Opinion
2 CA-CV 2022-0092
03-10-2023
In re $101,995 in U.S. Currency and $3,125 in Money Orders
Springer and Steinberg P.C., Denver, Colorado By Emily E. Boehme and Law Offices of Kimberly A. Eckert, Tempe By Kimberly A. Eckert Counsel for Claimant/Appellant Rachel Mitchell, Maricopa County Attorney By Stephen J. Womack, Deputy County Attorney, Phoenix Counsel for Appellee
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Maricopa County No. CV2019007379 The Honorable Joseph P. Mikitish, Judge
Springer and Steinberg P.C., Denver, Colorado By Emily E. Boehme and Law Offices of Kimberly A. Eckert, Tempe By Kimberly A. Eckert Counsel for Claimant/Appellant
Rachel Mitchell, Maricopa County Attorney By Stephen J. Womack, Deputy County Attorney, Phoenix Counsel for Appellee
Judge Eppich authored the decision of the Court, in which Presiding Judge Brearcliffe and Vice Chief Judge Staring concurred.
MEMORANDUM DECISION
EPPICH, JUDGE
¶1 Joshua Moore appeals from the trial court's forfeiture judgment regarding $101,995 in currency and $3,125 in money orders ("the property"). He asserts the court erred in granting summary judgment in favor of the state, primarily contending the court failed to retroactively apply amendments to civil forfeiture law to his case and failed to hold an evidentiary hearing. For the following reasons, we vacate and remand for further proceedings consistent with this decision.
Factual and Procedural Background
¶2 In reviewing a grant of summary judgment, we view the facts in the light most favorable to the party against whom summary judgment was granted. See In re 1996 Nissan Sentra, 201 Ariz. 114, ¶ 2 (App. 2001). In April 2019, Moore was flying one-way from Memphis, Tennessee to Los Angeles, California, on a ticket he had purchased, at most, forty-eight hours before. When Moore's flight stopped in Phoenix for a one-hour layover, Detective Elizabeth Poole approached him and questioned him. Moore informed Poole that he was traveling with currency, both in his carry-on and checked luggage. Moore denied traveling with illicit drugs or contraband.
¶3 Officers searched Moore's two carry-on and two checked bags, which he had packed himself, and discovered the property. A drug-detection dog alerted to the currency, and officers also discovered post office parcel receipts in a file folder with a ledger listing marijuana strains and amounts, which Poole asserted matched ledgers later found on one of Moore's three telephones. Officers also discovered images and messages on the phone that appeared to relate to marijuana transactions, many dating back to 2018. Moore told the officers that he deals in real estate investing, that some of the investors are involved in the marijuana business, and that he had met with cash investors before his travels. The officers seized the property for forfeiture.
¶4 In June 2019, Moore filed a claim asserting ownership of the property and the state subsequently filed an in rem forfeiture complaint alleging, among other things, that the property was subject to forfeiture as it was related to a racketeering offense. In January 2020, the state moved for summary judgment on the complaint, which the trial court denied. It concluded that Moore had raised "genuine disputes of material facts" precluding judgment as a matter of law in favor of the state. Approximately a year later, the state again moved for summary judgment, and both parties filed supplemental briefing regarding the applicability of statutory amendments to Moore's case. The court granted the state's motion for summary judgment. This appeal followed and we have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1) and 12-2101(A)(1).
Discussion
¶5 On appeal, Moore asserts the state relied on a "perfunctory conclusion that the money [was] tainted" and did not meet its burden to "substantiate its claim that the money related to the underlying allegation of racketeering." He argues the trial court erred in granting summary judgment in favor of the state. We review the trial court's grant of summary judgment de novo. In re $70,070 U.S. Currency, 236 Ariz. 23, ¶ 8 (App. 2014).
Moore primarily contends on appeal that the 2021 amendments to the civil forfeiture statutes that were not yet effective at the time of final judgment applied retroactively to his case and that the court erred in failing to sua sponte hold an evidentiary hearing. We ordered additional briefing on the questions of the whether a genuine issue of material fact existed and whether the court impermissibly weighed conflicting evidence precluding a finding of summary judgment. Because our conclusion on that issue is dispositive, we need not reach the other issues Moore raised. See Tumacacori Mission Land Dev., Ltd. v. Union Pac. R.R. Co., 231 Ariz. 517, n.1 (App. 2013) (need not resolve issue not affecting disposition).
¶6 In its second motion for summary judgment, the state asserted there was no dispute of material fact and argued it was entitled to judgment as a matter of law because it had established a prima facie case for forfeiture by clear and convincing evidence. At Moore's request, the trial court treated his response to the state's motion as a cross-motion for summary judgment. Moore agreed there was no issue of material fact, but asserted the court should deny summary judgment for the state because (1) it forced him to choose between the right against self-incrimination and the right to contest the forfeiture; (2) he had consistently asserted ownership in the property and lawful acquisition through real estate deals; and (3) the state had failed to establish a nexus between the property and illegal drug activity. Thus, he asserted, the state had failed to meet its burden of proving forfeiture by clear and convincing evidence and summary judgment in its favor was improper as a matter of law.
¶7 In its ruling, the trial court found that Moore did not contest any facts and that the results of the consensual search of his bags amounted to probable cause for the seizure. The court also concluded that Moore did not offer sufficient evidence to cast doubt on whether the cash was drug related and his statements regarding real estate transactions were "completely unsupported" by documentary evidence. The court granted the state's motion for summary judgment and denied Moore's cross-motion. In its final judgment, the court found the property subject to forfeiture because there was "uncontradicted clear and convincing evidence" establishing the property as proceeds of a racketeering offense, used or intended for use in a drug offense and for financial gain.
¶8 Summary judgment is proper only if "there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law." Ariz. R. Civ. P. 56(a). "Even in the absence of a dispute of fact, summary judgment is improper if the evidence of record does not demonstrate that the movant is entitled to judgment as a matter of law." Comerica Bank v. Mahmoodi, 224 Ariz. 289, ¶ 12 (App. 2010). The plaintiff bears a heavy burden of persuasion in summary judgment, and cannot just rely on deficiencies in the defendant's response. See id. ¶¶ 12, 19; Wells Fargo Bank, N.A. v. Allen, 231 Ariz. 209, ¶ 1 (App. 2012). Thus, a plaintiff can obtain summary judgment only if it "submits undisputed admissible evidence that would compel any reasonable juror to find in its favor on every element of its claim." Mahmoodi, 224 Ariz. 289, ¶ 20.
"[I]n rem forfeiture proceedings . . . are governed by the Arizona rules of civil procedure unless a different procedure is provided by law." A.R.S. § 13-4311(B).
¶9 "The state may file an in rem action to seek forfeiture of 'property used or intended to be used in any manner or part to facilitate the commission of [a racketeering] offense.'" In re 3567 E. Alvord Rd., 249 Ariz. 568, ¶ 8 (App. 2020) (alteration in Alvord) (quoting former A.R.S. § 13-2314(G) (2017)). To contest that action, a claimant must first prove by a preponderance of the evidence that he owns the property. Former A.R.S. § 13-4310(D) (2017).
For ease of reference, we cite to the civil forfeiture statutes in effect at the time, which have since been amended. See 2017 Ariz. Sess. Laws, ch. 149.
At a hearing on the forfeiture claim, the state must prove by clear and convincing evidence that the property is subject to forfeiture. Former A.R.S. § 13-4311(M) (2017). Regarding a racketeering allegation, this requires showing "an act of racketeering" and a "link between the property to be forfeited and the alleged racketeering conduct." 3567 E. Alvord Rd., 249 Ariz. 568, ¶ 8. Either party may move for summary judgment after completion of service of a responsive pleading or an answer and at least thirty days before the forfeiture hearing. Former § 13-4311(H) (2017).
¶10 The evidence presented by the state here did not entitle it to summary judgment as a matter of law. See Orme Sch. v. Reeves, 166 Ariz. 301, 308-09 & n.11 (1990) (trial court has no discretion to grant summary judgment if it would not grant directed verdict on same evidentiary basis). The state produced the affidavit of Detective Poole in addition to the uncontested facts above-including Moore's last-minute travel itinerary, the cash in his belongings, postal service parcel receipts, a handwritten ledger listing drug strains, and the positive alert by the drug-detection dog. She avowed that consistent with Moore's behavior, it is common for money couriers to purchase one-way tickets less than forty-eight hours prior to departure, separate or minimize the amount of money they are traveling with, conduct illegal drug transactions with cash, and use "burner phones." Poole also avowed that there is a demand and source relationship between Memphis, Tennessee; Phoenix, Arizona; and Los Angeles, California; and that the documents found in Moore's possession contained ledgers "related to marijuana going out and the expenses related to the shipment," including "specific marijuana strains and quantities that matched the strains found in his phones." Moore's criminal history revealed, and he admitted, that he had been convicted in 2001 and 2012 of drug offenses.
The state also asserted in its motion for summary judgment that Moore had "admitted the purpose for his travel to Phoenix, Arizona, on April 10, 2019, was to act as a courier for a criminal enterprise engaged in trafficking prohibited drugs, i.e. marijuana," and that this uncontested fact was dispositive. However, the state cites Poole's affidavit in support of this fact, but she did not avow Moore made such an admission. Moore does state that some of his investors are in the marijuana business, but that "[m]arijuana is legal in certain places."
¶11 Our review of the evidence reveals that the "ledgers" referred to in Poole's affidavit appear to be related to real estate transactions with entries concerning "permits," "construction," "plumbing," "windows," "demo," "note recording for fidelity," "closing," "architect," "engineering," "top soil," "earnest," and "survey deposit." The ledgers also listed payments to "WADOT" concerning specific addresses, and an email discovered on Moore's phone showed outstanding loan payments to "WADOT Capital Inc" for real estate loans on properties whose addresses primarily match the handwritten ledgers listing construction and transaction expenses. There is only one handwritten "ledger" that appears to correspond to marijuana strains, but it does not "match[] the strains found in his phones."
Poole described the documents as being "drug ledgers and/or some type of property related invoice."
The trial court deemed admitted the state's allegation that the documents were "detailed handwritten drug ledgers listing different marijuana strains and amounts which matched the ledgers also subsequently found on the telephones used by Moore." Moore did not move for the admission to be withdrawn or amended, and thus it was conclusively established. See Ariz. R. Civ. P. 36(b). But in any event, the ledgers do not clearly establish a link between the property seized and the alleged transactions.
¶12 Moreover, the at-issue property was seized in April 2019, but the post office parcel receipts discovered were largely from 2017 or 2018. As Poole noted in her affidavit, "[m]ost of these receipts were not current" and were "mostly old." And while Moore's phone did reveal several messages clearly related to substantial marijuana transactions, many of the messages were from 2018, and none of the messages clearly established a link to the property forfeited.
¶13 In its ruling on summary judgment, it appears the trial court shifted the burden to Moore to disprove the state's allegations. See Mahmoodi, 224 Ariz. 289, ¶ 12. But it was the state's burden to establish forfeiture by clear and convincing evidence, not Moore's to disprove the state's allegations. See former § 13-4311(M) (2017); Allen, 231 Ariz. 209, ¶ 1 (plaintiff bears burden to prove its claim and "cannot simply rely on deficiencies in the defendant's response"); Mahmoodi, 224 Ariz. 289, ¶¶ 12, 20 (in summary judgment, moving party's burden of proof does not shift). A reasonable fact-finder might find the state had met its burden of proving by clear and convincing evidence that there was "a link between the property to be forfeited and the alleged racketeering conduct." 3567 E. Alvord Rd., 249 Ariz. 568, ¶ 8. But viewing the evidence in the light most favorable to Moore, the link is not so apparent that any reasonable factfinder would be compelled to find it existed. See Mahmoodi, 224 Ariz. 289, ¶¶ 12, 19-20. Thus, the state was not entitled to summary judgment as a matter of law, and court erred in so granting. See Orme Sch., 166 Ariz. at 309 n.11.
Disposition
¶14 For the foregoing reasons, we vacate the forfeiture judgment and remand for further proceedings consistent with this decision.