the scene, Trooper Merritt received a communication that South Carolina would not extradite Fair. The trooper uncuffed him and issued citations for speeding and driving without a valid driver's license. Ultimately, after a drug dog alerted at the passenger door of the Ford Excursion, Brett Townsend gave consent to allow the dog inside the vehicle. The dog then alerted in the luggage area. A search warrant was obtained. The vehicle was searched, and in the luggage area a large amount of cash was found in a shoebox that was inside a tote bag. Harold Keese, Jr. told Corporal Merritt that it was his money and that there was $131,000 or $132,000, for which he had receipts. He said he had taken a mortgage out for the money, and that he had it because he was going to buy some cars. The cash was seized. There was $141,370 was in the shoebox. It was packaged with rubber bands in ten thousand dollar and five thousand dollar increments, and within those stacks were one thousand dollar stacks. The stacks contained hundreds, fifties, twenties, tens and fives. There were numbers, such as ten thousand dollars and five thousand dollars, on most of the stacks. None of the stacks contained bank wrappers. No criminal charges were filed against any of the occupants of the Ford -2- CP-21-MD-401-2004 Excursion. On July 21,2004, Herman Keese, Jr., filed a petition for the return of the money. On August 23,2004, the Commonwealth filed a petition for forfeiture, alleging that the $141,370 is traceable to illegal drug activity. The petitions were heard together at hearings on September 20 and October 7, 2004. Post-hearing briefs have been filed. In Pennsylvania, the Commonwealth may forfeit money "[f]urnished or intended to be furnished by any person in exchange for a controlled substance in violation of The Controlled Substance, Drug, Device and Cosmetic Act, and all proceeds traceable to such an exchange." 42 Pa.C.S. S 6801 (a)(6)(i)(A). The Commonwealth Court in Commonwealth of Pennsylvania v. $11,600.00 Cash, US Currency, 858 A.2d 160 (Pa. Commw. 2004), stated: In a forfeiture case, the Commonwealth bears the burden of establishing by a preponderance of the evidence that a nexus exists between the pertinent unlawful activity and the property subject to forfeiture. Commonwealth v. All That Certain Parcel and Lot of Land Located at 4029 Beale Avenue, Altoona, Blair County, Pennsylvania, 545 Pa. 172, 680 A.2d 1128 (1996). Preponderance of the evidence is tantamount to a "more likely than not: standard. Commonwealth v. $32,950 U.S. Currency, 160 Pa. Commwlth. 58, 634 A.2d 697, 698 n. 9 (1993), appeal denied sub nom., Commonwealth v. Friel, 538 Pa. 637, 647 A.2d 512 (1994). Once the Commonwealth has sustained its burden, the burden of proof shifts to the property owner to prove (1) that he is the owner of the money; (2) that he lawfully acquired the money; and (3) that the money was not unlawfully used or possessed by him. $16,208.38 U.S. Currency, 635 A.2d at 238. To establish the nexus between the $141,370 and illegal drug activity, the Commonwealth introduced expert testimony that the packaging of the $141,370 was -3- CP-21-MD-401-2004 consistent with the way street level drug dealers package money and bring it to suppliers. The Commonwealth conducted an ion scan on the $141,370. The scan showed 1,199 digital units of cocaine high, 958 digital units of cocaine, and 539 digital units of Procaine, a cutting agent used to increase the amount of cocaine available for sale. The casual contact level for money found in circulation in banks in Pennsylvania is 204.4 digital units. On October 4, 2004, the casual contact level for money in banks in Pendleton and Greenville, South Carolina, was 196 digital units. Thus, the ion scan showed six times more cocaine on the subject money than one would expect to find generally on money in Pennsylvania and South Carolina banks. Procaine is rarely found on money in general circulation. At the hearing, Herman Keese, Jr., testified that the money that was seized came from three sources. First, he said that in the summer of 2003, his father mortgaged a house in Pendleton, South Carolina, that netted $49,000. The proceeds were in cashiers' checks, which his father cashed at a Bank of America. His father gave him the $49,000 in fifties and hundreds which were in bank wrappers. Keese took that money to his ex-wife's house in Philadelphia and hid it in his daughter's room. Second, Keese testified that Derrick Walker, a friend of his father, loaned his father "in the neighborhood of $65,000 to $70,000." His father gave him that money, which was in tens, twenties and fifties, at the same time he gave him the money from the mortgage of the property in Pendleton, South Carolina. Keese placed the Walker money in his third wife's house in Philadelphia. Third, Keese testified that he received "close to -4- CP-21-MD-401-2004 $30,000 more" from his ex-wife Debra Barns. This money consisted of $8,500 or $8,600 cash and another $19,000 that Barns wire transferred him to San Francisco, for a total of $27,500 or $27,600.1 He had brought that money to Philadelphia. He testified that he later mixed his three sources of money into packets of tens, twenties, fifties and hundreds and wrapped them with rubber bands. Keese testified that none of the money he received from any of his sources was put into a bank because he did not have an account. All of the money was seized when he was on his way to San Francisco to invest it in a car business: I had been out to San Francisco when I met Debra, and I saw that the property value and stuff out there was real high. So everybody out there was making money. So I felt that if the towing business would go there everybody could afford to pay you, and if I sold cars there you could get paid. Everybody had insurance. And it was better than Philly because most of the time here the money - the neighborhoods is poor, you know, so I saw it was more opportunity out there. Keese testified that prior to leaving for San Francisco he worked for his father's towing service in Philadelphia and sold cars. Sometimes he made $3,500 a week. Sometimes it was $1,500 - "I know it was a nice little bit of money." He used his earnings to support himself and his six children. He testified that he did not file income tax returns in 2002 or 2003. The claimant's father, Herman Keese, Sr., also testified that he operates a tow truck business. His son worked for him and earned "a couple a hundred a week. See, we was putting the money away, trying to get straightened out together to get another 1 Barns did not testify. -5- CP-21-MD-401-2004 truck." He testified that in 2004, he gave his son "a hundred some thousand because it was ninety something I borrowed on the house" he rents in Pendleton, South Carolina. He then testified that when the mortgage was taken he obtained "$60,000 to $70,000 or something like that." He said he cashed the proceeds in a bank in Greenville, South Carolina, and obtained cash. He then gave his son another $60,000 cash a few months prior to the first hearing on September 20, 2004. That money came from a co- account that he owned with his granddaughter who is the daughter of Herman Keese, Jr. When questioned by counsel for the claimant, Keese changed his testimony. He was shown copies of records from a mortgage transaction for a property in Pendleton, South Carolina, with the New Century Mortgage Corp. on July 29,2003, with disbursement of $49,411.25 to the borrower, Herman Keese, Sr., on August 4, 2003. He said that he gave his son the proceeds of $49,411 rather than the $60,000 to $70,000 that he testified to earlier. Counsel then showed him a check dated April 23, 2002, in the amount of $117,572.55 issued by State Farm Fire and Casualty Company to Derrick Walker & National City Mortgage Co., its Succ and/or Assigns. No endorsement was attached. He also showed him a check dated August 7,2002, in the amount of $29,414.79 issued by National City Mortgage to Derrick Walker Carpenter Finisher. There was an endorsement on that check to "pay to the order of Main Street Bank, Covington, Georgia. . . for deposit only Carpenter Finisher." For the first time Keese mentioned Derrick Walker who he said was a friend who lives in Georgia. Counsel asked Keese, "And that was money you had received or borrowed or gotten -6- CP-21-MD-401-2004 from a Mr. Derrick Walker, is that correct?" Keese answered, "Right."2 The facts of this case are strikingly similar to those in Commonwealth of Pennsylvania v. $11,600.00 Cash, US Currency, supra. In that case the claimant, Cristian Maracine, was stopped for a traffic violation on November 13, 2001. He was arrested on outstanding warrants for traffic tickets. The police searched him and found money in his pockets. He said it was $8,000.00 or $9,000.00. It was actually $11,600. An officer asked Maracine where he got all the money, and Maracine stated that "he worked for Paolo's Pizza" and that he "was just coming from there." The officer asked Maracine how much he made, and Maracine stated that the made "$450 a week." Maracine told the officer that he was going to buy a car that day, but "did not get a chance to buy it." Maracine stated that he had a checking account and a savings account but he "felt like paying cash" for the car. The police seized the money. No illegal drugs were found on his person or in his vehicle. No criminal charges were filed. The Commonwealth subsequently discovered that Maracine made $3,000 from Paolo's Pizza for all of 2001. The Commonwealth performed an ion scan on the money to test for the presence of illegal narcotic particles. The money contained 1,028 digital units of cocaine and 1,302 digital units of cocaine high. The casual contact level on money in Pennsylvania banks that year was 234 digital units of cocaine. Thus, the scan showed that the money contained five times the amount of cocaine than one would expect for 2 Derrick Walker did not testify. -7- CP-21-MD-401-2004 currency in general circulation in Pennsylvania. The trial court found that the -8- CP-21-MD-401-2004 Commonwealth had met its burden of proof under the Forfeiture Act, and that Maracine's explanation for the source of the money did not rebut the presumption that it came from cocaine transactions. In affirming the forfeiture, the Commonwealth Court concluded that the evidence from the ion scan negated the money having only been in casual contact with cocaine. The Court stated: It is axiomatic, that the Commonwealth need not produce evidence directly linking seized property to illegal activity in order to establish, by a preponderance of the evidence, the requisite nexus between seized property and unlawful activity. Commonwealth v. McJett, 811 A.2d at 110. The Commonwealth's evidence sufficiently proved that the money, which had five times the amount of cocaine than that found on money in the general circulation, was "furnished... in exchange for a controlled substance..., [or represented the] proceeds traceable to such an exchange." The Court distinguished the facts in Commonwealth v. Marshall, 548 Pa. 495, 698 A.2d 576 (1997), in which the Supreme Court of Pennsylvanian refused to rely on a positive indication by a drug dog on cash because a dog alert alone only shows a suspicion and not a nexus between money and drug activity. In contrast, the scientific evidence from an ion scan showed cocaine on the money in significantly quantifiable terms well above money generally found in banks. In the case sub judice, the ion scan showed that the money seized contained six times the amount of cocaine that one would expect to find in general circulation. In addition, Procaine which is rarely found on money in general circulation, was detected. The packaging of the money suggests that it was linked to illegal activity. As in Commonwealth v. $11,600 Cash, supra, the Commonwealth has established the -9- CP-21-MD-401-2004 requisite nexus between the $141,370 seized and unlawful drug activity. The claimant has not proven that he lawfully acquired the money and that it was not unlawfully possessed by him. His testimony and that of his father strains credulity: (1) The claimant testified that his father mortgaged a house in Pendleton, South Carolina, in the summer of 2003, cashed checks for the net proceeds, and gave him the $49,411. He then retained the cash until it was seized on May 22, 2004. That the claimant would not have opened an income producing account using the cashiers' checks is inexplicable. On the other hand, we can understand his reluctance, not having a bank account, to take large amounts of cash to a bank unless he could find one that was into money laundering. (2) The claimant testified that he chose to go to San Francisco with $141,370 in cash because there was more opportunity there than in Philadelphia, notwithstanding that he was earning $1,500 to $3,500 a week and not paying taxes. His father, on the other hand, testified that his son only made "a couple hundred a week" from his towing business. (3) There was about $10,000 more in the shoebox than the claimant told Corporal Merritt that it contained. That is a lot of money to forget, especially when most of the stacks were marked with numbers. (4) The claimant told Corporal Merritt that he had receipts for the money. He has no receipts. (5) The claimant's father testified that in 2004 he gave his son "a hundred some -10- CP-21-MD-401-2004 thousand dollars because it was ninety something I borrowed on the house." He received $60,000 to $70,000 from the mortgage. He then gave his son another $60,000 cash a few months before September 20,2004, which came from a co-account with his granddaughter who is the daughter of Herman Keese, Jr. He then was shown copies of two checks totaling $146,987.34 made payable to Derrick Walker, of Georgia, in April 23,2002, which he was led to say he received or borrowed from Walker. How or why any of this money got to his son he never explained, nor did he then clarified his testimony regarding the money he said came from a co-account with his granddaughter. You would think that we would have heard from Walker. (6) If Debra Barns, an ex-wife, actually loaned the claimant about $27,500 in cash to start a new business, you would think that there would be receipts or that we would have heard from Barns. This court can accept all of, part of or none of a witness's testimony. The testimony of Herman Keese, Jr., and his father Herman Keese as to where the seized $141,370 came from, is completely unbelievable. We conclude that the money was furnished in exchange for cocaine, is traceable to such exchanges, and therefore subject to forfeiture pursuant to 42 Pa.C.S. Section 6801 (a)(6)(i)(A). For the foregoing reasons, the following order is entered. ORDER OF COURT AND NOW, this day of December, 2004, IT IS ORDERED: (1) The petition of Herman Keese, Jr., for the return of $141 ,370 seized by the -11- CP-21-MD-401-2004 Pennsylvania State Police on May 22, 2004, IS DENIED. (2) The petition of the Commonwealth for forfeiture of $141 ,370 seized by the Pennsylvania State Police on May 22,2004, IS GRANTED. The $141,370 IS FORFEITED TO THE COMMONWEALTH. By the Court, Edgar B. Bayley, J. Kishan Nair, Esquire Senior Deputy Attorney General Office of the Attorney General 2305 28th Street South West Allentown, PA 18103 For the Commonwealth Marc Frumer, Esquire 4961 Oxford Avenue Philadelphia, PA 19124 For Claimant :sal -12-