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United States v. $144

United States District Court, D. Kansas

May 3, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
$144, 780.00 IN UNITED STATES CURRENCY, more or less, Defendant.

          MEMORANDUM AND ORDER

          JOHN W. BROOMES, UNITED STATES DISTRICT JUDGE

         This matter comes before the Court on a motion for summary judgment filed by claimant Nathan Duckworth (“Duckworth”). (Doc. 50.) The motion has been fully briefed and is ripe for decision. (Docs. 53, 59, 64.) The motion is DENIED for the reasons set forth herein.

         The United States brought this action seeking forfeiture of $144, 780 in currency pursuant to 21 U.S.C. § 881(a)(6). It alleges the money was intended to be used to purchase controlled substances or represented proceeds from the sale of controlled substances. Duckworth claims to be the lawful and rightful owner of the money. (Doc. 5). Duckworth argues the Government is unable to cite evidence that the source or destination of the money was related to controlled substance offenses.

         I. Uncontroverted Facts

         Nathan Duckworth lives in Kansas City, Missouri, with his wife Jennifer and their young daughter. Duckworth has a concert promotion business in Kansas City under the name “Building Bridges Entertainment, LLC, ” a Missouri organization in good standing. The business was organized in Missouri in January of 2015.

         Duckworth was westbound on I-70 on May 12, 2015, when he was stopped for speeding in Ellis County, Kansas, by Kansas Highway Patrol Trooper James McCord. Duckworth was driving a rented 2015 Chevy Tahoe. (Doc. 59-2). Walter Weathers, Jr., was a passenger in the car. There was no luggage in the car and the rental vehicle was due back in Kansas City that same day. Duckworth told McCord he was going to Colorado for a family vacation. (Id.). Weathers similarly told another officer that they were going to visit Duckworth's family. Weathers told McCord he did not have any identification on him, although it was later shown that he did have his identification.

         McCord informed the men that he smelled burnt marijuana in the car. Duckworth and Weathers both denied that any marijuana had been smoked in the vehicle, and Duckworth asked that a drug dog be brought to the scene. McCord subsequently searched the vehicle. He found marijuana “gleanings” on the floor of the car. (Doc. 52 at 20). McCord also searched a backpack and found a large amount of cash ($144, 780) in vacuum-sealed plastic wrapping inside a zippered container. The lawfulness of the stop, search, and seizure were previously litigated in this case on Duckworth's motion to suppress, with the Government prevailing. (Doc. 36).

         McCord testified that in his experience, wrapping large amounts of currency in vacuum-sealed packages is common in the drug trafficking industry, and that the packages he seized from Duckworth's car were consistent with drug trafficking proceeds he has seen in other cases. (Doc. 59-2). After the money was seized, a certified narcotics-sniffing dog was deployed and indicated to the odor of controlled substances coming from the $144, 780. (Doc. 59-3).

         On October 12, 2014, about seven months prior to the above-incident, Duckworth and his spouse were traveling on I-70 in Ellsworth County, Kansas, in a rented vehicle, when they were stopped for speeding by Kansas Highway Patrol Trooper R.M. Wolting. During that stop, Wolting found nine pounds of marijuana in vacuum-sealed bags, a loaded Sig Sauer .45 caliber pistol, and $5, 320 in U.S. currency in the vehicle. (Doc. 59-4). The Government cites evidence that Duckworth told the trooper at the time of the stop that the marijuana was his. (Id.).

         Duckworth cites evidence of receipts and contracts, allegedly from his music promotion business, indicating that his business sponsored various events, particularly at Encore Nightclub in Kansas City in 2014 and 2015. (Doc. 53-3). The documents indicate Duckworth collected door entry fees from customers for sponsored concerts or parties, and that he was entitled to keep such receipts less expenses for various items. Receipts in the name of the Encore Nightclub indicate on their face that Duckworth may have collected door receipts of approximately $167, 000 during the six-month period prior to May 12, 2015.

         Duckworth cites evidence that on May 12, 2015, he was taking the cash in his vehicle to Denver to invest it in a proposed 12-city tour of musical artists. (Doc. 53-8 at 65). Duckworth testified he had communicated on social media with an individual named Ruben Romero in Denver, who operated a business called EnV Entertainment, and that they had a plan to organize and promote such a tour. Romero, for his part, testified that the two men communicated on social media about putting together a tour of musicians, and that what Duckworth was interested in would have cost $140, 000 to $160, 000 “to get it started.” (Doc. 53-4 at 3). Duckworth states in an affidavit that in his experience, “it is common in the music industry, particularly among African American artists, to deal in cash” and that when large amounts of cash are involved, “they are often shrink wrapped in plastic.” (Doc. 64-1).

         The Government cites evidence that Romero, who previously spent time in state prison for a felony marijuana offense, had never produced a concert before. He had no idea of what cities the proposed tour would have gone to. The parties had no written agreement. Romero is a musician and his business entity was created to sell his own compact discs, although it hardly sold any. He and Duckworth never met in person. Nearly a year after Duckworth was stopped and the money was seized, Duckworth emailed Romero and asked him to provide “what a contract would have looked like” for the proposed tour. Romero drafted such a document. It cites the sum of $140, 000 to be paid by Building Bridges (i.e., Duckworth) as the promoter of the tour, which Romero said was “just a rough ballpark estimate of what it would have originally [cost].” Duckworth testified that $40, 000 of the seized cash was a loan from Mustafa Ali, who operated a car rental business in Kansas City. (Doc. 59-1 at 21). Mr. Ali testified he loaned Duckworth $40, 000 in May of 2015, with the understanding that Duckworth would pay it back together with 50% interest ($20, 000) within two months. Ali testified he gave Duckworth the money out of $43, 000 in cash that Ali had at his house. Ali testified he understood he was investing in a musical tour of some sort, although he did not ask about details.

         Duckworth cites deposition testimony of his accountant, Connie Neighbors, who said Duckworth “could have had” $100, 000 available to him from his promotion business and from his wife's hair salon. The Government cites evidence that Neighbors' analysis of Duckworth's finances was essentially based on receipts provided by Duckworth, as to which she had no personal knowledge.

         Neighbors was also the accountant for Mustafa Ali. Sometime after the cash was seized from Duckworth, Ali referred Duckworth to Neighbors. In 2011, Duckworth had filed Chapter 7 bankruptcy. (Doc. 59-1 at 50). In 2012, he reported income of $12, 643 on his federal income tax return. (Id. at 99). In 2013, he reported income of $17, 809. (Id. at 113). Prior to the cash seizure on May 12, 2015, Duckworth had reported income of $17, 059 on his 2014 federal return. Duckworth hired Neighbors sometime prior to October of 2015. In ...


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