Argued: October 8, 2014.
Appeal from United States District Court for the District of Nebraska - Omaha.
For United States of America, Plaintiff - Appellee: Nancy A. Svoboda, Assistant U.S. Attorney, U.S. Attorney's Office, Omaha, NE.
Mark A. Brewer, Claimant - Appellant, Pro se, Schaumburg, IL.
For Mark A. Brewer, Claimant - Appellant: Justin A. Quinn, Omaha, NE.
Before LOKEN, COLLOTON, and SHEPHERD, Circuit Judges.
SHEPHERD, Circuit Judge.
A Sheriff's Deputy seized $63,530 in U.S. Currency from Appellant Mark Brewer during a traffic stop. The United States subsequently attempted to provide Brewer notice of the seizure. After Brewer filed a claim asserting his interest in the currency, the United States initiated a judicial forfeiture proceeding. Brewer then filed a motion to dismiss, alleging that notice was deficient and that the government had failed to plead sufficient facts to allow the complaint to proceed. The district court denied the motion to dismiss and proceeded to a bench trial, after which it ordered the currency forfeited. Brewer
appeals, asserting that the district court erred in denying the motion to dismiss on the basis of deficient notice and erred in finding that a substantial connection existed between the seized currency and drug activity, that Brewer had failed to prove he was an innocent owner of the funds, and that he had failed to make a prima facie showing of gross disproportionality to sustain an Eighth Amendment Excessive Fines challenge. We affirm.
On November 28, 2011, Douglas County Sheriff's Deputy Dave Wintle initiated a traffic stop of Mark Brewer after observing him crossing three lanes of traffic on a Nebraska interstate without signaling. Deputy Wintle approached Brewer's vehicle and requested Brewer's license and registration. Deputy Wintle also requested that Brewer sit in the police cruiser while he conducted the traffic stop. Brewer complied. Deputy Wintle examined Brewer's license and registration, and began to run a criminal history check. While running this check, Deputy Wintle questioned Brewer about his travel plans. Brewer told Deputy Wintle that he was traveling to Los Angeles to visit his uncle, and was hopeful that his uncle would provide him with employment. He informed Deputy Wintle that he did not have enough money for a hotel and was staying at rest stops along his route. He also informed Deputy Wintle that he was considering purchasing a house and had been in the Air Force, but was currently out of work and was receiving disability.
Deputy Wintle's record check revealed no major violations. He informed Brewer that he would not be issuing a citation and returned Brewer's license and registration. He then asked Brewer if he could ask him a few more questions, and Brewer agreed. Deputy Wintle asked several questions relating to the contents of Brewer's vehicle, including whether Brewer possessed any weapons, drugs, or large amounts of currency. Brewer answered no to each of these questions. Deputy Wintle then obtained Brewer's consent to conduct a sniff search of the vehicle with a drug dog trained to detect the odor of narcotics. The drug dog alerted both on the driver's side of the vehicle and in the trunk. When Deputy Wintle asked Brewer about any possible reason the dog might have alerted, Brewer initially claimed he could think of no reason, but later offered that a bag in the front of the vehicle " might have been around something a few weeks ago." Appellant's Br. 11.
After the drug dog's alert, Deputy Wintle patted Brewer down for weapons. Brewer had no weapons on his person, but Deputy Wintle discovered $1,000 in cash in Brewer's front pocket. This currency was later returned to Brewer. Deputy Wintle then conducted a search of Brewer's vehicle. While searching the trunk, Deputy Wintle found two backpacks. When he opened one, he noticed the strong odor of raw marijuana. Inside the backpack, Deputy Wintle observed what appeared to be a plastic grocery bag. He ripped through a total of three grocery bags before he could see the contents. The bags contained 64 bundles of currency, with each bundle folded and rubber banded. The first 63 bundles were in $1,000 groupings, with the remaining bundle containing $530, for a total of $63,530. Deputy Wintle returned to the police cruiser and questioned Brewer about the currency. Brewer then admitted to possessing large amounts of ...