[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
AUGUST 9, 2010
No. 09-15239 JOHN LEY
Non-Argument Calendar CLERK
D. C. Docket No. 06-02791-CV-JEC-1
UNITED STATES OF AMERICA,
$183,791.00 IN UNITED STATES CURRENCY,
Appeal from the United States District Court for the Northern District of Georgia
(August 9, 2010)
Before HULL, MARTIN and FAY, Circuit Judges.
Robinson Okwuosa appeals the district court's grant of summary judgment
in favor of the government in its civil forfeiture action pursuant to 21 U.S.C.
§ 881(a)(6). Okwuosa also challenges the district court's decision to allow the
government to file an untimely motion for reconsideration. Following a brief
recitation of the relevant facts, we affirm.
Claimant Robinson Okwuosa was stopped by federal law enforcement
agents on May 17, 2006 after he arrived at the Atlanta airport following a flight
from Nigeria. He agreed to speak to the agents and informed them that he earned
his living by exporting cars from the United States to Nigeria through his business,
Bobby Imports. He was carrying $183,791 in U.S. currency on his person and in
his carry-on bag, which Okwuosa claimed was proceeds from the sale of vehicles
in Nigeria. After a narcotics detection dog alerted to the odor of narcotics on
Okwuosa's carry-on bag, the agents seized the currency as drug proceeds.
Subsequent investigation by the government confirmed that Okwuosa owns
Bobby Imports, a sole proprietorship that buys cars in the United States and
exports them to Nigeria for sale. Okwuosa also provided documentation to the
government to support his claim that the money he was carrying represented
proceeds from the sale of cars in Nigeria. [End Page 2]
Not convinced that the $183,791 seized from Okwuosa constituted
legitimate business proceeds, the government filed a civil action for forfeiture of
the currency on November 16, 2006. The government's theory was that these
funds represented drug proceeds. The district court denied the government's
motion for summary judgment on August 19, 2008, finding that, although the
record suggested Okwuosa's involvement in some type of illegal activity, there
was insufficient evidence linking the currency to the drug trade.
On September 17, 2008, the government sought leave to file an untimely
motion for reconsideration, relying primarily on newly discovered evidence
connecting Okwuosa to a Nigerian drug trafficking organization. The evidence
was developed during a grand jury investigation that was ongoing during the
pendency of the motion for summary judgment. The grand jury returned a sealed
indictment on September 3, 2008, which was ordered unsealed on September 10,
2008. The government requested leave to file its motion for reconsideration in this
case a week later.
The evidence developed during the grand jury investigation was as follows:
Raymond Nsoedo led an organization that sold heroin in Detroit. The sale
proceeds were sent as cash or blank money orders to Atlanta and elsewhere, where
they were used to purchase vehicles that were then shipped to Nigeria. To avoid
[End Page 3]
reporting requirements, the money orders were purchased in a "structured"
manner""that is, in small amounts or from multiple clerks or locations. Okwuosa's
bank accounts showed deposits of more than $530,000 in money orders, most of
which were purchased in the Detroit area in the structured manner used by
Nsoedo's organization. On at least two occasions, Okwuosa deposited money
orders from a known affiliate of Nsoedo who was later arrested in Detroit in
connection with the delivery of five kilograms of heroin. In addition, Bobby
Imports was identified as one of the businesses used to purchase vehicles on behalf
of Nsoedo's organization, and Okwuosa testified that he used a company co-owned
by Nsoedo as his agent for exporting certain vehicles. On two intercepted phone
calls, Nsoedo and other individuals in his organization discussed Okwuosa's legal
fees, tractor business, whereabouts, and travel plans. Finally, there was direct
evidence linking Okwuosa and Nsoedo: Okwuosa wrote Nsoedo two checks, and
Nsoedo placed numerous calls to a telephone number registered to Okwuosa.
On September 15, 2009, the district court granted the government's motion
for reconsideration based on newly discovered evidence not available when the
government moved for summary judgment. Because the newly discovered
evidence supported the government's contention that the seized currency
represented drug proceeds, and because Okwuosa failed to refute the government's
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testimony, the district court entered summary judgment for the government.
Okwuosa timely appealed.
"We review de novo the district court's order granting summary judgment."
Little v. United Techs., 103 F.3d 956
, 959 (11th Cir. 1997). Summary judgment
should be granted where there is no genuine issue of material fact and the movant
is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c)(2). Thus, where
the record as a whole could not lead a rational trier of fact to find for the
nonmoving party, there is no genuine issue of fact for trial. Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574
, 587, 106 S. Ct. 1348
, 1356 (1986).
The record and all of its inferences should be viewed in the light most favorable to
the nonmoving party. Id. at 587""88, 106 S. Ct. at 1356. However, once the
moving party has met its burden of showing a basis for the motion, the nonmoving
party is required to "go beyond the pleadings" and present competent evidence
designating ""˜specific facts showing that there is a genuine issue for trial.'"
Celotex Corp. v. Catrett, 477 U.S. 317
, 324, 106 S. Ct. 2548
, 2553 (1986) (quoting
a prior version of Fed. R. Civ. P. 56(e)).
The Controlled Substances Act provides for the civil forfeiture of money
"furnished or intended to be furnished by any person in exchange for a controlled
[End Page 5]
substance or listed chemical in violation of this subchapter, all proceeds traceable
to such an exchange, and all moneys . . . used or intended to be used to facilitate
any violation of this subchapter." 21 U.S.C. § 881(a)(6). As a result of the
enactment of the Civil Asset Forfeiture Reform Act in 2000, the government must
establish by a preponderance of the evidence that the property is subject to
forfeiture. 18 U.S.C. § 983(c)(1). We look at the "totality of the circumstances"
when determining whether the government has satisfied this standard. See United
States v. $121,100.00 in U.S. Currency, 999 F.2d 1503
, 1507 (11th Cir. 1993).
The government may use circumstantial evidence as well as evidence gathered
after it filed the civil forfeiture complaint to meet its burden. United States v.
$291,828.00 in U.S. Currency, 536 F.3d 1234
, 1237 (11th Cir. 2008). However,
the government is not required to produce evidence connecting the money to a
particular narcotics transaction. United States v. $242,484.00, 389 F.3d 1149
1160 (11th Cir. 2004) (en banc). It need only show that the money was "related to
some illegal drug transaction." Id. We evaluate the evidence presented with ""˜a
common sense view to the realities of normal life.'" Id. at 1160 (quoting United
States v. Carrell, 252 F.3d 1193
, 1201 (11th Cir. 2001)).
Here, summary judgment was appropriate because the government
established by a preponderance of the evidence that the money was subject to
[End Page 6]
forfeiture as drug proceeds.
First, the government's evidence showed that Okwuosa was carrying an
unusually large amount of money""$183,791, to be precise. Although a large
amount of cash alone is insufficient to meet the government's burden, it is "highly
probative of a connection to some illegal activity." $121,100.00 in U.S. Currency,
999 F.2d at 1507. As we have previously recognized, "legitimate businesses do
not transport large quantities of cash rubber-banded into bundles and stuffed into
packages in a backpack. . . . because there are better, safer means of transporting
cash if one is not trying to hide it from the authorities." $242,484, 389 F.3d at
1161. In contrast, drug rings do often utilize couriers to transport large amounts of
cash in rubber-banded bundles. Id. at 1161""62.
Second, a drug dog alerted to the smell of narcotics on Okwuosa's carry-on
bag, which contained some of the money. We have held that a narcotics dog's
alert is a factor weighing in the government's favor. Id. at 1166. Although
Okwuosa mentions on appeal that other courts have not found dog alerts
compelling in light of evidence that a large percentage of U.S. currency is
contaminated by drug residue, we have declined to adopt that theory where the
claimant failed to present any evidence in support. Id. at 1165""66. Okwuosa has
not only failed to present any evidence on the subject, he has actually undermined
[End Page 7]
his contamination theory in this case by testifying in his deposition that the bills
were brand new. Currency that has never been used cannot, at the same time, have
been tainted by drugs through the normal circulation process. The record thus
supports the government's argument that the money seized from Okwuosa was
connected to narcotics.
Finally, and most significantly, his bank accounts and business were linked
to a Nigerian heroin trafficking ring. The government's affidavits detailed how
Okwuosa deposited $530,000 in structured money orders, including money orders
remitted by an individual who was later arrested in connection with a heroin
delivery; identified Okwuosa's sole proprietorship as one of the businesses that
purchased and exported vehicles on behalf of Nsoedo's organization, which was
the method used by the organization to transfer drug proceeds from the United
States to Nigeria; explained how Nsoedo and other individuals in his organization
were overheard discussing Okwuosa's legal fees, tractor business, whereabouts,
and travel plans; and provided evidence of direct contacts between Okwuosa and
Nsoedo. Okwuosa did not come forward with any evidence to refute the
government's declarations; instead, he merely speculated in his response brief that
there might be innocent explanations for the money orders, Bobby Imports's
export transactions, the phone conversations, and the checks to Nsoedo. Although
[End Page 8]
"[a]ll reasonable inferences arising from the evidence must be resolved in favor of
the non-movant" on a motion for summary judgment, "inferences based upon
speculation are not reasonable." Marshall v. City of Cape Coral, Fla., 797 F.2d 1555
, 1559 (11th Cir. 1986). In opposing the government's motion, Okwuosa
failed to carry his burden of going beyond the pleadings and presenting competent
evidence designating "specific facts showing that there is a genuine issue for trial."
Celotex Corp., 477 U.S. at 323""24, 106 S. Ct. at 2553 (internal quotation marks
omitted); see also Fed. R. Civ. P. 56(e)(2) ("When a motion for summary judgment
is properly made and supported, an opposing party may not rely merely on
allegations or denials in its own pleading; rather, its response must""by affidavits
or as otherwise provided in this rule""set out specific facts showing a genuine
issue for trial."). Based on the record developed in this case, the district court did
not err in granting summary judgment for the government.
Under the local rules in effect at the time, any motion for reconsideration
based on the district court's initial denial of summary judgment should have been
filed by September 3, 2008. The government, relying on Federal Rule of Civil
Procedure 6(b), requested leave to file its motion for reconsideration two weeks
later, on September 17, 2008. Okwuosa argues that the district court erred when it
[End Page 9]
granted the government's motion for leave to file a motion for reconsideration. We
Rule 6(b) allows a court, for good cause, to extend a deadline "on motion
made after the time has expired if the party failed to act because of excusable
neglect." Fed. R. Civ. P. 6(b)(1)(B). Whether neglect is excusable is an equitable
determination, "taking account of all relevant circumstances surrounding the
party's omission." Pioneer Inv. Servs. Co. v. Brunswick Assocs., 507 U.S. 380
395, 113 S. Ct. 1489
, 1498 (1993) (addressing analogous Bankruptcy Rule
9006(b)). These circumstances include the danger of prejudice to the opposing
party, "the length of the delay and its potential impact on judicial proceedings, the
reason for the delay, including whether it was within the reasonable control of the
movant, and whether the movant acted in good faith." Id. "We review the district
court's determination of excusable neglect for abuse of discretion." Advanced
Estimating Sys., Inc. v. Riney, 130 F.3d 996
, 997 (11th Cir. 1997).
The equitable considerations in this case indicate that the district court did
not abuse its discretion in granting the government's motion for leave to file an
untimely motion for reconsideration. The danger of prejudice to Okwuosa was
mitigated by the fact that the district court gave him thirty days to respond to the
new evidence put forth by the government. The length of the delay was minimal:
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the government's request for leave to file came only two weeks after the deadline
for filing a motion for reconsideration. The reason for the delay was because
Federal Rule of Criminal Procedure 6(e)(2)(B) barred the government from
advising the district court of the new evidence obtained during the grand jury
investigation until the indictment was unsealed, an event which took place three
weeks after the district court initially denied summary judgment and one week
after the window for filing a motion for reconsideration closed. Finally, there is no
evidence that the government acted in bad faith. The record does not support
Okwuosa's contention that the government had earlier disclosed some of the
evidence acquired during the grand jury investigation. Although Okwuosa was
asked at his deposition whether he purchased cars from Valu-Auto, this question
arose during a line of questioning concerning Okwuosa's business relationships
with various car dealers. The deposition took place more than five months before
Valu-Auto was identified, via an intercepted email and phone toll records, as being
affiliated with Nsoedo's organization. Thus, the question about Okwuosa's
relationship with Valu-Auto was not a disclosure of grand jury information.
For the foregoing reasons, we affirm the district court's decision to grant the
government leave to file an untimely motion for reconsideration, as well as the
[End Page 11]
grant of summary judgment in favor of the government.
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