No.

11-35923

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT _______________________________

UNITED STATES OF AMERICA, Plaintiff-Appellee, D.C. No. 3:10-cv-00097-MPO U.S. District Court for Oregon, Portland

vs. $11,500 IN UNITED STATES CURRENCY, in rem, $2,971 IN UNITED STATES CURRENCY, in rem, Defendants, and CHARLES GUERRERO, Claimant-Appellant ______________________________ Appeal from the United States District Court for the District of Oregon _______________________________ REPLY BRIEF OF APPELLANT _______________________________ Frank de la Puente, Esq. 1610 12th Street SE Salem, Oregon 97302 VOICE (503) 851-1877; FAX 364.2655 Email: Fdelapuente.Esq@gmail.com Attorney for Claimant-Appellant

TABLE OF CONTENTS LIST OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 I. THE COURT ERRED IN STRIKING CLAIMANTS CLAIM.. . . . . . . . . . . . . . . . . . . . 2 A. B. C. II. Claimant has Statutory Standing re the $11,500... . . . . . . . . . . . . . . . . . . . . . . . . . 2 The governments motion to strike was moot, because the court ruled on claimants motion to dismiss, before ruling on the motion to strike.. . . . . . . . . . . 5 The court could have sua sponte granted leave to amend the claim... . . . . . . . . . . 6

ONCE THE COURT FOUND THAT THE GOVERNMENT FAILED TO TIMELY SERVE NOTICE OF THE SEIZURE, THE COURT WAS REQUIRED TO ORDER THE RETURN OF THE PROPERTY TO CLAIMANT.. . . . . . . . . . . . . . . . . . . . . . . . . . 8 A. The government did not appeal the finding of untimeliness of notice.. . . . . . . . . . . . . 8 B. Federal law requires the return of the $11,500 and the $2,971... . . . . . . . . . . . . . . . . . 8

III.

THE $11,500 WAS NOT PROCEEDS OF NOR TRACEABLE TO AN EXCHANGE OF A CONTROLLED SUBSTANCE.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 A. B. C. Government must prove the 983(c) substantial connection.. . . . . . . . . . . . . . 10 The evidence was that the $11,500 was not proceeds of drug trafficking.. . . . . . 13 Neither Nikkos sniff, claimants history of selling drugs, or $100" bills support the governments proof.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 CERTIFICATION OF RELATED CASES.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 CERTIFICATE OF COMPLIANCE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

LIST OF AUTHORITIES SUPREME COURT CASES

Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99 (1957). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Foman v. Davis, 371 U.S. 178 (1962). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 6
CIRCUIT COURT CASES

United States v. $ 49,000 Currency, 330 F.3d 371 (CA5 2003). . . . . . . . . . . . . . . . . . 18 United States v. $639,558 in U.S. Currency, 293 U.S. App. D.C. 384 F.2d 712 (CA DC 1992). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 United States v. $639,558, 955 F.2d 712 (D.C. Cir.1992). . . . . . . . . . . . . . . . . . . . . . . 15 United States v. $874,938.00 in U.S. Currency, 999 F.2d 1323 (CA9 1993). . . . . . . 9 United States v. Funds in the Amount of Thirty Thousand Six Hundred Seventy Dollars ($30,670.00), 403 F.3d 448 (CA7 2005). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 United States v. Mondragon, 313 F.3d 862 (CA 2002). . . . . . . . . . . . . . . . . . . . . . . . . 18 United States v. US Currency, $ 30,060, 39 F.3d 1039 (CA9 1994). . . . . . . . . . . . . . 15
DISTRICT COURT CASES FEDERAL STATUTES

18 U.S.C. 983 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8-10, 12

FEDERAL RULES OF CIVIL PROCEDURE

FRCP 12(b).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 FRCP 15 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

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Supplemental Rule of Civil Procedure G(5). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 4, 7 Supplemental Rule of Civil Procedure G(8) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
OTHER AUTHORITIES

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INTRODUCTION In his opening brief Claimant Charles Guerrero argued that (1) where Claimant properly asserted a possessory interest in his claim, he was not required to assert a bailee interest, and accordingly the district court erred by striking Claimants motion for failure to assert a bailee interest, (2) the court erred by not granting summary judgment to Claimant on the issue of Art. III standing, (3) the court erred by not ordering a return of the money to Claimant, after the court found that the government did not provide timely notice of the seizure for forfeiture of the $11,500 and the $2,971, and (4) the court erred by finding that the $11,500 was forfeitable to the government. In response, the government argues that Claimant lacked statutory standing on the ground that Claimant was a bailee of the $11,500 and failed to assert a claim as a bailee. The government cites no authority for its proposition that a bailee must assert a bailee interest in his claim for standing in a forfeiture proceeding. As to the issue of Art. III standing, the government argues that the issue is moot by the fact that the district court found that Claimant lacked statutory standing. The government advances an argument on the issue of timeliness of the notice of forfeiture, viz., that the notice was timely, though the government did not appeal
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the question of untimeliness of notice presented by Claimant. Finally, the government argues that it was not required to prove the existence of a substantial connection between the $11,500 and the exchange of a controlled substance that it alleged in its complaint, reasoning that the substantial connection requirement of federal law does not apply where the governments theory of forfeiture is that the property seized represented proceeds traceable to an exchange for a controlled substance. ARGUMENT I. THE COURT ERRED IN STRIKING CLAIMANTS CLAIM A. Claimant has Statutory Standing re the $11,500.

The government reasons at page 17 of its reply brief that Claimant was a bailee of the $11,500 and therefore under Rule G(5)(a)(iii) he was required to assert a bailee interest in his claim. In this brief, Rule G means Supplemental Rule of Civil Procedure for Admiralty and Maritime Claims G. Nowhere does Rule G require a bailee to plead an interest as a bailee. Rule G provides only that a claimant who obtained possession of property as a bailee may assert a bailee interest, but neither Rule G nor federal law requires a claimant to do so. See 2006 Advisory Committee Notes to Rule G (explaining that if the claimant states its interest in the property to be
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as bailee, the bailor must be identified.) In order to salvage its bailee theory, the government points to and overstates Claimants deposition testimony by arguing that: According to the uncorroborated testimony of claimant, Rosalie Guerrero [Claimants wife] delivered personal property to him to hold for a specified purpose - safekeeping - to be returned when requested. Gov Brief at 15 (emphasis provided). The government does not cite where in the record Claimant testified that Rosalie told Claimant that the money was to be returned to him. When Rosalie Guerrero transferred possession of the $11,500 to her husband Charles Guerrero for safekeeping, she could have meant that he was to keep it from Virgil Wood who was a drug addict who may have taken the money to buy drugs. Safekeeping may have meant that it was permissible for Claimant to spend the money for Claimants or Rosalies needs, to save it for a rainy day, and not to waste the money. Indeed, on the day when the money was seized, Claimant intended to use the money to post bail for Rosalie. There is no evidence that Rosalie expected Claimant to return any of the money to Rosalie. Even if Rosalie had expected Claimant to return part of the money when requested, her conduct would not have crated a bailment in a legal sense. The

government is essentially arguing that in a transfer of possession between spouses such as here, when a person cautions his/her spouse to keep property safe, the transfer is a bailment in the legal sense as that of a transfer between a bank and a customer who uses the banks safe deposit box, or between an opera house and each patron who entrusts his coat to the coat check room for safekeeping while watching the opera, in each instance the parties clearly understand that a return of the property is expected. The district courts holding is in error, because the evidence showed that Claimant Guerrero properly asserted a possessory interest in his Rule G claim. There was no bailee-bailor relationship between Claimant and Rosalie. Even if Claimant was a bailee in the legal sense of the term, neither the court nor the government has cited any authority for the proposition that a claimant who obtains possession of property as a bailee is required to plead a bailee interest. Along with its other arguments regarding a bailor-bailee relationship between Rosalie Guerrero and Claimant, the governments argument that Claimants interest was that of a bailee with Rosalie as the bailor, infers that Claimant had statutory standing as a bailee. But, that acquiescence of Claimants standing conflicts with the governments distorted reading of Rule G that because Claimant failed to plead a bailees interest, Claimant does not have standing. The governments argument that
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a claimant should forfeit its property to the government on a technicality has no place in American law regarding property rights. The government should not be permitted to deprive someone of his interest in property on a technicality which would operate to strike a claimants statutory claim. See Foman v. Davis, 371 U.S. 178, 181 (1962) (it is too late in the day and entirely contrary to the spirit of the Federal Rules of Civil Procedure for decisions on the merits to be avoided on the basis of mere technicalities). Claimants Rule G claim precisely and affirmatively asserted his possessory interest and it adequately put the government on notice that Claimant had a legitimate basis for claiming the $11,500 seized for forfeiture. B. The governments motion to strike was moot, because the court ruled on claimants motion to dismiss, before ruling on the motion to strike.

Rule G(8) provides under subsection (c) (Motion to Strike) that a motion to strike must be decided before any motion by the claimant to dismiss the action. Rule G(8)(c)(ii)(A). The procedural inference is that the government is barred from moving to strike a claimants claim after the court rules on a claimants motion to dismiss. Here, on 3-15-10, Claimant filed a motion to dismiss under FRCP 12(b). ER 3;

(# 8). [# refers to document number in the district court as indicated in the Court Docket Sheet] On 5-21-10, the government filed its response to Claimants 12(b) motion. ER 4; (# 17). On 7-28-10, the court ruled on Claimants 12(b) motion. ER 5; (#29). On 10-22-10, Claimant filed a second motion under FRCP 12(b). ER 5; (# 36). On 11-5-10, the government filed its response to Claimants 12(b) motion. ER 6; (# 41). On 12-8-10, the court ruled on Claimants 12(b) motion. ER 6; (#42). On 1-1811, the government filed its motion to strike. ER 6; (#45). The government thus filed a response to each motion to dismiss, before filing its motion to strike Claimants claim. By those responses, the government caused the court to rule on Claimants motions to dismiss, before the governments motion to strike. Thereafter, the government was barred from filing its motion to strike. C. The court could have sua sponte granted leave to amend the claim.

Under FRCP 15, when a complaint is dismissed for failure to state a claim for relief, a court has discretion to allow a plaintiff to amend his pleading. FRCP 15 has two overall mandates that judges must follow: (1) liberally give leave, and (2) use leave as a tool for justice. See Foman v. Davis, 371 U.S. 178 (1962). The Federal Rules reject the approach that pleading is a game of skill in which one misstep by
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counsel may be decisive to the outcome and accept the principle that the purpose of pleading is to facilitate a proper decision on the merits. Conley v. Gibson, 355 U.S. 41, 48, 78 S.Ct. 99, 103 (1957). The Rules themselves provide that they are to be construed to secure the just, speedy, and inexpensive determination of every action. Id. Here, the district court concluded that Claimants Rule G(5) claim should be stricken, because, according to the court, Claimant was a bailee who failed to name a bailor. ER 25-26. At that juncture, the court should have used its discretionary authority to sua sponte grant to Claimant leave to amend his claim. After all, the court wrote that Claimant did not move to amend, ER 15, (# 73) (Order page 12), inferring that the court would have granted leave to amend upon a motion by Claimant. Procedurally, however, when the district court struck Claimants Rule G(5) claim as to the $11,500, the court determined that Claimant had no standing as to the $11,500. Without standing, Claimant could not move to amend his claim.

II. ONCE THE COURT FOUND THAT THE GOVERNMENT FAILED TO TIMELY SERVE NOTICE OF THE SEIZURE, THE COURT WAS REQUIRED TO ORDER THE RETURN OF THE PROPERTY TO CLAIMANT. A. The government did not appeal the finding of untimeliness of notice. The district court found that the government was untimely in providing to Claimant notice of the seizure for forfeiture of the $11,500 and of the $2,791. ER 30 (# 73, Order at p. 15). In its brief, the government argues that the government timely complied with the notice requirements of 18 U.S.C. 983 (a)(1)(A)(i) (notice of seizure must be given within sixty (60) days of any seizure). Gov Brief pp 20-22. However, the government did not cross-appeal the courts ruling and the appellate panel here should leave undisturbed the district courts finding of untimely notice. B. Federal law requires the return of the $11,500 and the $2,971. Federal law under18 U.S.C. 983(a)(1)(A)(ii) requires the return of the money to Claimant where the government seizes for forfeiture a persons property and fails to give timely notice of the seizure. Federal law does not condition the return of that property to the aggrieved person on his ability to prove that he has been prejudiced by the governments failure to provide him with timely notice. The government reads 983(a) as providing that where notice of a seizure is untimely, the government is not

required to return property where a claimant does not suffer any prejudice. Gov Brief p. 22. As support for this reading of 983(a) the government cites United States v. $874,938.00 in U.S. Currency, 999 F.2d 1323, 1325 (CA9 1993), a case decided before CAFRA, in which the government had provided timely notice of a seizure, but had delayed in filing a judicial forfeiture action. The Ninth Circuit employed a fourfactor due process analysis to find that the delay was occasioned by the government and by the claimant, and did not violate due process; there was no issue about failure to meet a statutory deadline regarding notice to potential claimants. The case does not support the governments position that where the government seizes property for forfeiture under CAFRA, and fails to provide notice, the government need not return the property. The government has cited no authority for its reading of 983(a). When it comes to potential deprivation of property, the Ninth Circuit must enforce harshly the consequences of untimely notice in a civil forfeiture context under CAFRA. Had Claimant failed to timely file a claim, the government would not be as forgiving as it now asks this appellate court to be. If the Court of Appeals affirms the district courts refusal to order the government to return the property to Claimant, then the government will never have to comply with 18 U.S.C. 983 (a)(1)(A)(ii) (requiring the return of the money for untimely
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noticing). The government will always be allowed to ignore the notice requirement so long as it files its complaint for forfeiture within the time allowed by CAFRA. A federal court must not allow that re-writing of that which Congress enacted, and this court should order the immediate return Claimants property. III. THE $11,500 WAS NOT PROCEEDS OF NOR TRACEABLE TO AN EXCHANGE OF A CONTROLLED SUBSTANCE. A. Government must prove the 983(c) substantial connection.

Section 983(c)(3) of 18 U.S.C. (General rules for civil forfeiture proceedings) provides that if the government's theory of forfeiture is that the property was used to commit or facilitate the commission of a criminal offense, or was involved in the commission of a criminal offense, the government shall establish that there was a "substantial connection" between the property and the offense. 18 U.S.C. 983(c)(3)(emphasis provided) The spirit of 983(c) is that any property seized for forfeiture must be connected in a substantial way to the commission of a criminal offense. It is obvious that an allegation such as the one here that property seized for forfeiture represents proceeds traceable to a criminal offense is an allegation that the property is substantially connected a criminal offense. Accordingly, there is no need to specifically require

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that proceeds be substantially connected to the offense. understood.

The requirement is

Where the allegation is that the property facilitated a criminal offense, federal law specifically requires proof of a substantial connection, because facilitate connotes a broader and vaguer connection between the property and an offense. Without that requirement, then under a facilitation theory of a civil forfeiture proceeding, the danger of overreaching by the government would be present. A facilitation theory can bring into the scope of a forfeiture proceeding property which is remotely connected to the criminal offense. For example, in a proceeding for forfeiture of a house, if the allegation is that the house was used as a place for an offender to eat meals and sleep, but not to sell drugs, the government could argue that the house facilitated the commission of the offense, but would be hard-pressed to connect the house to the offense in a substantial way as where the offender used the house to store, manufacture or as a place out which to sell drugs. But for 983(c), the government would be free to seize and obtain forfeiture of property which is remotely connected to a criminal offense. Claimant submits the above argument as the reason why Congress may have included in 983(c) the specific requirement that the government must prove the existence of a substantial connection when alleging that property
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subject to forfeiture facilitated the commission of an offense. Here, at summary judgment, the court read 983(c) as requiring the government to prove a substantial connection between the $11,500 and drug trafficking. Indeed, the district court wrote: The government opposes claimants motion, and moves for summary judgment in its favor, on the basis that there is compelling evidence in the record to refute claimants contention that the funds came from legitimate sources--evidence which undeniably establishes the substantial connection between the seized currency and illegal drug activity. I agree with the governments position as to the $11,500 only. ER 32. In his opening brief, Claimant has argued that the district court erred in finding that the government had established the 983(c) substantial connection. In response, the government argues that it proved its case under its proceeds theory, i.e., that the money seized was forfeitable because, it represent[ed] proceeds traceable to an exchange for controlled substances. Gov Brief at p. 26. Accordingly, the

government argues under its proceeds theory the government was not required to prove the existence of a substantial connection between the money and illegal activity. The government is mistaken. If the government chose to prove only its theory that the money was proceeds traceable to an exchange for a controlled substance, then, by the above reasoning, the

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government was nevertheless required to establish that there was a substantial connection between the $11,500 and the offense, i.e., the exchange for a controlled substance alleged in its complaint. In other words, under its proceeds theory the government was required to trace the $11,500 back to an exchange for a controlled substance; that is the substantial connection which was to be proven. The government failed in proving that nexus, for there was no evidence that the government traced the money to any crime. Specifically, the government never connected the $11,500 to the alleged recent sales of heroin as alleged in its complaint. See ER 3 (# 1, Complaint at paragraph III, Affi SSA Gino 24). The government was required to prove what it alleged in its complaint, not to speculate. B. The evidence was that the $11,500 was not proceeds of drug trafficking.

The undisputed facts show that the $11,500 seized was intended to be used to post bail for Rosalie Guerrero, conduct which is not prohibited. ER 16-18. Under CAFRA Claimant was not required to prove that the $11,500 was not proceeds of a criminal offense. Nevertheless, Claimant answered questions for the government in a deposition. When asked from where he got the $11,500, Claimant testified that Rosalie Guerrero had given to him $12,000. ER 47. Claimant stated that Rosalie told him the $12,000 was money she had received in an insurance settlement. ER 47.
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Claimant stated the insurance settlement was a result of a car accident, and that Rosalie was a passenger in the car. ER 47. Those facts were undisputed, and squarely controverted the governments speculation that the money represented proceeds traceable to an exchange for a controlled substance. Speculation is not evidence. Summary judgment should have ben granted to Claimant Guerrero. C. Neither Nikkos sniff, claimants history of selling drugs, or $100" bills support the governments proof. (1) Nikko the Drug-Detection Dog The government argues that Officer Groshong confirmed that the dog alerted to the odor of narcotics when it sniffed the $11,500 seized from Woods trunk. Gov Brief at P. 32. The government is wrong: Groshong confirmed that Nikko alerted; Groshong did not write the Nikko alerted to the odor of drugs. The $11,500 was not seized from Woods trunk; Agent Gino had Wood place the money in a bag, seized the money and took it to the basement of the jail to have Nikko sniff it. ER 3 (# 1, Affi SSA Gino 13-14). At summary judgment Claimant pointed out to the court that Groshong did not write that Nikko alerted to the odor of drugs in that Nikko did not bite and claw at the bag containing the $11,500 as Nikkos handler had stated that Nikko would do when

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alerting to the presence of narcotics. ER 69; Gino Dec in Support of Gov MSJ (#67), Ex. 2. In his declaration, (#67) at paragraph 4, Agent Gino stated Officer Groshong informed me that Nikko alerted to the odor of narcotics; if offered for to prove that Nikko had alerted to the odor of drugs, that statement was inadmissible hearsay and the district court should have precluded it from the evidence. The bottom line is that a jury could have found that Nikkos failure to bite or claw at the bag containing the money was evidence in Guerreros favor that the money was not proceeds of narcotics. The jury could have distrusted Nikkos sniff

altogether. He federal courts have considered distrust of drug-detection dog sniffs. For example, expert testimony has been offered in other cases suggesting that between 70 and 97 percent of all bills in circulation in this country are contaminated by cocaine. See United States v. $639,558 in U.S. Currency, 293 U.S. App. D.C. 384, 955 F.2d 712, 714 n.2 (CA DC 1992). Courts have also observed, on the basis of expert testimony, that as many as one in three circulating bills have been involved in a cocaine transaction. See United States v. $639,558, 955 F.2d 712, at 714 n.2 (D.C. Cir.1992). Cocaine and other drugs attach to the oily surface of currency and as each bill passes through cash registers, wallets and counting machines, trace amounts of drugs pass to other bills. See United States v. US Currency, $ 30,060, 39 F.3d 1039
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at 1042-43 (CA9 1994). If, in fact, such a large percentage of bills are contaminated with drugs, then a jury could have found that an alert by a drug-sniffing dog that $11,500 in currency bills in a paper bag is contaminated was of limited probative value. (2) Claimants History is Insufficient to Support a Summary Judgment. At his deposition Claimant testified that he made money selling drugs and in ways other than selling drugs, e.g., Claimant testified that he sold personal property and worked odd jobs. ER 55, 11. Rosalie was obviously legitimately employed, else she would not have received one years worth of wage compensation under the PIP component of the policy of the person who injured Rosalie in a traffic accident. ER 50. Claimant is married to Rosalie Guerrero.; Rosalies income was Claimants income. Claimant Guerrero testified that the insurance settlement was the result of a car accident. ER 6; Government Statement of Undisputed Facts (#47) at 28, citing Guerrero Dep. 29:3-5, 30:6-31:7. The government did not present evidence to controvert Claimants statements regarding the source of the $11,500 which were consistent with the declaration of Kerry Trask, ER 50. That was enough for the court to find that the $11,500 was not proceeds of drug-trafficking. Otherwise, had the
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government controverted Claimants evidence regarding the source of the $11,500, the controversy would have created a genuine issue of material fact for a jury. (3) Money in $100" Bills Evidences a Legitimate Source. In its most absurd argument, the government reasons that $11,500 seized in $100" bills evidences that it was proceeds of drug-trafficking. The government has argued that the amount of drugs found in Virgil Woods car was consistent with streetlevel quantities of distribution, i.e., that Claimant was dealing in street-level quantities of drugs. ER 8 (#68, plaintiffs memo in opposition to claimants second motion for summary judgment at p. 7). It is unreasonable to believe that a street-level seller would deal in $100" bills. It is more reasonable to believe that the $100 bills came from a bank transaction where Rosalie presented an insurance settlement check for cashing, and that as any other reasonable and prudent person would do when cashing a check for even one thousand dollars, Rosalie would have requested $100" bills. Furthermore, unlike cases in which money was found neatly stacked in bundles and bound with rubber bands or sealed in plastic bags which is consistent with the manner in which cash is handled in the drug trade, there was nothing about the way the cash in this case was found that would cause a belief that it represented proceeds of drug trafficking. See, e.g., United States v. Mondragon, 313 F.3d 862, 864 (CA4
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2002) ($500,000 in cash found in professional-grade hidden compartment of an automobile sealed in 15 plastic bags, consistent with practice in the drug trade); United States v. $ 49,000 Currency, 330 F.3d 371, 373 (CA5 2003) (cash found inside garment bag divided into seven bundles, each bearing a small piece of paper denoting the amount, as is common in the drug trade); United States v. Funds in the Amount of Thirty Thousand Six Hundred Seventy Dollars ($30,670.00), 403 F.3d 448, 450 (CA7 2005) (money found in a garment bag and stuffed in claimant's clothes in bundles wrapped in rubber bands). By comparison, there is nothing in SSA Ginos affidavit about the manner in which Wood was found to carry the $11,500 in cash that is consistent with the way money is found in the drug trade. The problem with the governments case is that it put the cart before the horse: it seized the money on a hunch that it would be proceeds of drug trafficking, and then went about the business of proving its hunch by finding and creating evidence, the syllogism being: all drug-traffickers money is drug money, Guerrero is a drugtrafficker, therefore all of Guerreros money is drug money. The falsity of the first premise makes the conclusion false.

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CONCLUSION For all of the above reasons, the Court of Appeals should reverse the district courts holdings on all of the issues presented for appeal, and order entry of judgment in favor of Claimant Charles Guerrero. RESPECTFULLY submitted on April 13, 2012. F. de la Puente ______________________________ Frank de la Puente, OSB 910170

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No. 11-35923 IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff-Appellee, vs. $11,500 IN UNITED STATES CURRENCY, in rem, $2,971 IN UNITED STATES CURRENCY, in rem, Defendants, and CHARLES GUERRERO, Claimant-Appellant ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

CERTIFICATION OF RELATED CASES I, FRANK DE LA PUENTE, counsel of record for claimant-appellant, Charles Guerrero state, pursuant to the Ninth Circuit Court of Appeals Rule 28-2.6, that there is no case with a closely related issue as this case and which could be deemed related. RESPECTFULLY submitted on April 13, 2012. F. de la Puente ______________________________ Frank de la Puente, OSB 910170

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No. 11-35923 IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff-Appellee, vs. $11,500 IN UNITED STATES CURRENCY, in rem, $2,971 IN UNITED STATES CURRENCY, in rem, Defendants, and CHARLES GUERRERO, Claimant-Appellant ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

_______________________________ CERTIFICATE OF COMPLIANCE WITH NINTH CIRCUIT RULE 32(a)(7)(C) _______________________________ Pursuant to Ninth Circuit Rule 32(a)(7)(B)(ii) and (C), I certify that Claimants reply brief is proportionately spaced, it has text that is double spaced, has typeface of 14 points and contains less then 7,000 words from its Jurisdictional Statement to its Conclusion. RESPECTFULLY submitted on April 13, 2012. F. de la Puente ______________________________ Frank de la Puente, OSB 910170

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CERTIFICATE OF SERVICE On April 13, 2012, I electronically filed the foregoing brief with the Clerk of the Court for the United States Court of Appeals for the Ninth Circuit, and I caused a copy of this brief to be served on the following counsel registered to receive electronic service. Robert Nesler (Bob.Nesler@usdoj.gov), (503) 727-1069 F. de la Puente ______________________________ Frank de la Puente, OSB 910170