This Is Your Life on Civil Asset Forfeiture…
Apr. 19, 2016 (Mimesis Law) — Chicago’s longest-running civil asset forfeiture case is now in its 14th year. Nicholas Marrocco’s quest to recover what he says were his “life savings,” $100,120, when the DEA seized them in 2002 is a dizzying tale of temporary victories, setbacks and reversals. Let’s take a look at the facts.
In December 2002, Marrocco, an unemployed pizza parlor manager, tasked his friend Vincent Fallon, an unemployed waiter, with transporting the $100,120 to Seattle. Fallon booked a one-way, first-class ticket on Amtrak; he paid in cash. This caught the attention of a DEA agent, Eric Romano, who was reviewing the train’s passenger manifest. Romano decided that Fallon fit the profile of a drug courier.
Romano and another agent, Sterling Terry, approached Fallon after he boarded the train at Union Station. According to the agents, Fallon, who initially denied he was transporting large amounts of money, began to sweat and tremble during the interview. He allegedly consented to let them search one piece of luggage, a duffel bag, but not another, a locked briefcase. When pushed, Fallon allegedly claimed the briefcase contained $50,000, that he didn’t have the key, and that he was taking the money to Seattle to buy a house.
The officers seized the briefcase, went to the Amtrak police office and asked the Chicago PD for a drug dog. Before it arrived, Romero, in the presence of Fallon and without his consent, opened the briefcase with a pocket knife. Fallon allegedly changed his story again, claiming he was investing the money in a glassblowing venture on a third party’s behalf. Marrocco disputes essentially all the agents’ testimony pertaining to what was said.
Romero then closed the briefcase and stored it in the roll call room. When the drug dog arrived, it alerted on Fallon’s briefcase, the funds were confiscated, and the government initiated a civil forfeiture proceeding.
Marrocco asked a federal district court judge, Elaine Bucklo, to quash the seizure of the funds on the grounds that they were the fruit of an illegal search. Judge Bucklo granted his motion, holding that Romero had reasonable suspicion (based on Fallon’s alleged conduct) to temporarily seize the briefcase, but not the probable cause needed to open it up without a dog sniff.
On appeal, the government invoked the doctrine of inevitable discovery. Admitting that Romero’s search was illegal, the government argued that the illegally seized funds should be allowed into evidence anyway. After all, if Romero hadn’t pried the briefcase open, the CPD would’ve conducted a dog sniff anyway, the dog would still have alerted and the government would’ve found the funds legally. No harm, no foul, right?
The Seventh Circuit agreed, reversed Judge Bucklo’s decision and sent the case back to her court. Per the Civil Asset Forfeiture Reform Act of 2000, the government had to show by a preponderance of the evidence that the assets it seized were used to “commit or facilitate” or otherwise involved in a drug deal.
The government began by filing a motion for summary judgment in its favor. Marocco hit back with a two-pronged plan of attack, challenging the admissibility of the dog’s alert to the briefcase and seeking to provide a legitimate explanation for how he came to own the $100,120.
Marrocco offered expert evidence in support of the “currency contamination” theory, the idea that since most, if not all, US currency is already tainted with cocaine residue, a dog alert to money is meaningless if the goal is to establish the involvement of the money in a drug deal. After some back and forth, Judge Bucklo ruled in favor of the government, deciding it had met its burden of proof even though the “currency contamination” question was never resolved.
Marrocco appealed, and the case went back to the Seventh Circuit. It reversed Judge Bucklo again, holding that Marrocco’s expert evidence, which was never successfully challenged, and Marrocco’s testimony explaining the $100,120, meant the government didn’t sustain its claim to summary judgment.
Back to Judge Bucklo’s court, where a trial was finally held. On Jan. 29, a jury awarded the money to the government. Marrocco’s lawyers have already filed several motions to overturn the verdict, so the case looks set to continue.
Who knows; it might even be resolved in a couple of years.