Opinion
NO. 2022 CA 0466
11-04-2022
STATE of Louisiana v. David CARTER and Seventy-Three Thousand Nine Hundred Dollars and No/Cents ($73,900.00) in U.S. Currency Mixed Denominations
Michael P. Fruge, Assistant District Attorney, Port Allen, Louisiana, Counsel for Plaintiff/Appellee, State of Louisiana Anderson Council, New Orleans, Louisiana, Counsel for Defendant/Appellant, David Carter
Michael P. Fruge, Assistant District Attorney, Port Allen, Louisiana, Counsel for Plaintiff/Appellee, State of Louisiana
Anderson Council, New Orleans, Louisiana, Counsel for Defendant/Appellant, David Carter
BEFORE: WELCH, PENZATO, AND LANIER, JJ.
LANIER, J.
In this case, David Carter appeals the forfeiture of $73,900.00 cash seized from him following a traffic stop. After review, we affirm as amended.
FACTS AND PROCEDURAL HISTORY
On August 5, 2020, at 4:30 a.m., Louisiana State Police ("LSP") Trooper First Class Joshua Mitchell observed a vehicle cross the fog line while traveling eastbound on I-10 in West Baton Rouge Parish. Trooper Mitchell made contact with the driver and sole occupant of the vehicle, Mr. Carter, who indicated he was returning from visiting a friend in Lafayette. Trooper Mitchell noted that Mr. Carter's hands were shaking as he retrieved his license and that he was very defensive about the reason for the traffic stop. Mr. Carter denied having any illegal narcotics or large sums of money in the vehicle. Due to Mr. Carter's nervousness, defensive behavior, and vague answers, Trooper Mitchell requested consent to search the vehicle and was refused. He then requested the assistance of LSP Trooper Zach Graffia and LSP K9 "Sergej." K9 "Sergej" alerted at the scene to the presence of narcotics near the rear driver side door. Investigator Jack S. Toney, LSP Bureau of Investigation, Criminal Investigative Division, Region I Narcotics, was also contacted to assist with the follow-up investigation.
A subsequent search of Mr. Carter's vehicle revealed nine rubber-banded bundles of U.S. currency. The bundles were wrapped in six pieces of window tint and had a piece of window tint laid across them. The money was located under the rear passenger seat in a natural void in a factory-made compartment designed for storage. Mr. Carter was advised of his rights and, when questioned about the money, gave conflicting statements. He initially stated that someone owed him money and had repaid him. Mr. Carter then said that he sold a house and received $50,000.00 from the sale of the house. He then added that some of the money was from two separate lawsuit settlements. However, when asked if he had any paperwork regarding any of these transactions, he stated he did not. Moreover, when asked why the banks would give him such a variety of denominations of cash when he cashed the alleged checks he had received from the transactions, Mr. Carter had no response. The currency, later found to total $73,900.00, was seized, and Mr. Carter was issued with notice of pending forfeiture on August 5, 2020, Mr. Carter executed an affidavit claiming ownership of the funds seized on August 24, 2020.
We note that in Mr. Carter's affidavit, he references $73,830.00 as the amount seized from him on August 5, 2020, According to the LSP case report, the total amount seized from Mr. Carter was initially found to be $73,830.00, However, when the money was recounted for deposit into the 18th Judicial District Court asset forfeiture account, it was determined that there was in fact $73,900.00 in currency seized. Mr. Carter acknowledges as much in his later filed motion for return of his seized property, wherein he references, "The property seized was his lawfully owned funds in the amount of $73,900.00."
On December 18, 2020, the State filed a petition seeking forfeiture of the $73,900.00 that had been seized from Mr. Carter. On February 5, 2021, Mr. Carter filed a motion for return of his seized property, arguing that the money was seized from his vehicle without a warrant, probable cause, or his consent. He maintained that the money was not the proceeds of any illegal activity, nor was it to be used for any illegal activity or purpose. Moreover, Mr. Carter alleged that the State's petition for forfeiture was untimely because it was filed more than ninety days from the date that his affidavit of ownership was served on the State in violation of La. R.S. 40:2608.
At the time in question, the La. R.S. 40:2608 provided, in part:
Forfeiture proceedings shall be commenced as follows:
(l) (a) ... If the district attorney fails to initiate forfeiture proceedings against property seized for forfeiture by serving Notice of Pending Forfeiture within one hundred twenty days after its seizure for forfeiture or if the state fails to pursue forfeiture of the property upon which a timely claim has been properly served by filing a Petition for Forfeiture proceeding within ninety days after Notice of Pending Forfeiture, or if the district attorney fails to provide a written assertion, pursuant to the provisions of this Paragraph, the property shall be released from its seizure for forfeiture on the request of an owner or interest holder, pending further proceedings pursuant to the provisions of this Chapter.
Louisiana Revised Statutes 40:2608 was amended by 2022 La. Acts, No. 698.
The trial court found that Mr. Carter's affidavit failed to comply with the requirements of La. R.S. 40:2610 in that it failed to provide the date, identity of the transferor, and the circumstances of Mr. Carter's acquisition of the interest in the property, as well as essential facts supporting his assertions. The trial court denied the motion in a judgment signed on April 26, 2021. Mr. Carter sought supervisory review with this court and requested a stay of the judgment, both of which were denied. See State of Louisiana v. Carter, 2021-0550 (La. 7/19/21), 2021 WL 3036308 (unpublished writ action).
As set forth in La. R.S. 40:2610(B), an owner of or interest holder in property seized for forfeiture may file a claim for said property, within thirty days after notice of pending forfeiture, as long as the claim is in affidavit form and sets forth the following:
(1) The caption of the proceedings as set forth on the Notice of Pending Forfeiture or petition and the name of the claimant.
(2) The address where the claimant will accept mail.
(3) The nature and extent of the claimant's interest in the property.
(4) The date, identity of the transferor, and the circumstances of the claimant's acquisition of the interest in the property.
(5) The specific provision of this Chapter relied on in asserting that the property is not subject to forfeiture.
(6) All essential facts supporting each assertion.
(7) The specific relief sought.
This statute was also amended by 2022 La. Acts, No. 698.
Thereafter, the State of Louisiana filed an "Application for Order of Forfeiture or Exception of Prescription." The State asked for forfeiture of the $73,900.00, pursuant to La. R.S. 40:2615(A), noting that more than thirty days had passed since service of the notice of pending forfeiture and no valid timely claims were received. According to the verification filed along with the application, Mr. Carter was served with the notice of pending forfeiture both personally, on August 5, 2020, and via certified mail, on September 28, 2020, more than thirty days had elapsed since the notice, and no timely certified claim had been filed. The matter was set for a show cause hearing on October 25, 2021, but later continued to December 13, 2021.
On December 8, 2021, Mr. Carter filed a motion to continue the December 13, 2021 hearing, arguing that the discovery phase was incomplete. The motion to continue was taken up at the December 13, 2021 hearing, along with the merits of the forfeiture. After considering argument of counsel and the documentary evidence, the trial court denied the motion to continue and granted "judgment as prayed for." The trial court executed a written order in conformity with these oral rulings, and Mr. Carter has appealed.
This court, ex proprio motu , issued a rule to show cause on May 13, 2022, which noted that the trial court's original January 24, 2022 order lacked sufficient decretal language. We directed the parties to show cause by briefs whether the appeal should be dismissed. In an attempt to correct the deficiencies, the trial court executed an amended order on July 27, 2022. However, as this order was still lacking in sufficient decretal language, an interim order was issued on July 18, 2022, remanding the matter for the limited purpose of allowing the trial court to sign an amended judgment correcting the deficiencies. See La. Code Civ. P. arts. 1918(A), 1951, and 2088(A)(12), as amended by 2021 La. Acts, No. 259, § 2 (eff. Aug. 1, 2021). A second amended order was executed on August 18, 2022. The appellate record was supplemented with the amended orders on August 9, 2022, and September 12, 2022, respectively. This court issued an order maintaining the appeal on September 13, 2022. See State of Louisiana v. Carter, 2022-0466 (La. App. 1 Cir. 9/13/22) (unpublished action).
LAW AND ANALYSIS
Amendment of Clerical Error
Initially, we note an obvious clerical error in the trial court's Second Amended Order dated August 18, 2022. The trial court granted the State's application for forfeiture "against the property sought to be forfeited (currency in the amount of $73,830)." Based on the evidence in the record and the pleadings filed by the State, there can be no doubt that the property sought to be forfeited was currency in the amount of $73,900.00, not $73,830.00 as indicated in the court's order. As previously discussed, when the money was initially counted on the day of Mr. Carter's traffic stop, the total was found to be $73,830.00. However, it was later confirmed to be $73,900.00, the amount that was later deposited into the 18th Judicial District Court asset forfeiture account.
Louisiana Code of Civil Procedure article 2164 provides, in pertinent part, that "[t]he appellate court shall render any judgment which is just, legal, and proper upon the record on appeal." Pursuant to this authority, we amend the order to substitute "(currency in the amount of $73,900.00)" for "(currency in the amount of $73,830)." See Gray v. Holiday Inns, Inc., 99-1292 (La. App. 1 Cir. 6/23/00), 762 So.2d 1172, 1174-1175.
Denial of Mr. Carter's Motion for Return of Seized Property
As previously indicated, the trial court denied Mr. Carter's motion for return of his property for failure to comply with La. R.S. 40:2610, and this court denied his application for supervisory review. When an appellate court considers arguments made in supervisory writ applications or responses to such applications, the court's disposition on the issue considered usually becomes the law of the case, foreclosing relitigation of that issue either at the district court on remand or in the appellate court on a later appeal. Dupre v. Maynard, 96-1183 (La. App. 1 Cir. 3/27/97), 692 So.2d 36, 38, writ denied, 97-1508 (La. 9/26/97), 701 So.2d 986. However, the denial of a writ application creates a different situation. A denial of supervisory review is merely a decision not to exercise the extraordinary powers of supervisory jurisdiction, and does not bar reconsideration of, or a different conclusion on, the same question when an appeal is taken from a final judgment. Id. Nonetheless, based on our review of the record, and as discussed in more detail below, we agree with the trial court's finding that Mr. Carter failed to comply with La. R.S. 40:2610. Thus, we find no error in the trial court's denial of Mr. Carter's motion for return of his property.
Burden of Proof and Sufficiency of Evidence
Forfeiture proceedings under the Seizure and Controlled Dangerous Substances Property Forfeiture Act of 1989 ("the Act"), La. R.S. 40:2601 et seq. , are civil proceedings, generally governed by the Louisiana Code of Civil Procedure. La. R.S. 40:2611(K). We review factual determinations in civil cases under the manifest error standard of review. State v. $144,320.00, 2012-0466 (La. 12/4/12), 105 So.3d 694, 701. When considering whether probable cause for forfeiture exists, even though the issue of probable cause is ultimately a legal question, appellate courts apply the manifest error standard of review to the trial court's factual determinations. Id. Whether probable cause exists in a given forfeiture case is determined by examining the totality of facts and circumstances for reasonable grounds to believe the property in question is connected to illegal drug trafficking. State v. $144,320.00, 105 So.3d at 703-704.
There is no prerequisite that a crime be proven before property is subject to seizure. Moreover, in a civil forfeiture action, the State need not bring criminal charges, either before or after the forfeiture. The State can seize the assets without ever bringing a criminal charge against anyone. The State must only prove that there was probable cause to believe that the property was used in connection with a crime. State v. Edwards, 2000-1246 (La. 6/1/01), 787 So.2d 981, 990. Thus, in this case the State had the initial burden of proving probable cause to connect the seized cash to some form of criminal wrongdoing. Probable cause is a reasonable ground for belief of guilt, supported by less than prima facie proof but more than mere suspicion. State v. Property Seized from Terrance Martin, 2009-1417 (La. App. 1 Cir. 3/30/10), 37 So.3d 1021, 1028. Probable cause may be established by demonstrating the probability that the money was in fact drug related, and it can be established by circumstantial or hearsay evidence. Id.
On appeal, Mr. Carter argues that regardless of whether the burden of proof in this matter was preponderance of the evidence or probable cause, the State fell short of meeting its burden at the forfeiture hearing. We note that as previously discussed, the trial court denied Mr. Carter's motion for return of his property for failure to comply with La. R.S. 40:2610. Upon receipt of the notice of pending forfeiture, Mr. Carter attempted to comply with the requirements of La. R.S. 40:2610, but failed to do so. He executed an affidavit on August 24, 2020, well within the thirty days of service of the notice of pending forfeiture. However, as determined by the trial court, Mr. Carter's claim did not comply with La. R.S. 40:2610 in several respects.
The mandatory, plain-language requirements for the filing of a timely, valid claim or request for stipulation are clear and, if not met, carry significant consequences. State v. 2003 Infiniti G35 VIN No. JNKCV51E93MO24167, 2009-1193 (La. 1/20/10), 27 So.3d 824, 834. Louisiana Revised Statutes 40:2610 clearly establishes a thirty-day filing deadline that cannot be extended under any circumstances; prescribes the necessary form of the claim; and sets forth the required content of the averments with unambiguous specificity. The failure to fulfill any of these requirements—whether it be missing the deadline, filing a claim not in affidavit form, or not setting forth the necessary averments—precludes the owner or interest holder from further participation in the forfeiture proceeding. Id.
Applying these principles herein, we hold that Mr. Carter did not file a valid claim within the thirty-day deadline pursuant to La. R.S. 40:2610. Thus, as directed by La. R.S. 40:2609, "[i]f no request for stipulation or claim is timely filed, the district attorney shall proceed as provided in Sections 2615 and 2616 of this Chapter." La. R.S. 40:2609(C). Louisiana Revised Statutes 40:2615, in pertinent part, provides that, "[i]f no claims are timely filed in an action in rem, the district attorney may apply for an order of forfeiture" and that "[u]pon determination by the court that the district attorney's written application establishes the court's jurisdiction, the giving of proper notice, and facts sufficient to show probable cause for forfeiture, the court shall order the property forfeited to the state." La. R.S. 40:2615(A) (emphasis added). Through its application for order of forfeiture, the State acted in accordance with Sections 2609(C) and 2615(A). The State sought a forfeiture judgment and submitted the seizing agent's affidavit in support of the seizure warrant, the seizure warrant itself, the notice of pending forfeiture, and Mr. Carter's insufficient claim in its attempt to establish probable cause for the forfeiture of Mr. Carter's property. Investigator Toney stated in his affidavit that Trooper Mitchell stopped the vehicle driven by Mr. Carter for improper lane usage. After speaking with Mr. Carter, Trooper Mitchell requested his consent to search the vehicle and was refused. He then requested the assistance of Trooper Graffia and LSP K9 "Sergej," and K9 "Sergej" alerted at the scene to the presence of narcotics near the rear driver side door. A subsequent search revealed nine rubber-banded bundles of U.S. currency wrapped in six pieces of window tint located under the rear passenger seat in a storage compartment. Mr. Carter was advised of his rights and, when questioned about the money, gave conflicting statements. Mr. Carter was detained pending further investigation.
At this point, Trooper Graffia contacted Investigator Toney to assist in the investigation and seizure of the currency. Investigator Toney spoke with Mr. Carter about the currency and his travel. Mr. Carter indicated the money was obtained from various lawsuit settlements and from the sale of a house three years earlier. Concerning his travel, Mr. Carter stated he had driven from New Orleans to Lafayette on August 4, 2020, but could not say for certain what time he left New Orleans or arrived in Lafayette. When advised that his vehicle had been seen near the Texas border, he maintained that he did not go past Lafayette. Mr. Carter also gave conflicting statements about whether anyone else had used the vehicle, initially stating that his "uncle" and "cousin" had used it, but later adamantly denying any mention of his "cousin."
Toll analysis of Mr. Carter's phone number revealed numerous calls on August 4, 2020, to and from numbers with Texas area codes that had previously been utilized by individuals involved in drug activity.
After discussing the information with Trooper Mitchell, i.e., the inconsistent statements given by Mr. Carter, the way the currency was packaged, and the denominations of the currency, Investigator Toney presented Mr. Carter with a notice of forfeiture for his signature. When presented with his copy, Mr. Carter voluntarily offered that he had been truthful earlier because he did not "want to involve his grandson because he's a good boy." Mr. Carter indicated that he had been keeping the money at his grandson's house in Texas, but could not provide an address for the house. Mr. Carter again maintained that the money was from two lawsuits, but could not name any of the other parties involved in either of the lawsuits.
Based on our review of the record, we conclude the State demonstrated, by some credible evidence, the probability that the money in fact related to illegal drug activities. Mr. Carter was nervous and defensive when speaking with Trooper Mitchell. He denied having any illegal narcotics or large sums of money in his vehicle, despite K9 "Sergej" alerting to the odor of drugs and subsequent search of the vehicle revealing a large sum of money hidden under a seat. The money was bundled by denominations, a common practice among drug dealers, with $55,000.00 in $20 bills representing almost 75 percent of the total seized. Mr. Carter's criminal history revealed multiple drug arrests, including a federal violation for conspiracy to distribute cocaine. Finally, Mr. Carter could not explain the origin of the funds, offering several different stories of how he came into possession of them. Therefore, we find the State clearly satisfied its burden of establishing probable cause for the forfeiture of the funds.
Motion to Continue
Finally, Mr. Carter argues that it was an abuse of the trial court's discretion to deny his motion to continue the forfeiture hearing until the State produced the requested discovery documents. At the hearing below, George Grace, Mr. Carter's attorney, indicated a continuance was needed "just to flush out the case" as they were close to resolving the matter and could maybe "start that conversation again."
In response, Michael Fruge, the attorney for the State, noted that he agreed to the original continuance on October 25, 2021, because Mr. Carter's attorney, Anderson Council, had a death in the family. Mr. Fruge added, however, that there was an agreement between he and Mr. Grace at the time that no additional information would be submitted to the court for consideration. Mr. Fruge maintained that the matter was submitted on the record and further that no discovery responses from the State would change the fact that Mr. Carter's claim was not filed in compliance with La. R.S. 40:2610(A) and (B).
The minute entry from the October 25, 2021 status conference reflects that the matter was set for hearing on December 13, 2021, and that "[t]he State object[s] to any opposition being filed henceforth."
After hearing argument on the motion to continue, the following colloquy occurred between Mr. Grace and the court:
THE COURT:
Okay. So for the reasons that Mr. Fruge just articulated, I will deny the Motion to Continue. He did reserve that contention in his agreement to the continuance last time, —
MR. GRACE:
That's correct.
THE COURT:
— it would've - his Application for Order of Forfeiture would've been granted then.
MR. GRACE:
Yes, ma'am.
THE COURT:
But we did give Mr. Council the courtesy since his - the personal privilege since he had the death in the family.
And so his attempt to supplement the record thereafter is not going to be allowed. And so I will grant the judgment as prayed for.
Absent peremptory grounds, a continuance rests within the sound discretion of the trial court. City of Bogalusa v. Moses, 2020-0165 (La. App. 1 Cir. 4/16/21), 323 So.3d 404, 407. Louisiana Code of Civil Procedure article 1601 provides for a continuance "if there is good ground therefor." The trial court must consider the particular facts of a case when deciding whether to grant or deny a continuance. The trial court has great discretion in granting or denying a continuance under Article 1601, and its ruling should not be disturbed on appeal in the absence of a clear abuse of discretion. City of Bogalusa, 323 So.3d at 407. Having thoroughly considered the record before us, we cannot say that the trial court abused its great discretion in denying Mr. Carter's motion to continue. Any argument to the contrary lacks merit.
DECREE
For the above and foregoing reasons, we amend the trial court's August 18, 2022 Second Amended Order to reflect as follows: "IT IS FURTHER ORDERED that the State of Louisiana's Application for Order of Forfeiture is GRANTED against the property sought to be forfeited (currency in the amount of $73,900.00), in favor of the State of Louisiana, and against the defendant, David Carter." And, as amended, we affirm the August 18, 2022 Second Amended Order. We assess all costs associated with this appeal against David Carter.